Federal Rule of Civil Procedure 37(e) was adopted in 2015 primarily to resolve the circuit split and promote uniformity of case law on ESI (electronically stored information) spoliation sanctions. This Article examines relevant case law under the new Rule 37(e) and finds that courts have treated similar spoliation conduct differently due to the lack of a clear standard for finding the spoliator's intent to deprive another party of the use of the destroyed ESI at issue. This inconsistency has been exacerbated by the courts’ inconsistent reliance on their inherent authority to sanction based on bad faith analyses. Therefore, this Article proposes establishing a clear and strict standard for courts across the nation to apply in determining whether the spoliator acted with the intent to deprive another party of the use of the relevant ESI under Rule 37(e)(2). Such a standard requires demonstration of the spoliator's willful, intentional act that destroyed the relevant ESI in addition to supporting evidence that sheds light on the spoliator's actual state of mind and intent to deprive another party of the use of the destroyed ESI in litigation. Once courts begin to exclusively apply the proposed heightened standard for Rule 37(e)(2) and no longer rely on their inherent authority or bad faith findings, the inconsistency in case law that has resulted from courts’ reliance on inherent authority and bad faith analyses to date will no longer result, which would be a significant step towards achieving uniformity in case law on ESI spoliation sanctions.
Jung W. Jun & Rockyoun Ihm,
The Federal Rule of Civil Procedure 37(e) and Achieving Uniformity of Case Law on Sanctions For ESI Spoliation: Focusing on the “Intent To Deprive” Culpability Under Rule 37(e)(2),
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol70/iss2/6