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M.D. Tenn. Rules on Spoliation Motions

On Friday, Judge Waverly D. Crenshaw, Jr. issued a decision, EPAC Techs. v. Harpercollins Christian Publ., No. 3:12-cv-00463, 2019 U.S. Dist. LEXIS 1816 (M.D. Tenn. Jan. 4, 2019), ruling on several motions in limine for a trial scheduled to begin this coming Wednesday.

Among these were the Defendant's motion in limine to exclude evidence about his alleged spoliation. He argued that the Plaintiff had mischaracterized the Court and the Special Master's rulings on spoliation and was likely to do so again in front of the jury. The Court determined that the Defendant negligently deposed of relevant books after its duty to preserve arose. Judge Crenshaw ordered a curative jury instruction that the Defendant breached its duty to preserve and that the books could support the Plaintiff's claims. A curative jury instruction of this nature was also ordered for warehouse data and emails that were lost due to the Defendant's negligence. The jury was to take into consideration that the lost ESI would have shown whether or not books were returned, whether orders were filled on time and correctly, and where the books were shipped from.

The Court also ruled on Defendant's motion that EPAC committed spoliation. The motions against EPAC allege that it allowed electronic production data to be lost when it was transferred to third party servers; it lost emails which would show that its platform could fulfill orders for the Defendant; and that it failed to produce financial statements. The Defendant said that it did not create financial statements in the ordinary course of business.

The Court denied the first motion because the Defendant did not show that the production data could not be obtained from other sources, and determined that no Rule 37(e) sanction was warranted. Judge Crenshaw did not find that the identification of four relevant emails that had not been produced supported a finding of spoliation. He also noted that the Defendant made no showing of intent necessary for an adverse inference instruction. The final motion for sanctions was also denied. "To the extent Thomas Nelson questions EPAC's financial practices or the provenance of these data, it may explore those topics and challenge EPAC's proof of damages at trial. A Rule 37(e) sanction of excluding all proof of lost profit damages, however, is not warranted on this record." Id. at *58.

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