This article was published in Law360 on November 1, 2019. © Copyright 2019, Portfolio Media, Inc., publisher of Law360. It is republished here with permission.

Pursuant to Federal Rule of Civil Procedure 37(e)(2), imposition of the most severe sanctions for failure to preserve relevant electronically stored information — a presumption that the information lost was unfavorable, an adverse inference instruction, or a dismissal or default judgment — requires proof that a party intended to deprive another party of the use of that evidence.

Unfortunately, the rule does not specify how a court should evaluate a party’s intent, nor under what circumstances a party’s intent should be determined by a jury rather than a judge.

Below, we review recent cases that address the issue of intent to deprive and offer best practices and considerations when supporting or defending against a motion for spoliation sanctions under Rule 37(e)(2).

Rule 37(e) Was Amended to Provide a Uniform Standard of Culpability for Spoliation

Before the 2015 amendments, Rule 37(e) provided that, “absent exceptional circumstances, a court may not impose sanctions ... for failing to provide [ESI] lost as the result of the routine, good-faith operation of an electronic information system.” The rule did not provide any guidance, however, as to the level of culpability required before sanctions could be imposed, leading to the development of conflicting standards among the circuit courts.

In Residential Funding Corp. v. DeGeorge Financial Corp., the U.S. Court of Appeals for the Second Circuit held that an adverse inference instruction may be appropriate in cases involving mere negligent destruction of evidence,¹ while other courts required proof of bad faith or intent to deprive before severe sanctions could be imposed.²

The 2015 amendment to Rule 37(e) rejected Residential Funding and required a finding that the party acted with the intent to deprive another party of the information’s use in the litigation.³ While the amended Rule 37(e) provides a uniform standard, courts continue to reach differing conclusions regarding what is necessary to prove intent to deprive as well as who should determine the party’s intent — the judge or the jury.

Actions or Inactions That Courts Have Found to Establish Intent to Deprive

In Williams v. American College of Education,⁴ a racial discrimination case, American College of Education moved for sanctions, alleging that Williams intentionally destroyed ESI by installing a new operating system on his ACE-issued laptop after advising that he planned to file suit.

At the evidentiary hearing on the motion, ACE’s IT expert opined that the operating system had been reinstalled after the date of Williams’ termination, that reinstallation could not have been done unintentionally, and that there was evidence of files that were present on the hard drive at the time of reinstallation but that no longer existed.

While ACE recovered some deleted emails, it was impossible to determine what information was lost or destroyed.⁵ Williams did not dispute the forensic evidence, but denied that he had performed the reinstallation, suggesting instead that the expert had examined the wrong laptop or that someone else reinstalled the operating system.⁶

Crediting the testimony of IT and forensic personnel, the U.S. District Court for the Northern District of Illinois found that Williams intentionally reinstalled the operating system, resulting in the destruction of potentially relevant information.⁷ The court also found that Williams’ spoliation was willful; that as an IT professional, he knew that reinstallation would destroy relevant data; and that “nothing in the record suggests that reinstalling the operating system ... would have served any purpose other than destroying evidence.”⁸

Coupled with Williams’ repeated lying under oath, the court found sufficient evidence that there was an intent to deprive ACE of the use of the data at trial, which warranted dismissal under Rule 37(e)(2).⁹

In Wilmoth v. Murphy,¹⁰ a prisoner civil rights action, the plaintiff alleged that officer Austin Murphy used excessive force against him while in detention. Pursuant to standard operating procedures, a deputy photographed Michael Shane Wilmoth’s injuries with the deputy’s personal cellphone.

Although the photographs were reviewed in the resulting internal investigation and specifically mentioned in the investigation report, the photographs were either never uploaded to the jail’s reporting system or were uploaded and then misplaced or deleted.

Regardless of the reason, and despite Wilmoth’s filing four motions to compel, the photographs were never produced. Wilmoth claimed the evidence was intentionally destroyed or made unavailable to him and sought sanctions pursuant to Rule 37(e)(2).

The U.S. District Court for the Western District of Arkansas sanctioned the defendant because “the evidence as a collective whole indicates that there were many times when defense counsel buried her head in the sand in this case and never fully committed to producing this evidence or discovering where it was.”¹¹

The court detailed the “full history of incomplete evasive, or untrue discovery responses that, taken as a whole, indicate this defendant’s ... intent to deprive Wilmoth of these materials,” and determined that it would instruct the jury that it may, but was not required to, presume the photographs in question would have supported Wilmoth’s claimed injuries arising from his in-cell confrontation with Murphy.¹²

In these cases, the courts found the intent to deprive was established both by evidence of the uncontested lack of preservation of data coupled with lack of candor to the court by the party or the party’s counsel.

Actions That Courts Have Found Do Not Establish Intent to Deprive

The plaintiffs in Zhang v. City of New York¹³ alleged that Zhang died while detained at Rikers Island. The plaintiffs sought spoliation sanctions for the defendants’ failure to preserve video surveillance and telephone recordings relating to requests for medical attention. The defendants acknowledged that they had not preserved video or audio surveillance. The plaintiffs moved for sanctions, seeking either a default judgment or an adverse inference instruction.

Reviewing the circumstances surrounding the defendants’ loss of, or failure to preserve, the ESI, the U.S. District Court for the Southern District of New York did not find an intent to deprive.

First, while the defendants admitted they did not take any steps to preserve the ESI, when directed to investigate by the court, they did so immediately and transparently reported their findings.

Second, nothing in the record suggested that the defendants deleted information selectively.

Further, the plaintiffs were able to obtain other evidence from those whom Zhang spoke with about his condition, as well as his medical records. While the plaintiffs were not entitled to sanctions under Rule 37(e)(2), the court did find that they had been prejudiced and awarded fees under Rule 37(e)(1).

In Cox v. Swift Transportation Co. of Arizona,¹⁴ a case arising out of the collision of two tractor-trailers, both parties sought sanctions for the others’ failure to preserve ESI. The plaintiffs alleged that the defendant failed to preserve data stored on the electronic control module, or ECM, of the Swift vehicle, messages from the Swift mobile communication system and driver logs for the 1.5 hours before the accident. The plaintiffs sought a directed verdict or an adverse inference instruction pursuant to Rule 37(e)(2).

With regard to ECM and communications data, the U.S. District Court for the Northern District of Oklahoma found that Swift’s stated reason for its failure to preserve — that it saw no reason to preserve given that the accident was caused by the plaintiffs — was adequately supported such that Swift’s failure to preserve was reasonable under the facts known at the time.

With regard to the driver logs, the court found that Swift’s explanation — it failed to account for the time difference between the Mountain and Central Time Zones when preserving the data — was plausible and consistent with the missing data.

Swift also sought severe sanctions for the plaintiffs’ failure to preserve the ECM of their truck. The court found the plaintiffs’ explanation — that Cox was in the hospital for five weeks during which the truck was held for 30 days and then scrapped according to policy — was plausible given the nature of the accident.

Thus, in both of the above cases, the court credited the nonpreserving party’s efforts to mitigate or compensate for the loss, the party’s candor in explaining the loss, and the lack of selective deletion as indicia of lack of intent to deprive.

Determination of Intent to Deprive Left to the Jury

The notes to Rule 37 contemplate that the issue of intent may be determined by a jury, explaining that “the jury may infer from the loss of the information that it was unfavorable to the party that lost it only if the jury first finds that the party acted with the intent to deprive another party of the information’s use in the litigation.”¹⁵

In the cases below, courts held that the question of intent should be determined by the jury because (1) the allegations in the case were closely tied to the lost/destroyed evidence, or (2) the record was not developed fully enough to reach a conclusion regarding intent.

For example, in Cahill v. Dart, a malicious prosecution case, the U.S. District Court for the Northern District of Illinois found that allegations surrounding the destruction of a police surveillance video were closely tied to the plaintiff’s malicious prosecution claim and should be evaluated by the jury.¹⁶

The plaintiff’s criminal attorney subpoenaed the video, but it was destroyed despite the issuance of a request for hold. The defendants subsequently located an edited version of the footage and claimed that the video technician who made the edits observed the plaintiff drop a package of cocaine.

The edited video, however, was inexplicably shorter in length than that which the technician observed and did not show cocaine in the plaintiff’s possession. As a result, the plaintiff’s criminal case was dropped.

In his civil action, the plaintiff argued that the full video would have shown that the package belonged to someone else and that the subsequent prosecution was malicious. Addressing the plaintiff’s motion for sanctions, the court determined that there was a duty to preserve the video and acknowledged that the issue of intent was a close question, but ultimately declined to decide the issue because the destruction was “closely tied to [the plaintiff’s] malicious prosecution claim.”

The court held that, if the plaintiff argued intentional destruction at trial, “the jurors will be instructed that, if they are persuaded that the destruction was intended to deprive plaintiff of the evidence, they must presume the lost evidence would have been unfavorable to Defendants.”¹⁷

In Woods v. Scission,¹⁸ a civil rights case alleging excessive force, evidence suggested that multiple officers arrived at the scene, that the officers witnessed and/or intervened in the arresting officer’s assault on the plaintiff and that the encounter was recorded by multiple dashboard cameras and/or audio recording devices.

The incident was investigated internally, but no recordings or videos were reviewed by investigators and the arresting officer was cleared of wrongdoing. Any recordings that existed were ultimately deleted from police department systems. After determining that there was a duty to preserve and that spoliation occurred that prejudiced the plaintiff, the U.S. District Court for the District of Arizona declined to reach a conclusion on the issue of intent, instead referring it to the jury.

The court explained that the jury would be instructed that that there was a duty to preserve the evidence and that, if it concluded the evidence was destroyed during the litigation, “it may assume that the video footage would have been favorable to [the plaintiff].”

Analysis and Best Practices

Despite the new rule, cases with similar facts are still reaching differing results. Evidence of obstructive behavior in Williams and Wilmoth seemed to tip the scales toward a finding of intent to deprive, but other cases have held differently. Moreover, existing case law does not make it clear when courts may or should leave the determination of intent to the jury.

While cases will necessarily turn on their own facts and circumstances, review of these cases reveals a number of best practices when seeking or defending against sanctions based on a failure to preserve ESI:

• When seeking sanctions, take care not to limit your demands to the severe sanctions authorized by Rule 37(e)(2). Even if the court does not find evidence of intent, evidence of prejudice resulting from a failure to preserve can support a lesser sanction that can help make a party whole.
• Be transparent and responsive to the court and your opponent if data has been deleted. Courts are more likely to infer intent when a party misrepresents the nature of the preservation efforts or stonewalls the other party and the court, rather than working cooperatively toward a solution.
• Selective deletion is more likely to support an inference of intent, so take care to identify potential alternative sources of relevant information lost or, if pursuing sanctions, have evidence or explanations to show why the information is not available from other sources.
• In either pursuing or defending a motion for sanctions, assemble forensic evidence in the form of testimony or affidavits from IT experts, whether as to what data should have been there and is now missing or all steps taken to preserve or, if deleted, recover.

Endnotes