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 Second Circuit’s 2012 Chin v. Port Authority, Nos. 10–1904, 10–2031 (2d Cir. 2012) 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. No. 04-Civ.-9866 (S.D.N.Y. Jan. 8, 2013). 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 , No. 12 Civ. 3479 (S.D.N.Y. Aug. 15, 2013), U.S. District Court 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 non-spoliating party.
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