Commercial Litigation and Arbitration

Spoliation: Burden of Proof — Movant Must Establish That Target Destroyed Evidence While on Notice That the Evidence Were Potentially Relevant to the Dispute

Harfouche v. Wehbe, 2017 U.S. App. LEXIS 24401 (9th Cir. Dec. 1, 2017):

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

Appellant Elie Harfouche appeals the district court's orders granting Haifa Wehbe's motion for summary judgment and denying Harfouche's motion for discovery sanctions. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. "We review de novo the district judge's decision to grant summary judgment to determine whether there are any genuine issues of material fact and whether the district judge correctly applied the substantive law." Hazle v. Crofoot, 727 F.3d 983, 990 (9th Cir. 2013); see also Fed. R. Civ. P. 56(a). An issue of material fact [*2]  is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As the parties do not argue otherwise, Nevada principles of contract law govern the performance and interpretation of the contract at issue.

The district court did not err in granting Wehbe's motion for summary judgment on Harfouche's breach of contract claim. The parties' contract required Harfouche to "pay all the charges of the . . . entry visas" and "hand [Wehbe] . . . entry visas" for her concert tour of the United States and Canada. The "Subject" of the valid contract addendum stated that singer Ragheb Alame would accompany Wehbe on tour. Harfouche, however, failed to obtain a United States entry visa for Alame. Harfouche's failure to do so defeated the essential purpose of the contract by preventing Alame from entering the United States to perform with Wehbe, and thus constituted a material breach. See 23 Williston on Contracts § 63:3 (4th ed.). The district court properly determined under Nevada law that Harfouche's material breach excused Wehbe's subsequent refusal to perform in the United States. See Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 536 (9th Cir. 2011); Thornton v. Agassiz Const., Inc., 799 P.2d 1106, 1108 (Nev. 1990) (per curiam).

2. As the party moving for discovery sanctions, Harfouche [*3]  "had the burden of establishing spoliation by demonstrating that [Wehbe] destroyed documents and had some notice that the documents were potentially relevant to the litigation before they were destroyed." Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 766 (9th Cir. 2015) (internal quotation marks omitted). "We review a district court's denial of a motion for sanctions based on spoliation of evidence for abuse of discretion," id. at 759, and we review underlying factual findings for clear error, Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006).

Harfouche argues that Wehbe despoiled evidence when her assistant deleted documents in her possession after the failed United States concert tour but prior to litigation. Harfouche, however, has not demonstrated that Wehbe's assistant destroyed any documents relevant to the instant litigation. Furthermore, there is no evidence that Wehbe was on notice of litigation when her assistant deleted the documents in her possession. Because Harfouche has not carried his burden of establishing spoliation, the district court did not abuse its discretion in declining to impose discovery sanctions.


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