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TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Our Case has not yet been set for Jury Trial - Im assuming

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Our Case has not yet been set for Jury Trial - I'm assuming a spoliation motion is a pre-trial motion ?
Yes it is.
Customer: replied 4 years ago.

OK, any further suggestions as to the motion - it seems that it would be a matter for a Jury to decide at Trial - or if the Judge (after a pre-Trial Hearing) granted the Motion (spoilation/ interference or destruction of evidence) - how would that impact the Trial ??

My suggestion would be you will need to research the case law regarding the motion and the civil procedure rules for the jurisdiction you are in for the motion. The motion will have to be pled to meet the standards and quote the law for spoliation.
Customer: replied 4 years ago.

OK, thanks again... BotXXXXX XXXXXne: If the Judge (after a pre-Trial Hearing) granted the Motion (spoilation/ interference or destruction of evidence) - could their Case be dismissed as a "discovery sanction" ?? (the evidence they now claim is mysteriously "lost" is CRITICAL for our counterclaim, they simply rely on the Lease for their claims for damages)

Dismissal of a claim (or the "death penalty") as a sanction is reserved for the most extreme of circumstances where you have uncontroverted proof that they intentionally destroyed evidence to keep you from getting it.

Here, it does not sound like you have that kind of proof. It sounds more like they were negligent, which generally leads to an evidentiary presumption. In other words, the element of your counter-claim which you cannot prove because they destroyed the evidence will be presumed to have been proven unless they can controvert it with hard evidence to the contrary.
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