Commercial Litigation and Arbitration

Spoliation — Bad Faith Not Required in First Circuit

From Velez v. Marriott PR Mgmt., Inc., 2008 U.S. Dist. LEXIS 103484 (D.P.R. Dec. 22, 2008):

Applicable caselaw in the First Circuit has clearly established that "bad faith or comparable bad motive" is not required for the court to exclude evidence in situations involving spoliation. Trull v. Volkswagen of America, Inc., 187 F.3d 88, 95 (1st Cir. 1999).

In addition to the severity of the prejudice suffered the court must also consider "whether the non-offending party bears any responsibility for the prejudice from which he suffers." Driggin, 141 F.Supp.2d at 121. "Fairness to the opposing party... plays a substantial role in determining the proper response to a spoliation motion, and punishment for egregious conduct is not the sole rationale for the most severe sanction of exclusion." Trull, 187 F.3d at 95.

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