For more serious e-discovery sanctions, this case is a great example that even with deleted evidence after there was a duty to preserve, there is a high threshold for proving that the offending party had the “intent to deprive.”
In this misappropriated trade secrets case involving self-driving car technology, the plaintiff, Waymo, alleged that the defendant, Uber, spoliated a variety of different data types that included “hundreds of text messages,” Slack records, five CDs and a couple of personal laptops.
Throughout discovery, the plaintiff accused the defendant of consistently engaging in discovery misconduct. The plaintiff requested an adverse jury instruction. Even though the defendant conceded that this data was deleted, they countered by arguing that they didn’t have a duty to preserve, because they didn’t reasonably foresee litigation and that the spoliated evidence was irrelevant.
Download the PDF version of Waymo LLC v. Uber Techs, Inc. case law alert here.
Parties seeking adverse jury instruction related to spoliation of ESI must be prepared to prove intent to deprive. In the event this is not shown, the court may reserve ruling on such instruction until trial. Having more time to prove or refute the assertion should not be relied on, however, since “intent” is often subjective or simply hard to determine and will vary from judge to judge.