(123) Elimination of the risk of unfair sanctions based on technological problems rather than on spoliators' culpability was an important factor in the rule's adoption.
(41.) See KOESEL & TURNBULL, supra note 3, at 59 (explaining rationale behind sanctioning of unintentional spoliators).
1, 18 (2006) (reporting trend among courts to sanction negligent spoliation); see also KOESEL & TURNBULL, supra note 3, at 64-65 (explaining rationale behind sanctioning of negligent spoliators).
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)).
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.
The Fourth District held that, "[d]espite the decision in Bondu, having now squarely confronted the issue, we side with those courts that have held that an independent cause of action for spoliation of evidence is unnecessary and will not lie where the alleged spoliator and the defendant in the underlying litigation are one and the same." (11) The Fourth District in Martino noted that the California Supreme Court itself decided in 1998 to renounce the lower California court's recognition of the intentional tort of spoliation in the first-party context (upon which Bondu had relied).
Accordingly, spoliation needs to be analyzed under four interrelated axes or rubrics: Remedy (sanctions or tort damages); identity (plaintiff, defendant or third-party spoliator); culpability (intentional, negligent, or bad faith); and duty (is one required for a remedy, and if so, what is the source of the duty?).