Commercial Litigation and Arbitration

Spoliation — Adverse Inference Requires Bad Faith in Tenth Circuit — Allowing Witnesses to be Questioned about Spoliation Constitutes a Lesser Sanction

Dalcour v. City of Lakewood, 2012 U.S. App. LEXIS 16303 (10th Cir. Aug. 6, 2012):

Before jury selection on the claims of unconstitutional seizure and use of excessive force by the Officers, the district court ruled on several motions in limine, including Plaintiffs' motion alleging spoliation of evidence related to the city's TASER logs. The TASERs used by the Lakewood City police record each use, and Lakewood requires officers to log any use of a TASER on a person. In this case Sergeant Griffith, who was responsible for preparing the log, was unable to print out the log due to a computer error. During discovery, Plaintiffs repeatedly requested a printout of all the TASER logs from the date of the arrest, but the logs the city produced did not include any information related to the TASER use on Avril. Plaintiffs alleged that the city's failure to produce the relevant TASER log amounted to spoliation of evidence, entitling them to an adverse jury instruction that Avril was tased three times, or, in the alternative, a jury instruction that "the jury 'may' presume that the evidence was intentionally destroyed." Id. at C-0249. The district court denied the motion in limine, but did allow Plaintiffs to question witnesses about the missing evidence. The jury found for the Officers on all claims.


The record offers no indication of bad faith; at worst, it appears that the City may have been negligent, and it appears more likely that the records were lost due to a computer error. Certainly, the court's finding that there was no bad faith does not rise to the level of clear error. Absent bad faith, the Plaintiffs were not entitled to an adverse jury instruction. Regardless, the court did grant Plaintiffs a sanction by allowing them to question witnesses about the missing evidence. Under our precedent, allowing the Plaintiffs to question witnesses about missing evidence is a lesser sanction, although the Plaintiffs do not appear to recognize it as such. Henning v. Union Pac. R. Co., 530 F.3d 1206, 1220 (10th Cir. 2008) (recognizing that allowing a jury to hear about missing videotapes would be a lesser spoliation of evidence sanction). The sanction imposed by the district court is well tailored to the spoliation alleged and was not an abuse of discretion. We affirm the district court's resolution of the spoliation of evidence claim.

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