Citation. 2017 WL 3058027 (D. Colo. 2017)
Plaintiff allegedly touched Defendant Swift in an inappropriate manner during a “meet-and-greet” with Defendant Swift. Defendant KYGO fired him shortly after. Plaintiff sued Defendants in a Colorado state court, asserting claims of tortious interference with his employment contract and related business expectancies. Defendant Swift subsequently filed counterclaims against Mueller for the torts of assault and battery. The Defendants requested that the court sanction Plaintiff for his spoliation of evidence, in the form of adverse-inference jury instructions, after Plaintiff did not produce the entire recording
A court will not impose an adverse-inference sanction in response to spoliation of evidence absent a finding of bad faith.
Defendant Swift alleged that Plaintiff intentionally and inappropriately touched her buttocks. The next day, Defendant KYGO called him in for a meeting to discuss the incident, which Plaintiff secretly recorded. After the meeting, Defendant KYGO fired Plaintiff. Plaintiff contacted an attorney and substantially edited the recording. Plaintiff sent only the edited clips of the recording to his attorney. Plaintiff sued Defendants, alleging tortious interference. The Defendants requested an unedited copy of the recording. Plaintiff testified that he broke his laptop by spilling coffee on it and that his external hard drive on which he stored files stopped working. Therefore, Plaintiff did not produce the entire recording. The Defendants requested that the court sanction Plaintiff for his spoliation of evidence, in the form of adverse-inference jury instructions.
Should a court impose an adverse-inference sanction in response to spoliation of evidence absent a finding of bad faith?
No, the court granted in part Defendant’ Motion for Sanctions by imposing a sanction that is less severe than the adverse-inference sanction.
A court will not impose an adverse-inference sanction in response to spoliation of evidence absent a finding of bad faith. In determining whether to impose sanctions for spoliation of evidence, courts consider the degree of culpability and the degree of prejudice to the other party. One possible sanction for spoliation of evidence is a adverse-inference jury instruction. However, such a sanction is only proper if the court finds that the destroying party acted in bad faith. Here, the record does not clearly establish that Plaintiff acted with the intent to destroy relevant evidence. However, there is evidence in the record that Plaintiff should have taken more care of preserving the recording because he knew that litigation was imminent. Therefore, the court imposes the following sanction: FRCP Rule 611(b) notwithstanding, the defendants will be permitted to cross-examine Plaintiff regarding his spoliation of evidence. This sanction will permit the jury to make its own determination as to Plaintiff’s culpability and credibility. If the jury finds that Plaintiff acted with bad faith, it will certainly, on its own, make an adverse inference.