Lakey v. Bryant, No. 25-7068, 10th Cir. (July 7, 2026), full opinion (PDF)
Published circuit opinions construing Rule 37(e) do not come along often, and the Tenth Circuit issued one yesterday. The panel held that the district court committed legal error when it treated the burden of proving prejudice from lost text messages as automatically belonging to the party seeking sanctions. The rule assigns that burden to no one, and a court that assumes otherwise has failed to exercise the discretion the rule gives it. The sanctions denial survived anyway, on harmless error grounds, and the path the panel took to that result is as instructive as the holding.
What Happened
The Estate of Jared Lakey sued Carter County, Oklahoma Sheriff Chris Bryant and two city police officers under 42 U.S.C. § 1983 after Mr. Lakey died following an arrest in which the officers tased him fifty-three times in a nine-minute period and a sheriff's deputy applied a neck restraint. On the night of the incident, the sheriff exchanged several text messages with another deputy.
Those messages never made it into discovery. The sheriff reported that his cell phone had been destroyed in January 2020 when it fell onto the road and was run over. Although he had received a preservation letter and a notice of a tort claim, he threw away the phone and his SIM card without preserving the contents, and his older model iPhone had no backup. The Estate moved for spoliation sanctions under Rule 37(e), requesting default judgment. The district court denied the motion, reasoning that the Estate had the burden to show prejudice and could only speculate about what the messages said. The court also found the sheriff merely negligent rather than acting with intent to deprive. After a jury found the two officers liable for excessive force but cleared the sheriff, the Estate appealed the sanctions ruling along with other issues.
The Court's Analysis
The panel began with the burden question, and its answer came straight from the 2015 advisory committee note. Rule 37(e)(1) "does not place a burden of proving or disproving prejudice on one party or the other," and "placing the burden of proving prejudice on the party that did not lose the information may be unfair." Where the content of the lost information is fairly evident, or ample substitute evidence exists, a court may reasonably ask the movant to carry it. As the note puts it, "[t]he rule leaves judges with discretion to determine how best to assess prejudice in particular cases."
The district court never made that choice. It "mistakenly concluded that it must place the burden of proving prejudice on the Estate as the moving party and failed to utilize its discretion using the relevant considerations." Failing to exercise discretion the law provides is itself an abuse of discretion.
That error did not save the Estate, for two reasons. First, its only theory of prejudice was that the texts would have shown the sheriff approved of the deputy's conduct, a ratification theory the Estate had expressly waived below, and approval alone could not sustain its remaining claim. On the whole record, no reasonable factfinder could find prejudice, so the misallocated burden changed nothing. Second, the Estate had asked only for default judgment, which under Rule 37(e)(2) requires intent to deprive. The district court found the sheriff "did not act in bad faith or intend[ ] to deprive the plaintiff of the data on the phone." The Estate's circumstantial case, built on the preservation letter and the discarded phone, made intent "a permissible view of the evidence," but under clear error review that is not enough to overturn a negligence finding.
Why It Matters
The burden holding gives litigants on both sides of a spoliation motion something concrete. A movant facing lost ESI whose content cannot be reconstructed should argue that fairness assigns the prejudice question to the spoliator. A responding party should invoke the committee note's counterweights, such as evident content and abundant substitute evidence. Either way, a court in the Tenth Circuit now commits legal error if it treats the allocation as fixed.
The harmless error analysis carries its own lesson. Prejudice must attach to a claim you still have. Tie the lost ESI to a specific element of a live claim, and request the full range of remedies rather than default judgment alone, because a motion that stakes everything on Rule 37(e)(2) rises or falls on intent. And win the intent fight in the district court. Once a judge finds negligence rather than intent, appellate deference to that finding is close to decisive.
The full opinion is available as a PDF.
