Case Law

Sanctions Motion Denied Where There is No Prejudice or Intent to Deprive and Documents Could Have Been Restored or Replaced Through Additional Discovery

North Carolina

Eshelman v. Puma Biotechnology, Inc., 2017 U.S. Dist. LEXIS 87282 (E.D.N.C. June 7, 2017) In a case involving claims of libel relating to an allegedly defamatory investor presentation, the plaintiff raised various discovery concerns via a motion to compel. The first part of the motion sought a jury instruction mitigating the harm caused by the defendant’s failure to preserve Internet web browser and search history. Denying the motion for an adverse jury instruction, the court found that the plaintiff failed to meet the requirements of FRCP 37(e), finding insufficient evidence of prejudice, a lack of intent to deprive and no explanation of whether the lost ESI could be restored or replaced through additional discovery. Interestingly, the court noted that the plaintiff relied on case law predating the 2015 revisions to FRCP 37(e). The remainder of the plaintiff’s motion sought to compel documents from the defendant in response to several requests for production, which the defendant objected to as vague, lacking merit or duplicative. The court evaluated each request separately, granting the majority of the requests for relevant, non-privileged documents under specific parameters.

Keywords: FRCP 37(e), adverse jury instruction