State Spoliation Claims in Federal District Courts

Abstract

The increasing amounts of electronically stored information (esi) relevant to civil litigation, and the ease of their loss, caused federal lawmakers explicitly to address the possible consequences of certain presuit or postsuit esi losses. These lawmakers acted in both 2006 and 2015 through Federal Civil Procedure (FRCP) 37(e). But they acted only on certain esi. Their actions have prompted increasing attention to the significant risks of presuit and postsuit losses of all esi, and of nonesi, otherwise discoverable in civil actions. In addition, their actions have spurred increasing attention to the availability of substantive law claims involving spoliation of information relevant to future or pending federal civil actions. Such claims compliment the federal civil procedure laws on discovery sanctions for information losses. Federal court jurisdiction over state substantive spoliation claims in related federal civil litigation was expressly invited by the federal judicial rulemakers when amending FRCP 37(e) in 2015. Prior to and since, federal courts have recognized the availability of state spoliation claims for losses of either esi or nonesi relevant in pending civil actions. As state spoliation claims typically involve no federal law question, their pursuit in federal courts may be barred by the lack of, or a failure to exercise, subject matter jurisdiction. Their pursuit may also be stymied by other barriers, including the lack of personal jurisdiction, an inability to effect joinder, and collateral estoppel. This article explores federal district court power to hear state spoliation claims involving information losses related to and within ongoing civil litigation. It explores whether jurisdictional norms should vary between FRCP 37(e) esi spoliation and other esi and nonesi spoliation. As well, the article examines whether spoliation claims should be comparably available for presuit and postsuit losses and for claims against those who are otherwise not parties in the related civil actions, like insurers and attorneys. Finally, it reviews possible joinder, collateral estoppel, and choice of law issues arising when federal courts hear state spoliation claims.