Sanction litigation concerning lost electronically stored information (ESI) has evolved into a cottage industry. Litigators commonly and aggressively pursue spoliation-related evidence in a quest for an adverse inference instruction or, worse, case-terminating sanctions. Clients approve of those tactics because spoliation can yield a potentially profitable return that avoids the merits of a case and spotlights an opposing party’s misconduct.
Based on a 2015 advisory committee note to Rule 37(e) of the Federal Rules of Civil Procedure, courts are increasingly looking to jurors to determine whether a putative spoliator has acted with the intent necessary to warrant remedies under the rule. The note also explains that if the jury finds that a “party acted with the intent to deprive another party of the” spoliated ESI’s “use in the litigation,” the court “should make clear that the jury may infer from the loss of the information that it was unfavorable to the party that lost it.”