First, although we have recognized that “a trial court has the power to take all reasonable steps short of dismissal, depending on the equities of the case,” Richardson, 76 Hawaii at 504, 880 P.2d at 179, we can find no case in which a trial court has devised comparable sanctions. The cases cited by Ford, in which courts excluded expert testimony based on missing evidence, see, e.g., Unigard Sec. Ins. v. Lakewood Eng’g & Mfg., 982 F.2d 363, 368-69 (9th Cir.1992), are inapposite; here, Perysian was an eyewitness to the accident, not an expert who formed opinions based on subsequent examination of the evidence. Even assuming that the sanctions lay within the broader scope of the circuit court's powers, we do not believe that they were justified in this case. See Turner, 142 F.R.D. at 77 (<HOLDING>). Besides Perysian's statement, Ford produced
holding that to consider whether to apply a spoliation sanction the evidence must be relevant to an issue in the case and the party who destroyed the evidence must be under a duty to preserve the evidence recognizing that summary judgment must be approached with special caution in discrimination cases holding that where the destruction was negligent rather than willful special caution must be exercised to ensure that the sanction is commensurate with the information that was reasonably likely to have been contained in the destroyed evidence holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted holding that motions for summary judgment in patent cases must be considered with unusual caution