US INFRA SVCS Buyer, LLC v. JDB Capital Partners, LLC, C.A. No. 2024-0097-LWW (Del. Ch. Nov. 2, 2026), full opinion (PDF)
A party that believes its opponent lost text messages may want an adverse inference in hand before trial begins. A Vice Chancellor of the Delaware Court of Chancery has refused to convene a pretrial hearing on the plaintiffs' request for adverse inferences. The motion itself will be decided in the post-trial opinion, on the trial evidence and the parties' post-trial briefing.
What happened
The plaintiffs brought the motion with trial only weeks away. They alleged that a defendant's trustee failed to disable auto-delete settings on a cell phone, failed to preserve data during phone upgrades, and deleted text messages.
The court's analysis
Under Court of Chancery Rule 37(e)(2), an adverse inference requires a finding that the party acted "recklessly or with the intent to deprive another party of the information's use in the litigation." The court explained that this state of mind assessment is typically made after hearing the evidence at trial. It concluded that the existing paper record left open whether the alleged conduct reflected negligence, recklessness, or intentional spoliation.
The Vice Chancellor noted that the Court of Chancery has seen a growing number of motions seeking merits-based spoliation sanctions over the past year. Those motions ask the court to draw adverse inferences or shift evidentiary burdens before trial. Deciding those requests early, in her view, risks letting a dispute over lost evidence take the place of deciding the merits on the evidence that remains. A full trial record, she added, will also let the court evaluate any resulting prejudice and, if appropriate, tailor a proportionate remedy. In a bench trial, the court noted, it can decide whether an inference or a burden shift is warranted when it rules on the merits.
Why it matters
When an adverse-inference motion turns on state of mind, the Court of Chancery may well wait for the trial evidence before ruling. Movants in that position should plan to prove the alleged spoliation at trial. Their trial presentation should include the witnesses and records showing how the relevant phones were set up, upgraded, and used.
For the party accused of losing messages, deferral keeps the threat of an adverse inference alive until the post-trial decision. Expect the explanation of how the messages were lost to be tried alongside the merits. Witnesses who will describe device settings and upgrades need the same preparation as the merits witnesses.
Documented preservation steps give those witnesses something concrete to point to. Once the preservation obligation attaches, counsel should confirm that key custodians have turned auto-delete off. Before any device is replaced, the relevant phone data should be preserved. Counsel should also record when and how each step was taken.
The full opinion is available as a PDF.
