In Fidelity National Title Insurance Co. v. Captiva Lake Investments, LLC, No. 10-cv-1890 (E.D. Mo. Jan. 7, 2015), the defendant moved for sanctions after a court-appointed e-discovery specialist found that the plaintiff failed to institute a litigation hold. The plaintiff argued that a litigation hold was unnecessary because it had implemented a “document collection procedure” by which it retained hard copy and electronic documents related to the each claim. The court found that the procedure did not satisfy the plaintiff’s obligation under the Federal Rules because it did not preserve all relevant evidence, including emails that were older than 180 days. The court held that a party’s “failure to implement a litigation hold establishes the necessary intent to support the imposition of sanctions.” The court further held that the defendant established prejudice because the plaintiff was unable to ascertain the volume or contents of the deleted email. The court held that a permissive adverse inference instruction regarding the missing emails was warranted. The court further noted that, in the Eighth Circuit, a permissive spoliation instruction is permitted without a finding of “bad faith” intent.