In Hoffer v. Tellone, No. 22-1377 (2d Cir. Feb. 13, 2025), the Second Circuit disaffirms the use of a “culpable state of mind” standard to impose discovery sanctions under Fed. R. Civ. P. 37(e)(2), requiring a specific “intent to deprive” standard, though it also reduces the burden of proof to preponderance of the evidence. The panel notes disagreement with the Fifth Circuit about whether the jury plays a role in fact-finding on a sanctions motion when the issue arises at trial.
The rule provides:
“(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
“(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
“(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
“(A) presume that the lost information was unfavorable to the party;
“(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
“(C) dismiss the action or enter a default judgment.” (Emphasis added.)
During a § 1983 trial against the City of Yonkers and other defendants for excessive force during an arrest, it came to light during the defense testimony of Officer Goff that the police department may have allowed a video of the plaintiff’s tazing to be overwritten. “Following Goff’s testimony, Hoffer’s counsel orally requested that the district court instruct the jury that it could draw an adverse inference against the Officer Defendants based on the purported spoliation of the first video. At the charge conference, the district court, after assessing the request under Federal Rule of Civil Procedure 37(e)(2), declined.” The jury entered a defense verdict and plaintiff appealed solely the denial of the instruction.
The Second Circuit affirms. It notes that since the 2015 amendments to the Federal Rules of Civil Procedure, there has been disharmony in the circuit and district court authority about the standards under Rule 37(e)(2) for spoliation of electronically stored information (ESI). The panel uses the opportunity of this case to clear up the clutter.
First, it disaffirms the standard first adopted in 2002 (under a different version of Rule 37) in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002), that the state of mind could be satisfied when a party lost or destroyed ESI “knowingly or negligently—in other words, an intentional act was not required to establish a ‘culpable state of mind’” (emphasis added).
The panel holds that the amended rule, which demands a specific “intent to deprive” a party of ESI, means “that only the intentional loss or destruction of evidence gives rise to an inference that the evidence was unfavorable to the party responsible for that loss or destruction; negligent—or even grossly negligent—behavior does not logically support that inference” (emphasis in original). Admitting that the “culpable state of mind” language had nevertheless crept into post-2015 opinions, the panel directs courts and litigants to reject these opinions as “mistaken.”
Moreover, “[w]e note that, in deciding the foregoing, we do not call into question the applicability of Residential Funding to cases that fall outside the province of Rule 37(e)(2)—namely, cases evaluating the loss of non-electronic evidence.”
Second, addressing a question not presented by the parties, the panel holds that the movant’s burden of proof is preponderance rather than clear and convincing evidence. “[T]he specific intent required to impose sanctions under Rule 37(e)(2) sets a sufficiently high bar such that a ‘clear and convincing’ burden of proof is unnecessary. As district courts have recognized, the ‘intent to deprive” standard is ‘both stringent and specific,’ and contemplates ‘not merely the intent to perform an act that destroys ESI but rather the intent to actually deprive another party of evidence.’”
Third, and potentially creating a split in the circuits, the panel rejects the suggestion that the jury, rather the bench, should make the finding of specific intent. The panel holds that it is quite ordinary, notwithstanding the Seventh Amendment, for a court to make factual findings with respect to admission of evidence, such as with Fourth Amendment suppression hearings.
“In contending that the district court should have left any factual questions to the jury, Hoffer chiefly relies on Van Winkle v. Rogers, which held, in the context of spoliation of non-ESI, that ‘[i]f a genuine dispute of material fact exists as to bad faith, a jury should make that determination.’ 82 F.4th 370, 378 (5th Cir. 2023). Van Winkle, however, does not bind this court, does not address Rule 37, and appears to contradict our decision in Rossbach [v. Montefiore Med. Ctr., 81 F.4th 124 (2d Cir. 2023)].
Applying these standards, the panel holds that the district court did not abuse its discretion in this case by refusing the plaintiff a negative-inference instruction.