Adverse Inference based upon the Failure to Produce Evidence

         In a recent jury trial, my client and I were faced with the inability to obtain a piece of evidence that we believed would demonstrate that a former employee misappropriated trade secrets.  When the former employee returned the company computer devices many of the devices were wiped clean, or restored to factory defaults.  The data on one company computer was not completely destroyed.  My client enlisted the assistance of David Gitkos and Global Digital Forensic.  Through a forensic analysis of the company computer David Gitkos was able to testify that in excess of 22,000 company files were rapidly accessed in successive order.  David Gitkos explained to the jury that this was indicative of mass copying of the company files.  David Gitkos also testified that a USB mass storage device was inserted into the company computer at the same time the company files were being rapidly accessed.
            The missing piece of the puzzle was the USB mass storage device.  David Gitkos based upon his training and experience could reasonably presume that the 22,000 company files were copied onto the USB mass storage device, but the jury may disagree.  We attempted to obtain the USB mass storage device through discovery, but it was not produced.  The former employee testified at trial that the USB mas storage device contained personal information and had nothing to do with her employment.  The former employee also testified that shortly after she left her employment the USB mass storage device was destroyed when her young child was playing with it. 
            Keen v. Hardin Mem. Hosp.(Ohio App. 3rd Dist.), 2003-Ohio-6707, at ¶10 provides that the trial court can instruct the jury that they are permitted to make an negative inference; permitting the jury to infer that such evidence would have been unfavorable to the party who failed to produce the evidence, quoting, Banks v. Canton Hardware Co. (1952), 156 Ohio St 453. 
            See, also RFC Capital Corp. v. EarthLink, Inc.(Ohio App. 10th Dist.), 2004-Ohio-7046, at ¶¶88-89.

           Here, the trial court instructed the jury that an adverse inference that the missing evidence would be unfavorable to the  party  who  failed  to  produce  it  arises  where  there  is  relevant  evidence  under   the   control   of   a   party   who   fails  to   produce   it   without   satisfactory   explanation.  

           I believe that the jury instruction on adverse inference was key to the jury determination that the former employee misappropriated trade secrets in Mahoning County Court of Common Pleas case No. 2014 CV 1896 known as Poseidon Environmental Services, Inc. vs. Nu Way Industrial Waste Management, LLC.