Ask a Minnesota litigator what Rule 37 does and you will hear about the motion to compel — the fee award, the order to answer, the threat of dismissal for defying that order. All of that is real. Almost none of it decides cases.
What decides cases is the evidence that disappeared before anyone had filed anything. There was no order to disobey. Often there was no lawsuit. And Minnesota will still sanction you for it — under a body of law that lives almost entirely outside Rule 37, that does not require bad faith, and that applies a materially different standard depending on whether the thing you lost was stored on a hard drive or sitting in a garage. That asymmetry is not a quirk, and it points the opposite direction from what most people assume.
What does Rule 37 actually punish?
Disobedience, mostly. Every tier is keyed to a prior obligation the party ignored.
Rule 37.01 is the motion to compel, available when a deponent will not answer, an entity will not designate a witness, or a party will not answer an interrogatory or produce documents. It requires a certification “that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action.” Minn. R. Civ. P. 37.01(b)(2). And it makes the fee award presumptive rather than discretionary:
If the motion is granted, or if the requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney fees, unless the court finds that the motion was filed without the movant’s first making a good faith effort to obtain the discovery without court action, or that the opposing party’s nondisclosure, response, or objection was substantially justified or that other circumstances make an award of expenses unjust.
Minn. R. Civ. P. 37.01(d)(1). Note the trigger: fees are owed even if the discovery arrives after the motion was filed. Producing on the courthouse steps does not moot the exposure.
Rule 37.02(b) is the escalation, and it applies only when a party “fails to obey an order to provide or permit discovery.” Then the court may deem facts established, bar claims or defenses, or — the nuclear option — enter “[a]n order striking pleadings or parts thereof, staying further proceedings until the order is obeyed, dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.” Minn. R. Civ. P. 37.02(b)(3).
Rule 37.03(a) is the self-executing one people forget: if a party fails to disclose information or identify a witness as required by Rule 26.01 or 26.05, “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” No motion is required for the exclusion itself. Rule 37.04 reaches the party who never appears or responds at all, and forecloses the obvious excuse — an objection does not excuse the failure “unless the party failing to act has applied for a protective order as provided by Rule 26.03.”
Every one of those provisions presupposes that the evidence still exists and someone is refusing to hand it over.
So where is the rule for evidence that was destroyed before anyone asked for it?
There is exactly one, and it covers exactly one kind of evidence. Rule 37.05:
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (a) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (b) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (1) presume that the lost information was unfavorable to the party; (2) instruct the jury that it may or must presume the information was unfavorable to the party; or (3) dismiss the action or enter a default judgment.
Minn. R. Civ. P. 37.05. This is Minnesota’s own rule, not a borrowed federal one — but its lineage is explicit. The advisory committee said the 2018 version “follows closely the amendment made to Fed. R. Civ. P. 37(e) in 2015.” Minn. R. Civ. P. 37.05 advisory comm. cmt. — 2018 amendments.
So the federal 37(e) framework is Minnesota law — for electronically stored information, and nothing else.
What governs everything that is not ESI?
Judge-made law, applied under the district court’s inherent authority. Minnesota reached spoliation long before it had any rule on the subject, and has never replaced that law for physical evidence. The foundational case is Patton v. Newmar Corp., 538 N.W.2d 116 (Minn. 1995). A motor home burned; the remains were lost at a salvage yard along with components the plaintiffs’ own expert had removed; suit was not commenced for years. There was no discovery order, no court process anyone had defied, and the court of appeals had reasoned that the destruction was “neither wilful nor in bad faith.” The supreme court nonetheless upheld exclusion of the plaintiffs’ expert testimony and photographs, and with it summary judgment for the defendant, adopting the Eighth Circuit’s approach in Dillon v. Nissan Motor Co.: “The court identified a reasonable and workable standard by which to test the impact of the spoliation — the prejudice to the opposing party.” 538 N.W.2d at 119. “Implicit in that standard is the need to examine the nature of the item lost in the context of the claims asserted and the potential for remediation of the prejudice.” Id. Where the critical item is gone, “the trial court is not only empowered, but is obligated to determine the consequences of the evidentiary loss.” Id.
Sixteen years later the supreme court gathered the doctrine in Miller v. Lankow, 801 N.W.2d 120, 128 (Minn. 2011): “Breach of the duty to preserve evidence once such a duty arises may be sanctioned, under a court’s inherent authority, as spoliation.”
When does the duty to preserve begin?
Before the lawsuit — and the trigger is a fact, not a filing.
The duty to preserve evidence exists not only after the formal commencement of litigation, but whenever a party knows or should know that litigation is reasonably foreseeable.
Miller, 801 N.W.2d at 127–28. That is a deadline that runs from a contested fact rather than from a docket entry, with all the uncertainty that implies — and the supreme court left the application to the trial court, remanding in Miller so the district court could determine “whether Miller was under a duty to preserve critical evidence, and nevertheless intentionally destroyed that evidence.” Id. at 134.
Does it matter that the destruction was innocent?
For whether a sanction is available: no.
Further, we have recognized that, regardless of whether a party acted in good or bad faith, “the affirmative destruction of evidence has not been condoned.”
Miller, 801 N.W.2d at 127 (quoting Patton, 538 N.W.2d at 119). And: “We also reaffirm our previously stated rule that, even when a breach of the duty to preserve evidence is not done in bad faith, the district court must attempt to remedy any prejudice that occurs as a result of the destruction of the evidence.” Id. at 128.
Fault still matters to which sanction. The supreme court has said its rule “is consistent with” the three factors from the Third Circuit’s Schmid decision — degree of fault, degree of prejudice, and whether a lesser sanction will avoid substantial unfairness — and that those factors are “compatible with our holding in Patton.” 801 N.W.2d at 132. Review is for abuse of discretion, and the challenger “has the difficult burden of convincing an appellate court that the district court abused its discretion.” Id. at 127.
One genuinely open question: Miller expressly reserved accidental loss. “[T]he question of whether sanctions are appropriate when evidence is destroyed by accident or unintentionally, for example by the passage of time, is not before us, and we need not, and do not, decide it.” Id. at 129. Anyone who tells you Minnesota law is settled on the negligently-misplaced box of records is overstating.
How do you destroy evidence lawfully?
By giving notice and an opportunity to look at it first. This is the practical holding of Miller, and it is the most useful paragraph in Minnesota spoliation law:
[A] custodial party with a legitimate need to destroy evidence may be absolved of a failure to preserve evidence by providing sufficient notice and a full and fair opportunity to inspect the evidence to a noncustodial party.
801 N.W.2d at 129. The court refused to impose a rigid content requirement, holding instead that “a court should consider the totality of the circumstances in determining whether the notice given was sufficient to satisfy a custodial party’s duty to preserve evidence.” Id. at 131. And it put weight on the other side’s inaction: “when a custodial party with a legitimate need to destroy evidence gives notice that is sufficient for the noncustodial parties to protect themselves by taking steps to inspect or preserve the evidence and the noncustodial parties nevertheless do nothing to inspect the evidence, sanctions for spoliation may not be appropriate.” Id.
Two limits, stated in the same breath: “notice and a full and fair opportunity to inspect will not excuse a failure to preserve evidence where a party destroys evidence without a legitimate need to do so, or destroys evidence in bad faith.” Id. at 129.
On form, the court was concrete: “A meeting or a letter indicating the time and nature of any action likely to lead to destruction of the evidence, and offering a full and fair opportunity to inspect will usually be sufficient to satisfy our notice rule. Moreover, it is the better practice to explicitly provide such a notice, and particularly to provide it in written form.” Id. at 132.
Is there a spoliation tort in Minnesota?
No. When the question was squarely certified in Federated Mutual Insurance Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434 (Minn. 1990) — does Minnesota recognize a tort for intentional spoliation, for negligent spoliation, and had the plaintiff shown a cognizable injury — the supreme court answered all three questions in the negative. Its reasoning rested substantially on prematurity: the plaintiff had never pursued the underlying subrogation claim, so the injury was speculative. “Creating a new tort is a function properly reserved for the supreme court based upon appropriate facts and record.” 456 N.W.2d at 439. The court has since characterized that decision plainly, in a footnote explaining its own use of the word “duty”: “Our use of the word ‘duty’ is not meant to imply a general duty in tort. Cf. Federated Mut. Ins. Co., 456 N.W.2d at 436–37 (declining to adopt a tort for spoliation of evidence).” 801 N.W.2d at 128 n.2.
The remedy, in other words, is procedural. You do not sue the spoliator; you ask the judge presiding over the case the spoliation damaged to level it.
The gap that should worry you
If your opponent wiped a laptop, Rule 37.05(b) says a court may give an adverse-inference instruction, presume the lost information was unfavorable, or enter default only upon finding “that the party acted with the intent to deprive another party of the information’s use in the litigation.” Absent that intent, the court is confined to “measures no greater than necessary to cure the prejudice,” and only “upon finding prejudice.”
If your opponent scrapped a truck, no rule imposes that intent threshold. Patton and Miller govern, and Miller says in terms that a breach is sanctionable “regardless of whether a party acted in good or bad faith.” Separately, Minnesota permits “an unfavorable inference to be drawn from failure to produce evidence in the possession and under the control of a party to litigation.” Federated Mutual, 456 N.W.2d at 436 (quoting Kmetz v. Johnson). On the face of the authorities, then, the party that destroyed a server is better protected than the party that destroyed a physical object. The advisory committee noticed and issued an invitation rather than a rule: “By its terms, this rule applies only to failure to produce ESI where there is a duty to preserve it. There is no reason, however, that the courts should not, in the exercise of their discretion, follow this rule where there is the failure to preserve other evidence, such as physical evidence or documents in non-electronic form.” Minn. R. Civ. P. 37.05 advisory comm. cmt. — 2018 amendments.
That is a committee comment, not a holding, and it is not what Miller says. Until a Minnesota appellate court reconciles the two, the honest answer is that the standard depends on the medium.
What to do
If you may have a claim. Preserve the thing itself, not photographs of it — Patton is instructive precisely because the plaintiffs’ expert had taken roughly ninety photographs and the court still found them an inadequate substitute. If you genuinely must repair, remediate, or dispose, send a written notice identifying the action and its timing, offering a full and fair opportunity to inspect, and then actually wait a reasonable time. Miller rewards exactly that document.
If you receive such a notice. Inspect. The rule cuts both ways: a noncustodial party who gets sufficient notice and does nothing may find sanctions unavailable later.
If evidence is already gone. The motion is about prejudice, not outrage. Identify the claim or defense the missing item was needed to prove, explain why no substitute exists, and propose the narrowest sanction that cures the harm — courts are far more receptive to a tailored exclusion than to a request for dismissal. And distinguish the medium: if it was ESI, cite Rule 37.05 and be candid about which tier you are asking for.
Related reading: the expert-affidavit merits gate, the other Minnesota mechanism that ends cases on proof problems rather than merits; the 21-day safe harbor in Rule 11 and § 549.211, the sanctions regime that expressly does not reach discovery conduct; building a civil-rights case on data practices requests; and what is appealable and when.
Madgett Law, LLC
Madgett Law, LLC litigates civil cases in Minnesota state and federal court, including discovery motion practice and disputes over evidence lost, repaired, or thrown away before suit. If you are about to remediate a building, scrap a vehicle, or decommission a system that may matter to a claim, the notice you send beforehand is worth more than anything anyone can do afterward. Call 612-470-6529 or Send us a message.
Sources: Minn. R. Civ. P. 37.01(b)(2) (meet-and-confer certification), 37.01(d)(1) (presumptive expense award, quoted in full), 37.02(b) and 37.02(b)(3) (sanctions for disobeying a discovery order), 37.03(a) (exclusion for failure to disclose or supplement), 37.04 (failure to appear or respond; objection not an excuse absent a protective order), 37.05 (failure to preserve electronically stored information, quoted in full) and its 2018 advisory committee comment (relationship to Fed. R. Civ. P. 37(e); suggestion that courts may follow the rule for non-electronic evidence), retrieved from the Minnesota Office of the Revisor of Statutes, revisor.mn.gov/court_rules/cp/id/37/. Miller v. Lankow, 801 N.W.2d 120 (Minn. 2011), at 127 (definition of spoliation; sanctionable regardless of good or bad faith; abuse-of-discretion review and the challenger’s burden), 127–28 (duty attaches when litigation is reasonably foreseeable), 128 (breach sanctionable under inherent authority; duty to remedy prejudice absent bad faith; duty tempered where the situation reasonably requires disposal), 128 n.2 (no general duty in tort), 129 (notice plus full and fair opportunity to inspect; the no-legitimate-need and bad-faith limits; accidental destruction expressly not decided), 131 (totality of the circumstances; noncustodial party who does nothing), 132 (form of notice; consistency with the Schmid factors). Patton v. Newmar Corp., 538 N.W.2d 116 (Minn. 1995), at 118 (authority to sanction spoliation) and 119 (prejudice as the standard; obligation to determine the consequences of the loss; inadequacy of photographs). Federated Mutual Insurance Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434 (Minn. 1990), at 436 (definition of spoliation; adverse inference from failure to produce, quoting Kmetz v. Johnson; no tort liability previously imposed in Minnesota) and 439 (certified questions answered in the negative; creating a new tort reserved for an appropriate record). Cases retrieved from the Caselaw Access Project archive at static.case.law. This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and no particular outcome is promised or implied.