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TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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As Hawaii courts have not resolved whetherHawaii law would

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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...


You would indeed file a Motion for Sanctions for Spoliation. The remedy you ask for really depends on the type of spoliation which took place.

What is the evidence which was spoliated?

How was the evidence spoliated (negligently or intentionally)?

What is your evidence of the spoliation?

What did you need the evidence for in your case?
Customer: replied 3 years ago.

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 Documents

What 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

Ah yes, I recall discussing this.

In your motion, you want to specifically describe the missing information and how you know it existed in the first place. You then need to go through and state why it was negligent that they have conveniently lost the information and that they had notice that this information would be in contention when they filed their lawsuit (provide facts and explanations to support this argument). Then, you state how exactly the spoliated evidence would support your case and why you cannot get this information from any other source, and thus have suffered "irreparable harm" because of the Plaintiff's negligent and potentially intentional spoliation.

Then, I would suggest that you seek an adverse inference instruction regarding the element of your counter-claim that the spoliated evidence would establish, and costs of bringing the motion as sanctions for the intentional/reckless spoliation.

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Customer: replied 3 years ago.

OK, thanks - and as to timing, we have not yet had our Pre-Trial Conference - file now, or ?

Yes! The sooner the better. The judge may reserve ruling on the motion until the pre-trial conference, but you want to file it now and have it as an ax dangling above their heads (increasing your leverage).

Customer: replied 3 years ago.

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 ?

A presumption is a higher sanction than an inference. An inference says "jury, you may infer that since the plaintiff destroyed this evidence, the evidence was against the plaintiff."

A presumption says "jury, you may presume that the evidence which the plaintiff destroyed established the element of ______(causation,liability, etc).

Unfortunately, I'm not aware of any form for a motion for spoliation.
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