You can’t have a lawsuit without evidence, and federal rulemakers are making it too easy for evidence to disappear, according to CCL attorney John Vail.

Vail, who regularly follows and comments upon proposals before the committees that make rules for the federal courts, told the committees in written comments that they should not and cannot prohibit a federal judge from giving an adverse inference instruction to a jury when applicable state law prescribes that action. 

The Committee on Practice and Procedure of the federal courts, known as the standing committee, debated Vail’s points during a two-day meeting in Cambridge, MA, on January 4-5.

The committees will publish for comment a draft revision of Federal Rule of Civil Procedure 37, which will guide federal judges in creating curative measures and granting sanctions when parties fail to preserve, or purposefully destroy, evidence