In Kincaid v. Wells Fargo Securities LLC, et. al. [pdf], No. 10-CV-808 (N.D. Okla. Jan. 19, 2012), U.S. Magistrate Judge Paul J. Cleary denied Plaintiff’s Motion for an Adverse Inference Instruction, holding that the plaintiff failed to prove that any relevant evidence was destroyed or withheld.  As a result, the plaintiff could not prove the element of bad faith required to warrant an adverse inference instruction in the Tenth Circuit.

In this breach of contract case, the plaintiff contended that the defendants failed to pay him deferred compensation upon termination from the defendants’ Tulsa office.  In discovery, the plaintiff sought information related to the defendants’ decision to close the Tulsa office as well as Microsoft Windows log-on/log-off data from certain employees’ computers.  Pursuant to the court’s prior order, the parties agreed upon search terms to identify electronically stored information.  After the search terms had been run and responsive documents produced, the plaintiff recalled a September 28, 2010 email related to “trade mandates” between him and other Wells Fargo employees.  The defendants explained that the email was not located because it was not keyword positive to the agreed upon search terms.  As a result, the defendants conducted an additional search of the relevant custodian mailboxes by date range and using search terms related to “trade mandates” to locate and produce the relevant email.

The plaintiff contended that the failure to produce the email was proof that other documents and emails existed and were not produced.  The court disagreed and found that the production of the September 28 email was actually further evidence that the defendants had complied with their obligation to preserve evidence and that the initial failure to locate the email was based on the plaintiff’s failure to include the relevant search term.  The court held that the plaintiff failed to present any evidence that documents were destroyed and rejected the plaintiff’s general spoliation allegations based on his “belief.”  However, the court ordered the defendants to produce certain custodians’ log-in/log-off data.