In an interesting shift of gears, Alina Habba recently initiated a move for a mistrial relating to the second E. Jean Carroll defamation case. This move centered around the notion that plaintiff Carroll spoliated evidence by erasing threats against her life.
This is not the first time Habba has taken such a course of action. When Carroll admitted to removing death threats from her email and direct messages, Habba likewise sought a mistrial. Judge Kaplan instructed the jury to dismiss the proposal, and Habba then turned her attention to more immediate concerns, such as whether Carroll possesses a gun permit.
Habba’s recent renewal of her mistrial motion cited a procedural issue that she claimed not only made a mistrial appropriate but also absolutely necessary. The essence of her argument was that the plaintiff’s failure to retain the aforementioned evidence – described to the jury by Carroll herself – severely prejudiced President Trump’s defense by depriving him of vital information.
Habba quoted Fed. R. Civ. P. 37(e) to support her claim, noting that it provided, indeed for the possibility of adverse jury instruction and dismissal, but only upon the demonstration that the party-plaintiff in this case-acted with the specific intention of depriving the opposing party of the information for use in the litigation. Thus far, no such finding has been made. Carroll explained in court that she deleted the threatening messages out of fear, after becoming terrified when she found herself alone in her home, receiving emails threatening her life.
The point to note here is that Rule 37 is a discovery rule and the discovery phase is now over, so it does not apply to a mistrial. It is likely the court will consider the issue as having been waived, as defendant appears to have willingly sat on it for over a year and then endeavored to catch the plaintiff off guard by bringing it up on the witness stand.
For more insights on the case, you might find Carroll v. Trump I and Carroll v. Trump II useful resources to review.