Lawyers spend a ton of time thinking about intent.  Intent is what separates murder from negligent homicide.  It’s key to deciding whether minds have met to form a binding contract.  Intentional torts are punished.  Notions of intent pervade the law: testamentary intent, transferred intent, malice, bad faith, mens rea, scienter and premeditation.  The intent of the framers of the U.S. Constitution was the linchpin of the late Justice Antonin Scalia’s interpretation of that great document.

Intent is the attitude with which one acts.  It can be general intent in the sense of acting in the way you meant to act, or it can be specific intent in anticipating and seeking a specific outcome.  Intent is all in the mind.

Proving intent is one of the harder things trial lawyers do.  Short of the rare Perry Mason moment when a party confesses intent ( i.e., “You’re damn right I killed him, and I’d do it again.  The bastard NEEDED killing!!”), lawyers must resort to evidence that illuminates the intent of a specific person or corporation or that of a reasonable person or corporation similarly situated in terms of what he, she or it would have thought, anticipated or known.

When lawmakers demand proof of intent, they necessarily contemplate that evidence of intent be brought forward.  Lawyers must be able to delve into intent and discover direct and circumstantial evidence of intent.  We must be permitted to probe the knowledge, experience, attitudes, motives, expectations and prejudices of the person or entity whose intent is at issue.

Because intent is elemental but difficult to prove directly, the law gives leeway to the discovery process.  For example, Courts generally prohibit evidence of other wrong acts or bad character to prove a specific act in accordance with character or traits but make an exception and permit the evidence to come in when prior bad acts show intent. Federal Rules of Evidence Rule 404(b)(2).

All of this is prelude to discussing the broader impact of amended Rule 37(e) of the Federal Rules of Civil Procedure, now requiring a finding of an “intent to deprive” as predicate for sanctioning evidence destruction and discovery obstruction.  As I hope all my readers know, FRCP Rule 37(e) was amended effective 2015 to state:

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

The wording of the amended rule sprung from political compromise. I assuage the wailing and gnashing of those who hate the rule by reminding them what a maggot-ridden pile of excrement it would have been had not cooler heads prevailed. Will it serve to shield those who care nothing for competency in e-discovery?  Yes, it’s already served that purpose in reported cases. But, unless the amended Rule was intended to immunize bad actors—and I’m certain that was not the goal of most who worked on it—requiring proof of  intent to deprive also brings discovery of evidence going to intent within scope when spoliation of ESI is an issue.

Though “intent to deprive” has been an element of criminal theft for ages, there isn’t much discovery in criminal matters, so little precedent to draw on.  I suspect those drafting the rule gave little thought to how adding the element of intent would necessitate fulsome discovery into intent.  But, if the justice system is to operate fairly, parties must be permitted to collect evidence concerning the requisite elements of proof. Anything less is a rigged system.

What does this mean for discovery?  To start, it suggests that questions of the sort that might have been out-of-bounds before are now relevant and material lines of inquiry. If the” intent to deprive” of a party is at issue, then questioning the party and its representatives concerning knowledge, experience, attitudes, motives, expectations and prejudices of the actors must be pursued and permitted.  Getting to bad faith and evil intent is an ugly business.  It requires scrutiny of our meanest, basest aspects of our character.  But, if you’re going to make movants prove scienter, then you must let movants marshal the evidence of same.  Inquiring into motive, attitudes and expectations isn’t fishing; it’s looking in the dark places intent hides.

I also suspect that the drafters of the amended rule did not ponder how the obligation to prove intent to deprive would collide with claims of privilege.

Lawyers are nuts about privilege, and I mean that in every sense of the word.  They love to claim that anything having anything to do with pending or anticipated litigation is work product, and most lawyers are irrationally exuberant when it comes to client communications pertaining to matters in litigation.

So, ask yourself, “in what context are communications and information about efforts to deprive opponents of information most likely to occur?”

Clearly, intentional efforts to deprive parties of evidence will find most frequent expression in contemplation of litigation and in communications about what the lawyers have instructed clients to do in terms of preserving and producing information in discovery.  So, how do we balance sweeping claims of privilege against the right to discover intentional destruction of evidence?

To start, courts must address where the crime/fraud privilege exception fits with respect to whether evidence of intentional spoliation can be discovered.  I sympathize with those who charge that the assertion of privilege in litigation has gone off the rails, to the point that privilege is a velvet rope to keep the public from incriminating information.  Lawyers have become so cavalier in their assertion of privilege that it makes a mockery of the noble and essential principles behind the privileges. How will movants explore the intent of in-house counsel? What is the role of neutrals in such inquiries?  It’s a swamp, and the amended rule requires we wade in.

Lawyers must frame new lines of inquiry for deposition and discovery going to proof of intent when data is lost.  Will lawyers be questioning IT staff about how they feel about the requesting party? About people who sue?  Do we plumb the attitudes about and between counsel?  When the issue is intent, questions about attitudes, biases, experience, expectations, background and emotions figure into the inquiry.

Rule 37(e) has closed some doors, but it’s opened others.  When 37(e) applies, the right of a deprived party to discover evidence bearing on intent to deprive seems manifestly clear to me; but, it’s also clear that the assertion of this right will be fought tooth and nail by spoliators who want the benefit of 37(e) without bearing the burden.

Such is the nature of unintended consequences.  Those who fought for protection from the consequences of their misconduct failed to consider that they were putting their conduct under a new microscope.  It will be up to judges to find the appropriate balance between the rights of the spoliator and the rights of those prejudiced by spoliation.

Let’s hope that, in wisely seeking not to punish the merely negligent, courts still seize on opportunities to deter ignorance, incompetence and complacency that unintentionally-but-prejudicially deprives litigants of relevant evidence.  There are no carrots luring us to e-discovery competence; all the Courts have are sticks.