DriveTime Car Sales Company, LLC v. Pettigrew (S.D. Ohio April 18, 2019) re-emphasizes the high and “stringent” standard for granting an adverse inference instruction under FRCP 37(e)(2).


In this fraud case between an employee and employer, the plaintiff filed motion for spoliation sanctions based on the defendant’s failure to preserve relevant text messages.

During discovery, a co-defendant stated that he had exchanged text messages with another defendant concerning issues involved in this case. The co-defendant was unable to produce these text messages “because he had obtained a new phone and had not preserved the contents of his previous phone, despite being put on notice to do so…in a litigation hold letter.”

The plaintiff asks the court to “impose an adverse inference that the content of the text messages was unfavorable” for the defendants.


  • No Adverse Inference Because No Intent. Even though reasonable steps were not taken to preserve the deleted text messages, the court ruled that the defendant’s actions did not meet the burden of demonstrating “intent to deprive” under FRCP 37(e)(2), thus declining to issue an adverse inference.
  • High Standard Under 37(e)(2). According to the court, the rule’s “intent standard is stringent and does not parallel other discovery standards.” Here, there was “no evidence that he (defendant) did so intentionally beyond DriveTime’s (plaintiff) speculation.”
  • Lesser Sanctions Awarded. In future proceedings, the court will allow the plaintiff to enter evidence of the legal hold letter and the co-defendant’s failure to preserve relevant text messages. Both parties can present evidence in the attempt to prove whatever inference they hope the jury will draw.

Expert Opinion from Anne Bentley McCray, Partner, McGuireWoods

This case provides an excellent analysis of Rule 37’s “intent to deprive” standard and the reason for the stringent standard. Unless you can show a party intentionally destroyed data, you cannot infer that the data would be unfavorable. Data lost through negligence could be favorable or unfavorable to the party whose data was not preserved. Interesting though that there isn’t mention of the co-defendant’s phone data, which should have had the missing texts.

Case Law Tip: 

Download this guide to understand the requirements you must meet to have the court award an adverse inference sanction.