While there should be no question that there may be serious consequences for destroying evidence subject to legal preservation obligations, there are no bright lines showing how specific instances of spoliation map to specific sanctions. A recent decision from the U.S. District Court for the Southern District of New York demonstrates this point starkly. In Sekisui Am. Corp. v. Hart, the court declined to issue an adverse inference even though the plaintiff deleted “the entire active email folder of an important witness—perhaps the key witness—at a time when [plaintiff] obviously knew that it might commence a lawsuit.”

The allegations trace events starting with the 2009 acquisition by the plaintiff of a company controlled by the defendants, the Harts. Mr. Hart was kept on as CEO, but in late 2010, the plaintiff fired Hart. It warned him of its intention to seek legal redress against him based on allegations of wrongdoing associated with the sale of the business.

More than a year went by before plaintiff took its own warnings seriously enough to make any attempt to preserve electronically stored information (ESI). To make matters worse, the plaintiff outsourced its IT operations but did nothing to notify its IT vendor about any preservation obligation until three months after filing the complaint against the Harts. And in a seeming coup de grace, plaintiff's HR director, Taylor, told the vendor to delete a number of email folders, including Hart's.