In 2010, federal courts in New York, Texas, and Maryland rendered well-publicized decisions on the proper factors to consider on a motion for sanctions based on spoliation of electronically stored information. Two issues predominated in each case — culpability and prejudice. In the first decision, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities,[FOOTNOTE 1] the court in the Southern District of New York held that sufficiently culpable conduct was enough to warrant severe, even case-dispositive, sanctions irrespective of whether the innocent parties demonstrated that the loss of such ESI was prejudicial.
The subsequent decisions, Rimkus Consulting Group Inc. v. Cammarata,[FOOTNOTE 2] and, perhaps more so, Victor Stanley Inc. v. Creative Pipe Inc.,[FOOTNOTE 3] seemed to de-emphasize culpability; focusing instead on the alleged relevance of the spoliated ESI and the resulting prejudice to both the innocent party’s case and the truth-finding process. Since these decisions, several federal district courts have weighed in on the proper analysis for ESI spoliation motions with differing results but some trends are emerging.
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