March 30, 2017 Practice Points

Your Spoliation Motion Must First and Foremost Show "Prejudice"

Courts will not be sympathetic merely because evidence has been destroyed.

By Andrew Felser

In seeking sanctions for spoliation, a party must show prejudice. Courts will not be sympathetic merely because evidence has been destroyed. 

In a recent ruling, the U.S. District Court for the Western District of Arkansas noted the high burden in bringing a sanctions motion for spoliation. Wal-mart Stores, Inc. v. Cuker Interactive, LLC, 5:14-cv-05262 (W.D. Ark. Jan. 19, 2017). A month into its preparations to sue, plaintiff Walmart erased electronically stored information from a laptop used by a former employee, who became an important fact witness. Defendant Cuker moved for sanctions under Rule 37(e). Walmart claimed that the data wipe was standard procedure whenever an employee left the company, as was the case in this instance, and was not an intentional deprivation. The court was not impressed with the motion or Walmart’s defense. As for the sanctions request, Cukor had declined an opportunity to review a backup tape of the witness’s emails. For that reason, Cukor could not show prejudice. Prejudice being the threshold issue under Rule 37(e)(1), there was no basis for further inquiry. “[A]t least some of [the] absent material was discoverable and available to the party seeking the sanction, who nevertheless chose not to review it.” The court declined to infer prejudice by speculating if the wiped data contained more information than the backup tapes. In denying Walmart’s motion for attorney fees, the court found that Rule 37(a)(5)(B) does not apply to spoliation motions, and that even if it did, Walmart’s destruction of the evidence, when it should have known it would be relevant, was suspicious and “a very poor practice”.

While the court purported to find no prejudice at all, its ruling can—and probably should—be read to require a showing of unfair prejudice. It seems a stretch to say there wasn’t any prejudice in this case. Nevertheless, attorneys should be aware of the burdens in bringing a spoliation motion and make sure they can show sufficient prejudice.


Andrew Felser is with Felser, P.C., in Denver, Colorado.


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