What does it take for a court to dismiss a case due to spoliation of evidence? The SkyJet v. VSE Aviation decision provides a troubling answer to this persistent question in e-discovery jurisprudence.

When temperatures in a twin-engine aircraft skyrocketed during startup, causing severe engine damage, the resulting litigation hinged on critical recorded evidence. The aircraft's cockpit voice recorder (CVR) captured pilot communications during the incident, while the flight data recorder (FDR) tracked performance metrics. With the pilots mysteriously "unavailable" (reportedly in Canada), these recordings represented the only objective record of what transpired.

The discovery story that unfolded revealed a deliberate pattern of concealment. SkyJet initially claimed no recordings existed, then suggested they'd never received data from Logic Air (the company that extracted it). Yet emails eventually obtained directly from Logic Air revealed they had provided SkyJet two DVDs containing the recordings, with specific notes about which audio channel was "more interesting from the 30-minute mark."

Magistrate Judge Angel Mitchell's analysis pulled no punches, finding SkyJet had engaged in "dishonest and misleading discovery conduct" and acted with "intent to deprive" under Rule 37(e)(2). The court noted SkyJet provided "absolutely no explanation" for what happened to the data after receipt and characterized their litigation position as "baseless."

Yet despite this damning assessment, the court declined to dismiss the case. Instead, it issued a permissive adverse inference instruction, precluded pilot testimony, and awarded attorneys' fees. This outcome raises profound questions about whether our discovery rules provide sufficient deterrence against calculated evidence destruction.

The case serves as a masterclass in diligent e-discovery advocacy by VSE's counsel, who methodically pursued the missing evidence trail, coordinated with the court, and assembled a compelling spoliation narrative. But it also represents a cautionary tale about the limitations of Rule 37 sanctions in addressing even the most egregious discovery misconduct.

How can you better protect your case from similar discovery abuses? Contact us today to discuss effective preservation strategies and approaches to documenting potential spoliation.

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