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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