Examination of Lack of Consistency in Courts’ Imposition of Sanctions for Spoliation of Electronically Stored Information (ESI) under the Federal Rule of Civil Procedure 37(e)

The Federal Rule of Civil Procedure 37(e) was amended in 2015 to promote uniformity of case law on sanctions for spoliation of electronically stored information (ESI), by allowing courts to impose more severe sanctions, such as, adverse inference jury instructions and dismissals of cases against the spoliator parties under the provision (2) upon courts’ finding that the spoliator party acted with the intent to deprive another party of the information’s use in litigation. This article discusses how courts have continued to produce inconsistent case law even after the adoption of the new Rule 37(e), due to lack of application of Rule 37(e) and persistent reliance on inherent authority to sanction instead. Thus, the article suggests the application of a clear and more stringent standard in courts’ determination of the spoliator party’s intent to deprive another of use of relevant ESI in order to further promote uniformity of case law on sanctions for ESI spoliation, increase predictability of case outcomes, and to ensure that the imposed sanctions are no greater than necessary to cure prejudice suffered by the non-spoliator party.