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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’ REPLY IN 

SUPPORT OF MOTION FOR 

ADVERSE INFERENCE JURY 

INSTRUCTION 

Plaintiff,

v.

GPS Insight, LLC; Robert J. Donat, 

Individually and as Trustee of The 

Robert Donat Living Trust Dated April 

19, 2017, 

Defendants.

Thacker’s response ambles well beyond the elements of Rule 37(e)(1) in an 

attempt to bury the uncontroverted facts that on March 3, 2017, after Thacker had already 

planned this litigation to such an extent that he had selected his preferred lawyer, Thacker 

downloaded data from GPSI’s servers to collect evidence in anticipation of litigation. 

Thacker admitted: “I thought it would be a pretty good idea to start making sure I had all 

the evidence that I needed.” (Doc. 187 at 3:20-24). It was on that same day that Thacker 

wiped his work computer. And of course Thacker had already wiped his Slack messages 

between himself, Lisson, and Dennis. 

Thacker disputes none of this in his response. Instead, he jabs at Defendants on 

unrelated issues and offers explanations as to why none of the data was supposedly lost. 

His explanations are not germane to Defendants’ requested Rule 37(e)(1) adverse jury 

instruction. Thacker is really asking this Court to usurp the jury’s role because Thacker’s 

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explanations are arguments that he should present to the jury (which could choose to 

believe him). The sole legal question for this Court to decide is whether an adverse 

inference jury instruction is warranted under Rule 37(e)(1). It is. 

Under Rule 37(e)(1), all that is required is that there was ESI that “should have 

been preserved in the anticipation or conduct of litigation” that is lost “because a party 

failed to take reasonable steps to preserve it, and it cannot be restored or replaced through 

additional discovery.” Defendants have established these elements, and the Court should 

give the requested instruction. 

I. Thacker failed to take reasonable steps to preserve ESI in anticipation of 

litigation. 

Thacker unquestionably knew that ESI would be used in litigation, because on 

March 3, 2017, the same day that he wiped his work computer and destroyed ESI, he 

copied other ESI from GPSI’s servers and saved it on his personal computer. He admitted 

in his deposition that he did this because he knew ESI had evidentiary value: “I thought 

it would be a pretty good idea to start making sure I had all the evidence that I needed.” 

(Doc. 187 at 20-24). Thacker also deleted the Slack messages contemporaneously with 

intending to meet with an attorney. See (id. at 3:25-4:8). For the reasons stated in 

Defendants’ motion, it is clear that Thacker anticipated litigation, and that his intentional 

deletion of ESI was obviously a failure to take reasonable steps to preserve that ESI. 

Notably, Thacker does not dispute Defendants’ assertion that he deleted the Slack 

messages in anticipation of litigation. See (id. at 4:11-15). Thacker claims only that he 

“had not spoken with an attorney” at the time he deleted the Slack messages. That is not 

the standard, and Thacker’s silent concession that he anticipated litigation at the time he 

deleted the Slack messages is sufficient to justify the Court issuing the adverse inference 

jury instruction as to not only the wiping of the work computer, but also as to the Slack 

messages. 

Thacker’s excuse in his response is that wiping his work computer accomplished 

nothing because all of the data was backed up to the cloud, and that he has provided this 

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data in this litigation. (Doc. 194 at 2:6-13). Defendants addressed this excuse in their 

motion, and cited specific cases holding that a spoliator’s assertion that no relevant data 

was lost is not to be credited. (Doc. 187 at 6:8-26). Thacker doesn’t get to create the 

yardstick by which to measure whether ESI was lost—otherwise, he has a free pass to 

delete whatever he wants, as long as he claims it was otherwise produced later, and it 

would be impossible for GPSI to ever rebut Thacker’s self-serving assertion. 

These circumstances are similar to those in Lexpath Technology Holdings, in 

which an employee’s testimony that he wiped his work computer merely to “remove 

personal data lacked credibility in light of the timing of his actions and his motivation.” 

(Doc. 187 at 6:13-15) (citing Lexpath Tech. Holdings, Inc. v. Welch, 2016 WL 4544344, 

at *2 (D.N.J. Aug. 30, 2016). Defendants’ motion also cites other cases holding that 

circumstantial evidence can suggest the contests of destroyed ESI. Id. at 6:13-23). Under 

Defendants’ proposed spoliation instruction, the jury decides whether to actually draw 

the inference (“may” rather than “must”). That Thacker felt compelled to delete the data 

is relevant, and he can make his argument to the jury that the data was purely personal, 

or was elsewhere recovered. 

II. The erased Slack messages are not recoverable. 

Without any evidence, Thacker argues that Defendants supposedly used “careful 

wording” and are secretly hiding Slack messages while arguing that the messages were 

actually deleted. (Doc. 194 at 3:4-14). It is obvious that the Slack messages have been 

lost as a result of Thacker’s deletion, or else Defendants would not be seeking a spoliation 

instruction. To be clear, however, attached as Exhibit 1 is the declaration of Gary 

Fitzgerald, GPSI’s CEO and CTO, who testifies that he attempted to recover Thacker’s 

deleted Slack messages and was unable to do so. Thus, the deleted ESI cannot be restored. 

All that Defendants know is that Thacker has deleted all of the Slack messages between 

himself and Lisson, for example, in addition to an unknown number of other messages. 

See Ex. 1 ¶ 11 (no recoverable messages between Thacker and Lisson, or Thacker and 

Dennis). Rule 37(e)(1) applies. 

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III. Conclusion 

The remainder of Thacker’s motion consists of attacks on Defendants and their 

counsel, vague allegations of “obstructionist” and “quite tiresome” conduct, and the like. 

None of it is relevant, and none of it merits a response. Sticking to the issue, Defendants 

have established that the Court should give an adverse inference instruction to the jury as 

to the ESI on Thacker’s work computer. As to the Slack messages, at the time Defendants 

filed their motion, they believed the Court might need to wait until after evidence is 

presented at trial to determine whether an adverse inference instruction was proper, but 

given Thacker’s concession in his response that he anticipated litigation at the time he 

deleted those messages, the Court can determine now that an adverse inference instruction 

on the Slack messages is appropriate as well. 

RESPECTFULLY SUBMITTED this 23rd 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

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CERTIFICATE OF SERVICE 

I hereby certify that on December 23, 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-SMM Document 195 Filed 12/23/19 Page 5 of 5