Plaintiff seeks an order compelling defendant to supplement its discovery responses (including its answers to interrogatories no. 2 and 7-9 and its responses for production no. 6, 7 and 9-13) and imposing spoliation sanctions upon defendant. Plaintiff contends that defendant has provided false and misleading discovery responses and failed to preserve, or intentionally destroyed, important evidence.

The relevant portions of the subject interrogatories and answers and the subject requests for production and responses are as follows:

Ex. 20 and Ex. 17 to doc. no. 86.

Plaintiff argues that defendant's discovery responses appear designed to mislead. Plaintiff points out that in regard to interrogatory number 2, defendant states that a “possible news story... first came to the attention of Tiffany Tatro, then a reporter for KOKH, who downloaded the Audit Report from the State Auditor & Inspector's website.” Plaintiff represents that News Director, Adam Pursch (“Pursch”), who prepared the discovery responses, could not testify in deposition from whom the detail that Tiffany Tatro (“Tatro”) “downloaded the Audit Report from the State Auditor & Inspector's website” came. Plaintiff states that while Pursch insisted the audit report was downloaded from the website, he did not know who downloaded it and could not identify anyone who would know. According to plaintiff, the audit report was not downloaded from the website by Tatro because it was not posted on the website until five minutes after she emailed Phil Cross and others concerning the report. Plaintiff maintains that Tatro, whose boyfriend was the son of City of Choctaw Mayor Randy Ross (“Ross”), actually obtained a draft copy of the audit report from Ross and that copy was used for the story.[1] In addition to the time of publication of the audit report, plaintiff relies upon black marks (purportedly traces of the “DRAFT” watermark) on the audit report shown in the broadcast and a missing footnote that was present in the audit report released to the public but not in the draft audit report. Plaintiff contends that defendant's response to request for production number 6 stating that “[n]o documents were provided to KOKH by public officials. Employees of KOKH reviewed and downloaded a copy of the Audit Report from the State Auditor & Inspector's website prior to the broadcast” is demonstrably false. It also contends that defendant's failure to identify Mr. Ross and the manner in which the draft audit report was obtained in answers to interrogatory numbers 8 and 9 was likewise false.

Plaintiff has failed to establish to the satisfaction of the court that defendant's answers to interrogatory numbers 2, 8 and 9 and response to request for production number 6 are misleading or false. Tatro testified in her deposition that she obtained the audit report from the website. Connie Snow also averred in her affidavit that she and Tatro downloaded the audit report from the website. In addition, Ross, in his deposition, denied that he gave the draft audit report to Tatro. Defendant has presented evidence to refute plaintiff's arguments as to the presence of black marks and the time-of-publication issues. The court is certainly not critical of plaintiff's concern about the missing footnote, but the court is not convinced that defendant, in answering the interrogatories and responding to the production request, has provided misleading and false statements. Plaintiff may be entitled to present its theory of the draft audit report to the jury, but the court concludes that plaintiff is not entitled to an order compelling defendant to supplement the challenged discovery responses with what it claims to be accurate information.

*4 Next, plaintiff argues that defendant's explanation in answer to interrogatory number 7 that Derrick Davidson's statement was edited because it “was too long to be included in its entirety in the News Report, so, Luong selected the relevant excerpt of the statement she believed accurately reflected CTS's position, and included that excerpt in the script” is also false. Plaintiff points out that Pursch, who answered the interrogatory, did not know in deposition why the statement was edited and Priscilla Luong (“Luong”), who edited the statement, testified that no one asked her why the statement was edited. According to plaintiff, Luong did not believe the statement to be too long, rather she thought the statement “was inaccurate, and [ ] picked the most relevant sentence.” Ex. 16 to doc. no. 86, p. 170. Plaintiff thus contends that the answer given by defendant to interrogatory number 7, characterizing the editing of Derrick Davidson's statement “as nothing more than an evenhanded distillation of Plaintiff's position and makes no mention of a content-based deletion,” see, doc. no. 86, p. 12, was not accurate.

Upon review of Luong's testimony, the court finds that defendant's answer to interrogatory number 7 is not false. Rather, it is incomplete. Luong testified:

Ex. 16 to doc. no. 86, p. 171. The court recognizes that Luong was no longer employed by defendant at the time of the discovery responses. The court, however, concludes that defendant's answer to interrogatory number 7 should be supplemented to confirm Luong's account of the matter or to provide an explanation of why Luong's account is not consistent with defendant's factual position.[2]

Plaintiff asserts that defendant's answer to interrogatory number 9 is troubling in its statement that “[Gary A.] Jones provided general information about the audit and audit process, but the information was general enough that an on-camera interview was not used in the News Report. [Roger] Nelson discussed the dispute between the City of Choctaw and CTS, and specifically said what was reported on camera in the News Report.”

According to plaintiff, Jones and Nelson were interviewed by Luong for the broadcast and those interviews were recorded by Colleen Wilson (“Wilson”), defendant's photojournalist. Plaintiff states that Wilson testified in deposition that the video of both interviews was accidentally deleted before the broadcast and Nelson was re-interviewed. Plaintiff asserts that defendant, in its answer, does not indicate that Jones' interview was deleted; only that its omission from the news story was based on content, not its availability.

It further claims that defendant's responses to production request numbers 10-13 to the effect that there are “no documents” or “no documents” except “the recording of interviews contained in the [n]ews [r]eport as broadcast” is troubling. Plaintiff states that when questioned about the discovery responses, defendant's attorney advised plaintiff's attorney that the video of the interviews “was not thought to be something likely to be needed for subsequent stories, so the video was not preserved and media cards were reused immediately.” Ex. 21 to doc. no. 86. Plaintiff states that by defendant's account, the video of the interviews was not deleted; it was simply written over in the ordinary course of business in the days after the news story was broadcast.

*5 Plaintiff points out that Wilson's account contradicts defendant's account with respect to the video. However, it also posits that both Wilson's account and defendant's account are questionable. With respect to Wilson's account, plaintiff states that Luong made no mention of the deleted video in her deposition. It also states that the footage shown in the broadcast features construction of the Choctaw Town Square project during the daylight but Wilson testified she discovered the deleted video later that night. Plaintiff posits that Wilson would have been forced to re-shoot the construction video at night, after she found the deleted video, and there should have been no daylight footage in the broadcast.

As to defendant's account, plaintiff represents that Jeremy Dodd (“Dodd”), defendant's production manager, testified that when the photographers returned from the field, they generally uploaded their video to the station's computer system and it might remain on the server for several months. Plaintiff states that Dodd testified that he has “never” heard of an instance in which the procedure was not followed. Doc. no. 86, p. 16.

Upon review, the court concludes that no supplementation is needed with respect to interrogatory number 9. That interrogatory asks for identification of persons. There is no basis for a finding that persons were not identified who should have been identified. The additional material about the non-use of the interview of Jones was a gratuitous addition to the information called for by the interrogatory. The court declines to require supplementation of information that was gratuitously provided in the first place. If the shortcomings in the response, as prepared by defendant are useful to plaintiff, plaintiff will certainly be entitled to exploit that.

The court declines to award reasonable expenses, including attorney's fees, to plaintiff under Rule 37(a)(5)(A), Fed. R. Civ. P. In comparison to the relief sought, the relief granted in plaintiff's motion is virtually negligible. As to the matters on which the court has granted relief, the issue was within the realm of reasonable debate. The court also declines to grant defendant's request for an award of its expenses and attorney's fees in defending the portion of plaintiff's motion that was not granted.

Plaintiff posits that spoliation sanctions are warranted because defendant failed to preserve, or it actively destroyed, certain documents or recordings relevant to this lawsuit. The subject news story aired on November 14, 2013, the day the audit report issued by State Auditor & Inspector Gary A. Jones was released. The instant lawsuit was filed eleven days later on November 25, 2013. According to plaintiff, defendant's attorney contacted plaintiff's attorney, the next day on November 26, 2013, in an effort to resolve the lawsuit. Plaintiff contends that by November 26th, defendant had a duty to preserve all relevant evidence. Plaintiff claims that defendant failed in its duty because it did not preserve, or it actively destroyed, the following documents:

Spoliation sanctions are proper when “ ‘(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 evidence.’ ” Turner v. Public Service Co. of Colorado, 563 F.3d 1136, 1149 (10th Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007)). If an aggrieved party seeks an adverse inference to remedy the spoliation, it must also prove bad faith. Id. “ ‘Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case.’ ” Turner, 563 F.3d at 1149 (quoting Aramburu v. Boeing, 112 F.3d 1398, 1407 (10th Cir. 1997)). Absent a showing of bad faith, a district court may only impose lesser sanctions. Turner, 563 F.3d at 1149 (citing Henning v. Union Pacific R. Co., 530 F.3d 1206, 1220 (10th Cir. 2008)).

*6 The court concludes that plaintiff has failed to establish that defendant had a duty to preserve the audit report used for the news story or the tax information purportedly given to Cross by Tatro. There is no evidence in the record that the audit report or tax information existed on November 26, 2013 when defendant's counsel contacted plaintiff's counsel. Although plaintiff asserts that defendant broadcast a follow-up story on December 4, 2013 that quoted portions of the audit report verbatim, there is no evidence that this was the same audit report utilized in the November 14, 2013 broadcast. While defendant would have had a duty to preserve any copy of the audit report utilized for the follow-up story, plaintiff has not shown that the copy utilized was anything other than what was issued by the state auditor on November 14th. Plaintiff cannot show prejudice by the destruction of a copy of the audit report issued by the state auditor on November 14th, as plaintiff has a copy of that report. The court therefore concludes that plaintiff is not entitled to spoliation sanctions for loss or destruction of the audit report and tax information.

The court concludes that plaintiff has established that defendant had a duty to preserve the copy of the statement of its attorney. According to Luong, she left defendant's employment on February 20, 2014 and testified the statement “was probably on [her] computer.” Ex. 16 to doc. no. 86, pp. 27 and 128. However, the court concludes that plaintiff has failed to establish that it was prejudiced by the loss or destruction of the statement. Plaintiff has a copy of the statement provided by its attorney as well as a copy of the statement edited by Luong. It also has Luong's explanation for the edited-out portion of the statement. Although plaintiff suggests that it “cannot know the content of any personal notes Luong might included with the Statement,” see, doc. no. 86, p. 23, there is no evidence before the court that Luong made personal notes about the statement or that those personal notes would have been on the computer along with the statement. Thus, the court concludes that plaintiff is not entitled to spoliation sanctions for the loss or destruction of Luong's files.

The court further concludes that plaintiff has failed to establish that defendant had a duty to preserve the interviews of Gary A. Jones and Roger Nelson digitally recorded by Wilson. Although defendant, defendant's counsel and Wilson gave differing accounts as to why the interviews were erased, it appears that neither Pursch nor defendant's counsel had spoken to Wilson. The court concludes that Wilson's account shows that the interviews were deleted prior to November 26th. Thus, the court concludes that plaintiff is not entitled to spoliations sanctions for the loss or destruction of the subject interviews.

Accordingly, Plaintiff's Motion to Compel Against Defendant KOKH, LLC (doc. no. 86) is GRANTED to the extent that defendant shall supplement its answer to interrogatory number 7 (to the extent set forth above) within ten business days of the date of this order. The Motion to Compel is in all other respects DENIED. An award of reasonable expenses, including attorney's fees, to plaintiff or defendant is DENIED.

Plaintiff's Motion for Spoliation Sanctions Against Defendant KOKH, LLC (doc. no. 86) is DENIED.

DATED June 1, 2015.

In its briefing, plaintiff points out that Tatro saw Ross “all the time” and argues that Ross had incentive to use this relationship “to secure favorable media coverage.” Plaintiff states: “Plaintiff was suing City, and Ross himself, for events that occurred under his watch as mayor. A favorable story would help shift public opinion in his favor and against Plaintiff.” Doc. no. 86, p. 10.

In reply, plaintiff states that Luong's claim that Derrick Davidson's statement was inaccurate was based on communications with employees in defendant's newsroom but Luong cannot remember who passed judgment on the accuracy of the statement. Plaintiff indicates that defendant has undertaken no effort to identify the employees who advised Luong that the statement was inaccurate. Because this issue was raised for the first time in reply, the court concludes that defendant, in supplementing its answer to interrogatory number 7, need not undertake an effort to identify the employees who advised Luong the edited-out portion of the statement was inaccurate.