Hart v. Dillon Cos., 2013 WL 3442555 (D. Colo. July 9, 2013).
In this wrongful termination case, United States Magistrate Judge David West held that the defendant acted in bad faith when it failed to preserve a relevant tape recording. This was the second time in two years that the defendant found itself subject to sanctions due to spoliation of evidence. In his opinion, Judge West specifically cites to the previous holding against the defendant which laid out the standard for sanctions, implicitly noting the defendant’s history of spoliation. The defendant argued that the destruction was merely negligent and that the plaintiff was not prejudiced by the loss of the tape. The court found that the defendant was “clearly four (4) months late in issuing a ‘litigation hold’” and that after the duty to preserve attaches. “The failure to collect taped recording from a key player is grossly negligent or willful behavior.” The court also found that there were numerous discrepancies between the defendant’s key witness and the plaintiff’s recollection of events. Furthermore, that the plaintiff met her burden by establishing there was a reasonable possibility that the lost tape would have “produced evidence favorable to her cause.” Accordingly, the court granted the motion for sanctions.