In Best Payphones, Inc. v. City of New York, No. 01-cv-08506 (E.D.N.Y. Feb. 26, 2016), the district court considered defendant’s motion for spoliation sanctions related to plaintiff’s alleged failure to retain both electronic and hard-copy documents. The court held that the adoption of the new Fed. R. Civ. P. 37(e) regarding electronic evidence required a separate analysis of the “culpable state of mind” requirement for spoliation with respect to the electronic and non-electronic forms of documents. Pursuant to Second Circuit precedent, the court applied a “gross negligence” standard to the alleged spoliation of “tangible evidence,” such as hard-copy records. With respect to electronic evidence, however, the court held that the “Advisory Committee . . . specifically rejected the giving of adverse inference instructions on a finding of gross negligence or negligence, as the Second Circuit had permitted” in prior cases. Instead, for an adverse inference instruction, Rule 37(e) requires a finding that a party “acted with the intent to deprive another party of the information’s use in the litigation.” The court concluded that sanctions were unwarranted under either approach because the plaintiff’s conduct “amounted to mere negligence.” The court, however, awarded defendant attorney’s fees associated with its motion due to plaintiff’s negligence and because plaintiff produced additional documents in response to the motion.