CORE/3505308.0002/156390547.2 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Carrie M. Francis (020453)

Stefan M. Palys (024752) 

Michael Vincent (029864)

STINSON LLP

1850 North Central Avenue, Suite 2100 

Phoenix, Arizona 85004-4584 

Tel: (602) 279-1600 

Fax: (602) 240-6925 

Email: carrie.francis@stinson.com

stefan.palys@stinson.com

michael.vincent@stinson.com 

Attorneys for Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Jeremy Thacker, No. 2:18-cv-00063-PHX-DGC

DEFENDANTS’ RESPONSE TO 

PLAINTIFF’S MOTION IN LIMINE 

NO. 4 – SPOLIATION 

Plaintiff,

v.

GPS Insight, LLC; Robert J. Donat, 

Individually and as Trustee of The 

Robert Donat Living Trust Dated April 

19, 2017, 

Defendants.

Plaintiff offers no authority to support the premise of his motion: that if a party 

does not seek a spoliation sanction, it cannot present evidence that a party destroyed 

evidence to the jury. These are two distinct issues. Wichansky v. Zowine, et al., CV-13-

01208-PHX-DGC, 2016 WL 6818945, at *11 (D. Ariz. Mar. 22, 2016) (denying a motion 

for sanctions but concluding that the “grievance about the missing recording can be 

presented to the jury through evidence and argument, with no need for the Court to place 

its thumb on the scale with an adverse inference instruction.”). Defendants can present 

the evidence regardless whether they seek or obtain an adverse inference instruction. The 

Court’s analysis of the motion can, and should, end here. 

Plaintiff destroyed two types of evidence. First, the same day Plaintiff preserved 

other evidence, he wiped his work computer. Plaintiff claims he “provided Defendants 

with all information from his work computer...” Mot. at 2:7. Not quite. At his 

Case 2:18-cv-00063-DGC Document 185 Filed 12/05/19 Page 1 of 4
2 

CORE/3505308.0002/156390547.2 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

deposition, Plaintiff testified that he “provided a copy of all work-related information” to 

GPSI, but that he deleted “my personal information” so it could not be “obtained by a 

jealous owner and used against me...” (Plaintiff Depo. at 15-17 (emphasis added), 

attached as Exhibit A). Among the information Plaintiff irretrievably deleted were 

conversations where there were “[o]ther employees talking about [Donat] or ... [about] 

my personal relationship, just personal conversations for the most part” because Plaintiff 

didn’t want “him having access to that.” (Id. at 16). Second, in February 2017 when 

Defendants believe Plaintiff was contemplating this lawsuit, Plaintiff irretrievably deleted 

Slack messages among himself and his key witnesses, Kristin Lisson and Robert Dennis 

for the “[s]ame reason [he] gave for the other” evidence destruction.1 (Id. at 18-20). 

The mere fact that Plaintiff recognized the Slack messages and information on the 

computer could be used against him shows: (1) he knew he was going to file a case where 

it could be used against him; and (2) the information was relevant to the case.2 From the 

other information Plaintiff did not delete, we know both are true. Plaintiff’s destruction 

of evidence is relevant to the jury’s evaluation of his credibility and candor.3 Anderson 

v. Prod. Mgmt. Corp., 2000 WL 492095, 5 (E.D. La. 2000) (denying request for adverse 

inference instruction; but “because evidence of the fact of destruction is relevant with 

respect to [a party’s] credibility and reliability, plaintiffs will have the opportunity to 

present the fact of inadvertent destruction . . . to the jury”); U.S. v. Hsia, 2000 WL 195068, 

2 (D.D.C. 2000) (“The Court also agrees with the government’s arguments that the 

 

1

 Plaintiff’s motion relates solely to his efforts to destroy evidence. The evidence at trial

will be that his two key witnesses, Kristin Lisson and Robert Dennis, also destroyed or 

helped Plaintiff destroy evidence. 

2

 Plaintiff contends his supposed ignorance of the duty to preserve evidence is an excuse. 

(Mot. 2:2-4) At best, arguments about Plaintiff’s culpable mental state go to whether the 

Court should give an adverse inference instruction, not whether the evidence can be 

presented. See Fed. R. Civ. P. 37(e)(2). 

3

 Plaintiff raises the red herring of alleged spoliation by Defendants. See Mot. at 2:11-

25. There has been none. Regardless, Plaintiff presents no authority that this would be 

relevant to whether the jury hears of his actions, because it is not. See Wichansky, 2016 

WL 681945 at 11 (separately addressing each parties’ alleged spoliation). As such, 

Defendants will not wade into the allegations again. See, e.g., Docs. 152 at 7-8 

(addressing sales policy) and 101 at 2 (Slack). 

Case 2:18-cv-00063-DGC Document 185 Filed 12/05/19 Page 2 of 4
3 

CORE/3505308.0002/156390547.2 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

evidence of alteration, destruction or creation of documents is relevant to the 

impeachment of [the credibility of] certain witnesses”). 

As this Court’s decisions show, the jury should be permitted to hear this evidence 

regardless whether Defendants seek, or the Court gives, an instruction. In addition to 

Winchansky, this Court has on several occasions recognized the distinction between 

evidence of spoliation and a sanction based upon spoliation. In Tipp v. Adeptus Health 

Inc., CV-16-02317-PHX-DGC 2018 WL 447256, at *5 (D. Ariz. Jan. 17, 2018), the Court 

denied a motion for a directed verdict or adverse inference jury instruction that had been 

presented at the summary judgment stage, but held that the evidence of spoliation would 

be presented to the jury: 

Plaintiff will be permitted at trial to present evidence of Ms. Scott’s 

destruction of the handwritten notes and, at a minimum, to argue to the 

jury that the notes could have been helpful to her case. The Court will 

decide at trial, or at the final pretrial conference if possible, whether it will 

give an adverse inference instruction in light of all the evidence and, if so, 

the precise form of that instruction. 

(Emphasis added). And in Pettit v. Smith, et al., CV-11-02139-PHX-DGC, 45 F. Supp. 

3d 1099, 1111 (D. Ariz. 2014), the Court denied a request for case-dispositive sanctions 

but concluded that “loss of evidence should be explained to the jury” and “that the jury 

should be allowed to infer that the lost evidence would have favored Plaintiff’s position.” 

This trio of cases confirms the obvious—that even losing a motion for sanctions 

does not preclude evidence of spoliation before the jury. Defendants were not required to 

file a motion for any adverse inference instruction in advance of the trial. That request is 

appropriate after evidence has been presented at trial. See Tipp, 2018 WL 447256, at *5; 

Pettit, 45 F. Supp. 3d at 1111; In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 

299 F.R.D. 502, 526 (S.D. W. Va. 2014). Defendants had intended to wait until the 

evidence had been presented, but Defendants are now contemporaneously filing such a 

motion. Regardless, because filing a motion for sanctions is irrelevant to the presentation 

of evidence of spoliation, Plaintiff’s Motion in Limine No. 4 should be denied. 

Case 2:18-cv-00063-DGC Document 185 Filed 12/05/19 Page 3 of 4
4 

CORE/3505308.0002/156390547.2 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

RESPECTFULLY SUBMITTED this 5th day of December, 2019. 

 STINSON LLP 

By: /s/ Michael Vincent 

 Carrie M. Francis

Stefan M. Palys 

Michael Vincent 

1850 North Central Avenue, Suite 2100 

Phoenix, Arizona 85004-4584

 

SCHNEIDER & ONOFRY, PC

By: /s/ Timothy B. O’Connor [with permission] 

 Timothy B. O’Connor

365 East Coronado Road 

Phoenix, Arizona 85004

 

Attorneys for Defendants

CERTIFICATE OF SERVICE 

I hereby certify that on December 5, 2019, I caused the foregoing document to be 

filed electronically with the Clerk of Court through ECF; and that ECF will send an 

e-notice of the electronic filing to: 

Joshua W. Carden 

JOSHUA CARDEN LAW FIRM, P.C. 

16427 North Scottsdale Road, Suite 410 

Scottsdale, AZ 85254 

joshua@cardenlawfirm.com 

Attorney for Plaintiff 

Timothy B. O’Connor, Esq. 

SCHNEIDER & ONOFRY, P.C. 

365 East Coronado Road 

Phoenix, Arizona 85004 

toconnor@soarizonalaw.com

Attorneys for Defendant Robert Donat 

/s/ Lindsay Petrowski 

Case 2:18-cv-00063-DGC Document 185 Filed 12/05/19 Page 4 of 4