Spoliation of evidence involves the destruction of evidence to prevent its use in either pending or reasonably anticipated litigation. Electronic evidence is easily susceptible to spoliation, and consequently, as electronic discovery has become a major part of modern litigation over the past twenty years, claims of spoliation have increased dramatically, particularly for emails. The courts have responded with various sanctions. A recent survey of reported federal cases shows that the most prevalent sanction for spoliation is the adverse inference instruction in which the jury is directed that it may infer from evidence of spoliation that the destroyed evidence would have been unfavorable to the party who destroyed it. In many cases of spoliation, it may be difficult for the jury to infer what the contents of the destroyed evidence once may have been, however, because the evidence has been destroyed. Other sanctions for spoliation include dismissal, default judgment, issue preclusion, and monetary sanctions.Two significant decisions in 2010 by prominent federal judges from New York and Texas dealt with the use of adverse inference instructions in the federal courts as sanctions for spoliation. The approaches taken by the courts differed substantially with respect to the culpability of the spoliator required for an adverse inference instruction and the contents of the instructions. However, both courts imposed adverse inference instructions as sanctions.Using adverse inference instructions as sanctions for spoliation has adverse consequences. Motions for sanctions are time-consuming for both courts and litigants, and as a result of the punitive nature of sanctions, they add to the contentiousness of litigation. In addition, adverse inference instructions may not operate well as sanctions, because adverse inferences are grounded in the logical connection between spoliation and the merits of the case, rather than the policies for sanctions. Instead of sanctioning parties for spoliation through the use of adverse inference instructions, courts should handle most claims of spoliation by allowing parties to offer evidence of spoliation at trial and then argue the adverse inferences from spoliation to the jury.