In his State E-discovery column, Mark A. Berman, a partner at Ganfer & Shore, writes: The sanction for an ESI spoliation offense often does not merit that a party's pleading be stricken, although sought in most instances. Rather, recent decisions review in detail the circumstances surrounding digital or electronic spoliation claims, and courts seek to craft a balanced sanction upon reviewing the "prejudice" to both sides, which might be the issuance of an adverse inference charge or a preclusion order. Alternatively, courts may direct further discovery or defer issuing a sanction until a later date.
Proportionality in ESI Spoliation Sanctions and Facebook Discovery
New York Law Journal
September 3, 2013