Although it appears that the jury will hear about the defendants bad acts, I am disappointed that the court declined the harsher subsection (e)(2) because the plaintiffs did not have evidence of intent. This ruling could temp corporations to ‘lose’ encryption keys rather than deal with evidence. I bet that if you had all the various communications between the key players you would find some discussion outlining their intent and orders. It is always easier to play back seat driver when you are not elbow deep in a case. This somehow does not feel like discovery justice to me. How about you?