Publication Date



The discovery process relies heavily on the information
that we store on our electronic devices. The ease with
which we tap into the many capabilities of technology,
however, exposes litigants to a significant risk-spoliation
of evidence. Evidence may be spoliated accidentally or
intentionally, but when spoliation does occur, the party
seeking that evidence often seeks a remedy from the court.
The adverse inference instruction has functioned as one of
those remedies. Courts split on what level of culpability is
required to issue an adverse inference instruction. The
Rule 37(e) amendments attempt to address rising costs of
electronic discovery and resolve this circuit split. Before
imposing an adverse inference instruction, a court must
find that the spoliating party acted with intent. Even
upon such a finding, the court may fashion a lesser
remedy. This amendment deprives judges of a useful tool
to remedy an act of spoliation. Federal courts across the
United States have applied the amended Rule 37(e). This
Note walks through the evolution of the spoliation of
electronic discovery doctrine and concludes that the recent
amendments fail to provide guidance to judges and

litigating parties while producing a lopsided regime that
favors institutional defendants.