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As Hawaii courts have not resolved whether Hawaii law would recognize a tort of spoliation of evidence (whether intentional or negligent spoliation), would we simply file a “Motion for Sanctions for Spoliation” ? and ask for 1. a judgment by default against opposing party; 2. or adverse inference instruction to the jury; 3. or the preclusion of evidence relating to the issue of our damages; or 4. for monetary sanctions ? I'm just trying to determine what I should file with the Circuit Court in response to Plaintiff's intentional/ negligent spoliation of evidence critical to proving our Counterclaims...
What is the evidence which was spoliated?
ESI - specifically, e-mail How was the evidence spoliated (negligently or intentionally)?
they testify the electronic folder "disappeared"What is your evidence of the spoliation?
by their own testimony in the Court Record & their Response to our requests for Answers & Production of DocumentsWhat did you need the evidence for in your case?
ALL is needed for us to prosecute our Counterclaims of: Misrepresentation, Unfair & Deceptive Trade Practices, and Unjust Enrichment
OK, thanks - and as to timing, we have not yet had our Pre-Trial Conference - file now, or ?
If available, could you direct me to a sample Motion for Sanctions/ Spoliation ? And am I asking for Adverse Inference - NOT an Adverse Presumption ? How important is it for me to include Case Law in my Motion for Sanctions ?