In In re Washington Mutual, Inc. Securities Litigation, 2009 U.S. Dist. LEXIS 99727 (W.D. Wash. Oct. 27, 2009), U.S. District Court Judge Marsha J. Pechman barred portions of plaintiffs' expert opinions on spoliation of electronically stored information holding that to permit such testimony would run afoul of her earlier ruling precluding plaintiffs from inferring that defendants destroyed or lost ESI unless and until it brought forth non-speculative admissible evidence to support such an inference.

This case involves three consolidated class action complaints alleging, among other things, securities violations and unlawful business practices against several banks and investment companies.  The court earlier ruled that defendants lost or destroyed certain potentially relevant information contained on hard drives and on disc.  However, the court barred plaintiff from offering any evidence of alleged spoliation at trial without non-speculative evidence to support an inference that defendants' conduct was intentional.  Plaintiff sought to use expert testimony to explain "what steps where taken resulting in the deletion of the documents, how partial information was recovered, and what information was irretrievably lost."  The court excluded the testimony holding that plaintiffs' main purpose in eliciting the testimony was to create an inference in the jury's mind that defendants intentionally destroyed evidence in an attempt to cover up alleged wrongdoing.