Intent or bad faith is required for Rule 37(e) sanctions

In this non-compete agreement case, plaintiffs moved for sanctions against a defendant that deleted emails supposedly containing “critical evidence.” The defendant argued that “he deleted emails on a regular basis unless there was a specific business reason to keep them”. He believed that all of the emails were backed up in a secure server. However, defendant could not access it and It later turned out that – due to automatic backup – the deleted emails were permanently deleted.

The Court declined to impose sanctions under the amended FRCP 37(e): despite the “troubling” evidence of deletion, it was not possible to prove either “intent or bad faith.”

Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016) is available (with subscription) at…

For more information, Francesca Giannoni-Crystal

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