Since the December 2015 amendments to Federal Rule of Civil Procedure 37(e), which overhauled the process for imposition of sanctions for spoliation of electronic evidence, controversy has persisted regarding whether federal courts may continue to look to their inherent authority to impose such sanctions, at least where the conduct would not be technically sanctionable under the amended Rule.
The Advisory Committee notes to Rule 37(e) seem to indicate that such authority is no longer available, but several influential district courts and the Second Circuit have disagreed. The Third Circuit has yet to speak on the issue, and district courts in that circuit (to the extent they have waded into this controversy) have not provided much clarity. Ultimately, the Third Circuit (and others) may follow the apparent lead of the Second—but the issue remains undecided, and litigants should be aware that arguments can, and likely will, be made either way.
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