Why this Ninth Circuit clarification matters

Spoliation fights are rarely glamorous. Nobody makes a courtroom drama called The Missing Backup File. But discovery sanctions can decide real cases just as surely as a jury verdict. That is why the Ninth Circuit’s recent guidance is such a big deal for civil litigators, businesses, in-house counsel, HR teams, IT departments, and frankly anyone whose phone has become a small, glowing evidence locker.

The court’s recent rulings bring needed discipline to three issues that have long caused confusion. First, what standard applies when ESI is lost? Second, how much fault is enough for a harsh sanction like dismissal, default, or an adverse inference instruction? Third, can a district court sidestep Rule 37(e) and rely on inherent authority when the rule feels too restrictive? The Ninth Circuit’s answer is tidy, even if the facts in the underlying cases were not: use Rule 37(e) for lost ESI, reserve the harshest sanctions for intent to deprive, and do not use inherent authority to dodge the rule’s limits.

The two cases that shaped the clarification

Jones v. Riot Hospitality Group: when deleted texts can sink a case

Jones came from an employment discrimination lawsuit filed by a former waitress against her employer. During discovery, the defense noticed something suspicious: text-message conversations that should have existed seemed to stop abruptly. A third-party imaging vendor confirmed that messages had been deleted from the plaintiff’s phone. Two coworkers later testified that they had exchanged texts with the plaintiff about the case. The district court ordered further discovery, including forensic review of phones, and the situation only got worse.

The forensic specialist concluded that there had been an orchestrated effort to delete or hide evidence. The district court found that the plaintiff had deleted relevant text messages and had coordinated with witnesses in the deletion of additional messages. It dismissed the case with prejudice under Rule 37(e)(2), and the Ninth Circuit affirmed.

What made Jones especially important was not just the outcome, but the court’s explanation. The Ninth Circuit said that to dismiss a case under Rule 37(e)(2), a district court need only find that the rule’s threshold requirements are satisfied, the spoliating party acted with the required intent, and lesser sanctions would not adequately address the loss. The court also emphasized that Rule 37(e)(2) does not make prejudice an express prerequisite for those severe sanctions. That point matters because many sanction fights get bogged down in arguments over whether the missing evidence can be reconstructed with perfect confidence. Jones reminds courts that once intent to deprive is properly found, the rule itself supports a strong inference of prejudice.

Just as important, the Ninth Circuit recognized that intent is usually proven through circumstantial evidence. Very few litigants leave behind a memo that says, “Hello, yes, I am deleting these messages because they are terrible for me.” So courts may look at timing, selective deletion, affirmative steps to destroy data, and suspicious replacement of devices. In Jones, those practical clues carried real weight.

Gregory v. State of Montana: when recklessness is not enough

Gregory involved a civil rights case arising from an encounter in a probation office parking lot. The incident was captured on surveillance video, but the footage was not preserved and was eventually lost through the system’s routine overwrite process. The district court sanctioned the defendants and used an instruction that effectively established a key fact against them. But the district court had found recklessness, not willful destruction with the specific intent required by Rule 37(e)(2).

The Ninth Circuit reversed. It held that digital surveillance footage qualifies as ESI and that Rule 37(e) governed the sanctions analysis. That meant the district court could not rely on inherent authority to impose sanctions that fell within the scope of Rule 37(e)(2) without making the rule’s required finding of intent to deprive. The appellate court described Rule 37(e)(2) as a demanding specific-intent standard and said recklessness was not enough.

That ruling did more than fix one district court’s error. It sent a broader signal throughout the Ninth Circuit: if the missing evidence is ESI, the rule’s text controls. A court cannot use inherent authority as a shortcut around Rule 37(e)’s careful limits. In practical terms, Gregory tells litigants that sloppy preservation may still lead to curative measures under Rule 37(e)(1), but the leap to truly harsh sanctions requires proof of intentional deprivation.

What the Ninth Circuit actually clarified

1. Rule 37(e) is the starting point for lost ESI.

   If the missing evidence is electronically stored information, courts must begin with Rule 37(e). That includes common digital evidence such as texts, emails, chat data, and surveillance footage stored in digital systems. This is not a niche point for e-discovery specialists. It is now core civil-procedure reality.

2. There are two levels of sanctions.

   Rule 37(e)(1) allows measures no greater than necessary to cure prejudice when ESI was lost after a failure to take reasonable preservation steps and the information cannot be restored or replaced. Rule 37(e)(2) permits far harsher sanctions, including adverse presumptions, adverse inference instructions, dismissal, or default, but only upon a finding that the party acted with the intent to deprive.

3. Negligence and recklessness are not enough for the harshest sanctions.

   This is the beating heart of the clarification. The Ninth Circuit made clear that gross negligence, recklessness, and general sloppiness do not satisfy Rule 37(e)(2). The standard is specific intent. That is a high bar by design.

4. Prejudice is treated differently under subdivisions (e)(1) and (e)(2).

   For curative measures under Rule 37(e)(1), prejudice matters. For the severe sanctions in Rule 37(e)(2), the rule does not require a separate express finding of prejudice. The logic is straightforward: if a party intentionally destroys ESI to keep it from an opponent, the law permits a presumption that the destruction mattered.

5. Inherent authority cannot be used to evade Rule 37(e).

   Gregory is the major warning shot here. District courts still possess inherent authority in many areas, but they cannot use it to impose sanctions for lost ESI in a way that circumvents Rule 37(e)’s specific limits. In other words, no end-runs around the rule.

What this means for lawyers, companies, and litigants

For plaintiffs and defendants alike, the practical lesson is preservation discipline. Once litigation is reasonably anticipated, texts, chats, videos, emails, and mobile-device data need serious attention. That does not mean preserving every pixel in human history. It does mean taking reasonable steps early, documenting those steps, coordinating with IT, and making sure custodians understand that “delete” is not a personality trait.

For counsel, the decisions also sharpen motion strategy. If the record shows prejudice but not intent, the better argument may be for curative measures under Rule 37(e)(1), not a maximalist demand for dismissal or a mandatory adverse inference. On the other hand, when the evidence shows selective deletion, suspicious timing, device replacement, or coordinated message wiping, Jones gives a roadmap for how circumstantial evidence can support a finding of intent to deprive.

For businesses, HR departments, and government agencies, Gregory should be read as a warning about auto-delete systems and surveillance retention practices. A party may avoid the harshest sanctions if intent is absent, but that is hardly a victory parade. Lost evidence can still cause expensive motion practice, trial complications, credibility damage, fee exposure, and reputational harm. Nobody wants to explain to a judge that the key video disappeared because the system quietly erased it while everyone assumed someone else had saved it.

Specific examples of how the rulings change litigation behavior

Text-message cases

After Jones, parties should expect closer scrutiny of mobile-device evidence. Deleting one or two irrelevant texts may not end a case. But selective removal of communications with witnesses, especially after a preservation duty attaches, is the kind of pattern that can support an inference of intent. Replacing a phone after an imaging order is not exactly the digital equivalent of innocence whistling.

Surveillance-video cases

After Gregory, litigants seeking harsh sanctions over lost digital video will need to prove more than carelessness. If a system routinely overwrites footage and the evidence shows poor preservation rather than purposeful destruction, courts may still craft curative relief, but they should not leap to Rule 37(e)(2)-style sanctions without a finding of intent to deprive.

Mixed misconduct cases

Some cases involve both ESI spoliation and separate discovery misconduct, such as violating court orders, misleading discovery responses, or obstructing forensic review. In those situations, courts may still have other tools available. But the Ninth Circuit’s clarification means judges and litigants must separate the loss of ESI from other misconduct and match each problem with the proper sanctioning authority.

Experience from the trenches: what spoliation fights usually feel like in real life

Anyone who has worked around modern discovery knows that spoliation disputes almost never begin with a dramatic confession. They begin with ordinary chaos. A manager leaves the company. A custodian upgrades a phone. A video system overwrites itself every fourteen days. An employee assumes screenshots are “basically the same thing” as preserving an entire message thread. IT thinks legal is handling it. Legal thinks IT is handling it. Everyone is sincere, busy, and slightly wrong. Then the motion papers arrive, and suddenly every casual preservation failure looks like it has been lit by courtroom spotlights.

That is why the Ninth Circuit’s clarification feels so practical. In real litigation, judges often face a messy spectrum of conduct rather than a cartoon villain twirling a mustache over a shredder. Some losses happen through negligence. Some happen through recklessness. Some are clearly intentional. The value of Jones and Gregory is that they make the consequences more predictable. If the conduct shows a deliberate effort to keep relevant ESI away from an opponent, severe sanctions are on the table. If the record shows only carelessness or reckless preservation failure, the court still has tools, but not the most punishing ones under Rule 37(e)(2).

Lawyers who deal with these cases also know how often mobile data causes trouble. Clients tend to treat phones like private extensions of themselves rather than evidence repositories. They change devices, delete threads, use disappearing-message settings, or keep switching platforms because that is how people live now. But litigation does not care whether the lost evidence lived in a paper file, a mailbox, or a group chat called “Friday Brainstorm.” Once the duty to preserve attaches, convenience stops being a good excuse.

Video evidence creates a different but equally common problem. Businesses and public agencies often have surveillance systems designed for security, not litigation. Retention windows may be short. The footage may need an active export to survive. Sometimes a person records the screen with a phone and assumes that solves everything, only to learn later that the copy is incomplete, low quality, or missing metadata. Gregory lands squarely in that real-world gap between “we have a system” and “we actually preserved the evidence.”

Another recurring experience is that spoliation fights are rarely just about the missing data. They become credibility contests. Judges start looking not only at what vanished, but at how the party responded once the issue surfaced. Did the party investigate promptly? Was the explanation consistent? Were preservation instructions clear? Did counsel cooperate in good faith? A weak preservation story can often be survived; a weak preservation story followed by evasiveness is where cases begin to wobble.

That is also why the lesson for practitioners is not merely “avoid sanctions.” It is “build a record of reasonableness.” Issue the hold. Identify the custodians. Talk to IT early. Suspend auto-delete features when necessary. Preserve phones before they are replaced. Document collection decisions. Confirm what can and cannot be restored. If there is a gap, disclose it promptly and explain it honestly. Courts are far more receptive to imperfection than to gamesmanship.

In that sense, the Ninth Circuit’s recent spoliation rulings are not just legal doctrine. They are a survival guide for digital litigation. Preserve early, preserve intelligently, and never assume that missing data will be treated as a harmless technical glitch. In federal court, especially after Jones and Gregory, the difference between a bad day and a catastrophic sanction can be the difference between carelessness, recklessness, and proof of actual intent.

Conclusion

The Ninth Circuit has now drawn a cleaner line in spoliation law. Jones shows that dismissal and other severe sanctions remain available when a party intentionally destroys ESI to keep it from the other side. Gregory shows that courts cannot bypass Rule 37(e) by invoking inherent authority when the missing evidence is ESI and the record shows only recklessness or negligence. Together, the cases make one thing plain: preservation mistakes still matter, but the harshest sanctions require proof of purpose, not just proof of a mess.

For litigants, that means the age of casual digital housekeeping is over. For lawyers, it means sanction motions must be tied carefully to the rule’s structure. And for anyone tempted to delete, replace, overwrite, or “clean up” potentially relevant data once a dispute is brewing, here is the polite version: put the phone down and call counsel.

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