In AJ Holdings,5 after holding a four-day evidentiary hearing, the motion court granted spoliation sanctions. The motion court reviewed each of the three factors set forth in Zubulake v. UBS Warburg,6 which states that the “party seeking an adverse inference instruction … based on the spoliation of evidence must establish the following three elements: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a ‘culpable state of mind’; and (3) that the destroyed evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Adopting from Zubulake the concept of “key players” who are “likely” to possess relevant information, the motion court found certain individuals fell into such category and therefore had an obligation to “preserve their email relevant to a potential lawsuit during the relevant time frame.”

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