Spoliation of Electronic Evidence: Sanctions Versus Advocacy

This Article proposes that courts should refrain from imposing adverse inference jury instructions as sanctions for the spoliation of evidence. This proposal bears some similarity to the approach taken twenty years ago by the 1993 amendments to Rule 11, which constrained courts' ability to sanction. Instead of imposing an adverse jury instruction as a sanction for spoliation of evidence, courts should allow evidence of spoliation to be admitted at trial if a reasonable jury could find that spoliation had occurred and if the spoliation was relevant to a material issue. If a court allows the introduction of evidence of spoliation at trial, it should also allow argument by attorneys on whether the jury should infer that the spoliated evidence was unfavorable to the spoliator. This does not require an adverse inference instruction. Instead, the court should rely on attorney advocacy and the good sense of jurors to decide whether spoliation has occurred, and if so, how the proof of spoliation should affect the outcome of the trial. Following this introduction, the Article examines how courts have traditionally dealt with the spoliation of evidence. Next the Article discusses the current law on inferences and presumptions under the Federal Rules of Evidence. Then the Article provides an analysis of two landmark decisions from 2010 on the spoliation of evidence and adverse inferences. In Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, Judge Scheindlin imposed an adverse inference instruction as a sanction for certain parties' grossly negligent conduct. The instruction included a presumption that the spoliated evidence was both relevant and would have been favorable to the innocent parties. In Rimkus Consulting Group, Inc. v. Cammarata, Judge Rosenthal also imposed an adverse inference instruction as a sanction, but she based the sanction on evidence that the spoliation was intentional. In addition, she framed the jury instruction as an inference rather than a presumption. After the analysis of Pension Committee and Rimkus, the Article urges courts to rely on attorney advocacy rather than sanctions to address the spoliation of evidence in most cases. A brief conclusion follows.

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