There is a saying that when the facts are against you, argue the law. When the law is against you, argue the facts. When the facts and law are against you, pound the table. Pounding the table is not as effective as some might want, so an alternative is to accuse the opposing party of spoliation. As a consequence, “[s]poliation motions are now routinely filed. Trial courts are increasingly being asked to delineate the scope of a party’s duty to preserve evidence.”
Last week’s post discussed how the spoliation calculation has changed as to ESI. Negligence is not sufficient to support a jury instruction when ESI is lost. Rule 37(e)’s plain language is limited to ESI. What about physical evidence?
For example, in 2006 the Nevada Supreme Court decided in Bass-Davis v. Davis that “a permissible inference that missing evidence would be adverse applies when evidence is negligently lost or destroyed.” “An inference is permissible, not required, and it does not shift the burden of proof.” Rule 37(e)’s changes reject that conclusion as to ESI.
As to physical evidence, Bass-Davis’s logic had been rejected long before after Nevada adopted it. That rejection continued long after it was adopted too. Bass-Davis assumed evidence negligently lost or destroyed is unfavorable to the party who lost it. This assumption is wrong, for the reasons the 2015 Advisory Committee described concerning ESI. The Committee concluded negligence does not support an adverse inference instruction because
[i]nformation lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have. The better rule for the negligent or grossly negligent loss of electronically stored information is to preserve a broad range of measures to cure prejudice caused by its loss, but to limit the most severe measures to instances of intentional loss or destruction.
Rule 37(e)’s plain language applies only to ESI, but the Advisory Committee’s logic for rejecting an adverse inference based solely upon negligence persuasive beyond ESI. The important fact is not whether the evidence it is electronically stored or physical. Instead, the important fact is that an adverse inference based upon negligence “may tip the balance at trial in ways the lost information never would have.”
In the federal system, eight circuits refused spoliation remedies for mere negligence even before the 2015 amendments, citing treatises dating back to 1964. A permissible “inference must be predicated on the bad faith of the party destroying the records. Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case.” Two circuits that might allow an adverse inference based upon mere negligence acknowledge it is a rare occurrence. The First Circuit concluded “the instruction usually makes sense only where the evidence permits a finding of bad faith destruction; ordinarily, negligent destruction would not support the logical inference that the evidence was favorable to the defendant.” But it acknowledged “unusual circumstances or even other policies might warrant exceptions. Consider, for example, negligent destruction of a particular piece of evidence likely to be exculpatory or routine destruction of a class of such evidence–neither variation being present here.” There was only one circuit that allowed an adverse inference based solely upon negligence, and that spurred the changes to Rule 37(e).
This leads to a serious question: are Bass-Davis and other decisions allowing for spoliation remedies based upon negligence and physical evidence still good law?
 Glover v. Smith’s Food & Drug Ctrs., Inc., 2:12-cv-1558, 2013 U.S. Dist. LEXIS 139411, 2013 WL 5437062 (D. Nev. Sept. 26, 2013).
 Bass-Davis v. Davis, 122 Nev. 442, 448, 134 P.3d 103, 107 (2006).
 Id. at 449, 134 P.3d at 107.
 2015 Advisory Committee notes.
 Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997); Bull v. UPS, 665 F.3d 68, 79 (3d Cir. 2012) (“No unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for.”); Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008) (“In order to draw an inference that the [destroyed documents] contained information adverse to Sears, we must find that Sears intentionally destroyed the documents in bad faith.”); Stevenson v. Union Pac. R.R., 354 F.3d 739, 746 (8th Cir. 2004) (“[T]the adverse inference instruction is appropriate only where the spoliation or destruction of evidence is intentional and indicates a fraud or desire to suppress the truth.”); Penalty Kick Mgmt. Ltd. v. Coca Cola Co., 318 F.3d 1284, 1294 (11th Cir. 2003) (“[A]n adverse inference is drawn from a party’s failure to preserve evidence only when the absence of that evidence is predicated on bad faith.”); Med. Lab. Mgmt. Consultants v. ABC, 306 F.3d 806, 824 (9th Cir. 2002) (“When relevant evidence is lost accidentally or for an innocent reason, an adverse evidentiary inference from the loss may be rejected.); Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995) (“An adverse inference about a party’s consciousness of the weakness of his case, however, cannot be drawn merely from his negligent loss or destruction of evidence; the inference requires a showing that the party knew the evidence was relevant to some issue at trial and that his willful conduct resulted in its loss or destruction.”); Vick v. Texas Employment Comm’n, 514 F.2d 734, 737 (5th Cir.1975). (“Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough, for it does not sustain an inference of consciousness of a weak case.” quoting McCormick, Evidence § 273 at 660-61 (1972), 31A C.J.S. Evidence § 156(2) (1964)).
 United States v. Laurent, 607 F.3d 895, 902 (1st Cir. 2010).
 Id. at 902-03; Stocker v. United States, 705 F.3d 225, 236 (6th Cir. 2013) (acknowledging “spoliation sanctions may properly be imposed even for lesser degrees of fault such as negligence” but declining to award a sanction because “the record discloses no culpable conduct beyond the negligent failure to preserve an envelope in accordance with internal agency regulations.”).