In Innis Arden Golf Club v. Pitney Bowes, Inc., et. al., 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009), U.S. District Court Judge Janet B. Arterton granted defendants' motion for spoliation sanctions for plaintiff's failure to preserve soil samples and electronically stored information associated with the testing of those samples.

In January 2005, plaintiff, a century old golf club, hired an environmental consultant to analyze potential environmental contaminants (PCBs) on its property.  The consultant identified the adjacent property owned by defendant Pitney Bowes as a potential source of the contamination. Plaintiff initiated steps to seek cost recovery from the defendant and hired legal counsel in March 2005.  Plaintiff's counsel advised that potentially responsible parties ("PRPs") should be given notice in order to minimize the potential for them to later allege plaintiff altered the existing condition of the property or otherwise prejudiced their rights.  Plaintiff began notifying PRPs in August of 2005.  Plaintiff's consultant destroyed the early soil samples and continued its destruction practices even after the commencement of litigation.  Plaintiff's consultant also failed to preserve much of the original electronically stored laboratory data related to its analysis, including gas chromatograph data, quality control sample data, calibration data, raw instrument data and analyst/technician logs.

 The court ruled that plaintiff's duty to preserve began, at the latest, in mid-2005 when counsel was actively involved in the investigation and preparing for legal action against the defendants. The court rejected plaintiff's argument that its preservation obligation was extinguished once it gave notice to defendants, noting plaintiff only gave notice regarding remediation of its property and failed to mention its intention to destroy the soil samples and other evidence. Plaintiff also unsuccessfully argued that defendants could not establish prejudice unless they demonstrated their intent to actually use or rely on the destroyed evidence at trial.  The court rejected this argument noting that plaintiff itself characterized the destroyed information as "key evidence."

In the Second Circuit, a party may be sanctioned for the destruction of evidence even in the absence of bad faith or intentional misconduct.  While the court did not find a basis to conclude plaintiff purposefully destroyed the evidence for its own advantage, the court held the resulting destruction and significant prejudice suffered by Pitney Bowes could not be remedied by an adverse inference or negative inference instruction.  Instead, the court, relying on FRCP 37(b) and its "inherent power to control litigation", issued an order precluding plaintiff from using or relying on any evidence based on the destroyed soil samples at trial.