NUVASIVE, INC. v. JONES et al
| NUVASIVE, INC. |
| MICHAEL JONES and KENNETH KORMANIS |
| 1:2018cv00282 |
| April 11, 2018 |
| US District Court for the Middle District of North Carolina |
| NCMD Office |
| XX US, Outside State |
| L. PATRICK AULD |
| CATHERINE C. EAGLES |
| Other Contract |
| 28 U.S.C. ยง 1332 |
| None |
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Filing
174
ORDER signed by JUDGE CATHERINE C. EAGLES on 03/29/2019, that the plaintiff NuVasive's motion for imposition of sanctions for spoliation of evidence, Doc. 85 , is GRANTED IN PART, the defendant Kenneth Kormanis' objections to the Magistrate Judge's order and recommendation, Doc. 165 , are OVERRULED, and the Magistrate Judge's order and recommendation, Doc. 154 , is AFFIRMED and ADOPTED IN FULL. (Garland, Leah)
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Filing
154
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 03/13/2019, that Plaintiff's Motion for Imposition of Sanctions for Spoliation of Evidence (Docket Entry 85 ) is GRANTED IN PART, as set out. On or before March 27, 2019, the parties shall file a joint notice either confirming their resolution of all issues regarding the payment of Plaintiff's reasonable expenses from the depositi on of (and any related subpoena to) Mr. Warrick or setting out their respective positions on any issue (s) regarding that payment that remain in dispute after good-faith consultation. On or before March 27, 2019, the parties shall file a joint noti ce either confirming their resolution of all issues regarding the payment of Plaintiff's reasonable expenses from drafting, filing, briefing, and orally arguing the instant Motion or setting out their respective positions on any issue(s) regardi ng that payment that remain in dispute after good-faith consultation. RECOMMENDED that the Court defer until trial the decision of whether other "serious measures are necessary to cure prejudice [from the loss of text messages], such as forbi dding [Defendant Kormanis] from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argu ment, other than instructions [that it may or must presume the lost text messages were unfavorable to Defendant Kormanis]," Fed. R. Civ. P. 37 advisory comm.'s note, 2015 amend., subdiv. (e) (1). FURTHER RECOMMENDED that, because the rec ord supports but does not compel a "finding that [Defendant Kormanis] acted with the intent to deprive [Plaintiff] of the [lost text messages'] use in the litigation," Fed. R. Civ. P. 37(e)(2), the Court submit that issue to the &qu ot;jury, [with] the [C]ourt's instruction[s ] mak[ing] clear that the jury may infer from the loss of the [text messages] that [they were] unfavorable to [Defendant Kormanis] only if the jury first finds that [he] acted with the intent to deprive [Plaintiff] of the[ir] use in the litigation," Fed. R. Civ. P. 37 advisory comm.'s note, 2015 amend., subdiv. (e)(2). (Garland, Leah)
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