Paul C. STEPNES, Pete Girard, Jan Girard, David B. Holland, Terry Yzaguirre, Ray Neset, Bennett Ross Taylor, Jr., and Judith Wallen Taylor, Plaintiffs, v. Peter RITSCHEL, individaul capacity; Jane Moore, individual capacity, City of Minneapolis; CBS Broadcasting, Inc., foreign corporation; and Esme Murphy, individual; Defendants Civil No. 08-5296 ADM/JJK United States District Court, D. Minnesota Signed January 06, 2010 Counsel Jill Clark, Esq., Jill Clark, PA, Golden Valley, MN on behalf of Plaintiffs. James Anthony Moore, Esq., and Sara J. Lathrop, Esq., Assistant Minneapolis City Attorneys, Minneapolis, MN on behalf of Defendants Peter Ritschel, Jane Moore, and City of Minneapolis. Jeanette Melendez-Bead, Esq., Michael D. Sullivan, Esq., and Chad R. Bowman, Esq., Levine Sullivan Koch & Schulz, LLP, Washington, D.C.; John P. Borger, Esq., and Mary Andreleita Walker, Esq., Faegre & Benson, LLP, Minneapolis, MN on behalf of Defendants CBS Broadcasting Inc., and Esme Murphy Montgomery, Ann D., United States District Judge MEMORANDUM OPINION AND ORDER *1 This matter is before the undersigned United States District Judge for a ruling on Plaintiffs Paul C. Stepnes (“Stepnes”), Pete Girard, Jan Girard, David B. Holland, Terry Yzaguirre, Ray Neset, Bennett Ross Taylor, Jr., and Judith Wallen Taylor’s (collectively “Plaintiffs”) Corrected Objections [Docket No. 65] (“Objections”) to Magistrate Judge Jeffrey J. Keyes’s October 1, 2009 Order (“Order”) [Docket No. 61] denying Plaintiffs’ Motion for Spoliation Sanctions, to Compel Production and for Other Relief [Docket No. 23]. For the reasons stated below, Plaintiffs’ Objections are overruled and the Order is affirmed. II. BACKGROUND The facts and procedural history of this dispute are thoroughly set forth in Judge Keyes’s Order and are incorporated by reference. Accordingly, only a brief version of the relevant facts and procedural history is presented here. On July 15 and July 16, 2008, Defendants CBS Broadcasting (“CBS”) and Esme Murphy (“Murphy”) (collectively “Defendants”) aired a television report about a contest Stepnes attempted to arrange to sell a home he owned. Order at 2. To produce the story, Defendants videotaped the interior and exterior of Stepnes’s home, an interview between Murphy, Stepnes, and Stepnes’s attorney, and Murphy’s post-interview comments. Id. at 3. Shortly after the story aired on July 16, 2008, Stepnes’s attorney contacted Defendants requesting preservation of all video footage related to the report and indicating that a defamation action or similar litigation may be forthcoming. Id. Despite this request, some of the video footage has been lost and is unavailable for trial. Id. Plaintiffs moved for sanctions to remedy the alleged spoliation of the evidence, specifically requesting an adverse-inference instruction at trial or, in the alternative, a lesser sanction, such as an instruction precluding CBS from offering evidence about any portion of the interview. Id. Judge Keyes denied Plaintiffs’ motion. Order at 2. III. DISCUSSION A. Standard of Review The applicable standard of review of Judge Keyes’s decision on Plaintiffs’ nondispositive Motion for Spoliation Sanctions, to Compel Production and for Other Relief is extremely deferential. See Reko v. Creative Promotions, Inc., 70 F. Supp. 2d 1005, 1007 (D. Minn. 1999). The district court must affirm a decision by a magistrate judge on a nondispositive issue unless the decision is “clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). A decision is “ ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Chakales v. Comm’r of Internal Revenue, 79 F.3d 726, 728 (8th Cir. 1996). “A decision is ‘contrary to the law’ when it ‘fails to apply or misapplies relevant statutes, case law or rules of procedure.” Knutson v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008) (quoting Transamerica Life Ins. Co. v. Lincoln Nat’l Life Ins. Co., 592 F. Supp. 2d 1087, 1093 (N.D. Iowa 2008)). B. Plaintiffs’ Objections *2 Plaintiffs object to Judge Keyes’s denial of spoliation sanctions and argue that Plaintiffs have presented sufficient evidence to warrant such sanctions. Objections at 8-13. According to Plaintiffs, CBS had an “affirmative duty” to “ensure that litigation evidence is affirmatively preserved” because they had received notice that litigation was likely. Id. at 6, 9. Contrary to Plaintiffs’ assertions, the standard for giving an adverse inference instruction is “a finding of intentional destruction indicating a desire to suppress the truth.”[1] Morris v. Union Pacific R.R., 373 F.3d 896, 901 (8th Cir. 2004). Plaintiffs urge that the record demonstrates wrongdoing on the part of CBS sufficient to support a finding of intentional destruction. Objections at 8-13. But as Judge Keyes noted, the record is scant on the question of intent or bad faith. Plaintiffs rely heavily on statements made during the deposition of WCCO-TV photojournalist, Kris Berg (“Berg”). Plaintiffs argue that Berg’s deposition testimony supports the inference that CBS purposefully tampered with the video because, according to Plaintiffs’ interpretation of Berg’s deposition, Berg shot the first portion of the video and the latter portion of the video was shot by another photojournalist. But as Judge Keyes explained, Berg questioned whether he shot any of the video. In addition, Judge Keyes reviewed the tapes in their entirety and concluded that Plaintiffs failed to present sufficient evidence demonstrating an intentional destruction of evidence or a desire to suppress the truth which would warrant an adverse instruction. Judge Keyes’s determination is well supported by the facts and law and is not erroneous and certainly not clearly erroneous. *3 Judge Keyes correctly noted that a court may impose lesser sanctions against a litigant who “destroys evidence that he knew or should have known was relevant to imminent litigation.” Order at 8. Judge Keyes concluded, however, that “where mere oversight or mistake appears to have caused the pre-litigation disappearance of the evidence involved here, the Court concludes that it would be inappropriate to impose any sanction on the CBS Defendants at this time.” Id. at 13. In response, Plaintiffs urge that where, as here, a defendant corporation implements a document destruction policy, the defendant has an affirmative duty to preserve evidence, particularly when the defendant is on notice of the request. Objections at 9. Under this principle, Plaintiffs conclude, Defendants have failed to act diligently and sanctions are appropriate. Id. Even assuming the standard for imposing lesser sanctions is whether the defendant breached an affirmative duty to act diligently, CBS acted diligently and sanctions are inappropriate. CBS’s regular practice is to reuse tapes by recording over previous footage and offered credible evidence that it had taken appropriate steps to preserve the evidence. For example, shortly after learning of the threatened litigation, CBS sent an email to its key personnel instructing them to save the tapes of the broadcast at issue. The News Director for CBS station WCCO-TV, Scott Libin (“Libin”), testified that he spoke with Murphy about the “need[ ] to preserve all materials relevant to the story.” CBS also presented evidence that William Kruskop (“Kruskop”), its chief photojournalist, searched for, collected and saved all of the videotapes that he believed contained the raw footage used to create the report and that had been marked for routine recycling. Once Kruskop learned that there were eight tapes rather than the seven he had gathered, CBS reviewed thousands of recycled WCCO-TV videotapes attempting to locate the missing tape. Based on Defendants’ proffered evidence, Judge Keyes’s decision refusing to sanction Defendants for the alleged spoliation of evidence is not clearly erroneous. Plaintiffs next argue a chain of emails between Libin and Murphy, which CBS asserts are protected by the attorney-client privilege should be disclosed. Judge Keyes conducted an in camera review of the relevant emails and concluded that the attorney-client privilege applied. In their objections, Plaintiffs argue that even if the attorney-client privilege applies because the emails constitute a litigation hold letter, Plaintiffs would still be entitled to disclosure because “when a party makes an initial showing of spoliation, courts can and do order the disclosure of litigation hold letters.” Objections at 14. Since Plaintiffs have failed to make a preliminary showing of spoliation, their argument that the chain of emails is no longer protected by the attorney-client privilege also fails. Finally, Plaintiffs argue that CBS should be required to produce all versions of the broadcast script that Murphy wrote for the story. Judge Keyes denied Plaintiffs’ request explaining that there was “no citation to legal authority, no recitation of the discovery request at issue and the CBS Defendants’ response, and no proper analysis.” Order at 14. In Plaintiffs’ Objections, they merely state that CBS’s argument that disclosure of the scripts would reveal attorney-client communications is “tremendously weak.” Objections at 15. However, Plaintiffs’ Objections raise no new arguments, and upon review, the Court cannot conclude that Judge Keyes erred in denying Plaintiffs’ request. IV. ORDER Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that: 1. Plaintiffs’ Objections [Docket No. 65] are OVERRULED; and 2. The Order [Docket No. 61] is AFFIRMED. Footnotes [1] Judge Keyes considered and rejected CBS’s argument that every spoliation sanction requires a finding that a party intentionally destroyed evidence with a desire to suppress the truth. Order at 5-7. Judge Keyes is correct. While the Eighth Circuit in Bakhtiari v. Lutz, 507 F.3d 1132, 1135 (8th Cir. 2007) stated that “[a] spoliation requires a finding that a party intentionally destroyed evidence with a desire to suppress the truth[,]” it did not specify the type of sanction or call into question its previous statement in Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 745 (8th Cir. 2004) that “a finding of bad faith is not always necessary to the court’s exercise of its inherent power to impose sanctions.” As Judge Keyes and several Minnesota district courts have noted since the Eighth Circuit’s decision in Stevenson, the severity of the sanction depends upon the degree of fault. Hughes v. Black & Decker (US), Inc., No. 05-1536, 2007 WL 107680, at *1 (D. Minn. Jan. 10, 2007)(“A finding of bad faith is necessary to impose certain sanctions such as an outright dismissal or an adverse-inference instruction .... But the Court may impose other types of sanctions in the absence of a bad-faith finding.”). Wagoner v. Black & Decker (US), Inc., No. 05-1537, 2006 WL 2289983, at *3 (D. Minn. Aug. 8, 2006) (“Some sanctions for spoliation of evidence may not be imposed without a finding of bad faith .... Other sanctions may be imposed without a finding of bad faith.”). An outright dismissal or an adverse-inference instruction requires a finding of intentional destruction, but in the absence of bad faith, lesser sanctions may still be appropriate.