issues that we appealed in this appeal the first one is whether mr her food had committed a breach that intitled to that excuse her from performing her side of the contract and the second issue is whether she had committed spoliation by telling the plaintiff's telling us that that all of the e mails that she had that were related to this contract were quote unquote destroyed by her assistant when he or she was fired in the first issue on the issue of the contract the contract is pretty clear it's not well written and it's kind of ambiguous but it is clear that it's a contract between mr her food and ms we're happy he's a he's a promoter she's an entertainer she was supposed to come to the united states in canada and perform a few different concerts the contract does say that she will be accompanied by another artist and later on as was confirmed by both parties she decided she did not want to perform with that artist she requested another artist so her foolish agreed however she was unable to get a visa for the other artist now this sort of person was supposed to be the second  accompanying her there's nowhere in the contract that says anything about a condition for her to be performing with the second person who is unable to get a visa specifically in this case this person that she says she had to perform with was not even mentioned in the contract he is not mentioned in the amendment to the contract for some reason the court decided that because there was proof that the parties did talk about this other person mr allow me accompanying the artist and harf was unable to obtain a visa for him therefore she would be excused from performing her side she would be excused with holding and retaining whatever deposit all the expenses and she had no liability under the contract  our position is that she had no right to cancel her performance yet no right to unilaterally breach her side of the contract she should have performed and certainly she decided not to she breached the contract she should be responsible for whatever penalt whatever damages the contract contemplates that should be paid if there's a breach of the the agenda him get a visa there's nothing that says that if you if he doesn't if you can't make it on for some reason he doesn't then his name is didn't change is the requirement in the initial contract regarding the visa so you know the obligation to get the visas did he not he had the obligation to get the visa and he got the visa for the main person who was doing the agreement the issue was the issue that they made is that he was unable to get the visa for the person who's going to accompany the person and where in the contract him the authority to substitute whomever he wants he wasn't trying to substitute they had their there she's the one who requested to have somebody else because she she testified in a deposition and there's agreement from both parties that she's the one who requested another person she said she doesn't want was a toughie and she agreed he did agree and where in the contract there's a he can distance place that choice it doesn't say that it doesn't say that the contract is not say that but i just meant that our position is that although the contract is implicitly says that he's got to get visas for everybody and he was not able to get for the other person but it's not in material terms of the contract there's nothing in the contract and the proof that it's some material is because she later decided she wanted somebody else so there's no reason why the fact that she wasn't able to get the other person that they both agreed should be accompanying her the fact that she couldn't get a visa for him there's no reason that was no excuse for that's not a material breach that would have allowed her to cancel the performance  amendment well the amendment says other things also it talks about it talks about you know reducing the price it talks about some of the other things that they want to do and it's i mean it is part of the contract that somebody else was supposed to come with her it's just that you know they were not able to get that and that in itself was not a material breach for her to you know excusing her from the performance on of the contract and i thought  she appeared for the performances in canada correct that's correct and she was accompanied by a law me correct he was there with her yes he was and they shared a band and members correct and the problem was your client couldn't get the visas for let me to enter into the united states that's correct and even before they left to come to canada to perform in canada they canceled the performances in the united states  cancelled and that's on the record he only cancelled after she said that she would not go to be united states because he couldn't get the visa he did cancel eventually at some point he had to cancel and she said that she's not going to go if he doesn't go and that's what he did but you know straight forward so she testified and she said that means those emails were very material a very relevant was the communications between the party would have shed light on what the intent was and what would have happened if you know something like mr obama not getting if that what would have happened then she testified simply she said that well you know i had all those e mails we know we had it but i don't have it anymore because i had in the system and when when she left she deleted all of the e mails provided no proof of that just didn't even say exactly what time it happened or when it happened she couldn't remember and all she said was that well sorry i don't have it because my employer aced them you know and that's you know we put in our papers that if that's going to be the standard then it's any party can always claim that you know m evidence in the record went to that she knew that there was pending litigation in future litigation or potential litigation or likely litigation well there's two issues there first but we don't know what when that happened you know i asked her and she said she thought it was around two thousand when did you my question was when did we was there any evidence the record when she was informed that there was going to be litigation well at some point she was certainly one of those you're still in answering my question when when was she in what i would say that when when he started making demands certainly by the time he filed the lawsuit which was in august two thousand and ten i certainly at that point she knew about it in two thousand and eight and ninety had communications where he was accusing her of having breached the contract the real problem is when you fire her assistant we don't know if that's the real problem i don't know when that happened she said she thought it was maybe in two thousand and eight but she doesn't know when you know when that happened so you know we're left with a situation where a party can just say well you know i don't remember i don't know this somebody or a said it happened at some time i suggest that we put our position is that if a party you know the burden shifts once you make it once you make up once you can make a showing that the party erased you know erased the lead of the e mails then the burden should shift on the other party to prove well what did happen and why he or she is innocent of the deletion there was no such thing that was just a statement from her saying that all they were raised when she left without giving any more information what would be material in any of that information you believe has been spoiled for example if there was any communication where she said that she you know it wasn't that she wanted a law made because you know he was better than the other person and she had any indication that it wouldn't have been with cereal who the person was was going to sing with her you know we put in the record that she eventually agreed to come to the united states with a person who might find feels is not as prominent as as the other person that it seems that you want to go outside the contract and present evidence it's outside of the contract to interpret the contract that is correct you want to because it's not considered that it was isn't is an ambiguous on in big us countr party who breaches a contract may not then sue the other party to the contract for breach of contract and match what occurred here the amendment of two thousand and seven could not be clear performances listed and as a very prominent entertainer in the arabic speaking world the person with whom she shares a contract billing is quite important for now we are stature issues of combat ability and her promoted by the plaintiff with mister and there was evidence obtained during the course of litigation that in fact mr hart to cancel the us concerts i think even before my client left lebanon to go to canada because he could not secure the proper visa for mr allen as far as the swirly ation argument of course we agree with the district court there was never any evidence that first of all is a threshold issue that my client destroyed any evidence and just as importantly i started number two the court never found because there is no evidence that there was ever a triggering event which would compel her to preserve any documents that she might have disaster i believe the earliest triggering event would have been three years after the occurrence of the vet the events in this case in two thousand and ten when mr