Parties should think twice before posting potential evidence on social media, as the Plaintiff in Guarisco v. Boh Brothers Construction learned recently. The Eastern District of Louisiana imposed sanctions on Plaintiff for deliberately producing an altered photo, which Plaintiff had previously posted on social media in its unaltered form. Rather than relying on Rule 37(e), which it found was not applicable to the facts, the court exercised its inherent power to issue sanctions for such improper discovery tactics.

Defendant construction company was doing work at a site in New Orleans, and Plaintiff was injured in a motor vehicle accident at an intersection of the construction site. Plaintiff alleged that Defendant had converted what was previously a one-way street into a two-way street, but failed to place any signs indicating that traffic would be approaching from both directions, which caused Plaintiff’s accident.

Plaintiff had taken digital photos and videos of the scene of the accident, including a photo showing a two-way street sign at the intersection. Defendant moved for sanctions, arguing that Plaintiff not only deleted many of these photos and videos, but also produced a photo of the intersection that she had altered by removing the two-way street sign.

The court found that Defendant proved that Plaintiff had violated its discovery obligations because it showed that Plaintiff had previously posted the original, unaltered photo on social media. The court credited the unrebutted affidavit from Defendant’s expert, who demonstrated that the photo Plaintiff produced had indeed been altered and that other photos and videos had been deliberately deleted.

The court first considered whether it should impose sanctions under Federal Rule 37(e), which applies where digital evidence “cannot be restored or replaced through additional discovery.” The court held that since Defendant had found the original photo on social media, the evidence was not irrevocably lost, and this provision did not apply. With respect to the other photos and videos that Plaintiff had supposedly deleted, Defendant admitted that they might be recovered in discovery, so Rule 37(e) did not apply to those, either.

Nevertheless, the court decided to impose sanctions on Plaintiff pursuant to its inherent power to do so. Citing a Supreme Court decision that described this power at length (Chambers v. Nasco), the Guarisco court explained that federal courts have an inherent power to sanction spoliation, and a party cannot escape sanctions simply because a procedural Rule is not on point.

The court further reasoned: “To allow a party to avoid sanctions merely because the attempt to destroy evidence was unsuccessful would be to ignore one of the primary goals of sanctioning spoliative conduct.” Of course, the sanctioning court must exercise “restraint and discretion” and impose the “least severe sanction that is sufficient to deter future conduct.”

The court further determined that the least severe sanction here was to require Plaintiff to pay for Defendant’s expert fees. The court simultaneously dismissed the matter on the merits, granting Defendant summary judgment, so it is unclear whether the court would have imposed more severe sanctions had it not also been ruling on summary judgment.

Rule 37(e) was amended in 2015 due to the courts’ inconsistent application of the rule, which resulted in a lot of ancillary litigation over discovery conduct. The new rule was designed as a tool for courts to uniformly impose sanctions for spoliation and to obviate the need to invoke their inherent power (according to the 2015 Amendment’s Committee Notes, the new rule “forecloses reliance on inherent authority or state law to determine when certain measures should be used [in the event of spoliation].”). But the result of strict adherence to the rule is that the “incompetent spoliator” could avoid sanctions if unsuccessful in destroying the evidence permanently, even if the spoliation was intentional.

Thus, it is unclear whether other courts will follow the Guarisco court’s decision to invoke its inherent power or whether they will rule that such a determination is at odds with Rule 37(e)’s legislative intent, even if the result is seemingly unjust. Either way, litigators should be wary that a court might impose sanctions pursuant to its “inherent power” where bad faith is present.