Taylor Swift Seeks Adverse Inference Sanction for Spoliation of ESI
David Mueller (“Mueller”) sued Taylor Swift (“Swift”) and other defendants for tortious interference with his work contract. Swift counter-sued Mueller for allegedly groping her under her skirt at a radio station meet and greet photo opportunity.
The alleged groping incident happened at a Taylor Swift concert on June 2, 2013. Mueller was an on-air personality at a Denver radio station. That night and on June 3rd, Swift informed Mueller’s employer that Mueller had groped her. On June 3rd, Mueller met with his bosses at the radio station, and surreptitiously recorded their conversation. On June 4th, Mueller was terminated. Later, after having first contacted an attorney regarding potential legal action, Mueller edited the audio recording of the June 3, 2013 conversation, and then sent only “clips” of the entire audio file to his attorney. Mueller testified that he edited the audio file on his laptop, where he also kept a full copy of the original audio file.
Later, Mueller spilled coffee on his laptop and damaged it. He took the laptop to the Apple Store, and was given “a new machine.” He did not keep the original hard drive or recover the files from it. Mueller also kept an external hard drive, and saved the complete audio recording on this drive but the hard drive later “stopped working.” At his deposition, Mueller said he may have discarded the hard drive, thinking it was junk; regardless, he has not produced it and claims he cannot locate it. Accordingly, Swift asked the Court to sanction Mueller for spoliation of evidence and 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.”
A spoliation sanction is proper where a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and the adverse party was prejudiced by the destruction of the evidence. The Court considers the degree of culpability of the party who lost or destroyed the evidence, and the degree of actual prejudice to the other party. An adverse inference sanction will only be given if the Court finds that the party that destroyed or lost the evidence did so in bad faith.
Here, the Court found that Mueller knew or should have known litigation was imminent, and that he therefore had a duty to preserve the evidence. Mueller contacted criminal and civil attorneys right after the alleged incident. The Court found that Swift was prejudiced by the loss of evidence. At the very least, if the complete recording had been available, it might have saved time and expense in litigation by documenting the June 3, 2013 conversation, allowing for better preparation for depositions and ultimately for trial.
Finally, the Court found that the degree of culpability warranted a sanction. Although the Court did not say that Mueller acted in “bad faith” in the sense that he intended to destroy the evidence, it also cannot characterize the loss or destruction of evidence in this case as innocent. The Court decided the sanction of adverse inference was not appropriate here because the record did not establish Mueller’s intent to deprive Swift of the evidence. The harm to Swift was also mitigated because all the parties involved in the recorded conversation are available to testify, and that the Court believes an adverse inference instruction would be unduly harsh here. Instead, the Court says that allowing Swift to cross examine Mueller about his spoliation of evidence has the benefit of allowing the jury to make its own assessment of Mueller’s degree of culpability and of the actual prejudice to Swift. The Court has little doubt that if the jury concludes Mueller acted with bad faith or an intention to destroy or conceal evidence, they will draw their own adverse inferences.
For all these reasons, the Court concluded the appropriate sanction is to allow Swift to cross-examine Mueller in front of the jury about his record of spoliation of evidence. The Court said this sanction was necessary to serve its purposes, and best served the interests of justice.