On February 13, 2025, the Second Circuit held that to impose sanctions for spoliation under Federal Rule of Procedure 37(e)(2), the moving party must show, by a preponderance of the evidence, that the accused party acted with the 'intent to deprive' another party of lost electronically stored information ('ESI') ' i.e., a showing of negligence, or even gross negligence, will not suffice.1 The Second Circuit's decision in Hoffer v. Tellone adds to an emerging consensus across circuits on the appropriate standard for evaluating requests for sanctions for spoliation of evidence under Rule 37(e)(2).
I. Factual and Procedural Background
On February 9, 2018, Richard Hoffer brought suit against the City of Yonkers, the City of Yonkers Police Department, and several individual police officers under 42 U.S.C. ' 1983, alleging that the defendant officers used excessive force when arresting him in November 2016.2 In late 2021, a trial on Hoffer's claims took place in the U.S. District Court for the Southern District of New York, during which Hoffer testified that one of the defendant officers, Trevor Goff, tased him twice on his lower back while Hoffer was incapacitated.3 Goff did not contest that he had tased Hoffer twice.4 Rather, Goff testified that he first tased Hoffer while two officers were attempting to control him, which caused Hoffer to fall to the ground.5 Goff testified that he tased Hoffer a second time after determining that Hoffer was 'trying to collect himself and get up to flee again.'6
Goff also testified that the taser generates a log, which provides a record of each time the taser is used, and explained that the log from the date of Hoffer's arrest showed two deployments: one at 4:16 p.m., when Goff tested the taser at the start of his shift, and a second at 8:02 p.m., which corresponded to the second reported tasing.7 Goff further testified that each time the taser is used, the device generates a video, but that he had only seen a video of the second deployment because the video of the first tasing 'had somehow been overwritten.'8 Goff provided no further explanation as to why there was no video made of the first tasing.9 Hoffer's girlfriend, however, testified that she had seen one of the other defendant officers holding a USB drive after Hoffer's arrest and heard her say to Goff, 'It shows everything that we did and nothing that he did.'10 Hoffer's counsel has pointed to this statement as evidence of the officers' intent to deprive Hoffer of the first taser video.11
Following Goff's trial testimony, Hoffer's counsel asked the district court judge to instruct the jury that it could draw an adverse inference against the officer defendants based on the purported spoliation of the first taser video.12 The court analyzed the request under Fed. R. Civ. P. 37(e)(2), which allows courts to impose sanctions on parties where ESI should have been preserved but was lost.13
After reviewing Hoffer's request under the language of Fed. R. Civ. P. 37(e)(2), the district court declined to give the instruction, concluding that (i) there was no 'clear evidence' that a video of the first tasing had ever existed, (ii) Goff's comment about 'something being overwritten' was unclear, and (iii) Goff's testimony did not suggest that he had any direct knowledge or experience with managing the system for taser videos or with the particular taser video at issue.14 The district court further reasoned that the officer testimony confirming that there were two taser deployments, in addition to the apparent lack of any effort to cover up this fact, undermined Hoffer's theory that the defendant officers purposely destroyed the video.15
Consistent with this ruling, the district court did not include an adverse inference instruction in its jury charge, and Hoffer's counsel did not object to the jury instructions at that time.16 At the end of the trial, the jury found in favor of the officer defendants.17 Hoffer then moved to set aside the verdict entered in Goff's favor, arguing that no reasonable juror could have concluded that Goff did not use excessive force.18 The district court denied that motion, and on June 28, 2022, Hoffer appealed.19
II. The Second Circuit's Decision
On appeal, Hoffer argued that the district court erred when it failed to instruct the jury that it could draw an adverse inference against the officer...
