In reply, defendants have charged plaintiff with spoliation of evidence, as plaintiff's counsel has admitted to allowing electronic documents to be destroyed well after counsel should have known of a dispute and thus ensured retention of all potentially discoverable documents (and, apparently, continuing to this day). “A litigant has a duty to preserve evidence that he knows or should know is relevant to imminent or ongoing litigation.” Jordan F. Miller Corp. v. Mid–Continent Aircraft Serv., Inc., 1998 WL 68879, at *5 (10th Cir. Feb.20, 1998) (unpub.op.); see also
103 Investors I, L .P. v. Square D Co., 470 F.3d 985, 988–89 (10th Cir.2006) (citing Jordan F. Miller's
spoliation analysis). The bad faith destruction of relevant documents may give rise to an inference at trial that production of the documents would have been unfavorable to the destroying party. See
Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir.1997). Bad faith is not required for other spoliation sanctions, however. See
103 Investors, 470 F.3d at 989. “A spoliation sanction is proper where (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” See
Burlington, N. & S.F. Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir.2007). The two most important factors for a court in considering a spoliation sanction are “(1) the degree of culpability of the party who lost or destroyed the evidence, and (2) the degree of actual prejudice to the other party.” Jordan F. Miller, 1998 WL 68879, at *4 (citing cases); see also
Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1220 (10th Cir.2008) (affirming refusal to impose spoliation sanction where moving party could not show relevance of the evidence and thus could not show prejudice).