In Nuvasive v. Madsen Medical, No. 3:13-cv-02077-BTM-RBB (S.D.CA, Jan. 26), the U.S. District Court for the Southern District of California, responding to the amendment of Federal Rule of Civil Procedure 37(e), which had gone into effect on Dec. 1, reversed its decision of July 22 ordering that a permissive adverse inference instruction be issued to the jury for the plaintiff’s failure to preserve text messages (the prior decision was discussed in this column on Aug. 25). Analysis of the court’s rationale reveals a fundamental flaw in the amendment to Rule 37(e), which treats matters in which a requesting party has been prejudiced by the producing party’s failure to preserve potentially discoverable electronically stored information (ESI) with different, and less severe, sanctions than when the producing party intends to destroy discoverable ESI, even though, save for the rarest of cases, the evidence showing prejudice is identical to that showing intent.

The July 22, 2015, Opinion

As the court explained in its July 22 opinion, defendants Kris Madsen and Madsen Medical Inc. (MMI) sought sanctions for the plaintiff Nuvasive’s failure to preserve the text messages of four former MMI sales representatives who left for Nuvasive, and who were, per MMI’s counterclaims and claims in another action, conspiring with Nuvasive to leave MMI (and take its business) while still employed there: Stephen Kordonowy and Ed Graubart, prior to 2014; Frank Orlando, prior to 2013; and Jeff Moore, prior to Sept. 20, 2012. The defendants contended that these text messages could have been evidence in support of its claims.

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