Adverse Inference Not Available Under Rule 37(e)(1) As Remedy For Unintentional Spoliation

The recently amended Federal Rule of Civil Procedure 37(e) establishes two categories of conduct that can support an order of relief for the spoliation of Electronically Stored Information.  First, where spoliation of ESI was "intentional" (i.e., meant to deprive the other party of the use of the information), the court may award sanctions under Rule 37(e)(2).  Second, where spoliation was not intentional but still resulted in prejudice to the innocent party, the request for relief is governed by Rule 37(e)(1).

Rule 37(e)(2) clearly identifies three kinds of sanctions that can be entered as a result of intentional spoliation:  (1) a presumption that the lost information was unfavorable to the party; (2) an adverse instruction to the jury that it may or must presume the information lost was unfavorable to the spoliating party; or (3) terminating sanctions in the form of a default judgment or dismissal of the action.