Opaque Polymers, 337-TA-883 (ITC October 29, 2014, Order) (Pender, ALJ)
Tuesday, November 4, 2014
$1.9 Million Spoliation Sanction Awarded Against Respondent and Counsel
The ALJ granted in part complainants' motion for spoliation sanctions and imposed monetary sanctions of nearly $2 million against respondent and counsel for complainants' forensic investigation into the spoilated evidence. "[Respondent] is a Turkish chemical company with no significant operations in the United States. . . . Accordingly, imposing monetary sanctions against [respondent] alone would likely give [complainants] ineffective relief. . . . Second, counsel for [respondent] was present in Turkey to oversee the inspection of [a] company-issued laptop when the spoliation occurred. Third . . . the explanations in [respondent's letter] for the destruction of evidence on the . . . laptop and the behavior that occurred thereafter to try and cover up the spoliation are not the slightest bit credible on its face. Any diligent effort by counsel to check the veracity of the explanations in that letter before it was filed would have revealed them as false.. . . . Fourth, there is no affirmative evidence of record that a litigation hold memo, or equivalent, was issued or disseminated in this investigation. Nor is there evidence that an active undertaking was made to preserve evidence in this investigation."