Commercial Litigation and Arbitration

Spoliation of Tangible Evidence — Bad Faith Still Required for Adverse Inference Instruction in Tenth Circuit

Rife v Okla. Dep’t of Public Safety, 2017 U.S. App. LEXIS 1117 (10th Cir. Jan. 23, 2017) (NOTE:  This opinion was amended and is re-excerpted in our posting of June 19, 2017):

This case began with the plaintiff, Mr. Clyde Rife, sitting on a motorcycle next to a road, unable to recall the date, the time, or even what he had been doing in a town he had just visited. When approached by a state trooper, Mr. Rife said that he was fine. Nonetheless, the trooper questioned Mr. Rife and concluded that he was intoxicated on pain medication and had been in a motorcycle accident. These conclusions led the trooper to arrest Mr. Rife for public intoxication. Authorities [*2]  later learned that Mr. Rife had not been intoxicated; he had suffered a head injury in a motorcycle accident.

Mr. Rife ultimately sued the trooper and the Oklahoma Department of Public Safety, alleging in part that he had been wrongfully arrested. For this allegation, we ask: Did probable cause exist to arrest Mr. Rife? The district court said "yes," and we agree.

The rest of the case involves what happened after the arrest. After the arrest, the trooper drove Mr. Rife to jail. Along the way, Mr. Rife groaned and complained of pain in his heart and chest. Upon arriving at the jail, Mr. Rife was put in a holding cell. The scene was observed by a cellmate, who said that Mr. Rife had repeatedly complained about pain. Nonetheless, Mr. Rife was not provided medical attention.

The lack of medical care led Mr. Rife to sue (1) the trooper, two jail officials, and the entity operating the jail for deliberate indifference to serious medical needs and (2) the Oklahoma Department of Public Safety for negligent failure to provide medical care. On these claims, we ask: Did the failure to provide medical attention constitute (1) deliberate indifference to Mr. Rife's serious medical needs or (2) negligence? [*3]  The district court thought no one could reasonably infer either deliberate indifference or negligence. We disagree, concluding that both could be reasonably inferred from the evidence.

These conclusions lead us to affirm in part, to reverse in part, and to remand for further proceedings.


XI. The District Court's Denial of Sanctions

Mr. Rife argues that there was a videotape of him in the booking area of the jail and that the jail trust intentionally destroyed the videotape.12 According to Mr. Rife, destruction of the videotape constitutes unlawful spoliation of evidence, justifying sanctions in the form of an adverse inference against the jail trust, Mr. Willis, and Mr. Dale.

12   The jail trust, Mr. Willis, and Mr. Dale contend that the videotape did not show the booking process. Instead, they state that the videotape "showed Rife walk[ing] into the booking area and call[ing] the [bail] bondsman the next morning." Response Br. of the Jail Trust, Mr. Willis, and Mr. Dale at 37.

In district court, Mr. Rife did not ask for an adverse inference. Thus, Mr. Rife has forfeited this argument. See Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1238 (10th Cir. 2016). On appeal, we may consider forfeited arguments under the plain-error standard. Id. at 1239. But Mr. Rife has not asked us to apply this standard. Thus, we cannot reverse based on this argument. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011) (stating that a failure to argue plain error on appeal "marks the end of the road for an argument for reversal" [*32]  newly presented on appeal).

Even if Mr. Rife had not forfeited this argument, we could not grant the sanction he is seeking. For an adverse inference sanction, the aggrieved party must show bad faith. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009) ("[I]f the aggrieved party seeks an adverse inference to remedy the spoliation, it must also prove bad faith."); Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) ("[An] adverse inference must be predicated on the bad faith of the party destroying the records."). But both here and in district court, Mr. Rife failed to identify any evidence of bad faith.

For these reasons, we uphold the district court's denial of sanctions.

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