In Mueller v. Swift, No. 15-cv-1974-WJM-KLM (D. Colo. July 19, 2017), a radio personality sued pop star Taylor Swift for allegedly getting him fired by accusing him of inappropriately touching her during a promotional event.  Swift countersued for assault and battery.  The plaintiff had secretly recorded a meeting in which he was fired, which included a discussion of Swift’s accusations and an allegedly “chang[ing] . . . story” by the plaintiff about what happened.  Long after first contacting an attorney regarding potential litigation, the plaintiff edited the audio recording and sent only “clips” of the audio file to his attorney because the conversation “was close to two hours long.” After sending the edited clips, the plaintiff failed to retain a full copy of the original recording.  The plaintiff never produced the full audio recording, and Swift moved for sanctions for spoliation including an adverse instruction to the jury at trial that “the entirety of the . . . audio recording would have been unfavorable” to the plaintiff.

The court found that the plaintiff had a duty to preserve the recording, that the recording was relevant to the issues in the case, and that the loss of the recording had prejudiced Swift. The recording was “contemporaneously-created evidence regarding the central disputed events in this case,” and its production would have saved time and expense in the litigation, resolved factual discrepancies, and enabled Swift “to explore whether [the p]laintiff has or has not ‘changed his story’” or engaged in “‘cherry picking’ of only the favorable ‘clips’ of the conversation.”  Although the court found that the plaintiff’s “spoliation falls higher up on the ‘continuum of fault” than mere negligence, the court nevertheless declined to impose as harsh a sanction as an adverse inference instruction.  While the court “[took] a dim view of [the p]laintiff’s acts of spoliation,” it found that “the record does not establish—at least not clearly—that [the p]laintiff was acting with an intent to deprive [Swift] of relevant evidence,” as required under Rule 37(e) of the Federal Rules of Civil Procedure. Moreover, the court found that the “availability of testimony and other evidence” concerning the conversation mitigated the prejudice to Swift and that an adverse inference instruction could put “too heavy of a thumb on the scale against [the p]laintiff’s credibility,” thereby invading the fact-finding role of the jury. The court therefore held that it would permit Swift to cross-examine the plaintiff regarding the spoliation, but not provide an “adverse interest” instruction.