When Intent May, or May Not Be an Issue for the Trier of Fact

In a January 25, 2019 decision from the U.S. District Court for the Southern District of Florida, Magistrate Judge Goodman agrees that the 2015 amendments limited the application of inherent authority with respect to ESI.  Unfortunately for the defendant in this case, the Court’s interpretation of the amendment’s inclusion of "intent to deprive,”  (and its reference to the Advisory Committee notes), while indisputably adding another hurdle to a finding of spoliation, opens (and shines a bright light on) the door to present the issues of intent to the jury. 

While the Rule 37(e)(2)’s intent based approach has apparently not resulted in a slew of jury referrals for finding of intent, it appears that with sufficient evidence to show that a jury could reasonably find that a party had intent to spoliation (for purposes of Rule 37(e)(2), arguably negating, rather than implementing the apparent intent of the 2015 amendments to curtail sanctions determinations. 

So, does the amended rule really “fix” what was perceived as untrammeled use of inherent authority in determining ESI spoliation sanctions, or does it leave more drastic sanctions determination squarely in the laps of a jury. 

Which brings up the issue of whether a party could appeal reservation of a finding of intent to the Court (rather than a jury). Treacherous waters here, as an appellate decision ruling could find that (1) any issue of "intent" is always factual and one for jury determination, or that, in an jury trial (2) or create an interesting carve-out by ruling that some intent is not as equal (e.g. meriting a jury) as other intent (apologies to Orwell). 

Option 1 offers a wider door for seeking sanctions (risk of jury determination), while Option 2 appears to curtail a party’s right to a jury trial on all facts so triable. 

Sosa v. Carnival Corporation, 2019BL25237 (SD FL January 25, 2019).

We traded inherent authority for this.