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152) Because only spoliators have the ability to oversee such evidence, in many instances of non-production, innocent parties are unable to prove that spoliators intentionally failed to produce the evidence.
37(e) (providing "safe harbor" to spoliators of ESI in some circumstances); PAUL & NEARON, supra note 11, at 49 (noting cases involving sanctioning of ESI non-production as one reason Advisory Committee included Rule 37(e)).
9) These courts argue that non-willful spoliation therefore cannot sustain an inference that a negligent spoliator destroyed evidence because it would have hurt the spoliator's case.
380(b)(2), as applied to spoliators, inter alia include a court order establishing certain facts as claimed by the nonspoliating party, forbidding the spoliator from supporting or opposing designated claims or defenses, prohibiting the spoliator from introducing designated matters into evidence, striking the spoliator's pleadings, entering dismissal or default judgment against the spoliator, finding the spoliator in contempt, and/or awarding costs and attorneys' fees caused by the spoliation to the nonspoliating party.
Accordingly, for federal sanctions phrased as applied to spoliators, see note 18.
The duty to preserve evidence flouted by the spoliator can arise from a court order, a discovery request, a statute or administrative regulation, a contract, and perhaps common law.