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Unpublished Paper
Electronic Discovery: Sanctioning Spoliation with an Adverse Inference Instruction
ExpressO (2011)
  • Robert A. Weninger

This article discusses the spoliation of ESI (electronically stored evidence) in a completely non-technical way. It focuses on the law governing sanctions and not on computer technology.

Professor Richard L. Marcus, the Special Reporter to the Civil Rules Advisory Committee and a primary drafter of the 2006 amendments addressing the discovery of ESI, reviewed my article and was enthusiastic about it. The article is particularly timely because the Advisory Committee is presently considering whether to propose further amendments to address problems created by the disparate positions taken by federal courts on issues concerning sanctions for spoliation.

Courts divide over the level of culpability required for the issuance of a serious sanction (such as an adverse inference instruction) and over requirements that the innocent party prove the relevance of the missing evidence. I focus on their different approaches in my discussion of two landmark 2010 sanctions decisions by federal district Judges Shira A. Schiendlin (author of the famous Zubulake opinions) and Lee H. Rosenthal (now Chair of the Standing Committee). Both of these judges served on the Advisory Committee during the amendment process and are widely known to be e-discovery experts.

The foregoing matters are useful background for what may be the most important part of my article—an analysis of the teaching effectiveness of the first sanctions decision in the chapter on spoliation in the casebook, Electronic Discovery and Digital Evidence (by Shria A. Scheindlin and Daniel J. Capra), which I used in my course in Complex Litigation. The case, Conner v. Sun Trust, appears under the heading, “What Constitutes Spoliation?” I had my students email me each day their comments on how the case covered in class that day helped them (or didn’t help them) learn about the spoliation of ESI. Their comments (and mine) on the teaching effectiveness of the case are an integral part of the article.

Also, I briefly refer to some of the Federal Judicial Center’s empirical research on sanctions decisions. Please see my CV for citations to articles in which I report the results of my empirical research.

  • Electronic discovery,
  • spoliation,
  • adverse inference instruction,
  • legal education
Publication Date
June 30, 2011
Citation Information
Robert A. Weninger. "Electronic Discovery: Sanctioning Spoliation with an Adverse Inference Instruction" ExpressO (2011)
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