E-Discovery
What Is Spoliation? Evidence Destruction and Sanctions Under FRCP 37(e)
Rule 37(e) sanctions turn on intent to deprive, not negligence. Here’s the doctrine, the cases that built it, and what a small firm needs to survive a sanctions hearing.
Legal technology researcher and data scientist specializing in AI governance for litigation teams. Expertise in NLP and AI-assisted document review.
The Definition Courts Use
Spoliation has a specific definition, not a vibe. The Fourth Circuit’s formulation in Silvestri v. General Motors Corp. is the one most courts repeat:
“the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”
That’s Silvestri, 271 F.3d 583, 590 (4th Cir. 2001), adopted almost verbatim by Judge Shira Scheindlin in Zubulake IV, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). Black’s Law Dictionary tracks the same idea: “the intentional destruction, mutilation, alteration, or concealment of evidence.” Black’s Law Dictionary (12th ed. 2024).
The concept isn’t new. Silvestri quotes the maxim omnia praesumuntur contra spoliatorem, all things are presumed against the despoiler. English chancery courts used it in the 1700s, and it’s the moral skeleton beneath every modern adverse-inference instruction. If you destroyed it, the law assumes the worst.
In practice the doctrine is narrower than most lawyers think. Spoliation isn’t a tort in most jurisdictions when the destroyer is a party to the underlying suit. It’s a discovery problem, handled inside the case through the broader e-discovery workflow under Rule 37 sanctions or the court’s inherent authority. Trevino v. Ortega, 969 S.W.2d 950, 951 (Tex. 1998); Cedars-Sinai, 18 Cal. 4th 1 (1998). So when you read “spoliation” in a brief, it’s almost always shorthand for: we want sanctions because the other side didn’t preserve. Everything below is the framework for answering it.
The Five Threshold Elements of Rule 37(e)
Federal Rule of Civil Procedure 37(e), as amended in December 2015, reads:
“(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.”
Source: Fed. R. Civ. P. 37(e).
That paragraph functions as a decision tree. Before any sanction issues, the movant has to clear five threshold elements, catalogued by Magistrate Judge Stewart Aaron in Karsch v. Blink Health Ltd., 2019 WL 2708125, at *17 (S.D.N.Y. June 20, 2019):
- The information at issue is ESI.
- The ESI should have been preserved in the anticipation or conduct of litigation.
- The ESI was lost.
- The loss occurred because a party failed to take reasonable steps to preserve it.
- The lost ESI cannot be restored or replaced through additional discovery.
If any element fails, the court doesn’t reach the (e)(1) or (e)(2) ladder. The threshold keeps judges from sanctioning routine, good-faith data loss in a world where everything is digital.
“Reasonable steps” isn’t perfection; the committee note says a party “may act reasonably by choosing a less costly form of information preservation, if it is substantially as effective as more costly forms.” And because ESI usually lives in multiple places, “loss from one source may often be harmless when substitute information can be found elsewhere.”
The 2015 Amendment and What It Replaced
Before December 1, 2015, Rule 37(e) was a thin “safe harbor” protecting parties from sanctions for routine, good-faith operation of their information systems. Courts filled the gap with inherent authority, and the result was a circuit split the Advisory Committee called “excessive” preservation and “significantly different standards.”
The most consequential casualty was the Second Circuit’s decision in Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002). Residential Funding allowed adverse-inference instructions on mere negligence. That low bar produced lopsided incentives: parties spent fortunes on preservation just to avoid drawing the instruction. It’s the same economic problem proportionality arguments under Rule 26 are designed to address.
The 2015 rewrite ended it. The committee note is direct: the amendment “rejects cases such as Residential Funding … that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence.” Negligence isn’t enough anymore. For (e)(2) sanctions, the movant has to prove intent.
One scope point gets missed: Rule 37(e) governs only ESI. Spoliation of physical evidence, the burned warehouse or the wrecked car, is still handled under each court’s inherent authority and the Silvestri line. If your case turns on a missing widget, you’re back in pre-2015 territory. The new question, then, is what kind of fault supports which sanction.
The Culpability Spectrum
Judge Lee Rosenthal’s continuum from Rimkus Consulting Group v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. 2010), is the cleanest articulation: “Culpability can range along a continuum from destruction intended to make evidence unavailable in litigation to inadvertent loss of information for reasons unrelated to the litigation.” The court’s response depends on both culpability and prejudice.
For a few years, the continuum had a hard rule grafted on. In Pension Committee of the Univ. of Montreal Pension Plan v. Banc of America Securities, 685 F. Supp. 2d 456 (S.D.N.Y. 2010), Judge Scheindlin held that “the failure to issue a written litigation hold constitutes gross negligence.” That sentence got cited for years. It looked like a per-se rule.
The Second Circuit walked it back in Chin v. Port Authority of New York & New Jersey, 685 F.3d 135, 162 (2d Cir. 2012): “We reject the notion that a failure to institute a ‘litigation hold’ constitutes gross negligence per se.” The “better approach,” the court said, is to treat the failure as one factor among many. New York’s Court of Appeals reached the same conclusion in Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543, 553-54 (2015), describing the conduct in front of it as “simple negligence.”
Then the 2015 amendment closed the door from the federal-rules side. Under (e)(2), courts can’t presume unfavorable evidence, can’t give an adverse-inference instruction, and can’t dismiss or default unless they find specific intent to deprive. The Pension Committee per-se rule isn’t good law in either federal court or New York state court anymore. Failing to issue a written hold can still hurt you. It’s a factor. It might support an inference of intent combined with other facts. But by itself, it isn’t gross negligence, and it isn’t enough for the harshest sanctions.
Ephemeral Messaging in 2024-2026
The cases that matter most right now involve disappearing messages: Signal, Wickr, Google Chat in history-off mode, the auto-delete settings buried in Slack and Teams. Courts have stopped treating these as exotic. They’re preservation problems counsel should anticipate. Lawful day-to-day use of Signal or WhatsApp isn’t spoliation by itself. The violation is failing to suspend auto-delete or disappearing-message timers once the duty to preserve attaches.
In DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021), Judge Iain Johnston issued a 256-page opinion on how a small-business defendant can mishandle ESI. Yahoo chat with auto-delete on. Custodian self-collection. Counsel who didn’t understand the systems they supervised. Johnston’s line, “It is no longer amateur hour,” has been picked up across modern e-discovery commentary. Follow-up sanctions in 2023 totaled roughly $2.5 million.
In In re Google Play Store Antitrust Litigation, 664 F. Supp. 3d 981 (N.D. Cal. 2023), Judge James Donato found Google had left employees “largely on their own” to decide whether Chat messages with history off were responsive. The court found “the intentionality manifested at every level within Google to hide the ball” and instructed the jury that Chat communications had been deleted with intent to prevent their use in litigation. 664 F. Supp. 3d at 994. The Ninth Circuit affirmed the underlying judgment in 2025, and Google settled the matter in November.
Hunters Capital, LLC v. City of Seattle, No. 2:20-cv-00983 TSZ, 2023 WL 184208 (W.D. Wash. Jan. 13, 2023), out of Judge Thomas Zilly’s courtroom, involved factory resets and manual deletions on the phones of Mayor Jenny Durkan, Police Chief Carmen Best, and Fire Chief Harold Scoggins during the CHOP litigation. The case settled the next month for $3.65 million.
In July 2025, the Seventh Circuit weighed in for the first time. Pable v. Chicago Transit Authority, 145 F.4th 712 (7th Cir. 2025), affirmed dismissal under Rule 37(e)(2) where the plaintiff had turned on Signal’s disappearing-messages feature with a co-worker after the duty to preserve attached. The fee award alone ran roughly $150,000. It’s the first published Seventh Circuit affirmance of a 37(e) dismissal for ephemeral-messaging spoliation. A cert petition is pending as of this writing. No. 25-914 (U.S. Jan. 23, 2026).
What ties these cases together isn’t novelty. It’s custodian-controlled deletion counsel didn’t catch in time. Some firms now pair traditional hold workflows with AI-assisted document review platforms that anchor every analytical output to a verifiable citation in the underlying record, an approach consistent with the Rule 1.1 competence and Rule 5.3 supervision duties highlighted in ABA Formal Opinion 512. Hintyr, an Agentic Document Review platform built for small and mid-size firms, is one example. It doesn’t replace the hold workflow; it operates downstream, on material the firm has already collected.
The Sanctions Spectrum
The animating principle, articulated by Judge Scheindlin in Pension Committee and the Fourth Circuit in Silvestri, is that courts impose the least-severe sanction adequate to cure the prejudice. Silvestri puts it directly: “dismissal should be avoided if a lesser sanction will perform the necessary function.” 271 F.3d at 590.
Under (e)(1), once prejudice is shown, the court can order measures “no greater than necessary”: additional discovery, evidence-and-argument-to-the-jury about the loss, or exclusion of evidence that would have been contradicted by what’s missing. None of these require intent. They’re remedial.
Under (e)(2), only intent to deprive opens the door to heavier sanctions: a presumption that the lost information was unfavorable, an adverse-inference instruction, or dismissal/default. The (e)(2) finding doesn’t require proof of prejudice; the committee reasoned that intent itself supports the inference of harm.
The dollar examples sketch the range. GN Netcom v. Plantronics, 2016 WL 3792833 (D. Del. July 12, 2016), produced a $3 million punitive sanction plus an adverse-inference instruction after an executive directed his team to delete emails. The Second Circuit affirmed a $2.68 million cost-and-fee sanction in Klipsch Group v. ePRO E-Commerce, 880 F.3d 620 (2d Cir. 2018), in a case with potential damages of roughly $20,000. DR Distributors came in at about $2.5 million. And Pable delivered the harshest outcome: dismissal. Under (e)(1), courts cure. Under (e)(2), they impose substantial penalties when intent is on the record, scaled to the prejudice and the conduct.
State-Court Approaches
Federal Rule 37(e) governs only ESI in federal court. In state court, or for non-ESI, the answer depends on the state.
New York treats negligence as enough to support a sanction; intentional or grossly negligent destruction creates a presumption that the lost evidence was relevant. Pegasus Aviation I, 26 N.Y.3d at 547-48. The procedural authority is C.P.L.R. 3126. New York doesn’t recognize a first-party tort. Ortega v. City of New York, 9 N.Y.3d 69 (2007).
California rejects the first-party tort outright. Cedars-Sinai, 18 Cal. 4th 1 (1998). Sanctions live in Cal. Code Civ. Proc. § 2023.030; the evidentiary inference in Cal. Evid. Code § 413.
Texas requires “specific intent of concealing discoverable evidence” before a trial court can give a spoliation instruction. Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014). The instruction is a “harsh remedy” reserved for bad-faith conduct.
A few states recognize an independent intentional-spoliation tort: Connecticut (Rizzuto v. Davidson Ladders, 280 Conn. 225 (2006)), Ohio (Smith v. Howard Johnson Co., 67 Ohio St. 3d 28 (1993)), and Alaska (Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986)). They’re the minority. If your case sits at the federal-state boundary or involves non-ESI spoliation in federal court, Silvestri still controls. Don’t assume Rule 37(e) sets the ceiling. The same caution applies to related sanctions risks like AI redaction failures: the rule frames one piece of the discovery-conduct picture, not all of it.
Practitioner Checklist for Small and Mid-Size Firms
You don’t need an e-discovery department to get preservation right. You need a repeatable workflow that survives a Rule 37(e) hearing.
1. Document the trigger at intake. The duty attaches when litigation is reasonably anticipated, not when the complaint is filed. Build a one-page intake addendum that captures the trigger event, the date the firm learned of it, and the likely custodians. That’s the document that proves when “reasonable anticipation” began.
2. Issue a written hold notice. Oral holds don’t survive 37(e) scrutiny. Use a versioned template that identifies the matter, lists categories to preserve (email, text, chat, mobile devices, cloud drives, voicemail, social media, ephemeral apps), and instructs custodians not to delete, modify, or auto-archive responsive material.
3. Suspend auto-delete the same day. This is the DR Distributors step. Within 24 hours, work with your client’s IT contact to disable auto-delete on email retention, Slack and Teams settings, ephemeral-message timers, and mobile-device purge defaults. Get written confirmation for each.
4. Track custodian acknowledgments. Don’t just send the hold; track who received it, who acknowledged, and when. Courts have faulted parties for issuing holds and walking away.
5. Identify “key players” early. Under Zubulake IV, counsel must identify the employees most likely to have responsive information and confirm their preservation personally, not through a generic firm-wide notice.
6. Reaffirm the hold periodically. Reissue annually and whenever new custodians join or scope expands.
7. Preserve the audit trail. When the spoliation motion comes, your defense is the contemporaneous record: intake notes, hold notices, acknowledgments, IT confirmations, reaffirmations.
That’s the workflow. It’s not glamorous. But it’s what survives a 37(e) hearing.
For a 2-50 attorney firm, the takeaway isn’t that you’ll be the next Google or the next Plantronics. It’s that the same standards apply to you, scaled to your resources. Document the trigger. Get the hold out. Kill auto-delete the same day. Track acknowledgments. The doctrine punishes intent harshly and excuses good-faith mistakes, but only if you’ve built the record that proves the difference.
This article is for general informational purposes only. It does not constitute legal advice and does not create an attorney-client relationship. Statements about case law and rules reflect publicly available sources as of April 2026 and may not address your jurisdiction or matter. Consult qualified counsel before acting on any of the topics discussed.
Build a preservation record courts can verify.
Spoliation defense lives or dies on the contemporaneous record. When you’re rebuilding a preservation chain across thousands of documents, every analytical output should anchor to the page it came from, with citations a court can verify. That’s how Hintyr handles document review for small and mid-size firms.
Always intuitive, always accurate, always cited.