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Mueller v. Swift

United States District Court, D. Colorado

July 19, 2017

TAYLOR SWIFT, Defendant and Counter Claimant, and FRANK BELL, and ANDREA SWIFT a/k/a Andrea Finlay, Defendants.



         In this tort action pending under the Court's diversity jurisdiction, 28 U.S.C. § 1332, Plaintiff pursues claims against all Defendants for tortious interference with his employment contract and with related business expectancies, while Defendant-Counter Claimant Taylor Swift (“Swift”) pursues counterclaims for the torts of assault and battery. Now before the Court is Plaintiff's Motion for Sanctions for Plaintiff's Spoliation of Evidence. (ECF No. 139 (Defendants' “Motion”).) As explained below, Defendants' Motion is granted in part, to impose a spoliation sanction that is less harsh than the adverse inference requested by Defendants, but which the Court finds is the most appropriate sanction in the circumstances of this case.


         The Court set forth the factual background and allegations in this case in detail in its Order Granting Summary Judgment in Part. (ECF No. 137 (“summary judgment order”)), which is incorporated by reference herein, while repeating only the relevant background in summary fashion. Plaintiff does not dispute any of the additional evidence presented by Defendants in support of their present Motion. (See ECF Nos. 139-1 through 139-13; ECF No. 153.) Therefore, the additional background set out below is both undisputed and supported by evidence in the record.

         Plaintiff worked as an on-air radio personality for a Denver area radio station, KYGO. On June 2, 2013, he attended a backstage “meet and greet” preceding a concert performed by Swift at Denver's Pepsi Center. As detailed in the summary judgment order, Swift alleges that during a staged photo opportunity at the “meet and greet, ” Plaintiff purposefully and inappropriately touched her buttocks beneath her dress. Plaintiff denies having done so. (See ECF No. 137 at 2-3.)

         Plaintiff's employer, the company that owned KYGO, [1] was informed of Swift's accusation on the evening of June 2, 2013 and on the following day. On June 3, 2013, Plaintiff met with his superiors at KYGO, including Robert Call (“Call”) and Hershel Coomer (a/k/a “Eddie Haskell”) (“Haskell”). Unbeknownst to Call and Haskell at the time, Plaintiff made an audio recording of their conversation. (See ECF No. 139-4 at 5.)[2] The following day, June 4, 2013, Plaintiff was terminated from his employment at KYGO by Call. Call explained that one reason for Plaintiff's termination was because Call perceived Plaintiff had “changed his story that it couldn't have occurred, then that it was incidental.” (ECF No. 108-8 at 20.)

         At some point thereafter, well after having first contacted an attorney regarding potential legal action, Plaintiff edited the audio recording of the June 3, 2013 conversation, and then sent only “clips” of the entire audio file to his attorney. (See ECF No. 139-4.) In his deposition testimony, Plaintiff offered the following explanation for these actions: “[t]he audio I recorded was close to two hours long. And the audio that I could provide to [Plaintiff's counsel] was a portion of the entire audio” (id.), and “it was so long, that I edited down clips from the recording to provide to [Plaintiff's counsel] to give an idea of what kind of questioning I went . . . through” (id. at 12).

         According to his testimony, Plaintiff edited the audio file on his laptop computer, on which he also retained a full copy of the original audio file(s). (See Id. at 11-12.) However, sometime thereafter, coffee was spilled on the keyboard of Plaintiff's laptop, damaging it. (Id. at 14.) Plaintiff took the laptop to the Apple Store, and was given “a new machine.” (Id. at 14.) He did not keep the original hard drive or recover the files from it. Evidently this occurred sometime in 2015. (Id. at 18.) In addition, although Plaintiff kept an external hard drive “to store audio files and documents” (id. at 15), and the complete audio recording was saved on this drive (id. at 16), at some point it “stopped working.” (Id. at 31.) At his deposition, Plaintiff testified that he “may have kept” this hard drive (Id. at 16-17), but that because it was “useless” he “[didn't] know if I discarded it because it was junk” (id. at 16). It has not been produced.[3]

         The end result of all this is that the complete audio recording of the June 3, 2013 conversation among Plaintiff, Call, and Haskell has never been produced. So far as the record reveals, Plaintiff is the only person who has ever heard it. Defendants and their lawyers have never heard it, and neither has Plaintiff's own lawyer. (See ECF No. 153 at 3, n. 1.) As a result, Defendants move for a Court-imposed sanction for spoliation of evidence, and in particular for the Court to give the jury an adverse inference instruction at trial, to direct the jury “that the entirety of the June 3, 2013 audio recording would have been unfavorable to Plaintiff.” (ECF No. 139 at 15.)


         “A spoliation sanction is proper where: ‘(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.'” Jones v. Norton, 809 F.3d 564, 580 (10th Cir. 2015) (quoting Turner v. Pub. Serv. Co. of Colorado, 563 F.3d 1136, 1149 (10th Cir.2009)). In deciding whether to sanction a party for the spoliation of evidence, courts have considered a variety of factors, but two “generally carry the most weight: (1) the degree of culpability of the party who lost or destroyed the evidence; and (2) the degree of actual prejudice to the other party.” Browder v. City of Albuquerque, 209 F.Supp.3d 1236, 1244 (2016).

         “As a general rule, the ‘bad faith destruction of a document relevant to proof of an issue at trial gives rise to an inference that production of the document would have been unfavorable to the party responsible for its destruction.'” E.E.O.C. v. Dillon Companies, Inc., 839 F.Supp.2d 1141, 1144 (D. Colo. 2011) (quoting Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir.1997)). However, the Tenth Circuit has also characterized an adverse inference as a harsh sanction. Jones, 809 F.3d at 580. Accordingly, an adverse inference instruction may only be given if the Court makes a finding that the party who lost or destroyed evidence did so in bad faith. Turner, 563 F.3d at 1149. “Mere negligence in losing or destroying records, ” does not support giving an adverse inference instruction, “because it does not support an inference of consciousness of a weak case.” Aramburu, 112 F.3d at 1407.

         However, the negligent loss or destruction of evidence may still warrant imposition of lesser sanctions, “so long as the party seeking sanctions can show it suffered prejudice and the other side was on notice that the evidence should be preserved.” Browder, 209 F.Supp. at 1244; 103 Inv'rs I, L.P. v. Square D Co., 470 F.3d 985, 988 (10th Cir. 2006).

         The nature of the appropriate sanction in any case “is a question peculiarly committed to the district court.” Dillon v. Nissan Motor Co., 986 F.2d 263, 268 (8th Cir. 1993). The Tenth Circuit has noted that the district courts “have ‘substantial weaponry' in their arsenal to shape the appropriate relief for spoliation.” Helget v. City of Hays, Kansas, 844 F.3d 1216, 1225 (10th Cir. 2017) (quoting Turner, 563 F.3d at 1149). Thus, spoliation sanctions may include, for example, “an award of attorney fees; an order that the culpable party produce related documents regardless of any claims of privilege or immunity; excluding evidence or striking part of a party's proof; allowing the aggrieved party to question a witness in front of the jury about the missing evidence; and imposing costs for creating a substitute for spoliated data.” Browder, 209 F.Supp.3d at 1244 (citations omitted). “Sanctions for spoliation serve three distinct remedial purposes: punishment, accuracy, and compensation, ” and may also be “designed to promote accurate fact finding by the court or jury.” U.S. ex rel. Koch v. Koch Indus., Inc., 197 F.R.D. 488, 490 (N.D. Okla. 1999). “A court should select the least onerous sanction necessary to serve these remedial purposes.” Id.

         III. ANALYSIS

         A. A Spoliation ...

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