Mueller v. Swift et al
ORDER on Defendants' Motion for Sanctions. Defendants' Motion for Sanctions for Plaintiff's Spoliation of Evidence (ECF No. 139 ) is GRANTED IN PART and DENIED IN PART. ORDERED by Judge William J. Martinez on 07/19/2017. (angar, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-1974-WJM-KLM
Defendant and CounterClaimant,
FRANK BELL, and
ANDREA SWIFT a/k/a Andrea Finlay,
ORDER ON DEFENDANTS’ MOTION FOR SANCTIONS
In this tort action pending under the Court’s diversity jurisdiction, 28 U.S.C.
§ 1332, Plaintiff pursues claims against all Defendants for tortious interference with his
employment contract and with related business expectancies, while DefendantCounterClaimant Taylor Swift (“Swift”) pursues counterclaims for the torts of assault
and battery. Now before the Court is Plaintiff’s Motion for Sanctions for Plaintiff’s
Spoliation of Evidence. (ECF No. 139 (Defendants’ “Motion”).) As explained below,
Defendants’ Motion is granted in part, to impose a spoliation sanction that is less harsh
than the adverse inference requested by Defendants, but which the Court finds is the
most appropriate sanction in the circumstances of this case.
I. BACKGROUND AND FINDINGS OF FACT
The Court set forth the factual background and allegations in this case in detail in
its Order Granting Summary Judgment in Part. (ECF No. 137 (“summary judgment
order”)), which is incorporated by reference herein, while repeating only the relevant
background in summary fashion. Plaintiff does not dispute any of the additional
evidence presented by Defendants in support of their present Motion. (See ECF Nos.
139-1 through 139-13; ECF No. 153.) Therefore, the additional background set out
below is both undisputed and supported by evidence in the record.
Plaintiff worked as an on-air radio personality for a Denver area radio station,
KYGO. On June 2, 2013, he attended a backstag e “meet and greet” preceding a
concert performed by Swift at Denver’s Pepsi Center. As detailed in the summary
judgment order, Swift alleges that during a staged photo opportunity at the “meet and
greet,” Plaintiff purposefully and inappropriately touched her buttocks beneath her
dress. Plaintiff denies having done so. (See ECF No. 137 at 2–3.)
Plaintiff’s employer, the company that owned KYGO,1 was informed of Swift’s
accusation on the evening of June 2, 2013 and on the following day. On June 3, 2013,
Plaintiff met with his superiors at KYGO, including Robert Call (“Call”) and Hershel
Coomer (a/k/a “Eddie Haskell”) (“Haskell”). Unbeknownst to Call and Haskell at the
time, Plaintiff made an audio recording of their conversation. (See ECF No. 139-4 at
5.)2 The following day, June 4, 2013, Plaintiff was terminated from his employment at
For simplicity, the Court refers to Plaintiff’s employer simply as “KYGO.”
All citations to docketed materials are to the page number in the CM/ECF header,
which often differs from the documents’ internal pagination, as in deposition transcripts.
KYGO by Call. Call explained that one reason for Plaintiff’s termination was because
Call perceived Plaintiff had “changed his story that it couldn’t have occurred, then that it
was incidental.” (ECF No. 108-8 at 20.)
At some point thereafter, well after having first contacted an attorney regarding
potential legal action, Plaintiff edited the audio recording of the June 3, 2013
conversation, and then sent only “clips” of the entire audio file to his attorney. (See
ECF No. 139-4.) In his deposition testimony, Plaintiff offered the following explanation
for these actions: “[t]he audio I recorded was close to two hours long. And the audio
that I could provide to [Plaintiff’s counsel] was a portion of the entire audio” (id.), and “it
was so long, that I edited down clips from the recording to provide to [Plaintiff’s counsel]
to give an idea of what kind of questioning I went . . . through” (id. at 12).
According to his testimony, Plaintiff edited the audio file on his laptop computer,
on which he also retained a full copy of the original audio file(s). (See id. at 11–12.)
However, sometime thereafter, coffee was spilled on the keyboard of Plaintiff’s laptop,
damaging it. (Id. at 14.) Plaintiff took the laptop to the Apple Store, and was given “a
new machine.” (Id. at 14.) He did not keep the original hard drive or recover the files
from it. Evidently this occurred sometime in 2015. (Id. at 18.) In addition, although
Plaintiff kept an external hard drive “to store audio files and documents” (id. at 15), and
the complete audio recording was saved on this drive (id. at 16), at some point it
“stopped working.” (Id. at 31.) At his deposition, Plaintiff testified that he “may have
kept” this hard drive (Id. at 16–17), but that because it was “useless” he “[didn’t] know if
I discarded it because it was junk” (id. at 16). It has not been produced. 3
The end result of all this is that the complete audio recording of the June 3, 2013
conversation among Plaintiff, Call, and Haskell has never been produced. So far as the
record reveals, Plaintiff is the only person who has ever heard it. Defendants and their
lawyers have never heard it, and neither has Plaintiff’s own lawyer. (See ECF No. 153
at 3, n. 1.) As a result, Defendants move for a Court-imposed sanction for spoliation of
evidence, and in particular for the Court to give the jury an adverse inference instruction
at trial, to direct the jury “that the entirety of the June 3, 2013 audio recording would
have been unfavorable to Plaintiff.” (ECF No. 139 at 15.)
II. LEGAL STANDARD
“A spoliation sanction is proper where: ‘(1) a party has a duty to preserve
evidence because it knew, or should have known, that litigation was imminent, and (2)
the adverse party was prejudiced by the destruction of the evidence.’” Jones v. Norton,
809 F.3d 564, 580 (10th Cir. 2015) (quoting Turner v. Pub. Serv. Co. of Colorado, 563
F.3d 1136, 1149 (10th Cir.2009)). In deciding whether to sanction a party for the
spoliation of evidence, courts have considered a variety of factors, but two “generally
In addition, the record reflects that Plaintiff also had an iPad which was “shattered” and
replaced in approximately 2015. (ECF No. 139-4 at 23–24). He also had a cell phone which he
used beginning in approximately 2010 or 2011, and which may have been the device he used
to record the June 3, 2013 conversation. (Id. at 25–26; see also ECF No. 139-10 at 6.) But, in
approximately November 2015—after this lawsuit was filed and pending—Plaintiff “threw it in
the trash.” (ECF No. 139-4 at 25.) However, the record does not establish whether either of
these devices contained relevant and discoverable evidence at the time they were destroyed.
Defendants also point to Plaintiff’s prior laptop, which was “fried” and replaced after water
spilled on it. (ECF No. 139 at 5; ECF No. 139-4 at 19–21.) But this occurred before the
incidents giving rise to this lawsuit. While the somewhat serial nature of Plaintiff’s loss of
electronic devices contributes to the conclusion that Plaintiff was needlessly careless in
protecting the devices that contained relevant evidence against known and obvious risks,
Defendants’ argument that he spoliated “five devices” is overstated.
carry the most weight: (1) the degree of culpability of the party who lost or destroyed the
evidence; and (2) the degree of actual prejudice to the other party.” Browder v. City of
Albuquerque, 209 F. Supp. 3d 1236, 1244 (2016).
“As a general rule, the ‘bad faith destruction of a document relevant to proof of
an issue at trial gives rise to an inference that production of the document would have
been unfavorable to the party responsible for its destruction.’” E.E.O.C. v. Dillon
Companies, Inc., 839 F. Supp. 2d 1141, 1144 (D. Colo. 2011) (q uoting Aramburu v.
Boeing Co., 112 F.3d 1398, 1407 (10th Cir.1997)). However, the Tenth Circuit has also
characterized an adverse inference as a harsh sanction. Jones, 809 F.3d at 580.
Accordingly, an adverse inference instruction may only be given if the Court makes a
finding that the party who lost or destroyed evidence did so in bad faith. Turner, 563
F.3d at 1149. “Mere negligence in losing or destroying records,” does not support
giving an adverse inference instruction, “because it does not support an inf erence of
consciousness of a weak case.” Aramburu, 112 F.3d at 1407.
However, the negligent loss or destruction of evidence may still warrant
imposition of lesser sanctions, “so long as the party seeking sanctions can show it
suffered prejudice and the other side was on notice that the evidence should be
preserved.” Browder, 209 F. Supp. at 1244; 103 Inv’rs I, L.P. v. Square D Co., 470
F.3d 985, 988 (10th Cir. 2006).
The nature of the appropriate sanction in any case “is a question peculiarly
committed to the district court.” Dillon v. Nissan Motor Co., 986 F.2d 263, 268 (8th Cir.
1993). The Tenth Circuit has noted that the district courts “have ‘substantial weaponry’
in their arsenal to shape the appropriate relief for spoliation.” Helget v. City of Hays,
Kansas, 844 F.3d 1216, 1225 (10th Cir. 2017) (quoting Turner, 563 F.3d at 1149).
Thus, spoliation sanctions may include, for example, “an award of attorney fees; an
order that the culpable party produce related documents regardless of any claims of
privilege or immunity; excluding evidence or striking part of a party’s proof; allowing the
aggrieved party to question a witness in front of the jury about the missing evidence;
and imposing costs for creating a substitute for spoliated data.” Browder, 209 F. Supp.
3d at 1244 (citations omitted). “Sanctions for spoliation serve three distinct remedial
purposes: punishment, accuracy, and compensation,” and may also be “designed to
promote accurate fact finding by the court or jury.” U.S. ex rel. Koch v. Koch Indus.,
Inc., 197 F.R.D. 488, 490 (N.D. Okla. 1999). “A court should select the least onerous
sanction necessary to serve these remedial purposes.” Id.
A Spoliation Sanction is Warranted
The Court concludes that Plaintiff’s loss or destruction of the complete recording
of the June 3, 2013 conversation constitutes sanctionable spoliation of evidence.
Duty to Preserve
Initially, Plaintiff does not dispute that he knew or should have known that
litigation was imminent and that he was therefore under a duty to preserve relevant
evidence, including the complete audio recording, at the time when he first altered it for
his own purposes and then lost or destroyed the unedited file. (See ECF No. 153.)
See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (“The
obligation to preserve evidence arises when the party has notice that the evidence is
relevant to litigation or when a party should have known that the evidence may be
relevant to future litigation.” (internal quotation marks omitted)).
The Court finds that Plaintiff knew or should have known that litigation was
imminent. He had consulted with a criminal attorney immediately following the events
of June 2, 2013, before being terminated by KYGO. (ECF No. 139-4 at 33.) He then
consulted with a civil attorney about the allegations in this case, on or very shortly after
June 4, 2013, and in contemplation of suing KYGO. (Id. at 47.) Indeed, it is quite likely
that the reason Plaintiff secretively recorded his conversation with Call and Haskell was
because he knew that some form of adversarial legal action was likely to follow.
Moreover, Plaintiff later edited the audio file in order to send “clips” to his own
attorney, when it was abundantly clear that litigation was imminent, because Plaintiff
himself was actively considering it. See Turner, 563 F.3d at 1149 (duty to preserve
evidence arises when party “knew, or should have known, that litigation was imminent”);
see also Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F.
Supp. 2d 456, 466 (S.D.N.Y. 2010) (“A plaintiff’s duty is more often triggered before
litigation commences, in large part because plaintiffs control the timing of litigation.”)
abrogated in part on other grounds, 685 F.3d 135 (2d Cir. 2012). Plaintiff does not
contest the fact that he was under a duty to preserve the recording at the time when it
was lost. (See ECF No. 153.)
The Court also readily concludes that the recording of the June 3, 2013
conversation was relevant to numerous disputed facts and issues in this case. For
instance, to prevail on his tortious interference claims, Plaintiff must prove that
Defendants’ communication with KYGO was improper, and that Defendants’ conduct
caused KYGO to terminate him. (See generally ECF No. 137 at 13, 18-23, 28.) The
statements made by Plaintiff and by Messrs. Call and Haskell the day following the
incident with Swift and the day before KYGO fired him would plainly be relevant to
proving or disproving those facts. Moreover, the record reflects that one of the reasons
Mr. Call decided to terminate Plaintiff was because he perceived that Plaintiff had
“changed his story” during the course his communications with KYGO. (ECF No. 108-8
at 20.) A recording of this conversation could be invaluable to a jury that will be asked
to decide, in part, whether they agree with Mr. Call’s assessment that Plaintiff has been
inconsistent in his descriptions of the events of June 2, 2013.
In short, the Court holds to its prior characterization of the lost recording as
“contemporaneously-created evidence regarding the central disputed events in this
case.” (ECF No. 137 at 10–11 n.5.) Since the Court f inds the likely relevance of this
evidence to be obvious, and since Plaintiff makes no attempt to argue otherwise (see
ECF No. 153), the Court will not belabor the point by listing all of the issues in dispute
as to which the recording might have been probative, if it had been preserved.
The Court similarly finds that Defendants were prejudiced by the loss of
evidence. At the very least, if the complete recording had been available, it might have
saved time and expense in litigation by documenting the June 3, 2013 conversation,
allowing for better preparation for depositions and ultimately for trial. Moreover, to the
extent there may now be discrepancies in the accounts that Plaintiff and Messrs. Call
and Haskill give regarding their June 3, 2013 conversation, the recording would
probably have resolved them. The absence of the recording limits Defendants’ ability to
explore whether Plaintiff has or has not “changed his story,” and Defendants are largely
unable to cross-examine Plaintiff regarding any “cherry picking” of only the favorable
“clips” of the conversation. For all these reasons, Plaintiff’s spoliation of evidence was
prejudicial to Defendants. Once again, the Court finds this conclusion to be quite clear,
and so does not attempt to explain every aspect of the prejudice. Again, Plaintiff makes
no argument to the contrary. (ECF No. 153.)
Finally, the Court finds that the degree of culpability warrants a sanction.
Although the Court declines to make a finding that Plaintiff acted in “bad faith” in the
sense that he intended to destroy the evidence, it also cannot characterize the loss or
destruction of evidence in this case as innocent, or as “mere negligence.” See
Aramburu, 112 F.3d at 1407. Rather, the spoliation f alls higher up on the “continuum of
fault.” Browder, 209 F. Supp. at 1244. Evidence of obvious relevance that Plaintiff
himself created and knew was in his sole custody was lost for entirely foreseeable and
preventable reasons. Plaintiff had numerous opportunities to take easy steps to
prevent this ultimate loss of evidence, but failed to do so. Cf. McCargo v. Texas
Roadhouse, Inc., 2011 WL 1638992, at *9 (D. Colo. May 2, 2011) (“even if Defendant’s
intent was not evil, Defendant certainly had notice of the duty to preserve, a
responsibility to do so, and understood the consequences of the failure to do so”).
Plaintiff knew full well that litigation was imminent, since he was pursuing it. He
knew that he was the only person in possession of the complete audio recording. He
made the decision— inexplicably, in the Court’s view—to alter the original evidence and
to present his lawyer with only “clips” hand-picked from the underlying evidence. This
reflects that he obviously intended to make use of portions of the recording to advance
his own claims.4 Plaintiff nevertheless failed to take any number of rather obvious steps
to assure that this evidence was not lost. While the spill of liquid on his laptop may not
have been Plaintiff’s fault, it was an entirely foreseeable risk. Indeed, the same thing
had happened to Plaintiff’s previous laptop not long before. See supra, note 1. Plaintiff
could and should have made sure that some means of backing up the files relevant to
litigation was in place, but this was not done.
Moreover, when Plaintiff surrendered his laptop for repair or replacement, he
knew that it contained relevant evidence. Depending on whether this occurred before
or after the loss of his external hard drive (the record is unclear), the laptop contained
either the only remaining copy of the complete audio file or one of only two, as Plaintiff
also knew or should have known. Despite this, the record does not reflect that he made
any effort to retain the hard drive, to have it returned to him after he surrendered the
damaged laptop, or to otherwise recover the lost file(s). The same was true when his
external hard drive stopped working. Rather than saving it, seeking to have it repaired,
Plaintiff’s explanation for why he provided his attorney only “clips” of the recording
makes little sense. The original recording was, according to Plaintiff, “close to two hours long.”
Attorneys routinely spend a far longer time reviewing evidence and investigating a case in its
early stages. Moreover, the parties—and the Court—have now spent far, far more time and
money addressing this issue than it would have taken for Plaintiff’s counsel to listen to—and
then preserve—the complete file in the first place.
or taking steps to preserve the files stored on it, Plaintiff evidently just set the drive
aside, and eventually lost it.5
It is also troubling that Plaintiff later “threw out” his cell phone, months after this
litigation was filed. The record does not establish whether or not the phone contained
relevant evidence (see supra, note 1), but it was a device Plaintiff had used during the
time relevant to his claims, and it may have been the device he originally used to record
the June 3, 2013 conversation. The record also does not establish whether Plaintiff
took any steps to confirm that the phone contained no relevant evidence, or whether he
discussed with his attorney whether he should throw it away.
On the whole, the present record leaves the Court with the view that Plaintiff was
unjustifiably careless in his handling of evidence that he had a clear duty to preserve,
particularly evidence that he himself had taken the trouble to create. Plaintif f may seek
almost $3 million for his claims in this case. (See ECF No. 135-2 at 2.) He has testified
that “my life was ruined” as a result of Swift’s accusations. (ECF No. 135-5 at 5.)
Given these claims, it is very hard to understand how he spent so little time and effort to
preserve the very evidence which—one might think—could have helped him to prove
his claims, and why he evidently responded with nonchalance when that evidence was
Defendants retained an expert in data forensics, Jason T. Briody, who submitted a
report opining “there is a high likelihood that all of the data stored on each of these devices was
[sic] still fully recoverable.” (ECF No. 139-13 at 5–6.) While this may be true, the relevant point
for present purposes is that there is no indication that Plaintiff even attempted to preserve the
relevant evidence that he knew was on his laptop and his external hard drive.
Despite the discussion of Plaintiff’s culpability above, the Court rejects
Defendants’ request to make a finding of bad faith and to give the jury an adverse
inference instruction. Having considered various options, and after directing
Defendants to brief the issue of alternative sanctions, the Court finds that the following
sanction is appropriate: Notwithstanding any limitations under Federal Rule of Evidence
611(b), Defendants will be permitted to cross-examine Plaintiff in front of the jury
regarding the record of his spoliation of evidence, as described above .6
The Court concludes this is the most appropriate sanction for several reasons.
First, while Plaintiff is culpable, the Court does not find that the nature of that culpability
warrants an adverse inference instruction. Although a threshold finding of bad faith is a
prerequisite for an adverse inference, the Court does not view bad faith as a binary or
“yes/no” issue. “The destruction of potentially relevant evidence obviously occurs along
a continuum of fault—ranging from innocence through the degrees of negligence to
intentionality.” Browder, 209 F. Supp. 3d at 1245 (alterations incorporated; internal
quotation marks omitted). As set forth above, the Court takes a dim view of Plaintiff’s
acts of spoliation, which Defendants characterize–-not entirely unfairly—as defendant
“cherry picking what he wanted” from the recording, then “conveniently destroy[ing] the
multiple copies.” (See, e.g., ECF No. 139 at 2, 7, 14.) 7 However, the record does not
establish—at least not clearly—that Plaintiff was acting with an intent to deprive
The Court will not allow any attorney to discuss the contents of this Order and the
Court’s imposition of sanctions in front of the jury.
The Court takes an even more dim view of Plaintiff’s counsel’s unexplained failure to
obtain, listen to, preserve, and produce the complete audio file, but that is a separate issue
from whether Plaintiff should be sanctioned.
Defendants of relevant evidence. Absent a more clear showing that Plaintiff’s conduct
reflected his own “consciousness of a weak case,” an adverse inference instruction is
not appropriate. See Aramburu, 112 F.3d at 1407; see also Fed. R. Civ. P. 37(e)(2) (as
to electronically stored information, adverse inference jury instruction is permissible
“only upon [a] finding that the party acted with the intent to deprive another party of the
information’s use in litigation”).8
Second, the Court finds that the other available evidence somewhat mitigates
the prejudice to Defendants. Although the recording is not available, all three
participants in the conversation (Plaintiff and Messrs. Call and Haskell) are anticipated
to testify at trial. (ECF No. 126 at 8, 12.) 9 In addition, the record includes Mr. Call’s
notes created at or shortly after the time of the June 3, 2013 conversation. (ECF No.
108-7.) The availability of testimony and other evidence reporting on what transpired
during the June 3, 2013 conversation somewhat mitigates the prejudice arising from the
fact that the audio recording of that conversation is no longer available.
The evidence here was not the type of large-volume “electronically stored” information
which motivated the 2015 adoption of the present Rule 37(e)(2)(e). See Fed. R. Civ. P. 37,
Advisory Committee Notes to 2015 Amendment. Still, one might expect the rule to apply on its
face to an audio file that was digitally recorded and electronically stored. Neither party has
made any argument based on this Rule, although it is cited in Defendants’ Motion. Nor have
the parties addressed whether the requirement to show the opposing party “acted with the
intent to deprive” differs from a showing of “bad faith” under the older case law. These
questions would not alter the Court’s determination of the appropriate remedy here, and so they
are not further addressed, but Rule 37(e)(2)(e) gives further support to the Court’s conclusion
that an adverse inference instruction should not be imposed.
To effectuate its sanction, the Court will, in its discretion, take a relaxed approach to
the application of hearsay rules to the extent they might limit the testimony of Messrs. Call and
Haskell about the June 3, 2013 conversation. See Koch, 197 F.R.D. at 490 (“A court may also
choose to address spoliation by remedying any evidentiary imbalance caused by the spoliator’s
destruction of relevant evidence.”). Of course, it is likely that such testimony would not be
inadmissible hearsay anyhow. See Fed. R. Evid. 801(d)(2).
Third, an adverse inference instruction is a harsh sanction, Jones 809 F.3d at
580, and the Court finds it would be unduly harsh in the circumstances of this case. As
the Court emphasized in its summary judgment order, this case turns on resolution of
the parties’ irreconcilable versions of the events of June 2, 2013, and on the jury’s
determinations of Plaintiff’s and Swift’s respective credibility. If the Court were to
affirmatively instruct the jury that it may draw an adverse inference against Plaintiff, that
would put too heavy of a thumb on the scale against Plaintiff’s credibility and claims,
and would unduly intrude on the jury’s role in making credibility determinations. Cf.
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (“Credibility determinations . . . are jury
functions, not those of a judge.”) In these circumstances, an adverse inference
instruction could veer too close to directing a verdict, and would be too harsh a
sanction. See Koch Indus., 197 F.R.D. at 490 (“A court should select the least onerous
sanction necessary to serve [its] remedial purposes.”).
Fourth, allowing Defendants to cross examine Plaintiff about his spoliation of
evidence has the benefit of allowing the jury to make its own assessment of Plaintiff’s
degree of culpability and of the actual prejudice to Defendants. The Court has little
doubt that if the jury concludes Plaintiff acted with bad faith or an intention to destroy or
conceal evidence, they will draw their own adverse inferences, whether the Court
instructs it or not. In this case where Plaintiff’s credibility is critical to his claims,
allowing cross-examination regarding his spoliation of evidence, including the fact that
he personally chose and edited the “clips” now available to the jury is therefore quite a
heavy sanction. On the other hand, if the jury is persuaded that Plaintiff’s actions were
indeed innocent, then the impact of the Court’s sanction will be far less harsh.
Likewise, the jury may draw its own conclusions about the degree of actual
prejudice to Defendants. If the other evidence regarding the June 3, 2013 conversation
presents a consistent picture of what was said, then the jury will likely find that hearing
the recording would have changed little and that Defendants therefore suffered little
prejudice. But, if the accounts of that conversation reveal material inconsistencies, then
the jury’s desire to hear the recording for themselves will be much greater, and their
view of Plaintiff’s spoliation will, no doubt, be correspondingly more harsh. In this way,
the remedial effects of the Court’s sanction will be proportionally scaled to the degree of
Plaintiff’s culpability and the degree of resulting prejudice. See Koch, 197 F.R.D. at 490
(consideration of the “degree of culpability” and the “degree of actual prejudice” should
“carry the most weight”). However, the remedial and punitive impact of the Court’s
sanction will follow from the jury’s own findings and credibility determinations, rather
than from findings by the Court on the basis of only the written record.
For all these reasons, the Court concludes in the exercise of its discretion that
among all the many possible sanctions it might impose, the one set forth above is
properly suited to the circumstances of this case, is no more onerous than is necessary
to serve its purposes, and best serves the interests of justice.
For the reasons set forth above, Defendants’ Motion for Sanctions for Plaintiff’s
Spoliation of Evidence (ECF No. 139) is GRANTED IN PART and DENIED IN PART as
Dated this 19th day of July, 2017.
BY THE COURT:
William J. Martínez
United States District Judge
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