When a party loses or destroys evidence, the standard of culpability courts require before they will instruct a jury that they may view the missing evidence as unfavorable to that party varies among the federal circuits. In order to issue such an adverse inference instruction, some courts require a showing of bad faith or intentionality, while others require only negligence. Although courts generally recognize a judge’s wide discretion to impose some form of sanctions for negligent failure to maintain evidence, there are sharp differences of opinion over whether negligence merits jury speculation that the missing evidence would have been damaging to the negligent party’s case. . . .
