The problem is familiar: a party fails to preserve some document or thing that would have been discoverable under the Rules, and possible evidence is lost. Years ago, these spoliation of evidence disputes arose most often in accident litigation, such as when a wrecked vehicle was lost (Flury v. Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005)), or when an allegedly-defective air bag went missing (Silvestri v. General Motors Corp., 271 F.3d 583(4th Cir. 2001)). But now, many of these disputes center on deleted emails, lost databases and other missing electronically stored information (“ESI”). Given that ESI is so important in cases — and given that is especially vulnerable to destruction — spoliation disputes have become common. See e.g., Anderson v. Bd. of School Directors, 2013 U.S. Dist. LEXIS 116082 (W.D. Pa. Aug. 16, 2013); Sekisui Am. Corp. v. Hart, 2013 U.S. Dist. LEXIS 115533 (S.D.N.Y. Aug. 15, 2013); and Oleksy v. Gen. Electric Co., 2013 U.S. Dist. LEXIS 107638 (N.D. Ill. July 31, 2013).
When a spoliation issue has led to a sanctions motion, some courts have ruled that sanctions may issue if a party negligently fails to preserve relevant evidence. See, e.g., Beavens v. United States, 622 F.3d 540 (6th Cir. 2010). But in other instances, courts have ruled that sanctions will issue only if there is willfulness or bad faith involved. See, e.g., Bracey v. Grandin, 712 F.3d 1012 (7th Cir. 2013). Sanctions might include an instruction at trial, permitting the jury to infer that the lost records would have been unfavorable to the party that lost them. See Kounelis v. Sherrer, 529 F.Supp.2d 503 (D.N.J. 2008).
In recent weeks, the Committee on Rules of Practice & Procedure of the U.S. Judicial Conference has proposed a rule to standardize motion practice on spoliation. In its draft revision to Rule 37, the Committee proposes that, if a party fails to preserve discoverable information (either during litigation or in anticipation of litigation), the court may:
- Permit additional discovery, order other “curative measures,” or direct the offending party to pay the attorneys’ fees incurred by the other side as a result of the failure; and
- Impose sanctions (including adverse inferences) if the party’s actions (1) caused substantial prejudice and were willful or in bad faith, or (2) irreparably deprived a party of “any meaningful opportunity to present or defend against the claims in the litigation.”
The Proposed Rule 37 then lists factors that courts may consider when evaluating willfulness or bad faith. The full text of the proposed rule is available here.
The Committee has asked for input from the bar on this proposal. Comments may be submitted electronically here until February 14, 2014.