Harry Chang



October 28, 2021


In a recent US decision, Cretacci v. Hare, No.: 4:19-CV-55-SKL (E.D. Tenn. Jan. 20, 2021), the court found that the plaintiffs failed to prove that the defendants intentionally deprived them of the video evidence of an alleged assault as required under Rule 37 of the United States Federal Rules of Civil Procedure.  The defendants had received a written request to preserve the video evidence from the plaintiff’s counsel within 30 days of an alleged assault but took no reasonable measures to preserve the requested video, and the video was later deleted.


The issue was whether the requisite intent to deprive the plaintiffs of the video evidence had been established.  Applebaum v. Target Corp., 831 F.3d 740 (6th Cir. 2016) was cited in the Cretacci decision for the proposition that “[a] showing of negligence or even gross negligence will not do the trick” and that other spoliation requirements needed to be established.


The motion judge in Cretacci made multiple factual determinations which concluded that this was an unintentional loss of evidence:


  • The Sheriff’s office was undergoing a transitional period;
  • There were assumptions made by the defendants that other parties were responsible for handling the preservation request;
  • The plaintiff’s counsel failed to follow up after sending the initial preservation request.

The motion judge determined that other remedies were open to the plaintiff under the Federal Rules s. 37(e)(1). However, the plaintiff’s counsel only sought relief under subsection (e)(2), specifically a default judgment sanction which was unavailable due to the failure to meet the strict standard of intent required.


Another recent US decision concerning spoliation, DoubleLine Capital LP v. Odebrecht Fin., Ltd, 17-CV-4576 (GHW) (BCM) (S.D.N.Y. Oct. 6, 2021), also imposed sanctions under Rule 37(e)(1), but declined to impose any sanctions under Rule 37(e)(2) similar to the disposition of Cretacci. This was based on the failure of the moving party to demonstrate that the defendant intended to deprive them of the encryption keys for a shadow accounting system for the purposes of this particular litigation. The remedy directed by the motion judge was to allow the jury to consider evidence surrounding the destruction of the encryption keys, but not to impose a mandatory adverse inference. The key distinction for imposing the more serious sanctions under Rule 37(e)(2) is that the spoliating party needs to have intentionally destroyed the electronic evidence for the purposes of the litigation in question, and that a finding that the evidence was merely destroyed without the requisite intent is not sufficient.


By comparison, the test for determining the requisite intention for spoliation in Canada is whether “it must be reasonable to infer that the evidence was destroyed in order to affect the outcome of the litigation.” as set out in Nova Growth Corp. et al v. Andrzej Roman Kepinski et al., 2014 ONSC 2763 (CanLII).  The requirement for a finding of spoliation in Canada is comparable to the requirement in the United States, as the judgment in Odebrecht demonstrates. It is also important to recognize that the determination of intent to spoliate evidence often depends on the facts.


On the matter of remedies, the most common remedy for a finding of spoliation in Canada is a rebuttable presumption that the destroyed evidence would not assist the spoliating party. McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 (CanLII) says there are other remedies available within the “court’s rules of procedure and its inherent ability to prevent abuse of process” at para 29. It would seem that the most prudent course for counsel is to request the full range of remedies available for a claim of spoliation, taking into account that the court may reserve its right to impose remedies outside of the principal remedy of the rebuttable presumption against the spoliating party. It is thus important, when drafting motion materials, to allow flexibility for the trier of fact to impose a range of remedies, as demonstrated by the dilemma faced by the plaintiff’s counsel in Cretacci.


Harry Chang is an Associate at Heuristica Discovery Counsel LLP.  Heuristica has offices in Toronto and Calgary and is the sole national law firm whose practice is limited to eDiscovery and electronic evidence.  Heuristica has considerable experience in investigations and disputes and recently became the first law firm in the world to be awarded RelativityOne Silver Partner status.