Meet and Confer with Kelly Twigger
Meet and Confer is the podcast for litigators, eDiscovery professionals, and anyone who knows that in a world of electronically stored information, discovery strategy isn’t optional—it’s essential. Hosted by attorney and discovery strategist Kelly Twigger, each episode offers clear, practical discussions on how to effectively leverage the power of ESI to craft successful discovery strategies for any type of litigation. Topics include, navigating evolving rules, understanding emerging case law, and making the strategic decisions that shape the outcome of a case. Whether you're a seasoned litigator, brand new associate, in-house counsel, or law student, Meet and Confer helps you think critically, stay prepared, and master your discovery strategy for modern litigation.
Meet and Confer with Kelly Twigger
Spoliation Sanctions: When Evidence Vanishes
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.<br><br>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.<br><br>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."<br><br>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."<br><br>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.<br><br>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.<br><br>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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Thank you, hi, and welcome to this episode of the Meet and Confer podcast. The principal at ESI Attorneys, a law firm for e-discovery and information law, as well as the CEO at Minerva 26, where I take the insights from my 28 years as a discovery strategist and litigator and, together with my team, provide a strategic command center for litigators to leverage the power of ESI. Thanks so much for joining me today. Our case of the week segment on the Meet and Confer podcast is brought to you by Minerva 26 in partnership with ACEDS. On this segment, I analyze a recent decision on discovery issues involving ESI and talk about what you should take away from the court's decision and why.
Kelly Twigger:It's no secret that our rules governing discovery are not keeping pace with technology. It's a struggle to fit a square peg in a round hole. Judicial decisions, interpreting those rules in the context of today's technology and the electronic evidence that we create using that technology acts as our guide to how we need to advocate for clients. As always, judicial decisions are as good as the facts and arguments presented to the court. So part of what we talk about here is the lawyering are as good as the facts and arguments presented to the court. So part of what we talk about here is the lawyering, the good, the bad, the ugly. Our decision today highlights a question that we keep seeming never to get the answer to Exactly how bad does your conduct have to be in discovery for the court to order a terminating sanction?
Kelly Twigger:This week's decision comes to us from the case of Sky Jet versus VSE Aviation. This is a decision from United States Magistrate Judge Angel Mitchell, dated June 12, 2025. Now this case has a number of acronyms in it, so stick with me and try to pay attention as we go along. I don't want to confuse you, but it's hard constantly repeating the things as opposed to the acronyms, let's talk about the facts of the case. Let's go back to January 2022.
Kelly Twigger:The facts of the case arise from a so-called "hot start, an incident involving a 1996 Beach twin-engine turboprop aircraft owned by Skyjet. During attempts to start the engine on January 30, 2022, the engine temperatures in the aircraft rose significantly and caused severe damage to the left engine. The day prior to the incident, Sky Jet had replaced the fuel control unit, or the FCU, in the aircraft with a unit that had been recently overhauled by VSE Aviation Services. VSE is the plaintiff here. Sky Jet alleged that VSE did not properly overhaul the FCU and that the unit caused the hot start by sending too much fuel to the engine. Vse disputed that their overhaul of the unit was defective and argued instead that SkyJet had been having problems with the engine for weeks prior to the incident and that the damage could have been prevented but for pilot error in handling the situation. Of course, coincidentally, the pilot and mechanic not only no longer work for SkyJet, but their whereabouts are unknown, and the court notes that they are believed to be in Canada. The plane at issue was equipped with a flight data recorder, or FDR, that records aircraft performance, power settings and other characteristics relating to engine performance. The aircraft also contained a cabin and cockpit voice recorder, which is called a CVR, that records voices and sounds in the cockpit. Now, since we don't have the pilots, the CVR, as it's noted by the court, is the only way to know what was said in the aircraft during the event.
Kelly Twigger:Now, skyjet filed suit in federal court against VSE on May 9th 2023, so about 16 months after the incident. Discovery opened. In July, vse served requests for production to SkyJet asking for any recording of the two starts alleged in the complaint, and SkyJet responded to those requests for production, as quote none known. In November, skyjet produced documents that included maintenance records verifying that both the flight data recorder and the cabin cockpit recorder were installed on the aircraft. Council for VSE then reached out to Council for SkyJet and tried to reconcile the RFP response that it included, saying that there was no known recordings, with the fact that there were recorders on the aircraft. Council for SkyJet then told Council for VSC that he had asked his client for the data recordings and was told that they no longer existed. Now Discovery was set to close on December 15th.
Kelly Twigger:Vse served a 30b6 notice on SkyJet the day before Discovery closed and during that deposition VSE learned that SkyJet's maintenance department had sent the FDR and the CVR to Logic Air after the incident to have the data extracted into readouts and that SkyJet never received the FDR and CVR readouts back from Logic Air. Very important, that's what the testimony is from SkyJet. Through additional discovery, however, vsc learned that SkyJet learned from SkyJet's former director of maintenance and now chief mechanic that no one had ever asked for the CVR or FDR readouts in the past six months and he had never tried to find the readout from the recordings. So basically, in response to the discovery request, skyjet did not go back to Logic Air and ask them for anything. Did not go back to Logic Air and ask them for anything. That is again SkyJet's testimony.
Kelly Twigger:After the depositions, skyjet went to Logic Air to request the data. According to SkyJet, logic Air sent the data, but it was for the wrong flight. Skyjet realized that it was for the wrong flight and asked Logic Air, who told SkyJet that the CBR data for the correct flight was lost during a computer malfunction, despite knowing that SkyJet produced the data in discovery to VSE for the wrong flight. Vse realized that the data was from the wrong flight and sought permission to work directly with LogicAir to find the flight recordings. The court reopened discovery on that issue based on disfoliation evidence that VSE presented to it Fast forward to March 2023.
Kelly Twigger:Skyjet produced the FDR readout to VSE, but said that Skyjet could not locate a copy of the CVR data and the efforts to seek the data from Logic Air, which was a Canadian company, were unsuccessful. Add to the mix that the data from Logic Air, which was a Canadian company, were unsuccessful. Add to the mix that the data from the FDR readouts that were finally produced, even after they were said they didn't have them, did not contain any information about engine temperatures, which VSE alleged were normally captured and were important to determining the cause of damage to the engine. So, while it's not discussed in the opinion, there's some question as to whether or not the FDR readouts that SkyJet provided were, let's say, redacted to remove information that might have been relevant to the incident at hand. Skyjet also confirmed that the CVR, so the voice recording data, was still missing and that Logic Air had advised the parties that their copy of the voice recording data was deleted. Vse also advised the court that SkyJet had not assisted in any way in facilitating the deposition of Logic Air to learn whether Logic Air in fact downloaded and sent the CVR data to SkyJet before it was deleted. It was deleted A month later, after VSE worked directly with Logic Air to get a deposition, logic Air's production manager testified that Logic Air had sent SkyJet the readouts on two identical disks, with the CBR and FDR data on each in the same box in which it returned the units to SkyJet.
Kelly Twigger:The plot thickens. Logic Air then produced its emails with SkyJet from the days after the incident, in which SkyJet's primary maintenance control officer specifically stated to Logic Air that it was in all caps IMPORTANT DO NOT ERASE ANY DATA FROM BOTH UNITS. One of the emails which had to be translated from French to English, stated that quote the downloads are done and recorded on two DVDs. They will be in the box with the units. The CVR channels can be listened to with a PC. The one you want to listen to is channel four. This is the area mic. It's more interesting from the 30 minute mark, close quote SkyJet never produced those emails between SkyJet and Logic Air. Instead, vse received those emails from Logic Air in June of 2024.
Kelly Twigger:We are now before the court on the defendant, vse's motion for spoliation sanctions for SkyJet's failure to preserve the aircraft's cockpit voice recorder readouts from the hot start incident. Vse seeks dismissal of SkyJet's complaint with prejudice or a default judgment against SkyJet, an adverse inference, jury instruction, preclusion of testimony by SkyJet's witnesses and attorneys fees and expenses. Vse contends that SkyJet had a duty to preserve the CBR data from the hot start incident but did not preserve it, that VSE has been prejudiced by the destruction of that relevant evidence and that SkyJet acted in bad faith by intentionally preventing VSE from reviewing the CVR data. Skyjet opposed the motion, arguing that it did not fail to preserve, but that VSE not that it did not fail to preserve, meaning that it acquiesced to that notion, but that VSE not that it did not fail to preserve, meaning that it acquiesced to that notion, but that VSE is not prejudiced by the lack of CVR data and that it acted in good faith. All right, let's talk about the court's analysis. There's one really interesting point here that the court raises right away at the beginning of its analysis, and that is that VSE's counsel attempted to invoke the court's inherent authority and relied on pre-2015 case law to fashion sanctions for spoliation, and the court noted right away that that was not correct and that Rule 37 was amended in 2015 to provide the exclusive framework to remedy alleged spoliation and that the court would apply the analysis under Rule 37.
Kelly Twigger:Now we've done this analysis many times on the case of the week, and it involves a three-step process. A court may sanction the loss of ESI only if one the ESI should have been preserved. Two, a party failed to take reasonable steps to preserve it. And three, it cannot be restored or replaced. Under Rule 37E1, where a party is prejudiced by the loss of the information, the court may order measures no greater than necessary to cure the prejudice. Under the next section, 37e2, if the court finds that the party acted with intent to deprive another of the information's use in litigation, the court may impose sanctions regardless of prejudice. Of course, rule 37 only applies when information is lost after a party's duty to preserve has kicked in.
Kelly Twigger:Here there was really no dispute about whether or not SkyJet had a duty to preserve the cabin voice recorder data, according to the court. The court also found that SkyJet did not take reasonable steps to preserve the data. Skyjet received the data back from Logic Air and provided no explanation whatsoever as to what it did with the data after that. The court dismissed SkyJet's claims that they did not receive the data back as not credible. Finding that the email traffic between SkyJet and Logic Air documented the delivery of the DVDs was in direct conflict with the testimony from SkyJet that it did not receive the data. The court also found that the data could not be replaced with additional discovery such as the FDR data, because that only includes aircraft performance characteristics and not cockpit voices and sounds, which would have provided additional important data about what caused the hot start.
Kelly Twigger:Having met all the requirements for finding spoliation, the court then turned to whether or not VSE was prejudiced under Rule 37E1 or whether SkyJet had the requisite intent to deprive for sanctions under Rule 37 E2. No real surprise here. The court found that VSE was prejudiced because it could not present the CVR data as evidence in support of its expert's testimony that pilot error caused the hot start and that sanctions were warranted under Rule 37 E1. So we've got prejudice. Next the court looked at whether or not there was intent to deprive. As to intent, the court spends paragraphs going over the timeline of facts and details SkyJet's behavior here, which was appalling. Here's a direct quote from the court.
Kelly Twigger:This is not an instance where the CBR data was lost as a result of the routine deletion of electronic data that SkyJet considered unimportant. Skyjet specifically sent the CVR and FDR to Logic Air for readouts because it viewed the data from these devices as important in determining the cause of the hot start. Skyjet received the CVR and FDR data back from Logic Air as well as the data from each device. Yet the CVR and FDR readouts went missing. Skyjet argues that it simply quote, fell short of its attempt to preserve the data close quote and was, at worst, negligent.
Kelly Twigger:But the court is unpersuaded by this argument for two reasons. First and foremost, skyjet has provided absolutely no explanation as to how or why the CVR data disappeared from its facility. None, but the lack of any factual record whatsoever to try and counter what appears to be a rather shameful trail of events leads the court to conclude that SkyJet has not offered any explanation, credible or otherwise, because the only facts it could offer on this front would be unfavorable. Second, and relatedly, this conclusion is bolstered by SkyJet's actions in covering up the loss of this data during discovery. In sum, the only reasonable inference the court can draw from SkyJet's dishonest and misleading discovery conduct, combined with the lack of any explanation whatsoever as to what happened to the CBR data after SkyJet received it back from Logic Air, and the fact that SkyJet now advances the baseless argument that it had no duty to preserve under Canadian law, when the federal rules of civil procedure clearly govern its preservation obligations in a case SkyJet itself brought in United States court, is that SkyJet acted with the intent to deprive VSE of the CBR data in this litigation. Close quote With all of that, what are the sanctions that the court awarded here? All of that, what are the sanctions that the court awarded here?
Kelly Twigger:Shockingly, the court declined to grant dismissal, as requested by VSE, but did find that an adverse jury instruction was warranted, given that the missing data may very well have been favorable to VSE and that SkyJet never produced the email saying that the recording was more interesting from the 30-minute mark. The court then provided the exact language for the adverse inference instruction. Quote SkyJet was under a duty to preserve the data from its aircraft cockpit voice recorder following the hot start incident with the aircraft's left engine. Skyjet did not take reasonable steps to preserve the CVR data and the CVR data was lost as a result. The lost CVR data cannot be restored or replaced by additional information provided during this litigation. Because of this, you may, but are not required to infer that the lost CVR data would have been favorable to VSE and unfavorable to SkyJet. Close quote Meaning the court provided a permissive adverse inference instruction that the jury is permitted to decide that that information may have been unfavorable to skyjet. It's sort of the lowest standard of an adverse inference instruction in this situation.
Kelly Twigger:The court also precluded testimony from any of the pilots about what happened in the cockpit, because that data would have been captured by the voice recorder and awarded BSE attorneys fees and costs on both its efforts to obtain the reporter data, as well as on the motion for sanctions. Now, the preclusion of testimony by the pilots is a good move by the court, obviously, because that doesn't allow SkyJet to go back. Find those pilots who've suddenly been missing during this litigation. Bring them to court to testify back. Find those pilots who've suddenly been missing during this litigation. Bring them to court to testify. Obviously, there are a lot of rules that might preclude that anyway, but the court here specifically says they can't testify. If VSE doesn't have the voice recorder, you don't get the pilots.
Kelly Twigger:What are our takeaways from this case? Wow, this case is, in my view, another baffling example of a party intentionally destroying critical evidence and essentially getting away with it. As I read the facts of this case, the only real way to know what happened during the hot start is via the testimony of the pilots or the voice recorders, recorder evidence, which the court found that SkyJet did intentionally. Skyjet created a situation where allowing a jury to essentially guess what happened could go in their favor, assuming this case ever gets to trial. An adverse instruction, an inference instruction, a permissive adverse inference instruction, may have significant impact if this case gets to trial, but if it doesn't, skyjet wins. Oh, and, incidentally, somehow the pilot and the maintenance person from the aircraft on that day also just happened to disappear. I see a trend. What is the standard for dismissal or a default judgment? Yes, it's a harsh sanction. No, I'm not a judge, so I don't get to decide. But is this result in this case really what Rule 37 contemplates? Because if it is, we have some serious questions to raise about justice and how a party can actually meet that standard.
Kelly Twigger:Skyjet's conduct here was wrong on every level. The court details it in paragraphs in its discussion. The attorney submitted false discovery responses. That's not really called out here. Witnesses lied, data was deleted or destroyed, even after SkyJet's team specifically told Logic Air not to delete it, in capital letters in an email that it failed to produce, all to cover up what was on that voice recorder. The only logical explanation and this is mine, not the court's is that what was on that recording would sink SkyJet's case and they would rather roll the dice with the court on a sanctions motion and take the loss, and a permissive adverse inference instruction is the result.
Kelly Twigger:I would really ask the rules committee here to go back and consider if that's what they contemplated in drafting Rule 37. This was a carefully orchestrated effort by SkyJet that the court notes in some fashion but isn't willing to go all the way to a dismissal or a default judgment. It seems to me that the courts that the Rules Committee needs to acknowledge that we need better language for judges to interpret. We have seen this time and time again on Case of the Week that some judges are willing to invoke terminating sanctions and some are not. It falls into what I call the 98% rule, that the law is 98% bullshit and 2% law, and it's the 98% that VSE got here. They got a judge who wasn't willing to issue a terminating sanction in a place where the conduct clearly warranted it. For VSE, they'll have to consider whether any proposed settlement is greater than the cost and risk of going to trial. I just keep asking whether what is the intention of Rule 37 here.
Kelly Twigger:Setting that aside for the moment, this case also raises several of our key themes here on Case of the Week that are always worth repeating. First, the timeline Based on the dates laid out by the court. Vse's counsel did an excellent job here of reviewing data as soon as it came in and continuing to stay focused on the loss of data from the two recorders. There are no six months gaps or multiple month gaps in things happening during discovery that we often see and that sometimes cause the court to weigh against the party alleging spoliation. So kudos to VSE's counsel here. Second, the timing of seeking third-party discovery is critical and counsel for VSE did a good job of going back to the court multiple times with facts to support why discovery should be reopened. On the spoliation issue, we've seen time and time again here on Case of the Week where the parties don't coordinate sufficiently with the court and the court is unhappy about that. Kudos to VSE's counsel for doing that here.
Kelly Twigger:Discovery in this case was short and it's not clear when the facts came out that VSE learned about Logic Air's role in downloading the data from their recorders. But they worked diligently to get data from Logic Air and stayed in touch with the court. That's the way to conduct discovery in a cost-effective manner for your client. Now I'm left at the end of this case with wondering how VSC's counsel could have made better arguments for the court on sanctions. That would have made a difference. They went down every rabbit hole. They found all the puzzle pieces. They put all the puzzle pieces together in a way that could only lead to one conclusion, and that is that SkyJet was basically hiding all of this information because it was bad for them. Certainly, costs imposed will be considerable here, but money is rarely a driving factor in curing behavior. Real sanctions that would impact SkyJet's bottom line and potentially change future behavior are what was needed here.
Kelly Twigger:We need to set a precedent to stop this kind of conduct from happening. It feels like our courts set a precedent that you can engage in intentionally bad behavior to the other side and then the other side has to spend the time and money to prove it, and then, when they do, they still have to go to trial and hope for the right result with a permissive adverse inference instruction. Now our system is based on an evidence code and the failure to preserve evidence impacts what evidence is put forth at trial. I understand that. That's why it ends here and that's what the judge's analysis is. I'm just not sure that that's right. That's our case of the week. For this week, be sure to follow us on the Meet and Confer podcast on your favorite podcast platform or, if you prefer, you can follow us on our blog at Minerva26.com backslash blog. Thanks, have a great week, thank you.
