The court granted in part plaintiff's motion for an adverse inference jury instruction where defendants did not disable the auto-delete function in their email program. "Even as litigation with [plaintiff] was 'reasonably foreseeable,' [defendant] kept its auto-delete policy in place at all times. . . . [Defendant] may be right that the record does not establish any bad faith on its part. But bad faith is not the required mental state for the relief [plaintiff] seeks. All that the court must find is that [defendant] acted with a 'conscious disregard' of its obligations. In light of its biweekly automatic destruction policy, [defendant] had a duty to verify whether its employees were actually complying with the detailed instructions [defendant] claims it communicated to them. . . . [A]t all times, [defendant] never checked whether even a single. . . custodian was at all in compliance with the given directives, while at all times the 14-day destruction policy was in place. This is more than sufficient to show willfulness."
Apple Inc. v. Samsung Electronics Co. Ltd., et. al., 5-11-cv-01846 (CAND July 25, 2012, Order) (Grewal, M.J.).