Unanswered E-Discovery Questions in the 3rd Circuit
September 30, 2011
Types : Bylined Articles
Before a court may give an adverse inference instruction to punish a party’s spoliation of evidence in violation of Rule 26 and Rule 37’s preservation duties, the court must find that: the evidence was within the party’s control; there was an “actual suppression or withholding of evidence;” the evidence destroyed or withheld was relevant to the claims or defenses; and it was reasonably foreseeable that the evidence would be discoverable. This is according to the 3rd U.S. Circuit Court of Appeals’ 1995 decision in Brewer v. Quaker State Oil.