E-Discovery and Litigation Data
Preservation
Rule 37(e)(2) permits adverse inference instructions, dismissal, or default only on a finding that the party acted with intent to deprive another party of the information. Negligence, even gross negligence, does not satisfy the standard.
Lesser measures under Rule 37(e)(1) require only prejudice.
Alternative Names:
Intent to Deprive Finding, Rule 37(e)(2) Intent
Why it Matters?
The 2015 amendment made intent the dividing line, which substantially narrowed the availability of adverse inference instructions in federal court. Intent is usually established circumstantially: deletion timed to a preservation demand, use of wiping software, false statements about what existed, or continued auto-deletion after documented awareness. States that have not adopted the federal standard may still permit adverse inferences on negligence.
Frequently Confused with
Related terms
Frequently asked questions
What evidence establishes intent to deprive?
Does gross negligence suffice?
