'

.
DISTRICT COURT, CITY AND COUNTY OF
DENVER, COLORADO
1437 Bannock St.
Denver, Colorado 80202

DATE FILED: june II, 20 IS 4 19PM

CASE NUMBER: 2014CV313 6

Plaintiff:
PREMIUM PET HEALTH, LLC, a Delaware Limited
Liability Company

.i.. COURT USE ONLY .i..

V.

Defendants:
ALL AMERICAN PET PROTEINS, LLC, a Colorado
limited liability company; CRAIG A. BROUGHTON, an
individual; JOHN F. LANDERS, an individual; GARY
"RON" DEAN, an individual; and MICHAEL YOUSIF, an
individual

Case No:

2014CV31356

Courtroom:

259

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION

FOR DEFAULT JUDGMENT OR, IN THE ALTERNATIVE, AN ORDER
GRANTING AN ADVERSE INFERENCE
THIS MATTER is before the Court on the Motion for Default Judgment or, in the
Alternative, an Order Granting an Adverse Inference, Against Defendants All American Pet
Proteins, LLC, John F. Landers and Michael A. Yousif, as a Result of Their Deliberate
Spoliation of Evidence (the "Spoliation Motion") filed by plaintiff Premium Pet Health, LLC
("PPH"). PPH has also filed with this Court a Motion to Overrule the Defendants' Improper
Assertions of Privilege and Work-Product Protection, which the Court has addressed in a
separate order.

The Court has reviewed the Spoliation Motion and all pertinent pleadings and

authority and, being otherwise fully advised in the premises, finds and orders as follows:

RELEVANT BACKGROUND
1.

Following his February 27, 2014 resignation from PPH, but before this litigation

commencec), John F. Landers attempted to purge his AOL account, which he exclusively used to
conduct PPH business. According to Landers, this deletion of electronically-stored information
("ESI'') was for the purpose of ridding himself of any information from PPH, PPH' s customers,

or PPH's suppliers. (April10, 2014 Landers Aff. in Supp. of Defs.' Emergency Mot. for Ruling
on Request for Prelim. Inj. at 'if 19 ("Landers Aff.").)
2.

Landers realized that manually purging the more than 8,000 emails on the AOL

account would be challenging, so sometime in March 2014 he enlisted a "computer specialist" to

erase the remaining files. (ld) This "computer specialist" was Michael YDusif. (Landers's Supp.
Resps. to PPH's First Set ofinterrogs. No.7.) Landers and Yousif did nDt keep a record or log
of the ESI deletions. (ld Nos. 7, 8.) It is undisputed that these pre-litigation deletions cannot be
restored. (Yousif Dep. at 194:25-95:6 ("[T]here's no way to recreate the e-mails that were deleted
in March."); April 13, 2014 Email from Randall Miller to Zhonette Brow-n ("I believe the main
deletions are long gone .... ").)
3.

On March 21, 2014, pursuant to an engagement letter, All American Pet Proteins

("AAPP") engaged Randall Miller of Bryan Cave LLP for services on transition matters. (Errata
to Defendants' Response to Plaintiff's [Spoliation Motion]; Amendment to Miller Deposition.)
Craig Broughton had also retained Bryan Cave prior to litigation for advice on transition matters.
(Miller Dep. at 4:24-5:10, 6:24-7:7.)
4.

Landers had also retained Bob Roth of Kutak Rock LLP for assistance with

financing and transition matters. (Landers Dep. at 41:6-9, 44:23-45:2, 157:22-158:22.) Landers
and Roth discussed the possibility of litigation and Roth communicated With Colorado Business
Bank regarding litigation risks in February 2014. (Defendants' Response at 7-8.)
5.

On April3, 2014, PPH filed its Complaint in this Court, along with a Motion for a

Temporary Restraining Order and Preliminary Injunction.

On April 4, 20!4, the Defendants

were served with these pleadings.

6.

After the lawsuit was filed, Landers, Broughton, and AAPP retained Bryan Cave

under a new engagement agreement to represent them in the PPH litigation. (Errata to
Defendants' Response to Plaintiffs [Spoliation Motion].)
7.

On April 9, 2014, after learning that the Defendants' pre-litigation ESI deletions

had destroyed only the emails in Landers's Inbox folder, Defendants' counsel Sarah Hartley at
2

Bryan Cave ordered them to delete additional material. Hartley informed co-counsel Miller of
her actions in an email that same day:
Turns out [Landers and Yousif] only deleted the Inbox, not all other folders. So
I've instructed them to delete every single file predating [Landers's] departure
from PPH, including Outbox, Sent Mail, any archives, Drafts, Trash/Deleted
Files.
(April 9, 2014 Email from Sarah Hartley to Randall Miller.)
8.

Hartley's post-complaint instruction to delete emails came about due to a

purported "miscommunication" between Miller and Hartley; Miller apparently told Hartley to
"confirm" that Landers was no longer in possession of any PPH emails predating his resignation,
and Hartley "presumed" that this meant that Miller wanted Landers to delete all remaining files.
(Hartley Dep. at 41-45.)
9.

According to Hartley, she thought that a "litigation hold" instruction had already

been issued, and that the documents had already been preserved in some fashion, but did not take
any steps to inquire whether the documents had, in fact, been preserved before issuing the
destruction order to her clients. (!d. at 45-47.)
10.

Upon realizing the "miscommunication" and that Landers's AOL account had not

yet been preserved, Defendants attempted to restore and preserve the emails. This involved
registering Landers's AOL account for a "premium" service with AOL which allowed for the
recovery of emails deleted within the prior seven days. (Yousif Dep. at 169:1-9, 208:20-209:7,
211:3-14; Landers Dep. at 53:15-23; Miller Dep. at 62:5-14.) On April14, 2014, five days after
the counsel-ordered deletions, Yousif called AOL and requested that the files be restored. (Miller
Dep. at 42:4-43: I; YousifDep. at 211 :3-8.)
11.

Bryan Cave did not issue an official litigation hold until April 18, 2014, 14 days

after Defendants had been served with the lawsuit. (Yousif Privilege Log at 2.)
12.

On April 10, 2014, only one day after Defendants deleted email files from

Landers's outbox, sent mail, archives, drafts, and trash/deleted folders at the instruction of
counsel, Landers swore in an affidavit that he "did not take any documentation, customer lists,
supplier lists, contracts, or other PPH materials" with him when he resigned from PPH. (Landers
3

Aff.

at~~

19-20.) The affidavit contains no reference to the post-resignation possession of files

in the outbox, sent mail, archives, drafts, or trash/deleted folders, nor that Defendants had deleted
those files at the instruction of counsel only a day earlier. Miller reviewed and filed the affidavit
with the Court.
13.

When asked why the affidavit he reviewed and filed with the Court failed to

disclose "this deletion that occurred the day before, on April 9," Miller responded, "I don't
know." (Miller Dep. at 46:8-10.)
14.

Landers admitted at his deposition that he does not know how many documents

he deleted. (Landers Dep. at 55:1-56:21.) Nor does he know the extent to which any of that
evidence may have been recovered:
Q. So you can't tell us with any degree of assurance that all such information that
had been deleted by you in the first document destruction exercise, the second
document destruction exercise, and the third document destruction exercise
conducted on the advice of your lawyer, that all of those information -- all of
those pieces of electronically-stored information were actually restored, can
you?
A. I'd say that's accurate, yes.

(Id at 56:13-21.)

15.

Defendants claim that all of the post-complaint deletions were restored,

(November 13, 2014 Letter from Randall Miller to Stephen Sayers), and have provided a
purported screenshot of Landers's AOL account showing folders including "Recovered Mail"
with 48 emails, and "Recovered Sent Mail" with I ,096 emails. (Screen Shot of Restored File
Folders, attached to Defendants' Response as Ex. 17.) However, this screenshot is undated and
un-Bates-stamped.
16.

When questioned at the May 28, 2014 Preliminary Injunction hearing about the

destruction of ESI, Landers discussed the pre-litigation deletions but neglected, however, to
inform the Court about the post-complaint deletions, or that the deletions were at the instruction
of counsel. (Prelim. Inj. Hr'g Tr. at 359-61.)

17.

On November 3, 2014, PPH's counsel Stephen Sayers sent a letter to Miller in

which Sayers outlined his concerns regarding potential sworn falsehoods made by Defendants,
and raised the issue of spoliation of evidence concerning the pre-litigation deletions. (Nov. 3,
2014 Letter from Stephen Sayers to Randall Miller.)
18.

On November 13, 2014, Defendants' counsel Randall Miller responded to the

letter and revealed the April 9, 2014 post-complaint destruction of ESI, as well as counsel's
instruction to delete emails. (November 13, 2014 Letter from Randall Miller to Stephen Sayers.)
Defendants then granted a "very limited waiver" of the attorney-client communication privilege
and work-product protection, limited to communications between April 9, 2014 and April 14,
2014 and restricted to the topic of the removal and restoration of emails associated with
Landers's AOL account, so that PPH could inquire into that issue. (!d.)
19.

Throughout the period of November 2014 to March 2015, PPH deposed Randall

Miller, Sarah Hartley, John Landers, and Michael Yousif to inquire into the removal and
restoration of the emails.
20.

On April 16, 2015, defense counsel at Bryan Cave filed a motion to withdraw,

citing the Court's concern regarding Bryan Cave's continued representation of Defendants in
light of Plaintiffs allegations of spoliation and the fact that certain Bryan Cave attorneys may be
witnesses related to the case. The Court granted the motion to withdraw on April20, 2015.

LEGAL STANDARD
Colorado courts have broad discretion under their inherent powers to impose sanctions
under C.R.C.P. 37 both to punish a party that has destroyed evidence, and to try to compensate
the injured party for harm that inevitably results from the destruction of relevant evidence. See

Alai v. Union Pac. R.R. Corp., 129 P.3d 999, 1002 (Colo. 2006) (en bane); Pfantz v. Kmart
Corp., 85 P.3d 564, 567 (Colo. App. 2003). Where the spoliator's misconduct rises to a level
"more than mere negligence," such as recklessness and gross negligence, punitive sanctions are
permitted to "further[] the objective of deterring serious misconduct." Pjantz, 85 P.3d at 568.
The range of punitive sanctions may include "the ultimate penalty of a default judgment," as well
as various forms of adverse inference instructions. !d.
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The sanction, however, "should be

commensurate with the senousness of the disobedient party's conduct." !d. (citation and
quotation omitted). To impose such punitive sanctions, a Court must find three things: (1) that
the Defendant violated a duty to preserve evidence; (2) that they acted with a mental state
reflecting intentional, willful, bad faith, reckless, or grossly negligent conduct; and (3) and that it
is reasonably likely the spoliation destroyed relevant and admissible evidence. See Aloi v. Union

Pac. R.R. Corp., 129P.3d 999, 1002-05 (Colo. 2006) (en bane); Pfantz at 568.
DISCUSSION

The spoliation of ESI in this case occurred in two distinct phases: (I) the pre-litigation
deletion of emai1s in Landers's AOL account, which Landers carried out with Yousif's
assistance; and (2) the post-complaint deletions at the instruction of Defendants' counsel Hartley
at Bryan Cave. Each phase of deletions is deserving of a separate analysis.

I.

Pre-Litigation Deletions
A. Defendants' Duty to Preserve Evidence

A party may be sanctioned for destroying evidence if that party knew or should have
known that the destroyed evidence was relevant to pending, imminent, or reasonably foreseeable
litigation. Castillo v. ChiefAlternative, LLC, 140 P.3d 234, 236 (Colo. App. 2006); see also THE
SEDONA CONFERENCE, The Sedona Principles Addressing Electronic Document Production,
June 2007 at 70 ("[T]he common law duty of preservation arises when a party, either plaintiff or
defendant, reasonably anticipates litigation."). 1 The United States Court of Appeals for the
Federal Circuit has explained that the "reasonably foreseeable" standard "is an objective
standard, asking not whether the party in fact reasonably foresaw litigation, but whether a
reasonable party in the same factual circurostances would have reasonably foreseen litigation."

Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011). The inquiry is, thus,
"a flexible fact-specific standard that allows a district court to exercise the discretion necessary
to confront the myriad factual situations inherent in the spoliation inquiry." Jd

Per the Court's August 29, 2014 Initial Case Management Order, this Court applies The Sedona Principles to
matters involving ESJ.

From the facts before the Court, it is clear that Landers and Yousif should reasonably
have foreseen litigation at the time of their pre-complaint ESI destruction. First, Defendants
should reasonably have anticipated that PPH would not stand idly by while AAPP formed an
identical company and engaged in direct competition with PPH, siphoning PPH' s customer and
supplier base in the process. (See Colorado Business Bank Loan Presentation at 5, attached as
Ex. 8 to the Spoliation Motion.) Second, the involvement of two large law firms - Kutak Rock
LLP and Bryan Cave LLP - in this case prior to the lawsuit made it reasonably clear that
litigation was foreseeable. Indeed, Defendants hired Randy Miller of Bryan Cave LLP because
of his litigation experience with cases similar to what was occurring at PPH. (Landers Dep. at
45:7-18; 45:22-46:1.) Defendants also now admit that that Landers and Miller discussed the
prospect of litigation before the complaint was filed. (See Errata to Defendants' Response.)
Furthermore, emails from Colorado Business Bank establish that opinions regarding litigation
risk were sought by Colorado Business Bank and provided by counsel at Kutak Rock.
(November 6, 2014 Email from Judith Lajoie to Nicole Melton.)
Landers and Yousif rely heavily on their own and others' belief that litigation was
unlikely. However, subjective belief about litigation risk is not the end of an analysis of whether
litigation was reasonably foreseeable. See Micron Tech., Inc. 645 F.3d at 1320. The totality of
the factual circumstances indicate that Landers and Yousif should have reasonably foreseen
litigation at the time of their pre-complaint ESI destruction, and they therefore had a duty to
preserve evidence.
B. Defendants' Mental State

A court has inherent power to impose a punitive sanction under C.R.C.P. 37 when a party
intentionally destroys evidence. Pfantz, 85 P.3d at 568 (noting that "intentional" in this context
means destruction to prevent use as evidence). A court also may impose punitive sanctions
where a party's conduct is in bad faith (i.e. "conduct which, although not necessarily deliberate
or intentional, nonetheless amounts to a flagrant disregard or dereliction of one's discovery
obligations"); willful or deliberate; reckless; or grossly negligent (i.e. the party has engaged in
culpable conduct which is "more than mere inadvertence or simple negligence). !d. (citations
omitted).

The Pfantz court explained that there is "no useful distinction among bad faith,
7

recklessness, and gross negligence," and that sanctions may be imposed in such cases where
"conduct ... is more than negligent and less than intentional." Jd (citations omitted); see also
Alai, 129 P.3d at 1003 (declining to adopt a bright line approach of requiring a showing of bad

faith for imposition of adverse inference).

In the case at hand, the Court finds that Defendants Landers and Yousif were, at the very
least, grossly negligent during their pre-litigation deletions of ESI. As discussed above, they
should have reasonably foreseen litigation and were thus under a duty to preserve evidence.
Despite this duty, Landers and Yousif purged Landers's AOL account of potentially thousands of
emails without regard for the ramifications it might have for litigation discovery obligations.
Moreover, the emails deleted by Landers and Yousif prior to litigation cannot be recovered, and
Landers and Yousif kept no record or log of the pre-litigation deletions.
The Court further finds that, based on the evidence in the record, a reasonable inference
can be drawn that Landers and Yousif deleted the emails in order to prevent their discovery
during potential future litigation.
Regardless of their exact culpable mental state, Landers and Yousif engaged in conduct
that rises above mere negligence and the Court may impose punitive sanctions in response to this
conduct.
C.

Relevance and Admissibility of Evidence

PPH' s claims in this lawsuit center around the very information that Landers concededly
removed from his possession by purging his AOL account- information about PPH's business,
PPH's customers, and PPH's suppliers. It is undisputed that Landers conducted all of his PPH
business on this AOL account. As such, there is no question, and Defendants do not seriously
dispute, that the pre-complaint deletions destroyed ESI that would have been relevant and
admissible evidence at trial.
D.

Imposition of an Adverse Inference Instruction is Warranted for PreLitigation Deletions

..
In considering a sanction under C.R.C.P. 37, a court must craft an appropriate sanction by
considering the complete range of sanctions, weighing the sanction in light of the record, and
choosing a sanction that effectuates proportionality between the sanction imposed and the
culpability of the offending party. Pinkstaff v. Black & Decker (US.) Inc., 211 P.3d 698, 702
(Colo. 2009) (citations omitted). A court should impose the "least severe sanction that will
ensure there is full compliance with [the] court's discovery orders and is commensurate with the
prejudice caused to the opposing party. !d.
As articulated above, Landers, Yousif were acting with at least gross negligence, and the
ESI they destroyed almost certainly contained relevant and admissible evidence. As such, PPH
has been deprived of this evidence, and the resulting prejudice warrants the imposition of an
adverse inference instruction regarding the spoliation in order to restore PPH to the position it
would have held had there been no spoliation. See Alai, 129 P.3d at 1002 (citing Rodriguez v.
Schutt, 896 P.2d 881, 884 (Colo. App. 1994). Furthermore, imposition of an adverse inference
instruction in this case is warranted to deter destruction of evidence. !d.
The Court notes that PPH has requested entry of default judgment, and that Colorado
courts have been willing to enter default judgment in cases of spoliation. However, the Court
finds that an adverse inference instruction is commensurate with the seriousness of Defendants'
conduct and better comports with Colorado Supreme Court guidance regarding proportionality
under C.R.C.P. 37.
II.

Post-Complaint Deletions
A. Defendants' Duty to Preserve Evidence

When Hartley instructed Defendants on April 9, 2014 to "delete every single file
predating [Landers's] departure from PPH, including Outbox, Sent Mail, any archives, Drafts,
Trash/Deleted Files," the lawsuit had been pending for six days, and Defendants and counsel had
been on notice of that lawsuit for six days. It is thus undisputed that when Hartley gave the
instruction to destroy ESI, Defendants and counsel had a duty to preserve evidence.
B. Defendants' Mental State
9

A discussed supra, a court may impose sanctions under C.R.C.P. 37 in response to

spoliation of evidence when a party's conduct is intentional; in bad faith; willful or deliberate;
reckless; or grossly negligent. See Pjantz, 85 P.3d at 568; Alai, 129 P.3d at 1003.
Here, the Court finds that Defendants and counsel at Bryan Cave have engaged in
reckless and bad faith conduct that, to borrow a phrase from the Pfantz court, is a "flagrant
disregard [and] dereliction of discovery obligations." 85 P.3d at 568. Hartley instructed her
clients to destroy ESI that was relevant to an ongoing lawsuit, and Landers and Yousif deleted an
untold number of emails. The relevance of the evidence was not by chance; Hartley ordered the
deletion of the emails precisely because of their relevance to the claims at issue. The Court
cannot summon a more serious violation of basic document preservation guidelines and
discovery obligations.
The bad faith conduct did not begin, nor did it end, with counsel's deletion instruction
and the resulting spoliation. The Court finds that by failing to issue an immediate litigation hold,
counsel at Bryan Cave failed in their obligation to timely and adequately ensure the preservation
of ESI.

Hartley in particular failed to take any steps to inquire whether the ESI had been

preserved before issuing the destruction order.

Further egregious bad faith conduct occurred on April 10, 2014, only one day after
Defendants deleted the email files at the instruction of counsel. On that day, Landers swore in an
affidavit that he "did not take any documentation, customer lists, supplier lists, contracts, or other
PPH materials" with him when he resigned from PPH. The affidavit contains no reference to the
post-resignation possession of PPH materials in the form of ESI, nor that Defendants had deleted
the ESI at the instruction of counsel only a day earlier. Miller reviewed the Landers Affidavit
and filed it with this Court, thereby suborning perjured testimony from Landers that Landers had
no PPH materials after he left PPH, a fact that Miller knew to be untrue due to the email he
received from Hartley only a day earlier. See C.R.P.C. 3.3(a)(J) ("A lawyer shall not knowingly .
. . make a false statement of material fact or law to a tribunal or fail to correct a false statement
of material fact or Jaw previously made to the tribunal by the lawyer[.]"); C.R.P.C. 3.3(a)(3) ("If
a lawyer, the lawyer's client, or witness called by the lawyer has offered material evidence and
the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures,
10

including, if necessary, disclosure to the tribunal."). Miller also failed to alert the Court or
opposing counsel to the spoliation that Bryan Cave had ordered the day before, anotl)er clear
violation of professional and ethical obligations. See In re Fisher, 202 P.3d 1186, 1202 (Colo.
2009) (holding that "failure to disclose material information to a tribunal is the equivalent of
making a false statement of material fact").
The obfuscation and lack of candor toward the Court continued at the May 28, 2014
Preliminary Injunction hearing before this Court, where Landers discussed the pre-litigation
deletions but neglected, however, to inform the Court about the post-complaint deletions, or that
the deletions were at the instruction of counsel. Miller again also failed to disclose the postcomplaint ESI destruction.
Only on November 13, 2014 did Defendants and counsel disclose the post-complaint
destruction of ESI as well as counsel's involvement in the spoliation. Far from "proactive" as
Defendants assert, this disclosure was in response to the November 3, 2014 letter from PPH' s
counsel Stephen Sayers, which outlined concerns regarding Defendants' truthfulness and raised
the issue of spoliation of evidence. The disclosure occurred more than seven months after the
spoliation, and was accompanied by the offer of a "very limited waiver" of the attorney client
privilege and work-product protection so that PPH could inquire into the deletions.
Defendants have attempted to downplay the post-complaint spoliation by describing it as
a miscommunication and the mistake of a "young lawyer." Regardless of how Hartley's deletion
instruction came about, it was an express directive from counsel to Defendants instructing them
to destroy ESI relevant to pending litigation. Moreover, the "young lawyer" Hartley is a Yaleeducated attorney with I 0 years of experience. A survey of Colorado disciplinary decisions
reveals that the window of inexperience afforded to attorneys as a mitigating factor extends to, at
the very most, seven years. People v. Woodrum, 911 P.2d 640, 641 (Colo. 1996) (mitigating
factor of "inexperience" applied to attorney who had been practicing for one year); In re Roose,
69 P.3d 43, 49 (Colo. 2003) (mitigating factor of "inexperience" applied to attorney who had
been practicing for less than two years); People v. Wallin, 621 P.2d 330, 330 (Colo. 1981)
(mitigating factor of "inexperience" applied to attorney who had been practicing for three years;
attorney had been a solo attorney for less than a year and handled only one prior felony case);
11

People v. Fiore, 301 P.3d 1250, 1253 (Colo. O.P.D.J. 2013) (attorney with three years of
experience deemed "relatively inexperienced"); People v. Edwards, 240 P.3d 1287, 1290 (Colo.
O.P.D.J. 2010) (attorney with less than four years of experience deemed "relatively
inexperienced"); People v. Hensley-Martin, 795 P .2d 262, 265 (Colo. 1990) (mitigating factor of
"inexperience" applied to attorney who had been practicing for seven years).
Defendants also maintain that all of the post-complaint deletions have been restored and
preserved. The Court is unpersuaded by this assertion. By his own admission, Landers is unsure
of how many documents were deleted or how many documents were restored.

The only

evidence of restoration produced by Defendants is the purported screenshot of Landers's AOL

account showing folders including "Recovered Mail" with 48 emails, and "Recovered Sent
Mail" with 1,096 emails.

However, this screenshot is undated, un-Bates-stamped, and

unauthenticated. Defendants have produced no AOL witness, or communication from AOL,

confirming any restoration of emai1s. Nor have the Defendants produced any independent expert
analysis of recovery efforts.
C. Relevance and Admissibility of Evidence

As discussed supra, there is no question that Landers conducted all of his PPH business
on his AOL account, or that the post-complaint destruction of ESI would have included relevant
and admissible evidence at trial.
D. Imposition of an Adverse Inference Instruction is Warranted for PostComplaint Deletions

The Court is deeply troubled by the post-complaint destruction of ESI as well as Bryan
Cave's involvement in the spoliation. The Court is further concerned by the omissions and halftruths that have pervaded Defendants' and Bryan Cave's explanations regarding the postcomplaint spoliation.
The repeated bad faith conduct on the part of both Defendants and counsel warrants the
imposition of a sanction under C.R.C.P. 37. As with the pre-litigation spoliation, the Court notes
that PPH seeks entry of default judgment against Defendants. However, the Court again finds

12

that an adverse inference instruction is appropriate as the least severe sanction which will address
the prejudice caused to PPH and deter future discovery abuses.

CONCLUSION
WHEREFORE, as set forth above, the Court GRANTS IN PART and DENIES IN PART
Plaintiffs Motion for Default Judgment or, in the Alternative, an Order Granting an Adverse
Inference, Against Defendants All American Pet Proteins, LLC, John F. Landers and Michael A.
Yousif, as a Result of Their Deliberate Spoliation of Evidence.
The Court GRANTS the Motion as to Plaintiffs request for an adverse inference
instruction and DENIES the Motion as to Plaintiffs request for entry of default judgment.
Plaintiff shall draft an adverse inference instruction that comports with the jury instructions
affirmed by the Colorado Supreme Court in Alai v. Union Pac. R.R. Corp., 129 P.3d 999, 1001
(Colo. 2006) or by the Colorado Court of Appeals in Pfantz v. Kmart Corp., 85 P.3d 564, 567
(Colo. App. 2003), to be filed with the Court not later than 21 days from the date of this Order.
The Court further GRANTS Plaintiffs request for attorney fees expended in preparing
and arguing the Spoliation Motion. Plaintiff shall file an affidavit of fees not later than 21 days
from the date ofthis order.
Dated this II th day of June, 20 15.
BY THE COURT:

MICHAEL A. MARTINEZ
District Court Chief Judge

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