The recently amended Federal Rule of Civil Procedure 37(e) establishes two categories of conduct that can support an order of relief for the spoliation of Electronically Stored Information. First, where spoliation of ESI was “intentional” (i.e., meant to deprive the other party of the use of the information), the court may award sanctions under Rule 37(e)(2). Second, where spoliation was not intentional but still resulted in prejudice to the innocent party, the request for relief is governed by Rule 37(e)(1).

Rule 37(e)(2) clearly identifies three kinds of sanctions that can be entered as a result of intentional spoliation: (1) a presumption that the lost information was unfavorable to the party; (2) an adverse instruction to the jury that it may or must presume the information lost was unfavorable to the spoliating party; or (3) terminating sanctions in the form of a default judgment or dismissal of the action.

Rule 37(e)(1), on the other hand, does not identify any specific forms of relief that may be awarded if ESI that should have been preserved was unintentionally lost, and cannot be restored or replaced through additional discovery. Instead, Rule 37(e)(1) provides that upon a finding that the innocent party was prejudiced by the spoliation, the court may only “order measures no greater than necessary to cure the prejudice.”

Does that mean that none of the relief available for intentional spoliation can be awarded in cases of unintentional spoliation? Certainly, a party who has been prejudiced by an unintentional spoliation of ESI might contend that an adverse jury instruction or a presumption as to whether the lost information was helpful or harmful to the case might be necessary to “cure the prejudice” that results from spoliation. Indeed, the Committee’s Note to Rule 37(e) suggests that “serious measures” may be necessary to cure prejudice, “such as forbidding the party that failed to preserve information from putting on certain evidence, [or] permitting the parties to present evidence and argument to the jury regarding the loss of information.” The Note also indicates that such relief may include “giving the jury instructions to assist in its evaluation of such evidence or argument.”

So far, at least four courts have opined that an adverse jury instruction is not appropriate under Rule 37(e)(1), in cases of unintentional spoliation. In Accurso v. Infra-Red Services, Inc., 2016 WL 930686 (E.D.Pa. March 11, 2016), the court held that Rule 37(e) “makes explicit that an adverse inference is appropriate only on a finding that the party responsible for the destruction of the lost information acted with intent to deprive another party of access to the relevant information.” (Emphasis in original.) Therefore, the court in that case denied the defendants’ request for an adverse inference because the defendants failed to present any evidence of intentional destruction (or that the evidence could not be obtained from other sources). See also Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784 (N.D.Tex. April 18, 2016) (in order to obtain sanction of a jury instruction or presumption, “Plaintiffs must show, and the Court must find, ‘that the party acted with the intent to deprive another party of the information’s use in the litigation.’”)

Similarly, in Nuvasive v. Madsen Medical, Inc., 2016 WL 305096 (S.D. Cal. Jan. 26, 2016), the Court granted the plaintiff’s motion to vacate a prior order that imposed an adverse inference for the plaintiff’s failure to preserve text messages. Before the effective date of the 2015 amendments, the court had granted the defendant’s motion for sanctions against the plaintiff for spoliation of evidence. Citing the recent amendments to Fed. R. Civ. P. 37(e), however, the plaintiff argued that that the Rule now permits an adverse inference for failure to preserve ESI “only upon the finding that the [spoliating] party acted with the intent to deprive another party of the information’s use in the litigation.” Citing the new Rule, the court agreed that it would be improper to give the adverse instruction because there was no evidence to suggest that the failure to preserve was intentional.

Finally, in Best Payphones, Inc. v. City of New York, 2016 WL 792396 (E.D.N.Y. February 26, 2016), the defendants moved for sanctions as a result of the plaintiff’s loss of ESI and tangible evidence. Initially, the court opined that Rule 37(e) applied only to ESI, while Residential Funding and its progeny continued to apply to the other tangible evidence at issue in the defendants’ motion. As to the spoliation issues surrounding the ESI, the court noted that previously, under Residential Funding, it could have given adverse inference instructions upon a finding of negligence or gross negligence. Now, however, under Rule 37(e), “a Court may not issue an adverse inference instruction unless the Court finds ‘that the party acted with the intent to deprive another party of the information’s use in the litigation.’” Since the court in Best Payphones found the record to be lacking in proof of intentional spoliation – and because most of the relevant information was already produced or was available to the defendants through other means – the court denied the defendants’ request for an adverse inference instruction to the jury.

These cases appear to reject any notion that adverse jury instructions might be awarded for unintentional spoliation. In the Note to Rule 37(e)(1), however, the Committee observed that courts might still give the jury instructions “to assist in its evaluation of such evidence or argument, other than instructions to which subdivision (e)(2) applies” (emphasis added), but that “[c]are must be taken… to ensure that curative measures under subdivision (e)(1) do not have the effect of measures that are permitted under subdivision (e)(2) only on a finding of intent.” As interpretations of these new Rules continue to play out, we will have to wait and see if and how courts address requests for more curative – and less punitive – types of jury instructions.