Rockman Co. (USA) v. Nong Shim Co.

ORDER DENYING PLAINTIFFS’ MOTIONS FOR SANCTIONS

INTRODUCTION

Plaintiffs 1 want sanctions imposed on defendants 2 for the alleged spoliation of evidence following the inception in June 2008 of an investigation by the Korean Fair Trade Commission (KFTC) into allegations of price-fixing in the Korean Ra-men Noodle market. Defendants oppose, arguing that an obligation to preserve documents relevant to the antitrust claims asserted in this case arose only after the inception of this litigation in 2013, and that if any documents were destroyed, that destruction occurred without any intent on the part of defendants to deny plaintiffs access to them in this litigation.

The central issue that I decide on these motions is whether a duty to preserve arose in 2008 in light of the KFTC’s investigation. In other words, should that investigation have put these companies on notice that litigation in the United States was *1112 reasonably foreseeable such that they were required to depart from their normal course of conduct where ESI, including email, was routinely destroyed and hard copy documents were maintained for only a few years. I conclude that given the case law and the facts alleged,…