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A plaintiff sent a preservation letter to a defendant after a workplace accident. The defendant did not suspend automatic deletion of safety-camera metadata. The video itself was preserved, but metadata showing who accessed the video in the first week after the accident was lost and cannot be restored. The plaintiff seeks an adverse-inference instruction. The court finds that the defendant should have preserved the metadata and failed to take reasonable steps, but the record does not show an intent to deprive the plaintiff of the metadata's use.
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If ESI that should have been preserved is lost because a party failed to take reasonable steps and it cannot be restored or replaced, the court may order measures no greater than necessary to cure prejudice; severe intent-based measures require intent to deprive another party of the information's use. The court must enter default judgment whenever a party fails to issue a litigation hold. The court must give an adverse-inference instruction whenever relevant ESI is lost, regardless of the reason for the loss. Rule 37(e) applies only to paper documents, not electronically stored information.

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