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Federal E-Discovery: Second Circuit Says Intent Matters When Determining Sanctions for Lost Electronic Information
April 9, 2025
Litigation partners Chris Boehning and Dan Toal’s latest Federal E-Discovery column, “Second Circuit Sets State of Mind and Burden of Proof Requirements for Sanctions Under FRCP 37(e)(2),” appeared in the April 9 issue of the New York Law Journal. The authors discuss a recent decision by the Second Circuit concerning the appropriate interpretation and application of Federal Rule of Civil Procedure 37(e)(2) that establishes a framework setting both state of mind and burden of proof requirements for sanctions under the rule.
In Hoffer v. Tellone, the appellate court found that parties can only be sanctioned under 37(e)(2) for lost electronically stored information if there’s a preponderance of evidence that they intended to deprive another party of the ability to use the information in litigation. The court also noted that its ruling doesn’t apply to the loss of non-electronic evidence. Deputy chair and counsel, e-discovery, Ross Gotler and e-discovery attorney Lidia Kekis assisted in the preparation of this article.
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