In one of the first cases applying the 2016 amendments to the federal discovery rules, on March 11, 2016, Judge Pratter of the United States District Court for the Eastern District of Pennsylvania issued a Memorandum Opinion denying the Defendants’ motion seeking a negative inference based upon a claim of spoliation of evidence arising out of the failure to preserve emails. See Accurso v. Infra-Red Services, Inc., No. 13-7509, 2016 WL 930 0686 (E.D. Pa. Mar. 11, 2016). A link to the Opinion is: www.paed.uscourts.gov/documents/opinions/16d0194p.pdf

In Accurso, the plaintiff filed suit against his former employers and other entities alleging violation of the Employee Polygraph Protection Act, breach of contract, and tortious interference with contract, and the Defendants responded with counterclaims alleging breach of contract, breach of fiduciary duty, fraud, and misappropriation of trade secrets. In preparation for trial, the defendants filed a motion in limine seeking a negative inference under Rule 37(e) of the Federal Rules of Civil Procedure based upon alleged spoliation of evidence.

In their motion, the defendants requested that the court draw "a negative inference regarding the contents of emails [plaintiff] is alleged to have deleted." Specifically, the defendants alleged that the emails exchanged between the plaintiff and certain of the defendants’ customers that would show the plaintiff’s attempts to take business away from the defendants had been deleted and were not produced. The Defendants contended that the plaintiff "had sole control over the defendants’ electronic records prior to 2011, and that after his termination in January 2012 he 'apparently' deleted all of his personal emails."

The court recognized that a request for an adverse inference is an "extreme remedy," which is specifically addressed in the most recent iteration of the Federal Rules of Civil Procedure that went into effect on December 1, 2015. The court applied new Rule 37, which became effective December 1, 2015, notwithstanding that the motion in limine was filed on August 17, 2015, prior to the effective date of the new Rules.

The court noted that neither party addressed the applicability of the amendments. Nevertheless, the court determined that "the amendment to Rule 37(e) is procedural in nature, and that it is just and practicable to apply this rule, as amended, to the [previously filed motion in limine]." Moreover, the court noted that "this rule change does not appear to have substantively altered the moving party’s burden, in this [Third] Circuit, of showing that ESI was destroyed in 'bad faith' when requesting an adverse inference."

The Court held that "[u]nder Rule 37(e), 'if electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery,' the Court has the authority to enter an order to cure any prejudice that may be shown against a party entitled to that electronically stored information." The Court further held that "[t]he new rule, however, 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 the intent to deprive another party of access to the relevant information See Rule 37(e)(2)(A)."

The court denied the defendants' motion because the defendants did not provide any evidence that "there was actual suppression or destruction of evidence, let alone that [the plaintiff] was responsible for the suppression or destruction of this evidence, that this evidence cannot be obtained from other sources or that [the plaintiff] acted with the intent to deprive the Defendants of access to the information." The court’s denial was without prejudice and with an acknowledgment that the defendants could raise it again at trial, depending upon the actual evidence admitted.

This case is significant because it recognizes that the new Rules require evidence of actual destruction or suppression by one of the parties with the intent to deceive the other party of access.