In Cottle-Banks v. Cox Communications, Inc., No. 10-2133 (S.D. Cal. May 21, 2013), the court rejected the plaintiff’s sanctions motion requesting an adverse inference instruction be given because the plaintiff was unable to show that the deleted evidence would have been “supportive of Plaintiff’s claim.” The case was a putative consumer class action and the sanctions motion concerned call center recordings that the defendant failed to preserve from automatic deletion. The court found that the defendant was negligent in failing to preserve the evidence. Nonetheless, the court held that it was the plaintiff’s burden to produce “some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files.” (Internal quotations and citation omitted.) The defendant came forward with several declarations and deposition testimony tending to show that the deleted call center records would not have supported plaintiff’s case. In addition, a small sample of preserved call recordings did not show evidence supporting the plaintiff’s claims. The court concluded that the plaintiff was not prejudiced by the deletions and denied the sanctions motion.