Sanctions When Electronic Evidence Is Lost

The rule for lost electronic evidence reads like a checklist because it was written as one. Before the amendment that produced it, circuits had adopted materially different standards for the same conduct, and a party in one district faced an adverse-inference instruction for negligence that would have produced nothing in another. The current text answers that by specifying both the conditions and the findings.

The four conditions before anything is available

Subdivision (e) opens with a compound condition. Electronically stored information that should have been preserved in the anticipation or conduct of litigation must have been lost; the loss must have resulted from a failure to take reasonable steps to preserve it; and the information must not be capable of restoration or replacement through additional discovery. Only then does the court reach the two tiers.

Each element does independent work. The first imports the common-law duty without restating it — the rule is built on that duty and does not create a new one, and it does not apply where information was lost before any duty arose. The second measures conduct against reasonableness rather than perfection. The third is the one most often overlooked.

Sequencing matters when the motion is argued. A responding party that can defeat any one of the four conditions never reaches the tiers, and the cheapest of the four to contest is usually the third: producing the material from another source ends the motion outright. Arguments about reasonableness and about what the party intended are slower, more expensive and far less predictable.

The rule also applies only to electronically stored information, and only where information is actually lost. Because electronic material commonly exists in more than one place, loss from a single source is frequently harmless. A party arguing spoliation has to show that the material is gone, not merely that a particular copy is.

Restoration and replacement come first

The committee note directs that the initial focus should be on whether the lost information can be restored or replaced through additional discovery, and if it can, no further measures should be taken. This is not a formality. Backups, counterparties' copies, forwarded threads, printed versions and vendor-held archives frequently hold what a deleted mailbox held.

The tools are ordinary discovery tools. Nothing in the rule limits the court's power under Rules 16 and 26 to authorize additional discovery, and an order permitting discovery from sources that would otherwise be treated as not reasonably accessible is a common response. Cost allocation under the protective order provision is used to place the expense on the party whose failure created the problem.

Restoration efforts are themselves bounded by proportionality. The note cautions that substantial measures should not be employed to restore or replace information that is marginally relevant or duplicative, which means a party cannot convert a minor loss into a major project. The same proportionality limits that govern what has to be kept govern what has to be recovered.

The first tier: prejudice

Where the conditions are satisfied and the information cannot be recovered, the court may act on a finding of prejudice to another party from the loss. Evaluating prejudice necessarily involves evaluating the importance of the information in the litigation, which is an assessment made about material nobody can read.

What a moving party can usually offer is circumstantial. The volume and character of what survived from other custodians, the pattern of a broken thread where one participant's side is missing, and the subject lines of messages whose bodies are gone all support an argument about what the lost material contained. Courts weigh that against the possibility that the missing material was routine.

The rule deliberately leaves the burden unallocated. The note explains that placing it on the party that did not lose the information may be unfair where the content is unknowable, while requiring that party to show prejudice may be perfectly reasonable where the content is evident or the surviving record is plainly adequate. Judges are left with discretion to decide how best to assess it.

Measures no greater than necessary

The first tier authorizes measures no greater than necessary to cure the prejudice, and the note states that the range is broad where breadth is required for that purpose. There is no all-purpose hierarchy of severity; the same order can be trivial in one case and decisive in another, so severity is calibrated by effect rather than by category.

In practice the measures used most often are evidentiary and informational. A court may forbid the party that lost the information from putting on certain evidence, permit the parties to present evidence and argument to the jury about the loss, or instruct the jury to assist it in evaluating that evidence — provided the instruction does not tell the jury it may infer that the lost material was unfavorable.

Cost shifting sits alongside. Fees and expenses caused by the loss, including the cost of the restoration attempt and of the motion itself, are commonly imposed, and a court retains separate authority to impose excess costs on counsel who unreasonably and vexatiously multiply proceedings. The note is also explicit that the authority to cure does not oblige a court to remedy every possible prejudicial effect.

Where the line between the tiers falls

The division is the point of the rule. Negligence and gross negligence, however costly their consequences, cannot support a presumption that the lost material was unfavorable. The reasoning stated in the note is that information lost through carelessness may have helped either side, so inferring that it hurt the party who lost it distorts the balance in a way the material itself never would have.

The line is also procedural. A finding of intent may be made by the court on a pretrial motion, at a bench trial, or when deciding whether to give an instruction at trial. Where a court concludes that the question belongs to the jury, the instruction has to make clear that no adverse inference is permitted unless the jury first finds the intent.

That reasoning also explains why the second tier dispenses with prejudice. A party that destroyed material to keep it out of a case has demonstrated its own view of the content, and the finding of intent carries the inference that the prejudice requirement would otherwise supply. The elements of that finding are treated separately in the analysis of intent to deprive.

The two tiers apply only to electronic information. Loss of a physical object runs on inherent authority and, where it applies, state law, and the standards there are the older ones the rule displaced for electronic material. That divergence, together with the point at which the duty first attached, accounts for most of the argument in a contested spoliation motion.