Plaintiff’s Data Loss ‘Not Innocent’ in Taylor Swift Case

by Zapproved LLC
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Mueller v. Swift, No. 15-cv-1974-WJM-KLM, 2017 U.S. DIST. LEXIS 112276 (D. Colo. July 19, 2017).

In this tort action and its famous countersuit, the court granted the defendant partial, rather than severe, sanctions because the plaintiff was not “innocent” in failing to preserve evidence. The allowed sanction ordered that the defendant could cross-examine the plaintiff about spoliation, letting the jury assess the plaintiff’s culpability and the amount of prejudice he caused.

The plaintiff, David Mueller, previously worked as a radio personality for KYGO in Denver. In that role, he met the defendant, Taylor Swift, before one of her concerts. Swift immediately alleged that Mueller “purposefully and inappropriately touched her buttocks beneath her dress” while they were being photographed. The next day, Mueller’s supervisors called him in for a lengthy meeting, which he surreptitiously recorded. KYGO fired Mueller the following day.

This lawsuit began with Mueller’s claim that Swift tortiously interfered with his employment. Swift then countersued for assault and battery.

After Mueller contacted a lawyer about “potential legal action” against Swift, he edited down the two hours of audio from his KYGO meeting. He sent “clips” of that audio to his attorney. Mueller maintained that he “retained a full copy of the original audio” on his laptop. However, after a coffee spill ruined his old machine, he got a new computer. Fortunately, Mueller also saved the full recording on a separate external hard drive. Unfortunately, Mueller allegedly discarded the hard drive “because it was junk” after it “‘stopped working.’” Mueller never produced the full recording.

Swift moved for sanctions for Mueller’s spoliation of evidence, requesting that the court give the jury an adverse inference instruction.

The court agreed that Mueller’s “loss or destruction of the complete recording” was sanctionable spoliation. First, as the plaintiff, Mueller “knew full well that litigation was imminent.” Second, the recording would have been relevant as “contemporaneously created evidence regarding the central disputed facts.” Third, the loss of the full recording prejudiced Swift, because it “might have saved time and expense in litigation.”

Mueller claimed that his “life was ruined” and sought millions in damages. Therefore, the court found it “very hard to understand how he spent so little time and effort to preserve the very evidence which … could have helped him to prove his claims.”

Nevertheless, the court was less certain of the specific degree of Mueller’s culpability. The court concluded that the spoliation was neither innocent nor due to mere negligence. Nor did it find that Mueller acted in bad faith. Rather, Mueller “inexplicably” decided “to alter the original evidence” in the first place. Thereafter, he “failed to take any number of rather obvious steps” to preserve the full recording, which he lost “for entirely foreseeable and preventable reasons.”

As to sanctions, the court declined Swift’s request for an adverse inference instruction. It found that an adverse inference “would put too heavy of a thumb on the scale” against Mueller. Also, the prejudice to Swift was “somewhat mitigate[d]” because all the participants in the original conversation were scheduled to testify at trial.

The court instead granted the sanction of allowing Swift to cross-examine Mueller about his spoliation of the full recording. This remedy would “allow[] the jury to make its own assessment of [Mueller’s] degree of culpability and of the actual prejudice” it caused. In sum, the court would permit the jury members to “draw their own adverse inferences,” “proportionally scaled” to their findings of culpability and prejudice. Ultimately, the court found that there was no proof that Swift was involved in Mueller’s firing.

Takeaways on preserving evidence for litigation

Mueller’s attorney should have immediately requested that Mueller provide the full recording for review and safekeeping. Hearing only highlights that tend to prove one side of a case, when the full story is available, is no way to prepare for litigation — or guard against spoliation of evidence. Counsel must ensure their clients preserve all forms of evidence, including audio and video, to avoid prejudice and risk of sanctions.

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