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D. Ore.: Permissive Instruction That Information is Damning
June 9, 2019
On Friday, Judge Michael Simon issued an order granting the plaintiff's Rule 37(e) motion for sanctions in Univ. Accounting Serv. v. Schulton, No. 3:18-cv-1486-SI, 2019 U.S. Dist. LEXIS 96062 (D. Or. June 7, 2019). Judge Simon found that the defendant committed spoliation when he deleted emails and webinar recordings so he could say he did not have access to them (even though it was established that he anticipated litigation), and when he deleted a client list just before a hearing, "because it's exactly the type of damning information that UAS wants to catch me with.". Id. at *20.
Despite this, the decision states that only a permissive, and not a mandatory inference spoliation instruction will be given to the jury.