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Matthew Verga, XDD: Intent to Deprive, Spoliation Sanctions Part 3

Wednesday, November 20, 2019   (0 Comments)
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Intent to Deprive, Spoliation Sanctions Part 3

A multi-part series reviewing decisions related to spoliation of ESI since the December 2015 amendments to the Federal Rules of Civil Procedure

by Matthew Verga, JD, Xact Data Discovery


In “When the Bough Breaks,” we discussed the December 2015 amendments to Federal Rule of Civil Procedure 37(e).  In “Reasonable Steps to Preserve ESI,” we discussed available commentary and cases on what constitutes reasonable steps.  In this Part, we review commentary and cases on intent to deprive.


As we discussed, one of the things the amendments to FRCP 37(e) were intended to do was resolve a circuit split that had arisen regarding the level of culpability that must be shown for the application of severe spoliation sanctions.  The amendments resolved that split in favor of the higher standard but, in so doing, created new questions about establishing intent to deprive.


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