Second Circuit Refuses To Find Failure To Issue Litigation Hold Gross Negligence Per Se

Reviewing a motion for sanctions for spoliation of evidence, the United States Court of Appeal for the Second Circuit rejected the argument that failure to issue a litigation hold constitutes gross negligence per se. Chin v. Port Authority, Nos. 10-1904-cv(L), 10-2031-cv(XAP), 2012 U.S. App. LEXIS 14088, at *68 (2d Cir. July 10, 2012).  Instead, the Second Circuit held that failure to issue a litigation hold is just one factor in the spoliation analysis.

In Chin, the plaintiffs brought an action under Title VII of the Civil Rights Act of 1964 for failure to promote seven police officers of Asian descent. The basis for the plaintiffs' motion for sanctions was the destruction of promotion folders that had been used as part of the relevant promotion decisions.  The folders were destroyed at some point after the defendant received notice of the plaintiffs' EEOC charge. In their motion, the plaintiffs sought an adverse inference instruction from the district court. The