Judges across the country are not in alignment on whether spoliation sanctions can be warranted under the court’s inherent authority and outside the scope of FRCP 37(e). This ruling clearly states that inherent authority should not be used when issuing these e-discovery sanctions.
In this tort lawsuit involving the inadvertent indigestion of chemicals, the plaintiffs motion for an negative adverse inference instruction against the defendant for “Intel’s alleged failure to collect and preserve data showing actual levels of hazardous emissions.”
The plaintiffs contend that FRCP 37(e) should not apply to whether sanctions were warranted because the evidence wasn’t stored on a computer system. Because of that the plaintiffs argue that the court should use their inherent authority to issue the adverse inference.
The defendants counter by arguing that “it had no duty to preserve evidence before it received notice that litigation was probable, that it had no duty to create evidence of hazardous emission levels, and that plaintiffs ignore Federal Rule of Civil Procedure 37(e), which governs negative inference sanctions for the loss of electronically stored information ("ESI").”
Download the PDF version of Alsadi vs Intel Corporation case law alert here.
Judge Campbell held that ESI need not be stored on a computer, but any device that can store information. The line between computers and other devices, including cell phones, is too blurry to have any significance. But more important is Judge Campbell’s analysis of Rule 37(e), especially since he was chair of the Rules Committee. A party seeking spoliation sanctions must analyze the entire Rule. Relief may be granted when ESI is lost or destroyed, but not for failure to create ESI in the first place (e.g., before litigation is anticipated. And Judge Campbell authoritatively states that Rule 37(e) precludes reliance on a court’s inherent authority.