Judge Rosenthal, sitting in the Southern District of Texas, rendered a lengthy and scholarly opinion arising out of an employment dispute between the Rimkus adjusting / expert firm and some of its former employees. While building on the Pension Committee decision, “in the Fifth Circuit and others, negligent as opposed to intentional, ‘bad faith’ destruction of evidence is not sufficient to give an adverse inference instruction and may not relieve the party seeking discovery of the need to show that missing documents are relevant and their loss prejudicial.” After examining the procedural and evidentiary burdens required for the Court to impose various types and levels of sanctions under the more stringent Fifth Circuit standard, Judge Rosenthal concluded that the employees had engaged the spoliation of evidence which was relevant and prejudicial, and imposed adverse inference as a sanction. Rimkus Consulting v. Cammarata, 688 F.Supp.2d 598 (S.D.Tex. 2010).
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