Before a court may give an adverse inference instruction to punish a party’s spoliation of evidence in violation of Rule 26 and Rule 37′s preservation duties, the court must find that: the evidence was within the party’s control; there was an “actual suppression or withholding of evidence;” the evidence destroyed or withheld was relevant to the claims or defenses; and it was reasonably foreseeable that the evidence would be discoverable. This is according to the 3rd U.S. Circuit Court of Appeals’ 1995 decision in Brewer v. Quaker State Oil.
With respect to a spoliator’s requisite “actual suppression” of evidence for imposition of e-discovery adverse inference sanctions, there is an intra-jurisdictional rift in the 3rd Circuit.
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