By Matthew Hamilton, Donna Fisher and Sandra Adams (November 1, 2019, 5:06 PM EDT) -- Pursuant to Federal Rule of Civil Procedure 37(e)(2), imposition of the most severe sanctions for failure to preserve relevant electronically stored information — a presumption that the information lost was unfavorable, an adverse inference instruction, or a dismissal or default judgment — requires proof that a party intended to deprive another party of the use of that evidence.
Unfortunately, the rule does not specify how a court should evaluate a party's intent, nor under what circumstances a party's intent should be determined by a jury rather than a judge.
Below, we review recent cases that address the issue of intent to...
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