Contract Design Group, Incorporated et al v. Wayne State University et al

Filing 161

ORDER Denying 147 Plaintiffs' Motion for An Adverse Inference. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CONTRACT DESIGN GROUP, INC., and
ROBERT MURRAY,
Plaintiffs,
v.

Case Number: 10-14702
Honorable Victoria A. Roberts

WAYNE STATE UNIVERSITY, THE WAYNE
STATE UNIVERSITY BOARD OF GOVERNORS,
JAMES R. SEARS, JOAN M. GOSSMAN, and
JOHN L. DAVIS,
Defendants.
/
ORDER DENYING PLAINTIFFS’
MOTION FOR AN ADVERSE INFERENCE (Doc. # 147)
This matter is before the Court on Plaintiffs’ “Motion for an Adverse Inference and
Inspection Based Upon Wayne State’s Non-Production of Documents Showing That Its
Project Manager Approved Contract Design Group’s Invoices for Payment” (Doc. #
147). Plaintiffs filed this motion on June 18, 2013 – shortly before trial was scheduled to
begin – after Joel Quiroz, a former Wayne State employee, told them he had a thumb
drive containing outstanding Contract Design invoices that were approved and signed
by Wayne State’s project manager.
Plaintiffs ask the Court for: (1) an order permitting them to review the contents of
Mr. Quiroz’s thumb drive; (2) an order compelling Wayne State to produce Mr. Quiroz’s
severance agreement; and (3) an adverse inference instruction based on Wayne State
University’s non-production of documents showing that its project manager approved
Contract Design’s invoices for payment. Defendants voluntarily produced Mr. Quiroz’s

severance agreement and agreed to allow Plaintiffs to review his thumb drive. The
remaining issue is whether to issue an adverse inference instruction.
After Plaintiffs filed this motion, the Court adjourned trial and allowed the parties
additional discovery regarding Mr. Quiroz’s thumb drive and his allegation that
Defendants had, but failed to produce, Contract Design’s approved invoices for
payment. The parties submitted supplemental briefing based on the additional
discovery. This matter is fully briefed.
“[A] party seeking an adverse inference instruction based on the destruction of
evidence must establish (1) that the party having control over the evidence had an
obligation to preserve it at the time it was destroyed; (2) that the records were destroyed
‘with a culpable state of mind’; and (3) that the destroyed evidence was ‘relevant’ to the
party's claim or defense such that a reasonable trier of fact could find that it would
support that claim or defense.” Beaven v. United States Dept. of Justice, 622 F.3d 540,
553 (6th Cir. 2010) (citation omitted).
Plaintiffs fail to establish that an adverse inference instruction is appropriate.
First, there is no proof that the alleged approved invoices ever existed. Therefore, the
Court cannot conclude that Wayne State was “a party having control over the evidence,”
such that it “had an obligation to preserve it.” See id. Likewise, there is insufficient
evidence to conclude that such evidence was destroyed. Plaintiffs rely on Mr. Quiroz’s
declaration and argue his thumb drive “contain[s] various relevant documents that
Wayne State failed to produce during discovery,” including the alleged approved
invoices. After reviewing the contents of the thumb drive, however, the parties did not
find any of the alleged approved invoices.
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Defendants submit the affidavits of several Wayne State employees. All
employees declare that they never approved, or at least do not remember approving,
any of the subject invoices. These employees also swear that they never came across
any of the alleged approved invoices while compiling documents to produce. Therefore,
whether the invoices ever existed comes down to a factual determination based on the
statements of Mr. Quiroz – who incorrectly declared that his thumb drive contained the
approved invoices – and the statements of the Wayne State employees. Because
Plaintiffs do not establish that the alleged approved invoices ever actually existed, they
fail to satisfy the first element for an adverse inference instruction.
Notwithstanding whether or not the approved invoices ever existed, an adverse
inference instruction is inappropriate based on Plaintiffs failure to establish that
Defendants had a “culpable state of mind.” See id. at 554 (citation omitted)(holding that
“[t]he ‘culpable state of mind factor’ is satisfied by a showing that the evidence was
destroyed ‘knowingly ... or negligently’”).
There is no evidence showing, or suggesting, that Defendants knowingly
destroyed evidence, and the facts do not support a finding that Defendants were
negligent in preserving evidence. Rather, the evidence supports a finding that
Defendants diligently, and in good faith, tried to find and produce all relevant documents
in compliance with their discovery obligations. The evidence shows that Wayne State
sent several emails directing employees to search and preserve evidence related to this
litigation; Defendants spent great effort and numerous hours searching for and
compiling relevant documents to produce. They did not act in bad faith.
Plaintiffs summarily contend that Defendants were negligent, at a minimum,
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because they did not produce the alleged signed, approved invoices. However, the
basis for Plaintiffs believing the invoices ever even existed – Mr. Quiroz’s assertion that
they were on his thumb drive – turned out to be false. Without any evidence that
Defendants knowingly destroyed or negligently maintained documents, the Court cannot
find that Plaintiffs established the “culpable state of mind” element.
Plaintiffs fail to establish that an adverse inference instruction is appropriate or
warranted; their Motion for an Adverse Inference and Inspection is DENIED.
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: November 21, 2013
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
November 21, 2013.
S/Linda Vertriest
Deputy Clerk

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