When can a court impose an adverse-inference instruction for lost electronically stored information under FRCP 37(e)?

An adverse-inference instruction tells a jury it may (or must) assume that lost evidence would have been unfavorable to the party that lost it. Because this sanction can effectively decide a case, the Federal Rules of Civil Procedure set a high bar before a federal court may impose it for lost electronically stored information (ESI). The governing standard is found in Federal Rule of Civil Procedure 37(e), which was amended in 2015 to create a uniform framework and curb inconsistent rulings.

The Threshold Conditions

Before any sanction is available under the rule, four predicate conditions must generally be met:

• The ESI should have been preserved in anticipation of or during litigation (a duty to preserve had attached).
• The information was lost because a party failed to take reasonable steps to preserve it.
• The lost ESI cannot be restored or replaced through additional discovery.
• Another party is prejudiced, or the loss otherwise affects the case.

If the information can be recovered elsewhere, or the party took reasonable preservation steps, the rule’s remedies typically do not apply.

The Intent Requirement for an Adverse Inference

Even when ESI is irretrievably lost, the most severe measures are not automatic. To give an adverse-inference instruction, presume the lost information was unfavorable, dismiss the action, or enter a default judgment, a court must find that the party acted with the intent to deprive another party of the information’s use in the litigation.

This is a deliberate, high standard. Negligence or even gross negligence in losing ESI is generally not enough on its own. For lesser harms, courts may instead order curative measures no greater than necessary to cure the prejudice, such as allowing additional discovery or permitting evidence and argument about the loss.

Important Caveats

These standards apply to ESI in federal civil litigation. State courts and other countries follow their own spoliation rules, which may impose adverse inferences on a lesser showing such as negligence. Outcomes also turn heavily on the specific facts and the court’s discretion.

Sound records management and timely, well-documented legal holds remain the best defense. Learn more about related concepts on the e-discovery topic page.