Under the current state of the law, identical conduct can result in a wide variance in sanctions depending upon the court and jurisdiction. For example, in In re Pfizer Inc. Securities Litigation, U.S. Magistrate Judge Henry Pitman declined to award sanctions for negligent conduct and echoed a reminder from the U.S. Court of Appeals for the Second Circuit’s 2012 Chin v. Port Authority decision that a “finding of gross negligence merely permits, rather than requires, a district court to give an adverse inference instruction” or to award other sanctions. Pitman found that Pfizer’s conduct in failing to preserve “E-Room” content was, at most, negligent, and plaintiffs’ “bare assertion” that some documents were missing was insufficient to establish relevance.
Yet, in Sekisui American Corp. v. Hart, U.S. District Judge Shira Scheindlin issued a reminder that, at least in her court, grossly negligent conduct resulting in destruction of electronically stored information triggers a presumption of prejudice to the nonspoliating party.
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