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Electronic Discovery: Sanctioning Spoliation With An Adverse Inference Instruction, Robert A. Weninger

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 …