Drug & Device News

Judge Shira Sheindlin, of the U.S. District Court for the Southern District of New York, has handed Japanese medical equipment manufacturer Sekisui Medical America an unusually stiff sanction for spoliation of electronic evidence. In Sekisui Medical America v. Hart, Judge Sheindlin went against the recommendation of a magistrate judge, who advised against sanctions because of a lack of evidence of “malevolent purpose” on the manufacturer's part in failing to put a litigation hold on its electronic records until 15 months after it filed suit against the former owners of a company it had purchased.

During that period, e-mailed correspondence between Sekisui and the defendant former owners of the purchased company were deliberately deleted. The defendants were unable to prove malice, but the court observed that “[t]he law does not require a showing of malice to establish intentionality with respect to the spoliation of evidence.” On the contrary, she wrote, “In the context of an adverse inference analysis, there is no analytical distinction between destroying evidence in bad faith, i.e., with a malevolent purpose, and destroying it willfully.”