In Episode 175, Kelly Twigger discusses how the intentional destruction of data from a voice recorder in an aircraft, and the court’s reluctance to impose meaningful sanctions—even when the record arguably justified them—calls into question whether Rule 37(e)(2) can protect parties in Sky Jet M.G. Inc. v. VSE Aviation Servs., LLC.
Introduction
Welcome to our Case of the Week segment on our Meet and Confer podcast. My name is Kelly Twigger. I am the Principal at ESI Attorneys, a law firm for ediscovery and information law, as well as the CEO at Minerva26, 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 Minerva26 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.
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 — the good, the bad, the ugly.
Our decision today highlights a question that we keep seeming to 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 under Rule 37(e)(2)?
This week’s decision comes to us from the case of Sky Jet M.G. Inc. v. VSE Aviation Servs., LLC. This is a decision from United States Magistrate Judge Angel Mitchell dated June 12, 2025. This case has a number of acronyms in it, so stick with me and try to pay attention as we go along.
Facts
Let’s talk about the facts of the case that began in January 2022.
The facts of the case arise from a so-called “hot-start”, an incident involving a 1996 Beach twin engine, turbo prop aircraft owned by Sky Jet. 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 defendant 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 Sky Jet 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 Sky Jet, 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. 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.
Sky Jet 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 Sky Jet asking for any recording of the two starts alleged in the complaint, and Sky Jet responded to those requests for production, as “none known.”
In November, Sky Jet produced documents that included maintenance records verifying that both the flight data recorder and the cabin cockpit recorder were installed on the aircraft. Counsel for VSE then reached out to Counsel for Sky Jet and tried to reconcile the RFP response saying that there were no known recordings, with the fact that there were recorders on the aircraft. Counsel for Sky Jet then told counsel for VSE that he had asked his client for the data recordings and was told that they no longer existed.
Discovery was set to close on December 15th.
VSE served a 30(b)(6) notice on Sky Jet the day before discovery closed and, during that deposition, VSE learned that Sky Jet’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 Sky Jet never received the FDR and CVR readouts back from Logic Air. Very important. That’s what the testimony is from Sky Jet’s CEO.
Through additional discovery, however, VSE learned from Sky Jet’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, Sky Jet did not go back to Logic Air and ask them for anything. That is, again, Sky Jet’s testimony.
After the depositions, Sky Jet went to Logic Air to request the data, according to Sky Jet. Logic Air sent the data, but it was for the wrong flight. Sky Jet realized that it was for the wrong flight and asked Logic Air, who told Sky Jet that the CVR data for the correct flight was lost during a computer malfunction. Despite knowing that, Sky Jet 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 Logic Air to find the flight recordings. The Court reopened discovery on that issue based on the spoliation evidence that VSE presented to it.
Fast forward to March 2023.
Sky Jet produced the FDR readout to VSE, but said that Sky Jet 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 the FDR readouts that were finally produced — even after they 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 Sky Jet provided were, let’s say, redacted to remove information that might have been relevant to the incident at hand.
Sky Jet also confirmed that the CVR —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 Sky Jet 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 Sky Jet before 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 Sky Jet the readouts on two identical disks, with the CVR and FDR data on each in the same box in which it returned the units to Sky Jet.
The plot thickens.
Logic Air then produced its emails with Sky Jet from the days after the incident, in which Sky Jet’s primary maintenance control officer specifically stated to Logic Air in all caps “IMPORTANT DO NOT ERASE ANY DATA FROM BOTH UNIT.” One of the emails, which had to be translated from French to English, stated that “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 4 This is the area mic. It’s more interesting from the 30 minute mark.” (emphasis added)
Sky Jet never produced those emails between Sky Jet and Logic Air. Instead, VSE received those emails from Logic Air in June of 2024.
We are now before the Court on the Defendant, VSE’s motion for spoliation sanctions for Sky Jet’s failure to preserve the aircraft’s cockpit voice recorder readouts from the hot-start incident. VSE seeks dismissal of Sky Jet’s complaint with prejudice or a default judgment against Sky Jet, an adverse inference jury instruction, preclusion of testimony by Sky Jet’s witnesses, and attorneys’ fees and expenses. VSE contends that Sky Jet had a duty to preserve the CVR 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 Sky Jet acted in bad faith by intentionally preventing VSE from reviewing the CVR data.
Sky Jet opposed the motion, arguing 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.
Analysis
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. 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.
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
- the ESI should have been preserved;
- a party failed to take reasonable steps to preserve it; and
- it cannot be restored or replaced.
Under Rule 37(e)(1), 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, 37(e)(2), 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.
Here, there was really no dispute about whether or not Sky Jet had a duty to preserve the cabin voice recorder data, according to the Court.
The Court also found that Sky Jet did not take reasonable steps to preserve the data. Sky Jet 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 Sky Jet’s claims that they did not receive the data back as not credible, finding that the email traffic between Sky Jet and Logic Air documenting the delivery of the DVDs was in direct conflict with the testimony from Sky Jet 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.
Having met all the requirements for finding spoliation, the Court then turned to whether or not VSE was prejudiced under Rule 37(e)(1) or whether Sky Jet had the requisite intent to deprive for sanctions under Rule 37(e)(2). 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(e)(1). 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 of Sky Jet’s behavior here, which was appalling. Here’s a direct quote from the Court:
This is not an instance where the CVR data was lost as a result of the routine deletion of electronic data that Sky Jet considered unimportant. Sky Jet 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. Sky Jet 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. Sky Jet argues that it simply “fell short in its attempt to preserve the data” and was “at worst…negligent.”
But the Court is unpersuaded by this argument for two reasons.
First and foremost, Sky Jet 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 Sky Jet 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 Sky Jet’s actions in covering up the loss of this data during discovery.
In sum, the only reasonable inference the court can draw from Sky Jet’s dishonest and misleading discovery conduct—combined with the lack of any explanation whatsoever as to what happened to the CVR data after Sky Jet received it back from Logic Air and the fact that Sky Jet 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 Sky Jet itself brought in United States court—is that Sky Jet acted with the intent to deprive VSE of the CVR data in this litigation.
(emphasis added)
With all of that, what are the sanctions that the Court awarded here?
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 Sky Jet 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:
Sky Jet was under a duty to preserve the data from its aircraft cockpit voice recorder (“CVR”) following the hot-start incident with the aircraft’s left engine. Sky Jet 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 Sky Jet.
Meaning, the Court provided a permissive adverse inference instruction that the jury is permitted to decide that that information may have been unfavorable to Sky Jet. It’s the lowest sanction the court could award in this situation.
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 VSE attorneys’ fees and costs on both its efforts to obtain the reporter data, as well as on the motion for sanctions.
The preclusion of testimony by the pilots is a good move by the Court, obviously, because that doesn’t allow Sky Jet to go back, find those pilots who’ve suddenly been missing during this litigation, and 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.
Takeaways
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. By spoliating the recorder evidence, which the Court found that Sky Jet did intentionally, Sky Jet created a situation where allowing a jury to essentially guess what happened could go in their favor, assuming this case ever gets to trial. A permissive adverse inference instruction may have significant impact if this case gets to trial, but if it doesn’t, Sky Jet 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.
Sky Jet’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 Sky Jet’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 Sky Jet’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? I would really ask the Rules Committee here to go back and consider if that’s what they contemplated in drafting Rule 37(e).
This was a carefully orchestrated effort by Sky Jet 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 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—what is the intention of Rule 37 here?
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 month 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.
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.
I’m left at the end of this case with wondering how VSE’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 Sky Jet 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 Sky Jet’s bottom line and potentially change future behavior are what was needed here. 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.
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.
Conclusion
That’s our Case of the Week for this week. Be sure to follow the Meet and Confer podcast on your favorite platform, or if you prefer, you can follow us on our blog at Minerva26.com/blog.
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Have a great week!
