Wolff Shoe Company v. Mosinger Company, LLC

Filing 256

OPINION MEMORANDUM AND ORDER 239 IT IS HEREBY ORDERED that Defendants Motion for Adverse Inference for Plaintiffs Spoliation of Detail Sheets, [Doc. No. 239], is denied. Signed by District Judge Henry E. Autrey on 7/1/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WOLFF SHOE COMPANY,

)
)
Plaintiff,
)
)
v.
) No. 4:11CV601 HEA
)
MOSINGER COMPANY, LLC, et al., )
)
Defendants.
)
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants Motion for Adverse Inference
for Plaintiff’s Spoliation of Detail Sheets, [Doc. No. 239]. After having heard
arguments on this motion on June 28, 2013, the Court finds that the motion should
be denied.
Facts and Background
Plaintiff brought this action for alleged copyright infringement by
Defendants under the provisions of Title 17 of the United States Code. Plaintiff
claims Defendant copied its UMEKO shoe, in which Plaintiff claims a Certificate
of Registration for a copyrightable work entitled Decorative, Ornamental Hole
Patterned Motif for Apparel, Accessories and the Like. Defendants deny the
allegations.

Defendants served their fifth Request for Production of Documents on June
1, 2012, seeking “all documents referring or relating to instances when the
UMEKO shoe was shown to wholesale customers.” In January, 2013, Defendants
requested from Plaintiff all “detail sheets” created by Plaintiff’s sales
representatives since 2007, as well as “detail sheets” or other documents created
by the sales representatives which referenced the UMEKO shoe. Defendants
contend that Plaintiff did not offer to sell the UMEKO shoe in 2008 or later.
Plaintiff set aside 25 boxes containing the records it had from its
independent contractor salespersons containing “detail sheets,” which Plaintiff
concedes do not contain all of the detail sheets prepared by the salespersons.
Discussion
Defendants contend Plaintiff made no attempt to preserve documents from
the point at which Plaintiff became aware of the alleged copying, urging that
Plaintiff should be sanctioned for this alleged failure to preserve. Consequently,
Defendant seeks an instruction that due to Plaintiffs intentional failure to preserve
evidence that the jury may draw an inference that the UMEKO shoe was not
contained in the detail sheets.
Conversely, Plaintiff argues that it maintains a document retention policy
wherein the destruction of documents may only be authorized and carried out by
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Plaintiff’s Vice President of Sales and Marketing, Tim Rosheim.
“Under federal law, ‘there must be a finding of intentional destruction
indicating a desire to suppress the truth.’ [Stevenson v. Union Pac. R.R. Co., 354
F.3d 739] at 746 (emphasis added) (citing, inter alia, Lewy v. Remington Arms
Co., 836 F.2d 1104, 1111–12 (8th Cir.1988) (citing federal law for the general
proposition that the adverse inference instruction is appropriate only where the
spoliation or destruction of evidence is intentional and indicates a fraud or desire
to suppress the truth)).” Sherman v. Richem Co., Inc.; see also, Hallmark Cards,
Inc. v. Murley, 703 F.3d 456, 460 (8th Cir.2013)(To impose a sanction for
spoliation of evidence, “there must be a finding of intentional destruction
indicating a desire to suppress the truth.”; Greyhound Lines, Inc. v. Wade, 485
F.3d 1032, 1035 (8th Cir.2007).
It is undisputed that the salespersons, independent contractors of Plaintiff,
may not have maintained all of their “detail sheets.” Defendants contend that the
sales representatives were well within Plaintiff’s control and that Plaintiff “could
have easily obtained documents from its sales representatives upon request.”
However, assuming arguendo, that Plaintiff could indeed have obtained the
documents upon request, this inaction is insufficient to impose the sanction of an
adverse inference instruction to the jury. Defendants’ argument that Plaintiff
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intentionally failed to issue an appropriate litigation hold and properly preserve
documents is not the appropriate standard by which this Court examines
Plaintiff’s actions. As set out above, the Court must determine whether Plaintiff
intentionally destroyed the detail sheets with a desire to suppress the truth.
Defendants have produced no evidence to even remotely indicate that Plaintiff
took any steps to intentionally destroy any detail sheets, whether in its possession
or in the possession of its salespersons. As such, Defendants are not entitled to an
instruction for spoliation of evidence.
Conclusion
The Court has heard argument and has considered the memoranda of the
parties regarding the existence and nonexistence of “detail sheets” from the point
at which Plaintiff contends Defendants infringed its copyright. There is no
evidence to support Defendants’ contention that the “detail sheets” were
intentionally destroyed with a desire to suppress the truth that the UMEKO shoe
was not still being offered for sale by Plaintiff in 2008, 2009 or 2010. Defendants’
Motion will be denied.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Adverse

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Inference for Plaintiff’s Spoliation of Detail Sheets, [Doc. No. 239], is denied.
Dated this 1st day of July, 2013.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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