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Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 24 of 42 (2d Cir. 2002)’, that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence.” Fed. R. Civ. P. 37(e)(2) Advisory Committee's Note to 2015 Amendment; see also Thomas v. Butkiewicus, No. 3:13-CV-747 (JCH), 2016 WL 1718368, at *7 (D. Conn. Apr. 29, 2016) (recognizing abrogation of Residential Funding). There is no claim of spoliation — no information has been lost or destroyed since the threat or initiation of litigation when there would have been a duty to preserve. There is no bad faith. Ms. Maxwell has completely complied with all Court Orders and there are no accessible accounts or electronic devices that have not been searched. i. The cases cited by Plaintiff are not the controlling standards, and Plaintiff fails to establish the elements required for an adverse inference Plaintiff relies heavily on her previously briefed motion requesting an adverse inference relying on factors in a single case, Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2nd Cir. 2002). This case sets forth the standard for an adverse inference based on the inherent powers of the Court (not under Rule 37(b)) where the party failed to produce relevant documents prior to the commencement of trial. /d. (““where, as here, an adverse inference instruction is sought on the basis that the evidence was not produced in time for use at trial, the party seeking the instruction must show (1) that the party having control over the evidence had an obligation to timely produce it; (2) that the party that failed to timely produce the evidence had “a culpable state of mind”; and (3) that the missing evidence is “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense’). By contrast, however, courts have repeatedly noted that an adverse inference, and application of the Residential Funding test, are not appropriate for a mere delay in production, especially when all documents are produced prior to depositions and trial. See > This is the primary case relied on by Plaintiff in support of both of her Motions for an adverse inference. 9