New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
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Spoliation — Standards for, and Impact of, Adverse Inference Instruction

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The Eleventh Circuit’s standards for an adverse inference instruction are set forth in Judge B. Avant Edenfield’s opinion in Sapeu v. Bland, 2007 U.S. Dist. LEXIS 66606 (S.D. Ga. Sept. 10, 2007):

[The] court must consider the following factors: (1) whether plaintiff was prejudiced as a result of the destruction of evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether defendant acted in good or bad faith; and (5) the potential for abuse if expert [or, presumably, non-expert] testimony about the evidence provided by the spoliator were not excluded. With regard to the fourth factor, the law does not require a showing of malice in order to find bad faith. The court should weigh the degree of the spoliator's culpability against the prejudice to the opposing party.[Citations and internal brackets and quotations omitted.]

Judge Edenfield denied the request because the inmate plaintiff was, in the Court’s words, alleging ‛no destruction [of evidence], just monkeying around with the record,“ which could be explored at trial.

The potent impact of an adverse inference instruction for spoliation is summarized in Judge William D. Quarles, Jr.’s opinion in EEOC v. L.A. Weight Loss, 2007 U.S. Dist. LEXIS 66461 (D. Md. Aug. 31, 2007):

In practice, an adverse inference instruction often ends the litigation--it is too difficult a hurdle for the spoliator to overcome. The in terrorem effect of an adverse inference is obvious. When a jury is instructed that it may infer that the party who destroyed potentially relevant evidence did so out of a realization that the evidence was unfavorable, the party suffering this instruction will be hard-pressed to prevail on the merits. [Citation and quotation omitted.]

Judge Quarles agreed to grant such an instruction against the defendant for violation of Title VII’s document retention requirements. Presumably, the same logic would apply to other statutory or regulatory requirements, including those imposed by Sarbanes-Oxley, the SEC, and the U.S. tax code.

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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