Wednesday, February 8, 2017
A review of the first year of cases under the amended spoliation sanctions rule reveals simpler analyses from judges and some relief from severe sanctions for litigants, but new ambiguities create uncertainty about reasonable steps, demonstrating intent, and inherent authority
In the first Part of this series, we reviewed the December 2015 amendments to Federal Rule of Civil Procedure 37(e) and the issues that amendment was intended to address. In the second Part, we reviewed orders discussing “reasonable steps” to preserve that which must be preserved. In this Part, we turn our attention to the requirement that an “intent to deprive” be found before the most serious sanctions can be applied.
INTENT TO DEPRIVE
As we noted in the first part, one of the things the amended version of the rule was intended to do was resolve a circuit split that was creating uncertainty and increased preservation costs. The split was between jurisdictions where severe sanctions might be applied on the basis of some form of negligence and others where severe sanctions required a showing of intentionality. As explained by the Advisory Committee on Civil Rules in its May 2014 Report:
Some circuits, like the Second, hold that adverse inference jury instructions (viewed by most as a serious sanction) can be imposed for the negligent or grossly negligent loss of ESI. Other circuits, like the Tenth, require a showing of bad faith before adverse inference instructions can be given. The public comments credibly demonstrate that persons and entities over-preserve ESI out of fear that some might be lost, their actions with hindsight might be viewed as negligent, and they might be sued in a circuit that permits adverse inference instructions or other serious sanctions on the basis of negligence.
The amended version of FRCP 37, in Subdivision (e)(2), attempts to resolve this split in favor of the higher standard requiring a showing of intentionality. As explained in the Advisory Committee Notes to the 2015 Amendments:
This subdivision authorizes courts to use specified and very severe measures to address or deter failures to preserve electronically stored information, but only on finding that the party that lost the information acted with the intent to deprive another party of the information’s use in the litigation. . . . It rejects cases . . . that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence.
The new 37(e)(2) also requires the same showing of intent for the application of dismissal or default judgment as a spoliation sanction.
2016 DECISIONS DISCUSSING INTENT TO DEPRIVE
Over the course of the first year under the amended rule, a number of courts had the opportunity to issue orders on motions for spoliation sanctions and to consider whether or not a party had “intent to deprive.” Here is a representative sampling:
The first year of orders considering “intent to deprive” shows a bit more variation than the orders considering “reasonable steps” we reviewed in the last Part. Reviewing the orders listed above reveals that some courts have been very willing to infer intent from the circumstances of the preservation failure itself – some going so far as to comingle the intent to deprive analysis with the reasonable steps analysis (inferring intent to deprive directly from the lack of reasonable steps). Other courts have interpreted the requirement strictly and looked for more direct evidence of intent to deprive. It will take more time and decisions to see if this divergence coalesces back around a consensus approach or if we have traded one circuit split for another.
UPCOMING IN THIS SERIES
In the next Part of this series, our survey of 2016 spoliation sanctions decisions will look at the question of whether amended FRCP 37(e) is the sole source of authority for spoliation sanctions.