Under FRCP 37(e), in order to be granted spoliation sanctions, the moving party must show that they were prejudiced by the spoliation. In this case, the court ruled that the prejudice suffered must be "severe," leaving us to wonder: what level of prejudice is needed to warrant spoliation sanctions?
In this personal injury case involving a car crash, the plaintiff sought spoliation sanctions under FRCP 37(e) for the defendants “intentionally” destroying his personal mobile phone, leading to failed preservation of relevant data.
After the accident in question, the plaintiffs issued a preservation letter which included the “driver’s personal and business cell phone.” During discovery, the defendants admitted that the personal cell phone was no longer in the possession of the defendants because the driver [defendant] “was not pleased with the quality of service from T-Mobile.”
After reviewing cell phone records produced by the defendants, the plaintiffs’ cell phone expert testified “with scientific certainty, that Mr. Shifflett [defendant] was highly distracted at the time of the accident and this impairment caused by his cell phone use was a substantial cause of the crash.”
Download the PDF version of Schmidt v. Shifflett case law alert here.
The court leaves us to wonder whether Rule 37(e) is a get out of jail free card for the dumb intentional spoliator. Under 37(e), if the data is not completely lost or irrecoverable and the party requesting sanctions isn’t severely prejudiced, sanctions aren’t warranted even if the party tried unsuccessfully to delete data. Because of this more and more judges are going outside Rule 37(e) and granting punitive court sanctions for a party’s bad behavior based on different rules or the court’s inherent authority.