"The Adverse Inference Instruction After Revised Rule 37E: An Evidence-Based Proposal"  

The subject of adverse inference jury instructions has received significant scholarly and judicial attention in recent years.  The adverse inference instruction has been called “‘the oldest and most venerable remedy’ for spoliation,” and is perhaps the most common remedy in federal courts for the loss or destruction of evidence.  This is particularly true with respect to electronically stored information (ESI). “E-discovery sanctions are at an all-time high,” and a study by the Federal Judicial Center found that adverse inference instructions were imposed in 57 percent of cases involving sanctions for the loss or destruction of ESI.
The adverse inference instruction can serve multiple functions: punishing wrongful conduct, deterring future conduct, and restoring the adversary balance of the proceeding.  Unfortunately, much of the judicial and academic commentary has been muddied by a lack of clarity about the different purposes of the instruction.  While punishment and deterrence are essentially case management functions, restoring the adversary balance is an evidentiary one.
Most of the federal courts of appeals have focused on the punishment and deterrence purposes of the instruction and fashioned standards based on the spoliator’s level of mental culpability. However, the circuits employ widely divergent approaches with respect to the level of culpability required. About half the circuits require a showing of bad faith before imposing a jury instruction.  On the other end of the spectrum, some circuits permit an adverse inference instruction even in cases of ordinary negligence.  Several circuit courts take an intermediate approach requiring more than negligence—i.e., knowledge or recklessness—but less than bad faith.
On May 29, 2014, the Standing Committee on Rules of Practice and Procedure (the “Standing Committee”) approved an amendment to Federal Rule of Civil Procedure 37(e) that sets out a standard for imposing various sanctions—including adverse inference instructions—for the loss or destruction of ESI.  While the new rule will resolve the circuit split on the required level of culpability on the part of the spoliating party, it does not adequately address the evidentiary purpose of the instruction, which is remedial, not punitive.  In many ways, the adverse inference instruction is ill-suited for use as a punishment, particularly compared to other sanctions available to judges.

Reprinted with permission from the December 2014 edition of the Fordham Law Review, Vol. 83, No. 3.