Timing of Rule Amendments Proves “Good Luck” for Spoliating Party as Court Vacates an Adverse Inference Order

NuVasive, Inc. v. Madsen Med., Inc. No. 13cv2077 (BTM)(RBB), 2016 WL 305096 (S.D. Cal. Jan. 26, 2016).

Last fall, we reported on an earlier decision in this case where the court imposed a permissive adverse inference to punish NuVasive for destroying text messages. Now, the court has overturned its decision based on the amendments to the Federal Rules of Civil Procedure that took effect in December 2015.

NuVasive filed a motion for reconsideration under Federal Rule of Civil Procedure 60(b), asking the court to apply newly amended Rule 37(e). Subsection 1 of the amended rule allows courts to impose measures “no greater than necessary to cure the prejudice” that results from a loss of evidence. Subsection 2 now requires the court to find that a party “acted with intent to deprive another party of the information’s use in the litigation” before ordering more severe sanctions, such as giving the jury an adverse inference instruction. The Committee Notes to the amended rules clarify that measures designed under subsection (e)(1) should not have the effect of measures described under e(2).

The amended rules were not in place when the complaint was filed, when the parties conducted discovery, or when the court ruled on the defendants’ motion for sanctions. Yet, the court ruled that the amendments should apply here because the trial had yet to take place, in line with precedent suggesting that new procedural rules should apply “to the uncompleted portions of suits pending when the rule became effective.”

In evaluating its prior order under the new rule, the court noted that it did not find that “NuVasive intentionally failed to preserve the text messages so that Defendants could not use them in this litigation.” Rather, the court merely decided that NuVasive did not enforce compliance with its litigation hold.

The defendants countered that NuVasive’s Rule 60(b) motion was too late and that they would be prejudiced by the application of the new standard. The court disagreed. NuVasive’s motion for reconsideration was timely, having been filed 10 days after the new rules went into effect. Further, there was no prejudice to the defendants in overturning the decision. The defendants had failed to probe intent during their depositions of NuVasive’s witnesses, despite having every opportunity to do so and knowing that intent was relevant to the court’s consideration of the degree of fault involved in the loss of evidence, so there was no evidence in the record to support the imposition of sanctions under Rule 37(e)(2). Finally, the timing of the new rule and trial was simply a matter of “bad luck” for the defendants and “good luck” for NuVasive.

Therefore, the court vacated its earlier ruling granting the permissive adverse inference. However, the court decided to allow the jury to consider any evidence the parties chose to present at trial regarding the loss of relevant information, citing the Committee Notes to Rule 37(e)(1).

NuVasive, Inc. v. Madsen Med., Inc. No. 13cv2077 (BTM)(RBB), 2016 WL 305096 (S.D. Cal. Jan. 26, 2016).


As this case illustrates, the amended rules will now require courts to consider the threshold issue of intent before evaluating proper remedies for spoliation. If this case is any indication, the amended rule is having its desired effect of creating greater consistency for parties: instead of permitting courts to rely on case precedent that varies from jurisdiction to jurisdiction and their inherent authority, they now have a clearer standard to follow before imposing sanctions.