Amicus Curiae Brief — Molly Vogt, as Trustee for the Heirs and Next of Kin of Joshua Vogt, Deceased, Petitioner v. CO Robert Anderson, et al.

Supreme Court briefMar 20, 2025

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No. 24-883

In the Supreme Court of the United States

MOLLY VOGT, AS TRUSTEE FOR THE HEIRS AND NEXT OF

KIN OF JOSHUA VOGT, DECEASED, PETITIONER,

CO ROBERT ANDERSON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF AMICI CURIAE FORMER FEDERAL

JUDGES SUPPORTING PETITIONER

ANDREW T. TUTT

Counsel of Record

DANA KAGAN MCGINLEY

STEFAN LUIS SUAZO

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

andrew.tutt@arnoldporter.com

TABLE OF CONTENTS

Page

Interests of Amici Curiae ....................................................1

Summary of Argument .........................................................3

Argument ................................................................................4

I. Review Is Necessary Because The Decision

Below Undermines the Jury’s Role ..............................4

II. The Language, History, and Purpose of Rule

37 Require That Judges Permit Juries to

Decide Adverse Inferences ............................................7

Conclusion ............................................................................13

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ........................................................... 11

Armory v. Delamirie,

93 Eng. Rep. 664 (K.B. 1722) ............................................ 9

Brookshire Bros., Ltd. v. Aldridge,

438 S.W.3d 9 (Tex. 2014).................................................... 3

Dimick v. Schiedt,

293 U.S. 474 (1935) ............................................................. 6

Duncan v. Louisiana,

391 U.S. 145 (1968) ............................................................. 6

Hammond Packing Co. v. State of Ark.,

212 U.S. 322 (1909) ........................................................... 10

Hester v. United States,

586 U.S. 1104 (2019) ........................................................... 4

Kronisch v. United States,

150 F.3d 112 (2d Cir. 1998) ............................................ 3, 9

Parklane Hosiery Co. v. Shore,

439 U.S. 322 (1979) ................................................... 6, 7, 10

Parsons v. Bedford,

28 U.S. (3 Pet.) 433 (1830) ................................................. 5

Patton v. United States,

281 U.S. 276 (1930) ............................................................. 6

Securities and Exchange Commission v. Jarkesy,

603 U.S. 109 (2024) ............................................................. 6

Talavera v. Shah,

638 F.3d 303 (D.C. Cir. 2011) ............................................ 3

United Med. Supply Co. v. United States,

77 Fed. Cl. 257 (2007) ......................................................... 9

Van Winkle v. Rogers,

82 F.4th 370 (5th Cir. 2023) ............................................... 3

(ii)

iii

Constitutional Provisions

U.S. Const. amend. VI ...................................................... 4, 7

U.S. Const. amend. VII ........................................ 3, 4, 5, 6, 7

Rules

Fed. R. Civ. P. 37 ................................................................. 10

Fed. R. Civ. P. 37(e)(1) ...................................................... 8

Fed. R. Civ. P. 37(e)(2) ...................................................... 8

Fed. R. Civ. P. 37(e)(2)(A) ................................................. 8

Fed. R. Civ. P. 37(e)(2)(B) ................................................. 8

Fed. R. Civ. P. 37(e)(2)(C) ................................................. 8

Other Authorities

1 Annals of Congress 454 (1789)

(Joseph Gales ed., 1834)..................................................... 5

3 Joseph Story, Commentaries on the

Constitution of the United States (1833) ........................ 6

3 William Blackstone, Commentaries on the

Laws of England (8th ed. 1778) ........................................ 4

Arthur R. Miller, From Conley to Twombly to

Iqbal: A Double Play on the Federal Rules

of Civil Procedure, 60 Duke L.J. 1 (2010) ..................... 11

Charles E. Clark & Charles U. Samenow, The

Summary Judgment, 38 Yale L.J. 423 (1929).............. 10

Charles W. Wolfram, The Constitutional

History of the Seventh Amendment,

57 Minn. L. Rev. 639 (1973) ........................................... 4, 5

John A. Bauman, The Evolution of Summary

Judgment Procedure, 31 Ind. L.J. 329 (1956) .............. 10

John H. Langbein, The Disappearance of

Civil Trial in the United States,

122 Yale L.J. 522 (2012) ............................................. 10, 11

Other Authorities—Continued

Page(s)

Jonathan Judge, Reconsidering Spoliation:

Common-Sense Alternatives to the

Spoliation Tort, 2001 Wis. L. Rev. 441 (2001).............. 10

Letter from Thomas Jefferson to Thomas

Paine (July 11, 1789) .......................................................... 5

INTERESTS OF AMICI CURIAE1

Amici Curiae are five former federal judges2 who

have devoted much of their professional lives to the

application of the rules governing federal criminal and

civil practice and who maintain a continuing interest in

restoring a system of justice that is fair both in practice

and procedure. Collectively, they served decades in the

federal judiciary. Based on their experience as former

federal judges, Amici submit this brief to emphasize the

reasons that federal judges, specifically, would benefit

from this Court’s resolution of the question presented.

Amici are:

Judge Shira A. Sheindlin (Ret.)—District Judge

(1994-2011), Senior Judge (2011-2016) for the U.S.

District Court for the Southern District of New York;

Magistrate Judge (1982-1986) for the U.S. District Court

for the Eastern District of New York; Former Member,

Advisory Committee on the Federal Rules of Civil Rules

of the Judicial Conference of the United States (19962003); Chair of the Committee on Special Masters, and

Member of the Discovery Committee.

Judge John M. Facciola (Ret.)—Magistrate Judge

(1997-2015) for the U.S. District Court for the District of

Columbia. Member of the Board of Directors of the

Federal Judicial Center (2009-2013); Adjunct Professor of

Law on Information Technology and Modern Litigation,

Georgetown University Law Center (2015-2025).

No counsel for a party authored this brief in whole or in part. No

person other than Amici or its counsel made a monetary contribution

to its preparation or submission. The parties were given timely notice

of Amici’s intent to file this brief.

The views in this brief are those of the Amici Curiae only and not

necessarily of any institutions with which they are or have been

affiliated.

(1)

Judge Paul W. Grimm (Ret.)—District Judge (20122022), Senior Judge (2022), Chief Magistrate Judge (20062012), Magistrate Judge (1997-2006) for the U.S. District

Court for the District of Maryland; Member of the

Advisory Committee for the Federal Rules of Civil

Procedure (2009); Chair of the Civil Rules Committee’s

Discovery Subcommittee (2010-2015).

Judge Elizabeth D. Laporte (Ret.)—Magistrate

Judge (1998-2019), Chief Magistrate Judge (2013-2015)

for the U.S. District Court for the Northern District of

California; Member of the Northern District of California

Local Rules Committee and Patent Local Rules

Committee; Chair of the Northern District of California

Local Rules Committee Subcommittee on E-Discovery

(2012).

Judge Thomas I. Vanaskie (Ret.)—Circuit Judge

(2010-2018), Senior Judge (2018-2019) for the U.S. Court

of Appeals for the Third Circuit; District Judge (19942010), Chief Judge (1999-2006) for the U.S. District Court

for the Middle District of Pennsylvania.; Chair of the

Third Circuit Judicial Council Committee on Information

Technology (2002-2010); Member of the Judicial

Conference Committee on Information Technology (20012008) (Chair, 2005-08); Adjunct Professor Law on

Electronic Evidence, Penn State and Dickinson Schools of

Law (2007-2021).

SUMMARY OF ARGUMENT

This case presents a question of critical importance to

federal judges nationwide: how judges should weigh a

spoliation inference at summary judgment.

Three circuits hold that if a defendant spoliates

evidence that could have given rise to a dispute of material

fact the case must go to trial so that a jury may decide

what weight to give the adverse inference. See Kronisch

v. United States, 150 F.3d 112, 128-30 (2d Cir. 1998); Van

Winkle v. Rogers, 82 F.4th 370, 382 (5th Cir. 2023);

Talavera v. Shah, 638 F.3d 303, 312 (D.C. Cir. 2011). In

direct conflict, the Eighth Circuit holds that a court may

grant summary judgment to a spoliating defendant if the

judge thinks it is implausible that the spoliated evidence

would have given rise to a dispute of material fact. See

Pet. App. 8a.

This is an important question that warrants the

Court’s review. The circuit split opened by the Eighth

Circuit’s ruling has fundamentally altered the rights

afforded to parties granted an adverse inference in a jury

trial. The adverse inference instruction exists to

rebalance the evidentiary scale where a party destroys or

otherwise spoliates evidence that would have supported

its adversary’s claim or defense. Indeed sometimes, “a

missing piece of evidence like a photograph or video [is]

irreplaceable,” and even an adverse inference instruction

will not fully compensate the innocent party. Brookshire

Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 17 (Tex. 2014). This

Court should clarify how judges should apply adverse

inferences at summary judgment.

The Court should take up this case for two reasons in

addition to those presented by the petition for certiorari.

First, the Court should grant this review in this case

because the Eighth Circuit’s rule allows judges to usurp

the jury’s constitutionally-prescribed role under the

Seventh Amendment. Second, the Court should grant

certiorari in this case because deciding the plausibility of

adverse inferences at summary judgment is at odds with

the language, history, and purpose of Federal Rule of

Civil Procedure 37.

ARGUMENT

REVIEW IS NECESSARY BECAUSE THE DECISION

BELOW UNDERMINES THE JURY’S ROLE

Granting summary judgment to a spoliating party

where an adverse inference has been granted in a jury

trial undermines the jury’s role as factfinder. The Seventh

Amendment prescribes: “In suits at common law, where

the value in controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and no fact tried

by a jury, shall be otherwise re-examined in any Court of

the United States, than according to the rules of the

common law.” U.S. Const. amend. VII. The history of that

right, and the actions that the Supreme Court has taken

to preserve it, show the central role juries played at the

Founding and should continue to play today. See Hester v.

United States, 586 U.S. 1104, 1107 (2019) (Gorsuch, J.,

dissenting from the denial of certiorari) (“[I]t’s hard to see

why the right to a jury trial should mean less to the people

today than it did to those at the time of the Sixth and

Seventh Amendments’ adoption.”).

The right to a jury trial long pre-dates the Seventh

Amendment’s adoption in 1791. “Legal writers and

political theorists who were widely read by the colonists

were firmly of the opinion that trial by jury in civil cases

was an important right of freemen.” Charles W. Wolfram,

The Constitutional History of the Seventh Amendment,

57 Minn. L. Rev. 639, 653-54 (1973). William Blackstone

said the jury trial was “the glory of the English law.” 3 W.

Blackstone, Commentaries on the Laws of England 379

(8th ed. 1778) (Blackstone).

The Framers understood the importance of this

right, and were united in their demand for a civil jury trial

guarantee. Thomas Jefferson described the right to a civil

jury trial as “the only anchor, ever yet imagined by man,

by which a government can be held to the principles of its

constitution.” Letter from Thomas Jefferson to Thomas

Paine (July 11, 1789). In introducing the Bill of Rights to

Congress, James Madison described the “[t]rial by jury

… as essential to secure the liberty of the people as any

one of the preexistent rights of nature.” 1 Annals of

Congress 454 (1789) (Joseph Gales ed., 1834) (statement

of James Madison).

The lack of that right in the original Constitution

galvanized Antifederalists and nearly derailed ratification

by the States. See Wolfram, supra, at 660 n.59 & 667; see

also Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446 (1830)

(“One of the strongest objections originally taken against

the [C]onstitution of the United States, was the want of an

express provision securing the right of trial by jury in civil

cases.”). For Antifederalists, the right to a civil jury trial

meant “the protection of debtor defendants; the

frustration of unwise legislation; the overturning of the

practices of courts of vice-admiralty … and the protection

of litigants against overbearing and oppressive judges.”

Wolfram, supra, at 670-71. A writer for the Pennsylvania

Packet warned that, without such a right, “it was quite

predictable that a ‘lordly court of justice’ sitting without a

jury in the federal courts would likely be ‘ready to protect

the officers of government against the weak and helpless

citizens[.]”’ Id. at 671.

The Seventh Amendment was designed precisely to

assuage that concern, and this Court’s precedents have

continued to recognize the importance of civil jury trials.

Justice Story wrote that the Seventh Amendment is

“most important and valuable” and “places upon the high

ground of constitutional right the inestimable privilege of

a trial by jury in civil cases, a privilege scarcely inferior to

that in criminal cases, which is conceded by all to be

essential to political and civil liberty.” 3 Joseph Story,

Commentaries on the Constitution of the United States

633 (1833). Justice Rehnquist noted how the Founders

“considered the right of trial by jury in civil cases an

important bulwark against tyranny and corruption, a

safeguard too precious to be left to the whim of … the

judiciary.” Parklane Hosiery Co. v. Shore, 439 U.S. 322,

343 (1979) (Rehnquist, J., dissenting). And just last year,

Justice Gorsuch emphasized that despite “its weaknesses

and the potential for misuse, we continue to insist that [the

jury trial] be jealously preserved.” Securities and

Exchange Commission v. Jarkesy, 603 U.S. 109, 159

(2024) (Gorsuch, J., concurring) (citing Duncan v.

Louisiana, 391 U.S. 145, 156 (1968); Patton v. United

States, 281 U.S. 276, 312 (1930)) (internal quotation marks

omitted). These pronouncements embody but a fraction of

this Court’s steadfast commitment to safeguarding the

Seventh Amendment.

Further, the Supreme Court has long held that juries,

not judges, are constitutional factfinders. “The controlling

distinction between the power of the court and that of the

jury is that the former is the power to determine the law

and the latter to determine the facts.” Dimick v. Schiedt,

293 U.S. 474, 486 (1935). “Maintenance of the jury as a

fact-finding body is of such importance and occupies so

firm a place in our history and jurisprudence that any

seeming curtailment of the right to a jury trial should be

scrutinized with the utmost care.” Id. A jury is wellequipped to find facts that are borne out of an adverse

inference, such as the contents of destroyed evidence and

the motives behind its destruction. It is improper for a

judge to resolve these factual issues on summary

judgment.

Finally, the right to a jury trial is most urgent in cases

like this one, where government officials have been

accused of violating a citizen’s civil rights. “The essence of

that right lies in its insistence that a body of laymen not

permanently attached to the sovereign participate along

with the judge in the factfinding necessitated by a

lawsuit.” Parklane Hosiery Co., 439 U.S. at 348-49

(Rehnquist, J., dissenting). The importance of unaffiliated

factfinders is no less important in civil cases pitting

citizens against government than in criminal cases

governed by the Sixth Amendment’s corresponding

guarantee. Id. at 349.

Granting summary judgment in favor of a spoliator in

a case where an adverse inference has been granted

improperly intrudes on the province of the jury. Allowing

such a judicial practice to continue contravenes the

intention of the Founders that undergirded the Seventh

Amendment and that which has motivated subsequent

action by this Court: that parties to litigation be afforded

a jury of their peers as factfinders.

II. THE LANGUAGE, HISTORY, AND PURPOSE OF RULE 37

REQUIRE THAT JUDGES PERMIT JURIES TO DECIDE

ADVERSE INFERENCES

The Court should grant the petition for another

reason: the decision below is at odds with the language,

history, and purpose of Rule 37. Rule 37 requires that

once an adverse inference could be drawn from spoliated

evidence in a jury trial, any conclusion about what that

evidence could have shown must be left to the jury to

decide. That follows directly from the text of Rule 37. That

is further established by the Rule’s purpose and history,

and by the practical impossibility of weighing adverse

inferences at summary judgment.

Start with the text of Rule 37 which permits district

courts to issue adverse inference sanctions based on

inadvertent or intentional destruction of evidence. See

Fed. R. Civ. P. 37(e)(1)-(2). The Rule contemplates only

one sanction in jury cases where, as relevant here, a party

engages in intentional spoliation and an adverse inference

is granted.3 Specifically, it provides that where a court

finds that a party “acted with the intent to deprive

another party of the information’s use in the litigation,”

the court may “instruct the jury that it may or must

presume the information was unfavorable to the party.”

Fed. R. Civ. P. 37(e)(2)(B) (emphasis added). In revising

Rule 37, the Advisory Committee was of the view that the

rule needed to spell out the misconduct essential to

warrant such a potentially game changing sanction,

namely conduct intended to prevent the adverse party

from accessing the evidence. It follows that it would

contradict the entire function of a permissive adverse

inference instruction for the trial judge to make the

threshold finding of intentional spoliation, but then

deprive the jury of the opportunity to determine the effect

of it in connection with its fact finding role.4

Rule 37(e)(2)(B) sanctions thus cannot be enforced

unless the case reaches the jury because the sanction

requires a jury instruction. Rule 37(e)(2)(B) assumes

juries will apply the inference, which makes the result

here highly anomalous. The Court must refrain at

summary judgment from making its own assessment of

the reasonable adverse inferences a jury might draw.

The rule authorizes two other sanctions for intentional spoliation,

but neither is relevant where the chosen sanction is an adverse

inference and the case involves a jury. Rule 37(e)(2)(A) permits an

adverse inference, but only applies where the judge is sitting as the

factfinder in a bench trial. Rule 37(e)(2)(C) authorizes the judge to

end the case in favor of the non-spoliating party, but that sanction

goes far beyond a mere adverse inference.

Amici Judge Grimm served on the Committee and recalls well the

motivations and intentions behind integrating an adverse inference

instruction into Rule 37.

Next consider Rule 37’s history and purpose. Rule 37

has always been centered around the jury. Rule 37 was

drafted to codify the common law rule that an adverse

inference instruction could be given to a jury and did not

contemplate a role for the judge in factfinding in a jury

trial. That is because Rule 37, which codified the

longstanding common law rules for drawing adverse

inferences, was promulgated at the same time as the thennew and then-untested summary judgment rule. The two

rules were promulgated in parallel and how exactly the

two rules would intersect was not contemplated.

The origins of the adverse inference instruction trace

to the common law in England before the founding of the

United States. Indeed, the adverse inference instruction

is “the oldest and most venerable remedy” for spoliation.

United Med. Supply Co. v. United States, 77 Fed. Cl. 257,

263 (2007). It serves the important remedial purpose,

“insofar as possible, of restoring the prejudiced party to

the same position [it] would have been in absent the

wrongful destruction of evidence by the opposing party.”

Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.

1998). At common law, an adverse inference instruction to

the jury was the only method by which a spoliator could

be punished short of default or nonsuit because judges

had no role in factfinding.

The earliest example of its use is in Armory v.

Delamirie, 93 Eng. Rep. 664 (K.B. 1722). There, a

chimney sweep found an abandoned jewel and brought it

to a jeweler to have it appraised. The jeweler refused to

return the jewel to the chimney sweep and claimed it had

disappeared, and the chimney sweep sued for the value of

the stone. Following the Latin maxim omnia

praesumuntur contra spoliatorem (“All things are

presumed against a despoiler”), the Court in Armory

instructed the jury to presume that the jewel had the

highest possible value for one of its type. This was the

first, but far from the last, instance where English courts

instructed the jurors that they may infer that the

destruction of the evidence signifies its value to the

spoliator where a party has intentionally lost or damaged

evidence. Jonathan Judge, Reconsidering Spoliation:

Common-Sense Alternatives to the Spoliation Tort, 2001

Wis. L. Rev. 441, 445 (2001).

American practice at the founding carried forward

the English rule. The origins of Rule 37 trace to § 15 of the

Judiciary Act of 1789. The statute, “practically coeval with

the Constitution,” “confer[ed] upon courts of law of the

United States the authority to require parties to produce

books and writings in their possession or under their

control which contain evidence pertinent to the issue.”

Hammond Packing Co. v. State of Ark., 212 U.S. 322, 351352 (1909). The original drafters of Rule 37 noted that

“[t]he provisions of [the] rule … are in accord with

Hammond Packing Co. ….” Fed. R. Civ. P. 37 advisory

committee note to 1937 adoption.

In contrast to Rule 37, the modern summary

judgment rule—now codified as Rule 56—has no roots in

the common law. Summary judgment was introduced into

American law long after the adverse inference instruction

and the two do not fit together neatly. Summary judgment

is a “modern device.” Parklane Hosiery Co., 439 U.S. at

349 (Rehnquist, J., dissenting). Summary judgments were

first pioneered in England in 1855 and incorporated into

the law of several states by the turn of the 20th century.

See Charles E. Clark & Charles U. Samenow, The

Summary Judgment, 38 Yale L.J. 423, 423-24 (1929); see

John H. Langbein, The Disappearance of Civil Trial in

the United States, 122 Yale L.J. 522, 566-67 (2012); see

also John A. Bauman, The Evolution of Summary

Judgment Procedure, 31 Ind. L.J. 329, 342-44 (1956).

Over time, summary judgment grew increasingly popular

and was eventually introduced into federal practice

through the Federal Rules of Civil Procedure. See Arthur

R. Miller, From Conley to Twombly to Iqbal: A Double

Play on the Federal Rules of Civil Procedure, 60 Duke

L.J. 1, 3-5 (2010); Langbein, supra, at 566-67, 569-70.

These histories together show that Rule 37’s adverse

inference instruction was and is a targeted sanction that

can only be implemented by a jury. Rule 37 does not make

any provision for implementing the adverse inference

instruction at the pretrial stage, and Rule 56, likewise,

does not provide guidance to judges as to how to factor

adverse inference instructions at summary judgment.

Finally, consider the practical challenges to a judge

weighing an adverse inference instruction at summary

judgment. As this case well-illustrates, it is virtually

impossible to determine how a judge should implement an

adverse inference at summary judgment in a jury trial

without essentially transforming the case into a bench

trial.

Implementing summary judgment under the Liberty

Lobby rule is already difficult, but at least there is

guidance: the question is whether any reasonable jury

could return a verdict for the non-moving party based on

the facts adduced. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-248 (1986). But judges act outside of the

rules when, as in the case below, they engage in a

speculative effort requiring the following steps. First,

they make a finding about what a reasonable jury could

deduce about what the spoliated evidence could have

shown. Then, they try to determine if a reasonable jury

could reach a verdict for the non-moving party based on

what they think the spoliated evidence could have shown.

This makes no sense.

Hypotheticals bear this out. For example, imagine in

an antitrust case a defendant intentionally deletes all the

company’s internal emails. Then, the defendant-spoliator

argues those emails could not possibly show a price-fixing

agreement because these were internal company emails.

Could a reasonable jury conclude that the now-missing

emails might have shown that an agreement was made

with someone outside of the company? Would that then be

enough for a reasonable jury to find liability?

Or consider a civil rights case against a local

municipality alleging the police department has a pattern

or practice of engaging in racial profiling where the police

department has deleted all records of traffic stops with

the intent to deprive the plaintiff of that evidence. All the

other evidence produced by the department—records of

arrests, Terry stops, and use of force incidents—fail to

support a pattern of racial profiling. Could a reasonable

jury nonetheless conclude that the department engaged

in unlawful racial profiling in just the traffic stops when

all the other evidence is inconsistent with that theory?

Could a reasonable jury then use that finding to

determine that the police department is liable?

Or consider a case more like this case, perhaps an

officer-involved shooting with an alleged excessive use of

force. Then assume that all of the involved officers deleted

the footage of the incident from their bodycams with the

intent to deprive the plaintiff of that evidence. Then

further assume that the contemporaneous police reports

of the incident written by multiple officers, including

officers who were at the scene but not involved in the use

of force, all corroborate the defendant officers’ account

that the force was necessary to protect officer safety.

Could a reasonable jury nonetheless conclude that the

bodycam footage would have contradicted all the

contemporaneous accounts of the incident? Could that

jury, with the right to draw an adverse inference against

the spoliating defendant, together with all the other

evidence before them, then find the Defendant Officers

liable for the excessive use of force?

These questions cannot be answered at summary

judgment. They require judges to assess witness

credibility, and the weight that non-existent evidence

could have carried (not to mention the weight of the

circumstances and intent through which that evidence

was destroyed), in an effort to determine whether there is

a material disputed issue of fact. This cannot be done.

Moreover, it cannot be what Rule 37’s drafters intended.

At bottom, once an adverse inference could be drawn

from spoliated evidence, any conclusion about what that

evidence could have shown must be left to the jury to

decide. The decision below flouted that basic rule. The

Court should grant certiorari to clarify the application of

Rule 37’s adverse inference rule in this important context.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.