Commercial Litigation and Arbitration

Tenth Circuit Requires Bad Faith to Support an Adverse Inference for Spoliation, Absent Motion for Rule 37 Sanctions

Toppins v. Minn. Life Ins. Co., 2012 U.S. App. LEXIS 1897 (10th Cir. Feb. 2, 2012):

[Plaintiff’s] assertion that Mr. Jolly's destruction of his interview notes entitles her to an adverse inference is unavailing. She has not shown that she sought sanctions under Fed. R. Civ. P. 37; accordingly, she is limited to "seek[ing] sanctions under a spoliation of evidence theory [which requires] proo[f] of bad faith" where "the aggrieved party seeks an adverse inference." Turner v. Pub. Serv. Co., 563 F.3d 1136, 1149 (10th Cir. 2009) (citations omitted). Ms. Toppins had not made a showing that Mr. Jolly, or anyone else, destroyed the notes in bad faith.

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