My dog ate my email: creating a comprehensive adverse inference instruction standard for spoliation of electronic evidence.

• Author: Makara, Matthew S.
• Position: NOTES

[T]he law, in hatred of the spoiler, baffles the destroyer, and thwarts his iniquitous purpose, by indulging a presumption which supplies the lost proof, and thus defeats the wrong-doer by the very means he had so confidently employed to perpetrate the wrong. (1)

1. INTRODUCTION

   When a party loses or destroys evidence, the standard of culpability courts require before they will instruct a jury that they may view the missing evidence as unfavorable to that party varies among the federal circuits. (2) In order to issue such an adverse inference instruction, some courts require a showing of bad faith or intentionality, while others require only negligence. (3) Although courts generally recognize a judge's wide discretion to impose some form of sanctions for negligent failure to maintain evidence, there are sharp differences of opinion over whether negligence merits jury speculation that the missing evidence would have been damaging to the negligent party's case. (4)

   Several of the federal circuits have held that only a showing of negligence is required for an adverse inference instruction against the party responsible for the missing evidence. (5) In these circuits, such an adverse inference is appropriate because the party responsible for the missing evidence should bear the risk that it would have been detrimental, regardless of any finding of culpability. (6) Other federal circuits have held that negligence is not enough. (7) Rather, they argue, the adverse inference requires showing that a party knew the relevance of a piece of evidence and willfully proceeded to either lose or destroy it. (8) In this view, without a showing of willful spoliation, there is no indication of consciousness of unfavorable evidence. (9) These courts argue that non-willful spoliation therefore cannot sustain an inference that a negligent spoliator destroyed evidence because it would have hurt the spoliator's case. (10)

   The information age has transported evidence disputes into the electronic world, drastically impacting the legal field. (11) More and more cases now involve lengthy electronic discovery (e-discovery), often to the point that e-discovery disputes become more important than the case's actual merits. (12) In response to the arrival of the digital revolution, in December 2006, the Civil Rules Advisory Committee amended the Federal Rules of Civil Procedure to provide guidance to lawyers and judges in dealing with e-discovery. (13) Recognizing the often unpredictable nature of computerized file management, the committee added Rule 37(f) (now, Rule 37(e)), which provides that courts should not impose sanctions "for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." (14)

   Notwithstanding the new standard offered by Rule 37(e), courts still use culpability-based tests when contemplating adverse inference instructions for failure to maintain electronic files. (15) Because of the increasing centrality of electronic information in disputes, non-production in discovery may increasingly occur as a result of the enormous costs of production and the limited resources of litigants. (16) Standards for imposing adverse inference instructions that are simply based on the spoliator's culpability fail to address such "facts of life" in the information age. (17)

   In Zubulake v. UBS Warburg L.L.C., (18) a federal district court laid out a broad-spectrum test for determining whether to shift the cost of e-discovery production to the requesting party.19 Among the factors the court considered were the costs of production and the relative ability of each party to pay that cost. (20) By applying a more comprehensive approach such as this to the issuance of adverse inference instructions, courts may achieve greater fairness by taking into account a fuller scope of the circumstances involved in non-production. (21) As technology rapidly evolves, courts and litigators will increasingly require broad-based approaches to dealing with electronic evidence in order to achieve fairness as well as efficient judicial processes. (22)

   This Note will first outline in Part II.A the nature of sanctions for spoliation. (23) Part II.B will then examine the disparate standards for "shifting blame" using adverse inference instructions in various federal circuits, as well as the policy rationales behind the various culpability standards they employ. (24) Parts III.A and III.B will describe the discovery of electronic evidence and how federal courts have addressed "shifting costs" of e-discovery. (25) Part IV will analyze the culpability tests for adverse inference instructions and argue that they are too narrowly focused to remain effective as evidence evolves into increasingly complex technological formats. (26) Finally, Part V will outline a new, more comprehensive approach to issuing adverse inference instructions in electronic spoliation disputes that is in the spirit of fairness and equity.27

2. APPROACHES TO REMEDYING SPOLIATION OF EVIDENCE

   1. Sanctions and Remedies for Spoliation

      1. Sources of Authority for Sanctions

         Courts have imposed sanctions in response to the destruction of evidence since the eighteenth century or earlier. (28) Today, many courts still recognize their inherent authority to impose spoliation sanctions, including adverse inference instructions. (29) In many cases, courts invoke this power to sanction spoliation as an exercise of the court's authority to redress conduct that abuses the judicial process. (30) On this basis, courts therefore reason that they have an inherent power to issue sanctions to aid in the administration of justice. (31) Courts also derive authority for sanctions against spoliation in the Federal Rules of Civil Procedure. (32) Under both federal rules and state rules, the adverse inference instruction is one of several sanctions available to a court when a party violates a discovery obligation. (33) In response to the spoliation of evidence, courts enjoy wide discretion in employing such sanctions under the federal rules. (34) Unlike the power courts derive from their inherent authority, however, the broad authority offered by the federal rules is limited to spoliation that occurs during pendency of a suit. (35)

      2. Factors to Consider in Remedying Spoliation

         1. Rationale for Imposing Sanctions

            Discovery and evidentiary sanctions provide courts with an effective multipurpose toolbox for managing litigation. (36) Under Rule 37 of the Federal Rules of Civil Procedure, sanctions serve the purely administrative function of ensuring compliance with discovery rules. (37) Based on the aforementioned inherent authority of the court, however, sanctions can also be used to punish litigants or deter them from engaging in certain conduct. (38)

            Courts may also issue sanctions for unintentional spoliation in order to provide restitution to victims of spoliation and to maintain accurate fact-finding procedures. (39) While unintentional spoliation does not involve a level of culpability warranting punitive sanctions, it does result in the spoliating party securing an unfair advantage over the non-spoliating party. (40) To rectify this imbalance and preserve equity, many courts impose sanctions on unintentional spoliators. (41) Regardless of the purpose served, courts enjoy wide discretion in issuing spoliation sanctions. (42)

            In exercising their sanctioning authority, however, courts strive to achieve proportionality in issuing sanctions for spoliation offenses. (43) In furtherance of this goal, courts consider several factors: culpability of the spoliator, prejudice to the non-spoliator, whether spoliation resulted in lost evidence, degree of harm to the administration of justice, whether alternative sanctions are more effective, and whether misconduct of the attorney rather than the represented party resulted in spoliation. (44) Yet, in analyzing these factors, courts do not employ a rigid test. (45) Many courts consider the two most determinative factors in this analysis to be culpability of the spoliator and prejudice to the non-spoliator. (46)

         2. Degree of Culpability

            When determining sanctions, courts examine a spoliator's mental state across a range of culpability. (47) Courts generally agree that a dispositive sanction is appropriate only where spoliation resulted from "willfulness, bad faith, or some fault of a party other than inability to comply." (48) Dispositive sanctions, however, are not required in all such instances. (49) Courts have broad latitude in imposing sanctions where spoliation resulted from unintentional conduct. (50) On appeal, courts will affirm the imposition of any sanction-whether for intentional, reckless, negligent, or inadvertent non-production--so long as the sanction was "safely within the universe of suitable alternatives." (51)

         3. Degree of Prejudice

            The degree of prejudice to the opposing party is another factor courts regularly consider in determining sanctions for spoliation. (52) The extent to which non-production of evidence prejudices a party depends upon the extent to which the missing evidence is relevant and material to that party's case. (53) Because evidence exists on a continuum of relevance and materiality, courts look to this discretionary factor to decide not only whether to impose a sanction but also the severity of the sanction. (54) Before any sanction is imposed, the injured party has the burden of proving the relevance and materiality of the missing evidence. (55)

   2. Adverse Inference Instructions

      Among the sanctions available for spoliation, the adverse inference instruction is based on the fundamental principle that destroyed evidence is more likely to have been harmful to the destroyer than the non-destroyer. (56) In some circumstances, courts are permitted to instruct juries on the adverse inference rule when there is an "unexplained failure or refusal of a party ... to...