Discovery Delay Resulting in Automatic Data Loss Warrants Adverse Jury Instruction

The court granted in part plaintiff's motion for an adverse jury instruction because defendant's dilatory discovery resulted in lost evidence. "[Defendant's] argument that nonparty Flash updates and changes the configuration files is without merit. Even if these files are purged in the normal course of business, [defendant] had a duty to preserve files concerning its own data network and compression servers, place a litigation hold on such files, and produce them [for the last 18 months]. . . . Although the Court is not concluding that [defendant's] log and configuration files were 'destroyed with a culpable state of mind,' [defendant] nonetheless skirted its discovery obligations, delaying in producing explicitly requested files despite a duty to preserve and produce. Participation in such discovery abuse is indicative of insincere intent and gamesmanship.”

Realtime Data, LLC d/b/a IXO v. MetroPCS Texas, LLC, et. al., 6-10-cv-00493 (TXED October 23, 2012, Order) (Love, M.J.).