A decade after issuing her famous Zubulake line of opinions regarding the scope of a litigant's duty to preserve electronic documents and the perils of noncompliance,1 U.S. Southern District of New York Judge Shira A. Scheindlin is back at the blackboard teaching litigators about the appropriate penalty for intentional and permanent destruction of email files despite knowledge of the likelihood of litigation. The Aug. 15 decision, already creating a buzz, is Sekisui American v. Hart,2 which resulted in the plaintiffs being sanctioned by the grant of an "adverse inference" jury instruction on spoliation of evidence and, additionally, by an award to the defendant of reasonable costs, including attorney fees, associated with the motion for sanctions.
What conduct triggered such penalties? And what additional glosses over and above established e-discovery practices prompted Scheindlin to reject that part of U.S. Magistrate Judge Frank Maas' decision in Sekisui that declined to issue sanctions? In order to answer these questions at least a thumbnail sketch of the facts is needed. The dates are important. In 2008 the Sekisui companies expressed interest in acquiring America Diagnostica Inc. (ADI), a medical diagnostic products manufacturer whose CEO was Richard Hart.
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