Court Rulings

Spoliation based on gross negligence was found when defendant continued its 21 day e-mail deletion policy which probably resulted in the destruction of potentially relevant e-mails after the lawsuit was filed, after opposing counsel "reminded" defendant of its duty, and after discovery was served encompassing the e-mails. "In this case, defendants' failure to preserve the e-mails plainly constituted at least gross negligence in light of (a) the pendency of the case, (b) their attorney's advice to Kevin Moulton to preserve evidence and (c) the specific nature of plaintiff's document request." ... "As for culpability, we are not persuaded that defendants acted in bad faith, that is, for the express purpose of obstructing the litigation. They appear simply to have persevered in their normal document retention practices, in disregard of their discovery obligations." The lesser remedy was granted permitting plaintiff to "argue to the trier of fact that this destruction of evidence, in addition to other proof offered at trial, warrants the inferences that the public was confused and that the MasterCard marks were diluted and tarnished."