Evidence Spoliation.

Byline: Natalie Miller

Where defendants have alleged spoliation of evidence on the part of the plaintiffs, the spoliation motion should be denied without prejudice as to lead-content testing of sample products.

"In these contentiously litigated consolidated cases, Quick Fitting, Inc., defendant in 13-33 and plaintiff in 13-56, accuses the Wai Feng parties of having engaged in willful spoliation of significant relevant evidence. Now pending before the Court for determination is Quick Fitting's massive motion (ECF No. 220)2 asking the Court to make a finding of spoliation as to twenty-four categories of electronically stored information ('ESI') and other physical evidence. Based on the alleged spoliation, Quick Fitting moves for adverse inferences that encompass most of the elements of its claims that the Wai Feng parties misappropriated trade secrets, violated restrictive covenants and sold it push-fit products with excessive lead content; the motion also seeks other unspecified ('monetary') sanctions, presumably attorney's fees. Some of the relief sought by the motion reprises arguments that the Court addressed in response to a motion Quick Fitting filed in 2015; at that time, the Court found 'no evidence of any intentional withholding, refusal to search or spoliation of evidence by the Wai Feng defendant,' as well as that, 'this is a situation ... [where] Quick Fitting is not happy with what it got as a result of the discovery because it doesn't support its theory of the case[.]'

"For the reasons that follow, the motion for findings of spoliation of evidence is denied, except for two Items, as to which it is denied without prejudice to Quick Fitting seeking a curative sanction depending on what is presented at trial. In so ruling, the Court clarifies that this determination is based on Quick Fitting's failure as of this juncture to establish as to any of the Items in issue (except for the two) the prerequisites required by law to justify a sanction either to cure prejudice or for intentional or bad faith destruction of evidence. In the event that the evidence presented at trial establishes or permits the inference that such prerequisites exist as to any specific lost item of evidence, the Court's denial of this motion is not an impediment to Quick Fitting (or the Wai Feng parties) seeking an adverse inference instruction or a curative sanction (such as preclusion) at that time.

"[F]or two Items (ASI # 21-22), Quick Fitting points to...