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Mueller v. Swift - 2017 U.S. Dist. LEXIS 112276 (D. Colo. July 19, 2017)


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.


Plaintiff David Mueller worked as an on-air radio personality for a radio station. On June 2, 2013, he attended a backstage "meet and greet" preceding a concert performed by defendant Taylor Swift. Swift alleged that during the "meet and greet," Mueller purposefully and inappropriately touched her buttocks beneath her dress. Mueller denied the allegation. Soon thereafter, Mueller met with his supervisors at the station and, unbeknownst to the supervisors, Mueller made an audio recording of their conversation. The next day, Mueller's employment was terminated. Later, Mueller edited the recording and provided the edited version to his attorney; the original, uncut recording was lost when Mueller's computer was damaged. Mueller filed a lawsuit against Swift and others in federal district court alleging claims for tortious interference with his employment contract and with related business expectancies. Swift filed counterclaims for the torts of assault and battery. All defendants filed a motion for sanctions for Mueller's spoliation of evidence, specifically the audio recording. As the sanction, defendants sought an adverse inference.


Was a spoliation sanction warranted against Mueller?




The court granted in part defendants' motion for sanctions for Mueller's spoliation of evidence. The court concluded that Mueller's loss or destruction of the complete recording of a relevant conversation constituted sanctionable spoliation of evidence. The court found that Mueller knew or should have known that litigation was imminent. However, the court rejected defendants' request to make a finding of bad faith and to give the jury an adverse inference instruction. The court ruled that defendants would be permitted to cross-examine Mueller's in front of the jury regarding the recording.

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