*1 THIS MATTER comes before the Court on IVS Defendants’[1] Motion for Spoliation Sanctions, ECF No. 288. IVS Defendants seek severe spoliation sanctions concerning Sinclair's metallurgy theories.[2] Among other things, they claim that Sinclair wrongly destroyed an actuator associated with the failed valve, notes from a stakeholder investigation following the 2013 fire, and certain electronically stored information. According to IVS Defendants, these items of evidence indicated that Sinclair knew that FV-241 was made of the wrong metallurgy prior to the fire.

As a cure for such alleged spoliation, IVS Defendants first ask the Court to dismiss Sinclair's negligence and failure to warn claims. Next, they request that the Court enter an order directing that Sinclair knew that FV-241 was made of carbon steel by no later than March 2009. They ask that the order also add that Sinclair knew that carbon steel FV-241 was not suitable for the #4 HDS Unit by no later than March 2009. Finally, IVS Defendants demand that the Court bar Sinclair from presenting contrary evidence. In light of this Court's omnibus order on the parties’ summary judgment motions, most of those requests are moot.

The Court has already entered an order dismissing claims based on Sinclair's metallurgy theory. Because IVS Defendants do not contend that their spoliation motion relates to claims based on Sinclair's Fisher OEM Specification theory, and since context suggests otherwise, the Court finds that IVS Defendants only seek dismissal of Sinclair's metallurgy theories. The Court has already done this, and there is no requirement that the Court address additional sanctions that IVS Defendants do not pursue in their motion. Equal Employment Opportunity Comm'n v. JetStream Ground Servs., Inc., 878 F.3d 960, 965 (10th Cir. 2017). Accordingly, the Court will not further address this aspect of IVS Defendants’ demanded relief.

Similar reasoning applies to IVS Defendants’ requested adverse inferences about FV-241's metallurgy. All that remains for trial is Sinclair's claims based on the Fisher OEM Specifications. But Sinclair has not alleged that the Fisher OEM Specifications relate to metallurgy. See ECF No. 299 at 32 (“FV-241 was defective in that it was made of the wrong metallurgy and it failed to meet Fisher OEM specifications ....”) (emphasis added). Likewise, IVS Defendants have argued that Sinclair's “wall thickness theory” is so unrelated to the metallurgy theory that it constitutes “an entirely new theory ....” ECF No. 336 at 1. Hence, whether Sinclair knew that FV-241 was carbon steel or that carbon steel was unsuitable for #4 HDS Unit has little to do with the Fisher OEM Specifications. For the current motion, this creates a relevancy issue.

*2 Relevant evidence has a “tendency to make a fact [of consequence] more or less probable than it would be without the evidence ....” Fed. R. Evid. 401(a)–(b). Irrelevant evidence is inadmissible. Fed. R. Evid. 402. Facts related to FV-241's metallurgy will have no tendency to show what are the Fisher OEM Specifications, which only deal with FV-241's wall and flange thickness. Nor will metallurgical facts show whether FV-241 failed to meet those specifications. Since the jury will only be considering the Fisher OEM Specifications, facts related to FV-241's metallurgy are irrelevant. Consequently, there is no need for adverse inference instructions dealing with FV-241's metallurgy.

Finally, IVS Defendants argue that this Court should prevent Sinclair from presenting any evidence that it did not know that FV-241 was made of carbon steel or that carbon steel was unsuitable for #4 HDS Unit. Even if such evidence were relevant and the Court entered associated adverse inference instructions, IVS Defendants cite no authority for the proposition that courts can prevent parties from producing evidence in an attempt to overcome a presumption arising out of an adverse inference instruction. On the contrary, relief of that nature is incompatible with the burden shifting mechanism connected with adverse inference instructions. For example, in Hicks v. Gates Rubber Co., the Tenth Circuit found that an employer “violated [29 C.F.R.] § 1602.14 by destroying” an ex-employee's personnel records. 833 F.2d 1406, 1419 (10th Cir. 1987). As a result, a presumption that those records would have helped her argument was appropriate. Id. (citing Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 661 n.7 (5th Cir.1983), cert. denied, 466 U.S. 927 (1984)). Though the employer argued that other evidence rebutted that presumption, the Tenth Circuit remanded the case to the district court to decide if that presumption had indeed been rebutted. Id.

Hicks therefore demonstrates that the party damaged by an adverse presumption should at least have the opportunity to rebut it. Expanding on that notion, later Tenth Circuit case law explains that, to rebut an adverse spoliation presumption, the party opposing the presumption need only produce evidence that contradicts the presumption. JetStream Ground Servs., Inc., 878 F.3d at 967. In other words, the rebuttal evidence does not need to satisfy the burden of persuasion, just the burden of production. Id. If the party opposing the presumption produces the needed evidence, then the adverse presumption “disappears—that is, no jury instruction should mention it.” Id. (citing Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014); Fed. R. Evid. 301). Standing all this law on its head, IVS Defendants would have this Court enter a presumption that Sinclair knew about certain facts while simultaneously barring Sinclair from showing that it did not know about certain facts. If those facts were even relevant in this case, Hicks and JetStream dictate that such a remedy would be unavailable.

Consequently, none of the relief sought by IVS Defendants’ motion is available. Since their requested relief is irrelevant or unobtainable, there is little reason to consider the motion further. It is therefore

ORDERED that IVS Defendants’ Motion for Spoliation Sanctions, ECF No. 288, is hereby DENIED.

Dated this 11th day of June, 2019.