Commercial Litigation and Arbitration

Spoliation of Tangible Evidence (Pre-37(e)): Even If Adverse Inference Instruction Is Permissible, Court Is Not Required to Issue It — Parties Allowed to Argue Their Positions to the Jury — Whether to Instruct Depends on Motive / Degree of Fault

Garcia Miranca v. Wyatt, 2017 U.S. App. LEXIS 3193 (9th Cir. Feb. 22, 2017):

*   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Rafael Garcia Miranda and Olga Martha Garcia (collectively "Plaintiffs") appeal the district court's decision denying Plaintiffs' request to give an adverse inference jury instruction. A district court's refusal to give an adverse inference jury instruction is reviewed for abuse of discretion. United States v. Fries, 781 F.3d 1137, 1146 (9th Cir. 2015). "A district court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact." Jeff D. v. Otter, 643 F.3d 278, 283 (9th Cir. 2011) (citation omitted). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

The district court's denial of an adverse inference jury instruction was based on neither an incorrect application of the law nor a clearly erroneous finding of material fact. [*2]  The parties agree that Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), provides an appropriate test for determining when an adverse inference instruction can be given. Though the district court concluded that an adverse inference jury instruction was permissible, the district court was not legally required to issue such an instruction. The district court explained that Plaintiffs were permitted to argue their position to the jury, that there was nothing "maligned" in the erasure of the DVD [recording custodial interrogations in this civil rights/§ 1983 action], and that the jury was permitted to make its own conclusions about the deletion of the video. The decision to give an adverse inference jury instruction is made on a case-by-case basis and "commensurate to the spoliating party's motive or degree of fault in destroying the evidence." Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976, 992-93 (N.D. Cal. 2012); see also Residential Funding, 306 F.3d at 108. The district court therefore did not abuse its discretion in concluding that an adverse inference instruction was inappropriate under the factual circumstances of this case. See Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (recognizing a district court's "broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial" (citation omitted)).


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