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Navigating data loss at trial.

Byline: Robert D. Owen

In this electronic age, data loss happens. And when it does, it can change nearly every aspect of a trial. Whether intentional or negligent, data loss can lead to severe sanctions. One sanction--the imposition of an adverse inference instruction--can create an extremely difficult hurdle for the spoliator to overcome.

The space to litigate the issues surrounding data loss and adverse inferences often depends on the nature and timing of the adverse inference instruction. Is it permissive? Is it mandatory? Are there limitations on the admissibility of certain evidence? But ultimately, navigating data loss at trial is much like navigating any bad evidence at trial. The best tactics for handling a bad fact will depend on the nature of the fact and the context of the case. But all of the tactics emanate from the same two-part trial strategy for dealing with any bad fact. Explain, then cabin.

Get out in front of it: Explain

Don't be caught flatfooted. If you know that a spoliation issue is going to create a bad fact for you, figure out how to take the sting out by telling the jury about it before your opponent gets the opportunity to address it. In the words of the hoary trial lawyer adage, be sure the jury gets the "explanation before the accusation."

This explanation can be in broad strokes and relatively subtle, such as an opening statement that mentions the data loss and puts it in context of the daunting demands of securing tens of thousands of documents and millions of emails.

Stick with it: Contextualize and cabin

Once you have moved out in front of your bad fact, stick with it. Make it part of your theory and story of the case. If the jurors accept your framework of the case, they are more likely to accept your characterization of the data loss. Cabin the data loss issue by weaving it into a coherent story of the case that accounts for it and places it in its proper context as a procedural issue unrelated to the merits of the case.

Themes for when your client has lost data

* If it's true, make sure the jury knows that the data loss was an accident.

* Have your witnesses deny that they intentionally destroyed data. Let the jury hear it straight from your witnesses. Let them see that your people are credible.

* Be sure the jury knows about the volume and complexity of the data and how reasonable and diligent people might easily make a mistake in handling it.

* Be sure the jury knows about the large volume of data you did produce and the efforts you took to preserve it.

* If accurate, emphasize that there is no proof that the lost data was negative to your case.

* Have your witnesses affirmatively state their belief that nothing in the lost data contradicts your trial themes. The jury needs to see your witnesses take the stand, look them in the eyes, and explain why the lost data is not relevant to the case.

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FURTHER READING: Litigation management for the in-house generalist: Discovery best practices and closing thoughts Spoliation and the long-awaited federal e-discovery rule changes Upsetting the status quo: How disruptive innovation affects in-house discovery technology

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Themes for when your opponent has lost data

Now the shoe is on the other foot. Your opponent has lost data and you are trying to make the most of it at trial. Here are a few themes to consider.

* Stress the importance to a fair trial of having all the data, negative and positive. Remind the jury that our justice system is meant to find the truth, and the truth requires access to all the facts.

* Linger on the lost data and refer to it repeatedly in all stages of the trial; if appropriate, make it one of your trial themes. Once you have convinced the jury that the administration of justice requires access to all the facts, don't let them forget that your opponent's failure to preserve all the data has deprived the court of that critical access to the facts.

* Stress the importance of the lost data to your case. Remind the jury that access to data is not just critical to the justice system generally; it is critical to you and your case.

* Don't overdo it. Nobody likes a bully, not even a righteous one. Make your points, but do so fairly, calmly and respectfully. Your calm, respectful demeanor will only help to convince the jury of your sincerity and reasonableness and increase their irritation with your opponent for failing to provide the data that would allow all parties to fully make their case in court.

Get dueling adverse inference instructions

If you are on the wrong end of an adverse inference instruction, consider trying to neutralize it with an adverse inference instruction in your favor. That's exactly what Samsung did in Apple Inc. v. Samsung Electronics Co., a patent infringement claim involving smartphones and tablets. After the court issued an adverse inference instruction in favor of Apple, Samsung successfully moved for a similar instruction in its own favor. Faced with such mutually assured destruction (or at least a completely unpredictable jury verdict), the parties agreed that neither adverse instruction should be given.

Avoid the jury

Finally, we have to recognize that, regardless of counsel's skill at explaining and contextualizing data loss, sometimes an adverse inference--and the facts that prompted it--will almost certainly overshadow any merits of your case, particularly in the eyes of jurors. If this is the case, consider asking for a bench trial. While the adverse inference will remain, it will be applied by a judge, who is equipped to understand and adhere to the precise boundaries of the inference.
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Publication:Inside Counsel Breaking News
Date:Jun 16, 2015
Words:958
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