IndyBar: Deleted Recording Amplifies ‘Bad Blood’ Between Pop Icon, Disc Jockey

By Scott Collins, Mattingly Burke Cohen & Biederman LLP and Proteus Discovery Group LLC

Mueller v. Swift, 2017 U.S. Dist. LEXIS 112276 (D. Colo. July 19, 2017)

Collins

Pop superstar Taylor Swift recently received widespread public support for standing strong amidst allegations she had fabricated claims that former KYGO on-air personality David Mueller intentionally groped her buttocks during a backstage meet-and-greet. Mueller was subsequently terminated after his employer became aware of the claims, and sued Swift for tortious interference with his employment contract and related business expectancies. Swift refused to “shake it off” and countersued for assault and battery.

I Knew You Were Trouble When You Walked In

During trial, a discovery dispute arose regarding a post-accusation audio recording Mueller made of the pre-termination meeting he had with his KYGO supervisors. At some point after the meeting, Mueller edited the nearly two-hour recording on his laptop and sent edited “clips” to his counsel. Mueller claimed the original, unedited audio file remained on his laptop and was copied to an external hard drive, but that neither was presently available. Mueller allegedly spilled coffee on the laptop and exchanged it for another one at an Apple Store, and he lost track of the external hard drive after it “stopped working.” As a result, Swift’s counsel filed a Motion for Sanctions and asked the court to grant an adverse inference instruction to direct the jury that the entire audio recording would have been unfavorable to Mueller.

Band-Aids Don’t Fix Bullet Holes

The Court articulated that, according to Tenth Circuit precedent, an adverse inference of this type was warranted only if Swift could show the evidence was lost or deleted in bad faith. Although the Court took a “dim view” of Mueller’s spoliation, it declined to find that Mueller had acted in bad faith. It additionally discussed that the loss of evidence was somewhat mitigated by the ability of all meeting participants to testify at trial. While Swift’s requested sanctions were ultimately denied, the court instead permitted Swift’s counsel to cross-examine Mueller in front of the jury regarding the record of spoliation. The trial recently wrapped up with the jury unanimously determining that Swift had been sexually assaulted and awarding her the symbolic $1 sought in her countersuit.•

Scott Collins is a Project Manager for Proteus Discovery Group LLC and an associate of the law firm of Mattingly Burke Cohen & Biederman LLP. Scott’s practice involves regular management and delivery of e-discovery and information governance services to a wide variety of local, regional, and national clients. He serves as an intermediary between clients, outside counsel, e-discovery vendors, and document review teams. The opinions expressed are those of the author.