A salacious case, involving a groping allegation by superstar Taylor Swift, offers two sober lessons about e-discovery: (1) the difficulty of prevailing on a request for an adverse inference to be drawn from spoliation of evidence; and (2) the critical importance of seeking lesser discovery sanctions in a timely manner prior to seeking the adverse inference sanction.

Our team routinely provides supported and defensible advice on e-discovery disputes, including whether a request for sanctions is appropriate and what sanctions the court is likely to grant under the specific circumstances of the dispute.

The plaintiff in Mueller v. Swift, Civil Action No. 15–cv–1974–WJM–KLM, 2017 WL 2362137 (D. Colo. May 31, 2017) sued Taylor Swift and other co-defendants for the tort claims of intentional interference with contract, tortious interference with prospective business relations, and slander after Swift had accused him of groping her during a backstage meet-and-greet, and the subsequent termination of his employment.

During Mueller’s deposition, the defendants learned that Mueller had made audio recordings of a conversation at the time of his termination. Mueller, however, only produced select edited clips from those recordings and not the entire audio files. The defendants asked the court to draw an adverse inference regarding what the missing portions of the recordings might have contained.

In refusing to draw an adverse inference against Mueller, the court found that it lacked discretion in the matter under Tenth Circuit precedent because:

• an adverse inference is only available if there is proof that the party who lost or destroyed evidence did so in bad faith;
• mere negligence in losing or destroying records is insufficient to support an inference of consciousness of a weakness in a party’s case;
• the defendants did not provide any evidence that Mueller acted in bad faith; and
• Mueller testified that the unedited audio files became unavailable because water or coffee spilled on Mueller’s laptop and the external drive on which a backup copy might have existed was lost before the suit was filed.

The court noted that defendants did not seek any discovery-related sanctions that could have mitigated any prejudice to their case prior to requesting an adverse inference. The court stressed that failure to be diligent in seeking sanctions under Federal Rule of Civil Procedure 37 in cases of spoliation forecloses a party’s access to the substantial range of options available to the court to remedy any prejudice caused by the spoliation.