Pension Committee of the
With respect to the grossly negligent plaintiffs-I will
give the following jury charge:
The Citco Defendants have argued that 2M, Hunnicutt,
Coronation, the Chagnon Plaintiffs, Bombardier Trusts, and the Bombardier
Foundation destroyed relevant evidence, or failed to prevent the destruction of
relevant evidence. This is known as the “spoliation of evidence.”
Spoliation is the destruction of evidence or the failure to
preserve property for another's use as evidence in pending or reasonably
foreseeable litigation. To demonstrate that spoliation occurred, the Citco Defendants
bear the burden of proving the following two elements by a preponderance of the
evidence:
First, that relevant
evidence was destroyed after the duty to preserve arose. Evidence is relevant
if it would have clarified a fact at issue in the trial and otherwise would
naturally have been introduced into evidence; and
Second, that if
relevant evidence was destroyed after the duty to preserve arose, the loss of
such evidence would have been favorable to the Citco Defendants.
I instruct you, as a matter of law, that each of these
plaintiffs failed to preserve evidence after its duty to preserve arose.* This failure resulted from their gross
negligence in performing their discovery obligations. As a result, you may
presume, if you so choose, that such lost evidence was relevant, and that it
would have been favorable to the Citco Defendants. In deciding whether to adopt
this presumption, you may take into account the egregiousness of the
plaintiffs' conduct in failing to preserve the evidence.
However, each of these plaintiffs has offered evidence that
(1) no evidence was lost; (2) if evidence was lost, it was not relevant; and
(3) if evidence was lost and it was relevant, it would not have been favorable
to the Citco Defendants.
If you decline to presume that the lost evidence was
relevant or would have been favorable to the Citco Defendants, then your
consideration of the lost evidence is at an end, and you will not draw
any inference arising from the lost evidence.
However, if you decide to presume that the lost evidence
was relevant and would have been unfavorable to the Citco Defendants, you must
next decide whether any of the following plaintiffs have rebutted that
presumption: 2M, Hunnicutt, Coronation, the Chagnon Plaintiffs, Bombardier
Trusts, or the Bombardier Foundation. If you determine that a plaintiff has rebutted
the presumption that the lost evidence was either relevant or favorable to the
Citco Defendants, you will not draw any inference arising from the lost
evidence against that plaintiff. If, on the other hand, you determine that a
plaintiff has not rebutted the presumption that the lost evidence was
both relevant and favorable to the Citco Defendants, you may draw an inference
against that plaintiff and in favor of the Citco Defendants-namely that the
lost evidence would have been favorable to the Citco Defendants.
Each plaintiff is entitled to your separate consideration.
The question as to whether the Citco Defendants have proven spoliation is
personal to each plaintiff and must be decided by you as to each plaintiff
individually.
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* It is important to explain that the jury
is bound by the Court's determination that certain plaintiffs destroyed
documents after the duty to preserve arose. See West,
167 F.3d at 780 (upholding jury instruction that directed the jury to
presume certain facts). However, the jury is not instructed that the Court has
made any finding as to whether that evidence is relevant or whether its
loss has caused any prejudice to the Citco Defendants. The jury must
make these determinations because, if the jury finds both relevance and
prejudice, it then may decide to draw an adverse inference in favor of the
Citco Defendants which could have an impact on the verdict. Such a finding is
within the province of the jury not the court. Cf. Nucor,
251 F.R.D. at 202-03 (discussing that certain sanctions, such as default,
are imposed by the court rather than the jury).