Mueller v. Swift

2017 WL 3058027 (2017)

Facts

Mueller (P) worked as an on-air radio personality for a Denver area radio station, KYGO. P attended a backstage 'meet and greet' preceding a concert performed by D at Denver's Pepsi Center. D alleges that during a staged photo opportunity at the 'meet and greet,' P purposefully and inappropriately touched her buttocks beneath her dress. P denies having done so. P's employer was informed of S's accusation on the evening of June 2, 2013. On June 3, 2013, P met with his superiors at KYGO, including Robert Call (Call) and Hershel Coomer (Haskell). P made an audio recording of their conversation. P was terminated from his employment at KYGO by Call. Call explained that one reason for P's termination was because Call perceived P had 'changed his story that it couldn't have occurred, then that it was incidental.' Well after having first contacted an attorney regarding potential legal action, P edited the audio recording of the June 3, 2013 conversation, and then sent only 'clips' of the entire audio file to his attorney. P claimed it was close to two hours long that he edited down clips from the recording to give his counsel to get an idea of what kind of questioning he went through. P retained a full copy of the original audio file on his laptop. But, coffee was spilled on the keyboard damaging it. He took the laptop to the Apple Store, and was given 'a new machine.' He did not keep the original hard drive or recover the files from it. This occurred sometime in 2015. P also kept an external hard drive 'to store audio files and documents,' and the complete audio recording was saved on this drive but at some point, it 'stopped working.' The complete audio recording has never been produced. D moved for a Court-imposed sanction for spoliation of evidence, and in particular for the Court to give the jury an adverse inference instruction at trial, to direct the jury 'that the entirety of the June 3, 2013, audio recording would have been unfavorable to P.'