Plaintiffs filed a motion for sanctions based on the destruction of those three months worth of tapes. However, since the missing log books were thrown away following normal business practice of keeping such logs for only six months, and there was no evidence the log books were destroyed for the purpose of concealing them, the court held that a spoliation instruction was not appropriate. Of course, evidence of normal business practices will likely find a better reception than an assertion that a party did not intend to destroy documents. The question of spoliation arises only when the records are destroyed after the party knew or should have known not to destroy them. Intent means knowledge, actual or constructive, that discoverable evidence is relevant to pending litigation. . . .
Actual knowledge refers to a subjective disposition to destroy the evidence.
The court may select from the sanctions available under Fed. P. 37 and its state-law analogs. The range of sanctions for failing to preserve potentially relevant stored computer information has been construed to include fines, expenses and fees incurred while bringing the motion for sanctions, adverse inference instructions, summary judgment, entrance of a default judgment or outright dismissal of the case. Courts also may sanction for destruction of evidence under their inherent power to sanction misconduct such as spoliation during the pre-trial phase of litigation. This rule is particularly applicable where a lawyer is involved in the destruction.