What was lost, when, and what it actually proves.
Spoliation motions are won and lost on facts most briefs never establish. Rule 37(e) asks a sequence of questions, and each one has a technical answer that either exists in the evidence or does not. The work is building that record — for the moving party or against it.
The Rule 37(e) sequence
The 2015 amendment replaced a patchwork of inherent-authority standards with a structured test, and the structure matters: a party that skips a step invites an order denying relief without reaching the conduct it wants sanctioned.
Each element, and what establishes it
- The ESI should have been preserved — which turns on when litigation became reasonably anticipated, a question answered by the documentary and system record, not by hindsight.
- It was lost because a party failed to take reasonable steps — reasonable is measured against what that organization's systems and retention settings actually made possible.
- It cannot be restored or replaced through additional discovery — the step most often assumed rather than proven, and frequently the step on which a motion fails.
- Prejudice to another party from the loss — under 37(e)(1), supporting measures no greater than necessary to cure it.
- Intent to deprive another party of the information — the 37(e)(2) finding that unlocks an adverse-inference instruction, dismissal, or default.
Where the technical record decides the motion
Auto-deletion policies, retention settings, journaling configuration, mobile backup behavior, and ephemeral-messaging defaults determine what survived and for how long. Whether a custodian's departure triggered a mailbox purge, whether a device wipe was a routine reimage or a deliberate act, whether a collaboration platform retained edit history — these are answerable questions, and the answers frequently cut against the narrative both sides brought to the motion.
The restorability question is the one that most often changes the outcome. Information lost from one source is regularly available from another: server-side copies, backups within their retention window, counterparties' custodial files, or downstream systems that ingested the same data. An analysis that establishes replaceability can defeat a sanctions motion outright; one that establishes irreplaceability supplies the predicate the movant needs.
Intent is an inference from evidence, not from outcome
The 37(e)(2) findings carry case-ending consequences, and courts require more than the fact of loss to support them. Timing relative to the preservation trigger, whether the conduct departed from routine practice, whether steps were taken to conceal, and whether other data was preserved in the same window all bear on the inference. An expert opinion here has to be calibrated carefully: overreaching into a conclusion about a party's state of mind invites exclusion and undermines the rest of the report.
Defense-side work
The same analysis runs in reverse. Most preservation gaps are the ordinary consequence of systems doing what they were configured to do before anyone anticipated litigation. Documenting the hold process that was followed, the reasonableness of the steps taken against that organization's actual capabilities, and the availability of the information from other sources is usually a more effective response than disputing that anything was lost.
Common questions
What does Rule 37(e) require before a court can impose sanctions?
That ESI which should have been preserved was lost because a party failed to take reasonable steps to preserve it, and that it cannot be restored or replaced through additional discovery. Only then does the court reach remedies — curative measures on a finding of prejudice under 37(e)(1), or the more severe measures under 37(e)(2), which require a finding that the party acted with intent to deprive another party of the information.
When does the duty to preserve attach?
When litigation is reasonably anticipated — which can well precede a complaint. The trigger is fact-specific and is established from the record: demand letters, internal escalations, insurer notice, regulatory contact, or the organization's own conduct in response to the underlying events.
Does an expert opine on intent?
An expert can establish the technical facts from which intent is inferred — timing relative to the preservation trigger, whether conduct departed from routine system behavior, whether steps were taken to obscure activity. Whether those facts satisfy the legal standard for intent to deprive is the court's determination, and a report that blurs the line invites a challenge to the whole opinion.
Can a sanctions motion be defeated by showing the data exists elsewhere?
Frequently, yes. Rule 37(e) applies only where information cannot be restored or replaced through additional discovery. Establishing that the same content survived in backups, server-side copies, or another custodian's files defeats a threshold element of the rule.
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