In Arteria Property PTY LTD. v. Universal Funding VTO, Inc., 2008 U.S. Dist. LEXIS 77199 (D. N.J. Oct. 1, 2008)(UNPUBLISHED), the court granted plaintiff’s motion for spoliation sanctions and recommended that two adverse inference instructions be read to the jury.

According to the court, defendants failed to produce a Bank of New York letter that it had identified in its initial disclosures and failed to preserve its website information.  In an earlier proceeding, the court held that the information was in defendants' care, custody and control and issued an order permitting plaintiff to file a motion for spoliation sanctions in connection with the final pre-trial order.  After a series of continuances, the court allowed Universal Funding's owner, defendant Vincent O'Hara, to proceed pro se.  In opposition to the motion for an adverse inference instruction, defendant O'Hara simply wrote, "[Defendant] disagrees on 'The Motion of Spoliation'[.]  This never happened." 

The court granted plaintiff's motion holding that the defendants had a duty to preserve the letter and website information.  The court found that at one time the Bank of New York letter was in defendants' control and the letter was relevant to the litigation.  The court further found that the defendants either intentionally withheld the letter from production or negligently lost it.  Similarly, the court found that defendants had custody and control over the website, even if the website was maintained by a third party.   The court ruled that it had been given an "adequate factual predicate for flexing" its muscles to impose sanctions and determined that, based on defendants' actions of either willfully withholding the information or destroying it, an adverse inference should be provided to the jury.