In Hsueh v. New York State Department of Financial Services, No. 15 Civ. 3401 (S.D.N.Y. Mar. 31, 2017), the court held that Federal Rule of Civil Procedure 37(e) does not limit the power of district courts to impose sanctions for spoliation where a party intentionally deletes its ESI. In this Title VII employment discrimination suit, plaintiff disclosed that she had made an audio recording of a conversation with her former employer’s HR representative but then later deleted the recording as not “worth keeping” because the recording “was not very clear.” The defendant sought spoliation sanctions and the reopening of discovery. After discovery was reopened, but before the sanctions motion was decided, plaintiff recovered and produced 10 minutes of recorded conversation from a 45-minute meeting with the HR representative with the help of her husband, who worked in the information technology field.Plaintiff contended that Rule 37(e) did not permit sanctions against her because she did not act “with the intent to deprive another party of the [ESI’s] use in the litigation” when she deleted the recording. The court disagreed: Rule 37(e) “is meant to address ‘the serious problems resulting from the continued exponential growth in the volume of’ ESI as well as ‘excessive effort and money’ that litigants have had to expend to avoid potential sanctions for failure to preserve ESI.” But plaintiff’s recording was lost due to her “specific actions to delete it” – not because she had improper systems in place to prevent the loss of the recording from her computer. The court did not find plaintiff’s explanations about how and why the recording was deleted credible, and it cited several facts in support of its conclusion that the produced recording was incomplete. Therefore, the court ordered an adverse inference instruction under its inherent sanctions power and awarded defendant its costs incurred in bringing its motion and reopening discovery.