The Eighth Circuit Court of Appeals holds that, under Federal Rules of Civil Procedure Rule 37(e), before a Rule 37(e)(2) remedy can be awarded, there must be a finding of (1) "intentional destruction indicating a desire to suppress the truth " and (2) "a finding of prejudice to the opposing party." Additionally, when dealing with pre-litigation destruction of evidence, the Eighth Circuit requires an additional finding of "bad faith " before any Rule 37(e)(2) remedy can be awarded. The overburdensome dual or triple bar requirement for Rule 37(e)(2) sanctions to be awarded. In addition, in this case, the district court, in evaluating whether a FRCP 37(e)(1) or FRCP 37(e)(2) remedy was appropriate, in effect, employed a "clear and convincing " standard rather than a "preponderance of the evidence " standard to evidentiary questions. The question presented is: (1) Did the Eighth Circuit Court of Appeals err by requiring both a finding of "prejudice " and "intentional destruction indicating a desire to suppress the truth " before a Rule 37(e)(2) remedy could be granted? (2) Did the Eighth Circuit Court of Appeals eer by imposing an additional "bad faith " requirement on the intent, thereby in effect creating a pronged test or alternative definition of intent for awarding a Rule 37(e)(2) remedy? (3) Did the District Court eer by effectively using a "clear and convincing " standard ratherthis Eighth circuit has imposed than a "preponderance of the evidence " standard when determining the appropriateness of Rule 37(e)(1) or Rule 37 (e)(2) remedies. (4) Lastly, was a sufficient FRCP Rule(e)(l) remedy of allowing already permissible testimony, given to address the prejudice Ms. Smith faced (due to the loss of electronically stored information (ESI) when Menards, Inc. cherry picked and chose to preserve only evidence to defend their side) a sufficient remedy.

Did the Eighth Circuit Court of Appeals err in its interpretation and application of Rule 37(e) sanctions by requiring multiple findings of intent, prejudice, and bad faith before granting evidentiary remedies?