In Hoffer v. Tellone, No. 22-1377 (2d Cir. Feb. 13, 2025), the Second Circuit Court of Appeals affirmed the district court’s ruling denying Hoffer’s request for an adverse inference instruction over the spoliation of video from an officer’s taser during an arrest, finding “that the lesser ‘culpable state of mind’ standard, which includes negligence… does not apply to the imposition of sanctions under Rule 37(e)(2).”

Case Discussion and Judge’s Ruling

The case (and the positions of the parties to Hoffer’s appeal to the Second Circuit )was previously discussed by me in this post. Here is a quick high-level summary of the facts leading up to this ruling:

• Richard Hoffer sued the City of Yonkers and police officers alleging excessive force during his arrest on November 20, 2016.
• At trial, Hoffer claimed he was tased twice while incapacitated, while Officer Goff testified to two taser deployments, the first while Hoffer was resisting.
• The log from Officer Goff’s taser reflected two deployments, but the video of the first deployment was reportedly “overwritten.”
• Hoffer requested an adverse inference instruction, arguing the missing video constituted spoliation of evidence.
• The district court denied this request, finding insufficient evidence of an intent to deprive Hoffer of the video’s use.

The Second Circuit first addressed whether Hoffer had waived or forfeited his right to challenge the district court’s denial of an adverse inference instruction because after the jury charge was read to the jury, his counsel did not object to it, by stating: “We find this argument to be without merit… Because the district court, before it read aloud the jury charge, had definitively denied the request for an adverse inference instruction, Hoffer’s counsel was not required to object to the charge to preserve Hoffer’s right to appeal.”

Then, the Second Circuit proceeded to address Rule 37(e)(2) requirements. Regarding whether the district court erred in requiring a showing that the spoliating party acted with “intent to deprive” for an adverse inference instruction under Rule 37(e)(2), the Court stated: “Before 2015, a party seeking an adverse inference instruction based on lost evidence—electronic or otherwise—had to establish that a party obligated to preserve or produce such evidence who failed to do so acted with ‘a culpable state of mind.’… Then, in 2015, Federal Rule of Civil Procedure 37(e) was amended to specify the measures a court could employ if electronically stored information (‘ESI’) was wrongfully lost and the findings required to order such measures”, noting that the “second subsection enumerates certain sanctions—namely, presuming that the lost information was unfavorable to the spoliating party, giving an adverse inference instruction to the jury, dismissing the action, or entering default judgment—that the court may impose ‘only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation.’”

Continuing, the Court added: “Hoffer acknowledges that the plain language of Rule 37(e)(2) requires a finding of “intent to deprive,” but argues that this court has continued to apply the lesser ‘culpable state of mind’ standard articulated in Residential Funding even after the 2015 Amendment went into effect. Hoffer is correct that various decisions by this court, issued after the 2015 Amendment, have referenced or used the lesser “culpable state of mind” standard in the context of lost ESI”, referencing decisions including Rossbach v. Montefiore Med. Ctr., Klipsch Grp., Inc. v. ePRO E-Com. Ltd. and Johnson v. Perry, as well as Mazzei v. Money Store (which stated that adverse inference instruction may only issue under Rule 37(e)(2) upon finding intent to deprive).

However, in rejecting Hoffer’s appeal and affirming the district court decision, the Second Circuit stated: “None of these decisions, however, expressly held that the state of mind required for a sanction under Rule 37(e)(2) could be less than ‘intent to deprive.’ Indeed, not one decision directly addressed the question presently before us: whether the 2015 Amendment abrogated the lesser ‘culpable state of mind’ standard in the context of lost ESI. To the extent that these decisions implied that a Rule 37(e)(2) sanction could issue upon a finding of a state of mind other than ‘intent to deprive,’ any such implication was mistaken after the 2015 Amendment… Today, we make clear that the imposition of a sanction under Rule 37(e)(2) requires a finding of ‘intent to deprive another party of the information’s use in the litigation.’ Thus, the 2015 Amendment to Rule 37(e)(2) abrogated the lesser ‘culpable state of mind’ standard used in Residential Funding…in the context of lost ESI. A party’s acting negligently or knowingly will not suffice to justify the sanctions enumerated in Rule 37(e)(2).”

The Second Circuit also rejected Hoffer’s appeal regarding burden of proof, stating: “we hold that a party seeking sanctions under Rule 37(e)(2) must establish the requisite elements—including that the party act with ‘intent to deprive’—by a preponderance of the evidence.” And they also rejected his appeal on whether it should be left to the jury to resolve disputed questions of fact relating to whether the prerequisites for issuing an adverse inference instruction have been met., stating: “We disagree…We conclude…that although a district court i reserve for the jury questions of fact related to adverse inference instructions under Rule 37(e)(2), it is also proper for a district court to make those factual determinations—including a finding of “intent to deprive”—itself.”

So, what do you think? Are you surprised that the Court rejected Hoffer’s “culpable state of mind” argument? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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