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E-⁠Discovery Case Law Library
A collection of simple, easy to understand analyses and resources on e-⁠discovery case law.
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Spoliation Sanctions Before and After the FRCP Changes

NuVasive v. Madsen Med.
S.D. Cal. January 26, 2016
Why This Case Is Important

Showcases a great example of how the analysis for ESI spoliation sanctions changed pre to post new FRCP rules.


Under the previous Rule 37(e), the court had said that NuVasive had spoliated evidence when not preserving the text messages of four employees central to the case, and it denied NuVasive when it attempted to make a similar claim against Madsen.

However, the court did not say in that prior ruling that NuVasive had intentionally failed to preserve the text messages, and as the court noted in its January ruling, intention matters under the new rules. As NuVasive argued, the amended rule only allows an adverse inference for failure to preserve ESI "only upon the finding that the [spoliating] party acted with the intent to deprive another party of the information's use in the litigation."

Fault Found

"The Court found that NuVasive was at fault for not enforcing compliance with the litigation hold," the court's January ruling explained.

But Fault was Unintentional

"The record does not support a finding of intentional spoliation by NuVasive. Therefore, under Rule 37(e), as amended, it would not be proper for the Court to give the adverse inference instruction."

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