In our last column, we explored the encouraging trend of courts determining the propriety of sanctions for spoliation of electronically stored evidence with reference to the proposed amendment to Federal Rule of Civil Procedure 37(e). Judge Shira Scheindlin of the Southern District of New York, one of the federal judiciary’s leading experts on e-discovery and author of some of its most consequential e-discovery decisions, has recently weighed in on the future of sanctions for the destruction of evidence, however, and expressed serious reservations about the proposed changes to Rule 37(e). In Sekisui American v. Hart,1 Judge Scheindlin reversed Magistrate Judge Frank Maas’ report and recommendation denying the defendants’ motion for sanctions. Scheindlin instead granted the defendants’ motion and sanctioned Sekisui for destroying email files relevant to the litigation long after having sent the defendants a notice of claim.
‘Sekisui’
Sekisui American Corporation and Sekisui Medical Co. (collectively, Sekisui) sued Richard Hart and Marie Louise Trudel-Hart for breach of contract arising out of Sekisui’s acquisition of American Diagnostica Inc. (ADI) in 2009. Hart had been the chief executive officer of ADI, but was fired after Sekisui determined that ADI had violated the sale agreement governing the acquisition. In that contract, ADI represented that it had complied with relevant federal regulations, that its facilities were adequate to conduct business, and that its products contained no material defects. Sekisui sent the Harts a notice of claim on Oct. 14, 2010, and filed a complaint on May 2, 2012.
