The paradigm that has emerged in e-discovery cases involving spoliation claims is that success regarding the spoliation claim will lead not just to imposition of monetary sanctions on the offending party but also to “adverse inference” instructions that will result in the offending party losing on the merits.
The “poster children” cases for this model were Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004), “a relatively routine employment discrimination dispute” (in the words of the Zubulake court) which led to a $29.5 million judgment, and Coleman Holdings, Inc. v. Morgan Stanley, 2005 WL 67071 (Fla. Cir. Ct. March 1, 2005), rev’d on other grounds, 955 So. 2d 1124 (Fla. Dist. Ct. App. 4th Dist., 2007), which led to a $1.5 billion (with a “B”) judgment.
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