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, individual capacity; Jane Moore, individual capacity; City of Minneapolis; CBS Broadcasting, Inc., foreign corporation; and Esme Murphy, individual; Defendants Civ. No. 08-5296 (ADM/JJK) United States District Court, D. Minnesota Signed October 01, 2009 Counsel Jill Clark, Esq., Jill Clark, PA, counsel for Plaintiffs. James Anthony Moore, Esq., and Sara J. Lathrop, Esq., Assistant Minneapolis City Attorneys, counsel for 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 & Shulz, LLP, and John P. Borger, Esq., and Mary Andreleita Walker, Esq., Faegre & Benson LLP, counsel for Defendants CBS Broadcasting, Inc., and Esme Murphy Keyes, Jeffrey J., United States Magistrate Judge ORDER *1 This matter is before the Court on Plaintiffs’ Motion for Spoliation Sanctions, to Compel Production and for Other Relief (Doc. No. 23). Specifically, before the Court are issues raised in Plaintiffs’ motion that relate to spoliation, spoliation sanctions, and Plaintiffs’ request that Defendants CBS Broadcasting, Inc., and Esme Murphy be compelled to produce an email chain and certain scripts. These issues were taken under advisement following the September 24, 2009 hearing on Plaintiffs’ motion.[1] (Doc. No. 58.) Based on the motion and supporting papers, the arguments of counsel, and the file and all the documents therein, IT IS HEREBY ORDERED that: 1. With respect to issues of spoliation, spoliation sanctions, and Plaintiff’s requests to compel production of an email and drafts of scripts, Plaintiffs’ Motion for Spoliation Sanctions, to Compel Production and for Other Relief (Doc. No. 23), is DENIED; and 2. The attached Memorandum is incorporated herein by reference. MEMORANDUM I. FACTUAL BACKGROUND Plaintiffs have brought this motion to sanction Defendants CBS Broadcasting, Inc., and Esme Murphy (collectively, the “CBS Defendants”), for spoliation of evidence. The facts relevant to Plaintiffs’ motion follow. The CBS Defendants produced a television report about a contest Plaintiff Paul Stepnes attempted to arrange to assist in the sale of a home. The story originally aired on July 15, and again on July 16, 2008. The broadcast of the story included edited video footage that had been compiled from raw footage, some of which had been taken at the home that was to be the subject of Stepnes’s contest. This raw footage included shots of the interior and exterior of the home, an interview that Murphy conducted with Stepnes and his attorney, and comments made by Murphy outside the home following the interview. On July 16, 2008, after the story aired on an evening news program, Stepnes’s attorney contacted the CBS Defendants to insist that they retain all of the raw footage that had been used to compile the broadcast version of the story. Stepnes’s attorney clarified through various phone calls and voicemail messages that she was requesting preservation of these materials in anticipation of litigation related to the program. Even though Stepnes’s attorney made this request, some of the raw footage was lost and is now unavailable for this litigation. Specifically, the CBS Defendants were unable to locate the raw footage of Murphy’s interview with Stepnes and his attorney, and the raw footage of Murphy’s comments recorded after the interview outside the home. Plaintiffs now move for sanctions to remedy the spoliation of this evidence by the CBS Defendants. Specifically, in the moving papers, Plaintiffs ask that the Court order an adverse-inference instruction be given at trial. (Doc. No. 30, Pls.’ Mem. of Law in Supp. of Mot. for Spoliation Sanctions, to Compel Produc. and for Other Relief (“Pls.’ Mem.”) 46-48.) Plaintiffs also request that Defendants be prohibited from offering any evidence about any part of the interview. (Id. at 46 (“In order to restore Plaintiffs to the position they would have been in but for the spoliation, they seek an order that no defendant can testify about any portion of The Interview.”).) II. DISCUSSION A. Standard for Spoliation Sanctions *2 “Spoliation is ‘the intentional destruction of evidence and when it is established, [the] fact finder may draw inference that [the] evidence destroyed was unfavorable to [the] party responsible for its spoliation.’ ” E*Trade Sec. LLC v. Deutsche Bank AG, 230 F.RD. 582, 587 (D. Minn. 2005) (quoting Black’s Law Disctionary 1401 (6th ed. 1990)). A court can impose sanctions for spoliation of evidence based on its inherent authority to manage the judicial process. Bass v. Gen. Motors Corp., 150 F.3d 842, 851 (8th Cir. 1998). The moving party bears the burden of proving spoliation. Stevenson v. Union Pac. R.R., 354 F.3d 739, 748 (8th Cir. 2003). The parties disagree about the requisite showing of wrongdoing required to impose sanctions for the destruction of evidence. The CBS Defendants argue that no sanctions are available unless there is a showing that a party intentionally destroyed evidence with a desire to suppress the truth. (Doc. No. 48, CBS Defs.’ Opp’n to Pls.’ Mot. for Spoliation Sanctions, to Compel Produc. and for Other Relief (“CBS Mem.”) 18-19.) Plaintiffs argue that they have shown intentional destruction and are entitled to an adverse-inference instruction (Pls.’ Mem. 46-47), but at the hearing Plaintiffs argued in the alternative that a lesser sanction, such as exclusion of evidence would be appropriate where a party knew or should have known that evidence would be relevant to foreseeable litigation. Plaintiffs rely on Stevenson to support their argument that sanctions are available even in the absence of a showing of intentional destruction of evidence and desire to suppress the truth. In Stevenson, the Eighth Circuit reviewed a trial court’s imposition of sanctions for a railroad company’s pre-litigation destruction of a voice tape of conversations between a train crew and dispatch at the time of an accident that resulted in the suit against the railroad. See 354 F.3d at 743. The court observed that “a finding of bad faith is not always necessary to the court’s exercise of its inherent power to impose sanctions.” Id. at 745. The court concluded that “a ‘knew or should have known’ negligence standard ... standing alone, would be inconsistent with the bad faith consideration and the intentional destruction required to impose an adverse inference for the prelitigation destruction of documents.” Id. at 746-47. Thus, the court clarified that findings of intent and bad faith are required when the sanction imposed is instructing the jury that it may draw an adverse inference from the pre-litigation destruction of evidence, id. at 747, but left open the possibility of other, lesser sanctions in the absence of such a finding. See id. at 745. In support of the CBS Defendants’ argument that any spoliation sanction requires a finding of intent and bad faith, they cite Bakhtiari v. Lutz, 507 F.3d 1132, 1135 (8th Cir. 2007). There, the Eighth Circuit cited the standard that “[a] spoliation sanction requires a finding that a party intentionally destroyed evidence with a desire to suppress the truth.” Id. at 1135 (citing Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007)). The CBS Defendants extrapolate from this statement that the Eighth Circuit abrogated Stevenson’s indication that sanctions may still be awarded in the absence of a finding of intent and bad faith. (See CBS Mem. 18 n.6 (“Plaintiffs invoke outdated language that spoliation sanctions can be imposed where a party ‘knew or should have known’ that evidence would be material in litigation and then destroyed it .... That language never amounted to more than dicta, which has been disapproved in this Circuit.”).)[2] However, the court in Bakhtiari did not specify the type of sanction the plaintiff sought, nor did it specifically call into question any portion of Stevenson. Other authorities suggest that the CBS Defendants read Bakhtiari’s articulation of the spoliation standard too broadly. For instance, in Morris v. Union Pac. R.R., 373 F.3d 896, 901 (8th Cir. 2004), the Eighth Circuit referred only to the adverse-inference-instruction sanction when it explained that “ ‘there must be a finding of intentional destruction indicating a desire to suppress the truth’ before an adverse inference instruction is justified.” Id. (quoting Stevenson, 354 F.3d at 746. *3 Courts in this District have also indicated that a showing of intentional destruction and bad faith is only required for certain, more severe sanctions. See Alden v. Mid-Mesabi Assoc. Ltd. P’ship, No. 06-954 (JRT/RLE), 2008 WL 2828892, at *16 (D. Minn. July 21, 2008) (“[F]or a Court to impose certain sanctions for the pre-litigation destruction of evidence, such as an outright dismissal, or an adverse-inference instruction, there must be a showing of “intentional destruction indicating a desire to suppress the truth.”); Hughes v. Black & Decker (US), Inc., No. 05-1536 (PJS/JJG), 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.”); Wagoner v. Black & Decker (US), Inc., No. 05-1537, 2006 WL 2289983, at *3 (D. Minn. Aug. 8, 2006) (noting that intent and bad faith are only required for imposition of “[s]ome sanctions”). “Because failures to produce relevant evidence fall ‘along a continuum of fault—ranging from innocence through the degrees of negligence to intentionality, ... the severity of a sanction may, depending on the circumstances of the case, correspond to the party’s fault.” Adkins v. Wolever, 554 F.3d 650, 652-53 (6th Cir. 2009) (citation omitted); cf. Hughes, 2007 WL 107680, at *2 (suggesting a “common sense” approach to determining the appropriate remedy for destruction of evidence not involving bad faith). Based on these authorities, it is clear that a finding of intentional destruction of evidence indicating a desire to suppress the truth is necessary for a court to impose the sanctions of dismissal or an adverse-inference instruction. See Menz v. New Holland N. Am., Inc., 440 F.3d 1002, 1006 (8th Cir. 2006); Morris, 373 F.3d at 901; Stevenson, 354 F.3d at 746-47. Other sanctions, however, may be imposed without a finding of bad faith. Stevenson, 354 F.3d at 745. Where a party destroys evidence that he knew or should have known was relevant to imminent litigation, but the destroying party’s culpability does not rise to the level of the intentional, bad-faith actor, a court may, for instance, prevent the party from introducing certain evidence. Bass, 150 F.3d at 850-51; Dillon v. Nisan Motor Co. Ltd., 986 F.2d 263, 267-69 (8th Cir. 1993). To obtain any sanction for the spoliation of evidence, whether intentional or otherwise, the moving party must demonstrate that the destruction of the evidence was prejudicial. Stevenson, 354 F.3d at 758. B. Analysis There is no dispute that Plaintiffs put the CBS Defendants on notice that litigation was likely to be forthcoming shortly after the broadcast about Stepnes’s contest ran on air. The parties do disagree, however, about the steps that the CBS Defendants took after receiving such notice, and whether those actions warrant imposing sanctions now that the raw footage of the interview and Murphy’s post-interview comments is unavailable. 1. Adverse-Inference Instruction As noted above, Plaintiffs argue that the CBS Defendants intentionally destroyed the raw footage of the interview between Murphy, Stepnes, and Stepnes’s counsel. Accordingly, Plaintiffs request that the Court enter an order that an adverse-inference instruction be given to the jury at trial. Having reviewed the current record, the Court concludes that no adverse-inference instruction should be given to the jury because Plaintiffs have failed to demonstrate intentional destruction evidence for the purpose of suppressing the truth. Plaintiffs assert that the raw footage of the interview was intentionally taped over by the CBS Defendants. Plaintiffs do not offer any direct evidence supporting their assertion, but “ ‘[i]ntent is rarely proved by direct evidence, and a district court has substantial leeway to determine intent through consideration of circumstantial evidence, witness credibility, motives of the witnesses in a particular case, and other factors.’ ” Greyhound Lines, 485 F.3d at 1035 (quoting Morris, 373 F.3d at 902). Here, Plaintiffs offer circumstantial evidence to support their claim that the footage was intentionally destroyed. Plaintiffs assert that Kris Berg, a photojournalist for the CBS Defendants, shot the raw video footage on July 15, 2008, that was used as the basis for the broadcast that aired on July 15 and 16, 2008, and that at some point later, Berg’s tape was recorded over with footage shot by another photojournalist named Sean Skinner. At the hearing, the parties showed the Court a DVD with the allegedly tampered video as well.[3] Plaintiffs assert that an abrupt change, as Berg previously described it in his deposition, occurred early in the video. This abrupt change, according to Plaintiffs, marks the end of Berg’s footage and the beginning of Skinner’s. Plaintiffs argue that Berg’s deposition testimony supports their allegation because Berg initially thought that he may have shot the footage at the beginning of the video, and then later determined that none of the footage was his when he noticed the abrupt change. *4 The Court is not persuaded that Plaintiffs’ circumstantial evidence demonstrates intentional destruction of evidence indicating a desire to suppress the truth. Although the Court observed a change in the audio on the DVD presented at the hearing, no forensic expert was called to testify about the contents of the video and no other competent evidence was presented to support Plaintiffs’ allegation of tampering with evidence. Rather than presenting the kind of evidentiary link needed to show a bad-faith intent to cover up evidence through circumstantial evidence, Berg’s deposition testimony indicates that he was never entirely certain about whether any of the footage on the video had been shot by him, and he corrected himself when he heard Skinner’s voice on the DVD. Moreover, Skinner has averred that after reviewing the DVD at issue, he has “confirmed that all of the footage on that tape of the Dream House exteriors was shot by [him].” (Doc. No. 50, Decl. of Sean Skinner in Supp. of the CBS Defs.’ Opp’n to Pls.’ Mot. for Spoliation Sanctions, to Compel Produc. and for Other Relief (“Skinner Decl.”) ¶ 7.) For these reasons, the Court will not order the jury be given an adverse-inference instruction. 2. Other Sanctions Alternatively, Plaintiffs ask that the absence of the tape result in the following sanction: that “no defendant can testify about any portion of the interview.” (Pls.’ Mem. 46.) Plaintiffs argue that the CBS Defendants were “grossly negligent” in responding to Plaintiffs’ timely demand that all the footage be preserved for possible litigation.[4] (Id. at 47.) There is no ready explanation for how the raw footage of the interview and Murphy’s post-interview comments outside the home is no longer available. It is possible that the footage was taped over in accordance with the CBS Defendants’ regular practice—at any given time there are hundreds of tapes in circulation, which are reused by recording over previous footage. The evidence suggests that shortly after being informed by Stepnes’s counsel’s telephone calls demanding that all video footage be preserved, the CBS Defendants took steps to preserve that footage. For instance, Scott Libin, who is the news director for the CBS Defendants in its Minneapolis office, testified in his deposition that shortly after being informed that there was potential for litigation, he spoke with Murphy about the “need[ ] to preserve all materials relevant to the story.” (Sullivan Decl. ¶ 2, Ex. 5, Dep. of Scott Libin (“Libin Dep.”) 14:18-20.) Murphy confirmed that Libin requested that she preserve all materials related to the story. (Id. ¶ 2, Ex. 1, Dep. of Esme Murphy (“Murphy Dep.”) 42:14-25.) Libin also informed William Kruskop, a chief photojournalist for the CBS Defendants, that he needed to locate the tapes with the footage at issue here, and Kruskop “started looking for tapes.” (Id. ¶ 2, Ex. 7, Dep. of William Kruskop (“Kruskop Dep.”) 21:15-25.) Kruskop said that he started looking very shortly after being told to do so. (Id. at 22:7-12.) Kruskop also testified about the steps he took to recover the tapes, the number of tapes he found, and where he found them. (Id. at 22:17-19, 106:10-18, 109:20-25, 115:1-14, 116:7-21.) Essentially, Plaintiffs argue that because the footage of the interview was not located after Stepnes’s counsel informed the CBS Defendants about the potential for litigation, the CBS Defendants were grossly negligent in failing to recover it. Gross negligence is “[a] lack of slight diligence or care [or] [a] conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party[.]” Black’s Law Dictionary 1134 (9th ed. 2009). Far from being a situation where Plaintiffs have shown that the CBS Defendants failed to exercise even slight diligence or recklessly disregarded a legal duty, the evidence here demonstrates that the CBS Defendants acted with reasonable diligence in responding to Stepnes’s counsel’s phone call after the airing of the story on television.[5] The disappearance of the footage—whether it was taped over pursuant to the CBS Defendants’ routine practice, or was somehow lost in the CBS Defendants’ offices—seems to be the result of a mere oversight or mistake. Under these circumstances, 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.[6] C. Other Relief Requested *5 Plaintiffs have asked that the Court order the CBS Defendants to disclose a July 16, 2008 email chain, which begins with a message from Scott Libin to Murphy. That email also copied in-house counsel for the CBS Defendants. The CBS Defendants have withheld the email on the ground that it is protected by the attorney-client privilege. The email chain was placed on a privilege log, the recipients and senders identified, the subject—“House raffle: SAVE YOUR TAPES”—listed, and the reason for withholding the email provided. (Sullvan Decl. ¶ 2, Ex. 5 at 4.) Plaintiffs contest whether the email is, in fact, a privileged communication and the parties consented to the Court conducting an in camera review of the email chain. The Court has reviewed the email chain and upholds the application of the privilege. Plaintiffs also ask that the CBS Defendants be required to provide to Plaintiffs all versions of the script that Murphy wrote for the broadcast story. Defendants have withheld these documents asserting that their disclosure would reveal the substance of attorney-client communications. Plaintiffs have presented this request as almost an afterthought, at the end of a 48-page memorandum with no citation to legal authority, no recitation of the discovery request at issue and the CBS Defendants’ response, and no proper analysis. Therefore, the Court denies Plaintiffs’ request that the CBS Defendants be required to provide all versions of the script for the broadcast story. Footnotes [1] At the hearing and on the record, the Court granted Plaintiffs’ motion in part with respect to issues of attorney-client privilege. The Court also granted a motion to compel filed by Defendants CBS Broadcasting, Inc., and Esme Murphy. (See Doc. No. 58.) [2] The CBS Defendants suggest that the “knew or should have known standard” is dicta for “spoliation sanctions.” (CBS Mem. 18 n.6.) The CBS Defendants’ argument fails on any reading of Morris v. Union Pac. R.R., 373 F.3d 896 (8th Cir. 2004). In Morris, the court noted that the knew-or-should-have-known standard amounted to dicta insofar as other cases suggested such a standard could be applied to the specific sanction of an adverse-inference instruction. See id. at 901 (discussing only the adverse-inference-instruction sanction). [3] This video was received as Hearing Exhibit 2, and is the same video filed in this matter by the CBS Defendants. (Doc. No. 49, Aff. of Michael D. Sullivan in Supp. of the CBS Defs.’ Opp’n to Pls.’ Mot. for Spoliation Sanctions, to Compel Produc. and for Other Relief (“Sullivan Aff.”) ¶ 2, Ex. 13.) [4] Plaintiffs included this argument in the portion of their brief that asked for an adverse-inference instruction, but Plaintiffs clarified the argument at the hearing that they are seeking the sanction of excluding evidence from trial in the alternative. [5] Plaintiffs have argued that Kruskop did not take adequate steps to preserve evidence because he did not affirmatively search for the raw footage of the interview, did not have information needed to gather the appropriate materials, and did not ask questions to determine how many tapes of raw footage existed. (Pls.’ Mem. 31.) Plaintiffs do not support the notion that there is a legal duty to take any specific steps of this sort after notice that litigation may ensue. The issue presented by Plaintiffs is whether the CBS Defendants were grossly negligent, and there is not sufficient support for such a finding to warrant the relief demanded. [6] At this time it is unclear what prejudice Plaintiffs suffer as a result of the unavailability of the raw footage. Fashioning a remedy to put Plaintiffs in the same position they would have been in had the missing footage been available under these circumstances would be an exercise in speculation. Nevertheless, should the course of this litigation reveal an attempt by Defendants to benefit from the absence of this evidence, this Order does not foreclose Plaintiffs from pursuing a motion seeking to prohibit Defendants from offering any evidence regarding the missing footage.