February 27, 2020 Civil Procedure

Tug of War over Authority for ESI Spoliation Sanctions

Over the past five years, courts have interpreted FRCP 37 differently, creating a split among the courts and uncertainty for parties facing potentially case-ending sanctions

By Brian A. Zemil

In 2015, Federal Rule of Civil Procedure 37 was amended to establish a consistent, predictable standard for remedying failures to preserve electronically stored information (ESI). To that end, the committee note to that rule explicitly “forecloses” a court’s ability to sanction ESI spoliation misconduct based on its inherent authority. Over the past five years, courts have interpreted that language differently, thereby creating a split among the courts and uncertainty for parties facing potentially case-ending sanctions. Counsel can set the best course for a client only by identifying a specific court’s stance on the inherent authority debate.

Rule 37(e) provides that if ESI “that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery,” then a court can consider remedial measures or sanctions. Subsection (e)(2) provides that a court may impose severe sanctions, such as an adverse inference jury instruction, “only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation.”

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