Smith et al v. Slifer Smith & Frampton/Vail Associates Real Estate, LLC et al

Filing 122

ORDER denying 60 Defendants' Motion for Summary Judgment, by Judge John L. Kane on 03/24/09.(wjc, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 06-cv-02206-JLK JANET STUART SMITH and JUSTINE SCOTT TAYLOR, individually and as co-personal representatives of THE ESTATE OF JUSTINE H. SMITH, deceased, Plaintiffs, v. SLIFER SMITH & FRAMPTON/VAIL ASSOCIATES REAL ESTATE, LLC and PETER W. SEIBERT, JR., Defendants. ORDER K a n e , J. I n light of Magistrate Judge Watanabe's findings and recommendation, a d o p t e d as Orders of this Court, that Defendants' willful and bad faith destruction o f electronically stored information on Defendant Seibert's computers warrants t h e use of an adverse inference instruction at trial which would instruct the jury to i n f e r that the destroyed evidence would have been unfavorable to Defendants, D e f e n d a n t s ' Motion for Summary Judgment (Doc. 60) is DENIED. The a v a i l a b i l i t y of such adverse inferences preclude entry of summary judgment on a n y of Plaintiffs' claims, which are premised on allegations that Seibert breached
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h i s statutory duties as a transaction broker and otherwise acted negligently or f r a u d u l e n t l y in his advice or failure to advise Plaintiffs regarding the purchase and s a l e of Plaintiffs' Vail property. This case will be set for a Pretrial Conference by separate Minute Order. As c o u n s e l may be aware, I require the parties to draft, exchange and submit a c o mp r e h e n s i v e , unified set of proposed jury instructions before the Pretrial C o n f e r e n c e . (Further instructions regarding my pretrial conference requirements w i l l be forthcoming in the Minute Order setting it). In addition, I will hear oral a r g u me n t at the pretrial conference on Plaintiffs' Motion in Limine re Agency A c t i o n Concerning Plaintiffs' Expert Bill Forsythe (Doc. 59). F i n a l l y , I advise the parties that if either side wishes a referral for s e t t l e me n t (with a magistrate judge other than Magistrate Judge Watanabe), c o u n s e l should contact my chambers and request one. Dated: March 24, 2009 s / J o h n L. Kane S E N I O R U.S. DISTRICT JUDGE

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