[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]
In a prior blog, “When Was the Duty to Preserve Triggered in an Employment Dispute?”, I discussed the facts and trigger analysis in Alsayiri v. Crucial MRO, LLC, 2026 WL 3315271 (S.D. Ill. Nov. 3, 2026).
In brief summary, in this employment dispute, Defendants produced only 169 pages, more than half of which were training certificates. Plaintiff had been terminated in March 2022 and “Crucial’s counsel confirmed that all emails from around March 2022 had been deleted, as were emails from other employees when they left the company, in part due to an auto-deletion feature.”
The Alsayiri court applied the ESI sanctions rule, Fed.R.Civ.P. 37(e). The analysis follows:
WAS THE MISSING ESI RELEVANT?
Only a little ink was spilled on relevance:
To prevail on a motion under Rule 37(e), Alsayiri also must show that ESI should have been preserved. This question amounts to whether the ESI is relevant…. Neither party discusses this issue in great detail. That omission likely reflects the reality that email communications among key decisionmakers in the time surrounding an adverse employment action will almost invariably be relevant in the mine-run of employment cases. Moreover, the Court finds that Alsayiri’s proposed ESI search parameters… likely would have yielded relevant, discoverable emails, had they been preserved.
Id. at *4 (emphasis added).
DID THE DEFENDANTS TAKE REASONABLE STEPS TO PRESERVE THE ESI?
The court rejected two of Defendants’ preservation arguments.
First, Defendants did not turn off autodeletion of emails, “arguing their duty to preserve did not begin until they were served with Plaintiff’s third amended complaint in September 2024 or received his EEOC charge in May 2023.” The prior post explained why that argument failed.
Second:
Defendants also argue that they were not obligated to preserve certain materials, such as emails from the accounts of individuals who were not their employees. Right or wrong, this does not answer what steps, if any, they took to preserve documents that undoubtedly would have been responsive. Defendants further argue that their attorneys were entitled to rely on Defendant Burton and Crucial employee Wesley Perkins to conduct ESI searches.1 Again, this argument is beside the point. The relevant inquiry is whether these individuals took reasonable steps to preserve the documents, not whether they conducted reasonable searches after the fact. Defendants point to no evidence that anyone attempted to preserve emails on Crucial’s servers from the period between February and March of 2022.
Id. at *5 (emphasis added).
The court found that “Defendants failed to take reasonable steps to preserve the ESI.”
WAS THERE SATISFACTORY SECONDARY EVIDENCE?
The court found that the lost ESI “cannot be restored or replaced through additional discovery.” That inquiry centered on whether backups or multiple versions existed. “It is apparent that the email records here are lost irretrievably; neither Alsayiri nor Defendants offer any indication that emails from the relevant time-period are likely to exist elsewhere. Defendants note that Alsayiri possesses one email he received from Burton, but that fact goes to whether he can show prejudice rather than whether the emails can be recovered by alternate means.” Id. at *5.
It will be recalled that “During a meet-and-confer on August 3, 2026, … Crucial’s counsel confirmed that all emails from around March 2022 had been deleted, as were emails from other employees when they left the company, in part due to an auto-deletion feature.”
CHOICE OF SANCTIONS
Having found that Mr. Alsayiri met the five threshold requirements of Fed.R.Civ.P. 37(e), the court wrote: “The scope of that relief turns on whether Alsayiri merely suffered prejudice from the lost information or if Defendants intended to deprive him of the ESI…. Alsayiri attempts to make both showings.”
- “To start, he locates prejudice in his inability to review the lost emails for evidence that would burnish his discrimination and retaliation claims. He notes that emails frequently provide the proverbial ‘smoking gun’ in employment discrimination cases.”
- “Defendants respond that the loss of these emails was not prejudicial since Alsayiri has access to at least one email from a key decisionmaker (the email from Burton discussed above), and he offers only speculative assertions that the lost emails would benefit his case.”
Who Has The Burden of Proving Prejudice?
The court first addressed the burden of proof:
Courts have observed that assessing prejudice “can be a dicey proposition,” particularly in cases where there is no ESI to review and no extrinsic evidence about what the missing evidence would show…. For that reason, “the rule does not place a burden of proving or disproving prejudice on one party or the other,” leaving the court with discretion as to how to weigh prejudice in a particular case. See Rule 37(e) advisory committee’s note to 2015 amendment.
Id. at *5 (emphasis added).
Plaintiff Showed Prejudice
Next, the court defined prejudice (under Rule 37(e)(1)):
Defendants’ loss of all emails from the time surrounding Alsayiri’s employment and termination amounts to prejudice in the circumstances here. “Prejudice” under Rule 37(e) includes the thwarting of a party’s ability to obtain the evidence it needs for its case… The party attempting to show prejudice must only come forward with plausible, concrete suggestions as to what the destroyed evidence might have been…. “While the moving party need not establish the loss of a “smoking gun,” it is sufficient if the existing evidence plausibly “suggests’ that the spoliated ESI could support the moving party’s case… The prejudice need not be “substantial”— “some prejudice” is enough.
Id. at *6 (cleaned up).
Applying those principles, the “emails sought by Alsayiri likely would have been a trove of relevant information.” While loss of ESI does not raise a presumption of prejudice, id. at *6, and even though Mr. Alsayiri could not show what was in the missing emails, “the Court believes he has sufficiently demonstrated prejudice, in no small part because the volume of lost material is substantial in the context of the case.” Id. In addition to the volume of lost materials, the “documentary record covering Alsayiri’s employment at Crucial is remarkably thin. Crucial’s initial document production amounted to 169 pages in total…. More than half of that total consisted of training certificates from an online training provider.” It added:
Given the paucity of evidence in the record and the ESI search terms proposed by Alsayiri’s counsel…, it is probable that the missing ESI would have comprised a substantial portion of the total discovery. Among other things, it is likely that the emails would have shed light on Crucial’s rationale for attempting to reduce Alsayiri’s hours before he was fired, his interactions with other employees, and the reasons employees prepared statements in the wake of his termination…. These matters doubtless would aid his case.
Id. at *6.
The court rejected the defense that Mr. Alsayiri could only speculate as to what was lost: “The Court agrees that Alsayiri can only speculate on the nature of the missing documents; the limited document production in this case makes that almost necessarily true. But Rule 37(e) does not require Alsayiri to provide evidence that a smoking gun existed and is now missing. It is enough that he has articulated why it is likely the missing evidence was important to his case. He has satisfied that standard. It should come as no surprise, particularly in the modern world, to conclude that ESI from the time of an employee’s firing would be important to an employment discrimination case. Alsayiri has established prejudice.”
Rule 37(e)(1) or (e)(2)?
Upon showing prejudice, Plaintiff was entitled to Rule 37(e)(1) curative sanctions. However, he wanted more. In order to obtain “game-ending” sanctions under Rule 37(e)(2), he had to show “intent to deprive” him of evidence. While intent may be shown by circumstantial evidence, Mr. Alsayiri failed to do that.
The court wrote that a “bad faith” standard had been eliminated by the December 2015 amendments to Rule 37. Id. at *7.
[A]ny conceptual distinction between “bad faith” and “intent” is likely immaterial in practice. Nevertheless, this Court believes the term “bad faith” tends to muddy the waters and impose an unnecessary layer of abstraction from the core question posed by Rule 37(e)(2): whether a party intended to deprive another of ESI.
The court held that Mr. Alsayiri did not show “intent to deprive”:
On that question, Alsayiri cites Crucial’s failure to take reasonable measures to prevent the deletion of emails during the migration to a new email system and its failure to suspend the autodeletion of the emails of departing employees. Defendants respond that this evidence is insufficient to demonstrate that any emails were destroyed with the requisite intent.
The Court agrees with Defendants. At most, Alsayiri has shown that Crucial and Burton were negligent in failing to ensure emails were preserved during the system migration and when employees left the company…. There is no evidence suggesting that Defendants acted so that Alsayiri specifically would be deprived of evidence. As far as the Court can tell, some of the emails were lost due to a poorly thought-out system migration, while others were likely lost due to a negligent failure to suspend the system’s autodeletion features.
Id. at *7.
In short: “Without more, a party’s mere failure to preserve evidence is insufficient to demonstrate intent.” Id. at *8. That ruled out Rule 37(e)(2) sanctions.
Rule 37(e)(1)
Based on that determination, the court applied Fed.R.Civ.P. 37(e)(1).
The Advisory Committee notes feature a non-exhaustive list of potential sanctions available under Rule 37(e)(1), such as “forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument.” Rule 37(e)(1) advisory committee notes to 2015 amendment. Additionally, the Seventh Circuit has held that courts are authorized to award costs and attorney’s fees…. Of course, the Court’s chosen sanction must be “no greater than necessary to cure the prejudice and must not “have the effect of measures that are permitted under subdivision (e)(2).” Rule 37(e)(1) advisory committee notes to 2015 amendment.
Id. at *8.
The court then ruled:
- “Here, the Court believes instructing the jury ‘that it can consider the circumstances surrounding the loss of the ESI’ is an appropriate sanction.”
- “The Court will consult with the parties before trial regarding the specific form this instruction should take.”
- “The Court will also bar Defendants from using any later-discovered emails in support of their case, either at summary judgment or trial, and from making arguments based on the purported absence of discriminatory statements in 2022.”
- “However, the Court finds that an award of costs and attorney’s fees is unnecessary.”
The court also addressed Plaintiff’s motion to compel.
- Relying on employees who were directly involved in the alleged wrongful action to preserve ESI is not generally accepted practice. See Unsupervised Self Collection—The Fox Guarding the Chicken Coop—Leads to Discovery on Discovery – E-Discovery LLC (Sep. 19, 2026); “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System – E-Discovery LLC (Jan. 19, 2024). ↩︎
Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.
