Neely v. The Boeing Company (W.D. Wash. April 23, 2019) reminds us that since .PST files are commonly used in business, legal teams need to know what constitutes spoliation of such files. This case helps establish that the criteria are exactly the same as for any other electronically stored information.


In this work-related age discrimination case, the plaintiff sough default judgement for spoliation based on the defendant (1) producing an altered .PST file and (2) the .PST file was missing specific documents.  

1) The Altered .PST File: The plaintiff argues that defendant should have produced the .PST file “in whole, untouched, pristine condition.” By only producing a portion of the .PST file and subsequently supplementing the production with the remainder of the .PST file, the defendant altered the .PST, leading to spoliation.

2) The .PST File Missing Emails: On the plaintiff’s last day of employment, plaintiff counted the number of files in the .PST file. Compared to the produced .PST contents, the plaintiff claimed that files were missing.


  • Default Judgment Denied. The court denied the plaintiff’s motion for spoliation sanctions based on the lack of evidence to meet the criteria under FRCP 37(e).
  • Bifurcation Does Not Equal Spoliation. Even though “bifurcation of the .PST file does not constitute destruction of the relevant evidence,” the court found that the plaintiff did not prove intent and that .PST file was missing data due to this bifurcation.
  • Missing Files Notable But Not Enough. If the plaintiff’s contention is correct, the court needed proof that the missing files couldn’t be restored or replaced and that the defendant withheld the files with the intent to deprive.

Expert Opinion from Nancy Patton, Esq., CEDS, Senior Solutions Consultant, Exterro

Like all other forms of ESI, the standard for spoliation sanctions related to .PST files is based on the factors present in FRCP 37(e). Notably, the moving party must prove intent to deprive even when specific files are known to be missing from the .PST file.

Case Law Tip

Download Exterro’s Layman’s Guide to the FRCP to better understand the requirements you must meet to prevent getting spoliation sanction like the plaintiff did in this case now.