How to Get a Sanction Against Your Opponent: Judge Jones Explains It All

Tuesday, July 11, 2017

If you’re confused about the standard for sanctions under the 2015 FRCP amendments, a recent decision lays it out for you in a clear and comprehensive manner. Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D (E.D.N.C. June 7, 2017) is a matter involving a plaintiff’s motion for an order permitting a jury instruction in response to the defendant’s failure to preserve certain internet web browser and search histories.

In his Order, Magistrate Judge Robert B. Jones, Jr. denied the motion, saying that the Plaintiff “is not entitled to a sanction pursuant to Rule 37(e)(1)” and specifically that it “is not entitled to an adverse jury instruction as a sanction pursuant to Rule 37(e)(2).”  Fair enough and many judges might stop there. But Judge Jones went on to elaborate as to exactly why he denied the Motion.


The case is a libel suit involving an allegedly defamatory presentation to investors which was also shared with stockholders. The discovery dispute arose over a litigation hold letter to Defendants requesting preservation of “web browser histories” of individuals involved in the drafting of the presentation. Counsel for the Defendant responded that the defendant uses Google Chrome as an internet browser which deletes web browser history after 90 days.  Since the letter exceeded that time frame, it was argued, the web browser history information sought no longer existed. Plaintiffs then filed a motion asking for “a jury instruction to mitigate the harm caused by the defendant’s failure to preserve electronically stored information.”

Judge’s Ruling

Judge Jones went through a thorough recounting of the requirements of the Federal Rules and an accompanying detail of how the Plaintiff failed to meet those requirements.

First came Rule 37(e)(1) and Rule 37(e)(2). The Judge stated, “the plaintiff has not established one of the threshold elements of Rule 37(e)—namely, that the lost ESI ‘cannot be restored or replaced through additional discovery…’.”  And leaving no room for doubt as to how that might be accomplished, he continued that “…other avenues of discovery are likely to reveal information about the searches performed in advance of the investor presentation. For example, the plaintiff could seek information about the internet searches performed by the individuals who prepared the investor presentation through deposition testimony.”

Second, Judge Jones stated that “the plaintiff has failed to make a sufficient showing of prejudice to support relief under Rule 37(e)(1). In order to impose a sanction under Rule 37(e)(1), the court must have some evidence regarding the particular nature of the missing ESI in order to evaluate the prejudice it is being requested to mitigate.”

Third, the Judge ruled that “the plaintiff has also failed to show that the defendant acted with the requisite intent to deprive him of the ESI in order to support the imposition of an adverse jury instruction under Rule 37(e)(2).” Further, he concluded that “[a]t most, the circumstances indicate the ESI was lost due to the defendant’s negligence, but do not suggest the presence of intentional conduct. Negligence, however, will not support an award of sanctions under Rule 37(e)(2).”

Finally, Judge Jones noted that “while the plaintiff states that he seeks a jury instruction to mitigate the harm caused by the defendant’s failure to preserve electronically stored information (“ESI”), the plaintiff does not define the particular instruction sought.”

For all these reasons, Judge Jones found that “the plaintiff is not entitled to an adverse jury instruction as a sanction pursuant to Rule 37(e)(2).”

So,  there you have it. Want a sanction under Rule 37?  Here’s your checklist:

  1. Show the data you seek is unavailable elsewhere
  2. Show you have been prejudiced by not getting the data
  3. Show the failure to preserve the data was intentional
  4. Specify as much as possible the sanction you seek

Thanks, Judge Jones.



Author: Tom O’Connor, Senior eDiscovery Consultant, Advanced Discovery

Tom O’Connor is nationally known as a consultant, speaker, and writer. In his consulting work, Tom specializes in working with law firms and their corporate clients to manage their electronic discovery needs. As senior eDiscovery consultant for Advanced Discovery, he assists clients in database design, implementation, and training. He also addresses specific eDiscovery issues such as retention policies, litigation holds and document exchange protocols. Tom speaks at major legal conferences and writes for both the Advanced Discovery blog and national legal publications.

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