Litetronics Int’l., Inc. v. Technical Consumer Prods., Inc., No. 03 C 5733, 2006 WL 2850514 (N.D. Ill. Sept. 28, 2006) (Ashman, Mag. J.).

Defendant sought sanctions pursuant to Fed. R. Civ. P. 37 arguing spoliation of evidence because plaintiff Coollite sold a factory in China which included various documents defendant had requested during discovery.  Judge Ashman denied the motion for sanctions because defendant had not shown that the documents had been destroyed.  The issue was who controlled the documents, but neither plaintiff nor defendants had requested the documents from the plant’s new owner.  Additionally, defendant had not investigated whether the Hague Convention might allow for discovery of the documents.  This leads to an important practice tip:  make sure to ask for third party documents, or at least start the process of asking for them, before seeking help from a court to get the documents.