For lost ESI, Rule 37(e) allows two tiers. On a finding of prejudice, a court may order measures no greater than necessary to cure it. Only on a finding that a party acted with intent to deprive may it give an adverse-inference instruction, dismiss, or enter default judgment.
Three things must be true before any sanction is available
Rule 37(e) is a gate, not a menu. It applies only where 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 the information cannot be restored or replaced through additional discovery.
That third element decides more motions than practitioners expect. Databases get backed up, mail flows to journaling archives, chat exports survive in a downstream reporting system, and the same message often sits in a second custodian's mailbox. Where the data is recoverable from anywhere, the rule is not engaged at all and the argument is about cost allocation rather than sanctions.
"Reasonable steps" is also not perfection. A party that issued a timely hold, reached the right custodians and systems, suspended the auto-delete that mattered, and documented what it did is in a strong position even if something was lost anyway.
The two tiers, and why the difference is the whole motion
Rule 37(e)(1) — prejudice. On finding that another party is prejudiced by the loss, the court may order measures no greater than necessary to cure the prejudice. In practice that means permitting additional discovery, shifting the cost of reconstructing the record, precluding a narrow line of proof, or allowing the parties to present evidence and argument about the loss to the jury.
Rule 37(e)(2) — intent to deprive. Only on finding that the party acted with the intent to deprive another party of the information's use in the litigation may a court presume the lost information was unfavorable, instruct the jury that it may or must so presume, or dismiss the action or enter a default judgment.
The line between them is the point of the 2015 amendment. Negligence — even gross negligence — does not support an adverse-inference instruction under Rule 37(e)(2). Motions still routinely ask for one on a showing of carelessness, and the ones that succeed are the ones that develop intent as a factual matter: deletion after a hold attached, disabled logging, wiped devices, timing that lines up with a demand letter.
What Rule 37(e) does not cover
It governs ESI only. Destruction of tangible evidence is handled under a court's inherent authority and state law, where the older negligence-based standards often still apply — which is why the same conduct can produce different outcomes in state and federal court, and why the forum matters to the motion.
It is also not the only route to a sanction. Violating a preservation or discovery order runs through Rule 37(b)(2)(A), which carries its own remedies and does not require the Rule 37(e) findings.
What actually decides these motions
Spoliation motions are won and lost on a record, not on adjectives. The questions that decide them are technical: when the duty to preserve attached, what the retention settings were and when they changed, whether auto-deletion was suspended and for whom, whether the lost material exists somewhere else, and whether the collection methodology can be reproduced by someone who did not run it.
That record is built before the motion, and it is usually built by the party's technical process rather than its briefing. Where the dispute is genuinely technical or the systems are complex, courts increasingly resolve it by appointing a neutral to examine the facts rather than choosing between competing declarations.
From our work
Primary sources
Need this looked at properly?
Our examiners and testifying experts work these questions for a living. Tell us what you're facing.
Reviewed by Law & Forensics. See our editorial standards.