Responding to a Rule 37(e) Spoliation Motion

The motion arrives late on a Friday. It runs thirty pages, attaches eleven exhibits, and asks the court to instruct the jury that the missing text messages would have been unfavorable to your client. Opposing counsel has been assembling it for months out of your own deposition transcripts. You have fourteen days to respond.

This article is not about what Rule 37(e) requires — that ground is covered separately. It is about the response: what to test first, what the record has to show, and how to sequence the work when there is no time to do everything.

Four gates, and the movant has to clear all of them

Rule 37(e) is not a general-purpose spoliation statute. It is a narrow provision that becomes available only after four predicates are established: the information was ESI; it should have been preserved in the anticipation or conduct of litigation; it was lost because the party failed to take reasonable steps to preserve it; and it cannot be restored or replaced through additional discovery. Courts have generally required the party seeking sanctions to establish those predicates before the remedial provisions come into play at all.

That structure matters more than practitioners tend to treat it. A motion that reads as an indictment of your client's character is still, procedurally, a motion that fails if any one of the four elements is missing. The response should be organized around the gates rather than around the movant's narrative, because a narrative rebuttal invites the court to weigh two stories, and an element-based rebuttal asks it to decide a threshold question.

Test "restorable or replaceable" first

Of the four elements, the fourth is the one most often assumed rather than proven, and it is the one that quietly defeats a large share of motions. The 2015 Advisory Committee Note is explicit about why: because electronically stored information often exists in multiple locations, loss from one source may often be harmless when substitute information can be found elsewhere.

Modern enterprise systems make substitutes abundant. Before conceding that anything is gone, work through the places the same content lives:

• The other side of the conversation. A custodian's deleted Teams messages usually survive in the mailboxes and chat stores of every person in the thread. So do the emails.
• Journaling, archiving, and compliance stores. Many regulated organizations capture messaging into a separate archive that no one on the matter team thought to check.
• Server-side retention. Microsoft 365 and Google Workspace both keep deleted items in recoverable stores for a period, and a retention or hold policy applied at any point may have frozen a version the custodian believes they destroyed.
• Attachments and forwards. A lost document is frequently recoverable as an attachment to a preserved email, sometimes in several versions across the drafting history.
• Third parties. Vendors, counterparties, and outside advisors hold copies of a surprising amount of what an organization thinks it lost.
• Structured systems. A missing spreadsheet may be entirely reconstructible from the ERP, CRM, or ticketing system that generated it.

Two cautions. Replacement has to be real, not theoretical: telling the court that data "might" exist somewhere invites an order that you go find it, at your client's expense, and a second motion when you do not. And the substitute has to be obtainable through additional discovery at a proportionate cost. If the answer is a six-figure restoration of legacy backup tapes, you are making a proportionality argument under Rule 26(b)(1), which is a different and harder argument than the one the fourth element gives you.

The strongest version of this response is affirmative. Rather than arguing that substitutes probably exist, produce them — or offer a targeted set of additional custodians and a short extension to run them — and let the movant explain to the court why the material it has now is inadequate.

Reasonable steps, not perfect steps

The third element is where most of the argument actually happens, and the word doing the work is reasonable. The rule does not ask whether data was lost. It asks whether the loss happened because the party failed to take reasonable steps.

Reasonableness is assessed against what the organization knew at the time, the resources available to it, and the proportional stakes of the matter. It is not assessed against what a forensic examiner would recommend with unlimited budget and hindsight. That distinction is your argument, and the way you make it is with a contemporaneous record of decisions rather than a declaration explaining what you would have done.

Note also that the element has a causation requirement built into it. Data lost to a hardware failure, a vendor's error, or a system the party had no ability to control was not lost because reasonable steps were skipped. Courts have distinguished between loss a party caused and loss a party merely suffered, and the record has to let you make that distinction concretely.

Two routes, two very different stakes

The 37(e)(1) route

If the four predicates are met and the loss prejudiced the other side, the court may order measures no greater than necessary to cure the prejudice. Additional depositions, cost-shifting, permitting evidence and argument about the loss at trial, and adverse evidentiary rulings on a narrow issue all live here. No finding of intent is required.

Prejudice is contestable, and it is worth contesting. The Advisory Committee deliberately declined to assign the burden on prejudice to either side, leaving allocation to the court's discretion — which means an opposition that engages seriously with what the lost material would have shown is not wasted effort. If the movant already has the same information from four other custodians, the prejudice from losing a fifth copy is small, and the cure should be correspondingly small.

The 37(e)(2) route

This is the one to take seriously. Only on a finding that the party acted with the intent to deprive another party of the information's use in the litigation may a court presume the lost information was unfavorable, instruct a jury to do so, or dismiss the case outright. Negligence does not get the movant there. Gross negligence does not either.

What does get a movant there is circumstantial evidence, and counsel who assume intent must be proven by confession are routinely surprised. In Jones v. Riot Hospitality Group LLC, 95 F.4th 730 (9th Cir. 2024), the Ninth Circuit affirmed dismissal where the district court, drawing reasonable inferences from the circumstances, found that the plaintiff had deleted relevant text messages and coordinated with witnesses to delete more. The pattern of deletions, their timing relative to the litigation, and the coordination did the work that a confession would have done.

The practical implication is that timing is the whole battlefield. Deletions that cluster after a hold notice, after a preservation letter, or after a deposition on the subject look intentional whether or not they were. If the deletions in your matter predate the trigger, or continued at a constant rate through it, say so with dates and volumes rather than adjectives.

What the record actually has to show

Every argument above is only as good as the exhibits behind it. When a motion lands, the opposition is assembled from a fixed set of documents, and they either exist or they do not:

1. The trigger determination. A dated record of when the duty was recognized and on what facts. If your date is later than the movant's, you need contemporaneous support for it, not a declaration written this month.
2. The hold notice itself. Its text, its distribution list, and its issuance date. Scope is scrutinized as hard as timing: a notice that never mentioned mobile messaging is an exhibit for the other side in a case about text messages.
3. Acknowledgements. Who confirmed receipt, and when. Silent custodians are the ones opposing counsel will depose.
4. Re-issuance and reminders. Evidence that the hold was maintained rather than issued once and forgotten. Long matters without re-notification are a recurring finding in sanctions opinions.
5. Source-by-source preservation decisions. The auto-delete suspensions requested, the ticket numbers, the IT confirmations, and the sources deliberately excluded together with the reason. An exclusion documented at the time is a proportionality decision; the same exclusion explained afterward is an admission.
6. Departure handling. What happened to the accounts of custodians who left mid-matter, and who approved the disposition.
7. Collection records. Dates, tools, scope, and chain of custody. These also inoculate against the follow-on argument that what you did collect is unreliable.

Read that list as an inventory rather than as advice, because on the day a motion is served it functions as one. Each item you have is a paragraph of your brief. Each item you do not have is a paragraph of theirs.

When data really is gone

Sometimes it is. A custodian wiped a phone before anyone reached them, an ephemeral messaging setting ran for eight months, a departed employee's mailbox was purged on the ordinary thirty-day cycle. Denying an obvious loss costs credibility you will need on the elements that are genuinely contested.

The better posture is candor plus process. Concede the loss precisely — this source, this date range, this volume — and then show the court a preservation program that was operating reasonably and still did not catch it. Courts respond very differently to a party that says "we had a process, here it is, and this fell through a documented gap" than to a party that says "we are not sure what happened." The first is a Rule 37(e)(1) case about a proportionate cure. The second invites the court to wonder what else it has not been told.

This is also the moment where a defensible process narrative has to be assembled from records that already exist. It cannot be manufactured. A declaration describing an unwritten process, supported by nothing dated earlier than the motion, reads exactly like what it is.

Sequencing a response in two weeks

The temptation is to start writing. Resist it for about three days.

1. Freeze everything, immediately. Re-issue the hold, broaden it to cover anything the motion identifies, and suspend any deletion still running. Continued loss after service of a spoliation motion is the single worst fact you can hand a court.
2. Build the timeline before the argument. One document, every date: trigger, notice, acknowledgements, collections, the deletions the movant alleges. The arguments fall out of the timeline. Written first, they tend to be contradicted by it.
3. Run the recovery sweep. Recoverable-items stores, archives, thread participants, third parties. Do this in parallel with drafting, because a substitute production found on day nine reshapes the brief.
4. Decide the intent posture early. Whether the motion has a viable (e)(2) theory determines whether you are arguing about the size of a cure or defending against dismissal, and those are different briefs with different tones.
5. Consider a proportionate offer. Additional custodians, a re-opened deposition, or bearing a defined cost often resolves an (e)(1) motion for less than briefing it, and it removes the platform for the (e)(2) theory.
6. Line up the declarant. Whoever signs the process declaration may be examined on it. That person should be someone who actually ran the preservation, not the lawyer who reconstructed it.

The uncomfortable part

The strongest response to a Rule 37(e) motion is assembled before the motion exists. Everything above is an exercise in retrieval: you are pulling dated records out of a system and arranging them. An organization with a documented preservation program can do that in an afternoon. An organization without one is not retrieving a record. It is trying to construct evidence about its own past conduct, under oath, against an adversary who has been preparing for months.

Those two positions are not different in degree. Trigger logs, notice text, acknowledgement reports, deletion-suspension tickets, and documented decisions about modern data sources are either in the file or they are not, and no amount of briefing creates them afterward.

If a motion has already been served, work the elements in the order above and get the recovery sweep started today. If one has not, the useful question is narrower and more urgent than it sounds: if a spoliation motion were filed against your largest active matter next week, which of the seven record items could you produce by Friday?