United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
The court issues the following opinion to address the issues raised by the parties in their respective supplemental briefing on closing instructions and their responses. (Dkt. ##735, 738, 742, 760, 768).) For the reasons that follow, the court overrules certain objections and sustains others. The court will circulate revised closing instructions which reflect these rulings.
I. Defendants’ Objections to References to Summary Judgment Rulings
Defendants object to any reference to the court’s summary judgment rulings granting judgment to plaintiff on certain claims or elements of claims. There are two places in the closing instructions which reference the court’s prior rulings. First, in the adverse inference instruction, the court indicates that it previously found that TCS failed to comply with the notice requirement in the contract between Epic and TCS. The court continues to believe that this reference is necessary for purposes of guiding the jury’s determination of whether to find an adverse inference.
The second reference is in the breach of contract claim instruction. Initially, the court believed that such an instruction was necessary in order to avoid jury confusion and also guide the jury’s determination of injury, which the court originally thought would be part of the first phase of trial. Now that the injury component will take place in the second phase, and given that the jury will be instructed as to four specific ways in which TCS breached the contract and asked verdict questions as to each of those ways, the court agrees with TCS that it need not reference the summary judgment rulings in this section.
Accordingly, this objection is SUSTAINED with respect to the breach of contract reference, but OVERRULED with respect to the adverse inference instruction.
II. Objections to Adverse Inference Instruction A. Plaintiff’s Objections
Epic suggests several changes to the adverse inference instruction. First, Epic proposes changing the language that it “contends” that “TCS at one time possessed evidence relating to TCS’s alleged wrongful conduct” to “Epic has submitted evidence” to that effect. In the interest of keeping the sentence parallel with the instruction below that “TCS contends that the evidence never existed” and avoiding the risk of undue jury confusion regarding its role in determining whether and, if so, what type of evidence was destroyed, the court OVERRULES Epic’s first proposed edit.
Second, Epic proposes adding language instructing the jury that it may consider “TCS’s conduct as a whole, as well as all the facts surrounding the destruction of evidence” and “all the circumstances of the case in determining whether TCS acted [in] bad faith.” Epic makes a fair point that the jury should be reminded that it can consider circumstantial as well as direct evidence in making the bad faith determination of fact, but the language Epic proposes is broader than necessary for that purpose, especially since the court will instruct the jury at the outset of the case regarding circumstantial evidence and drawing inferences. Accordingly, the court will add the following sentence after the sentence defining bad faith destruction of evidence: “As I instructed you at the beginning of this case, you are permitted to draw, from the facts you find have been proved by either direct or circumstantial evidence, such reasonable conclusions as seem justified in the light of your own experiences and common sense.” Plaintiff’s second objection is therefore SUSTAINED.
Third, Epic seeks removal of the three context-specific examples of reasonable assumptions the jury could make based on the destruction of particular types of evidence. In support of its argument for removal of the examples, Epic notes that the Seventh Circuit pattern instruction for spoliation of evidence does not include similar examples. But while instructive, the pattern instruction merely provides a framework from which the adverse inference instruction can be tailored to the particular facts and legal issues of this case. Indeed, “[i]n charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, . . . provided he makes it clear to the jury that all matters of fact are submitted to their determination.” Quercia v. United States, 289 U.S. 466, 469 (1933); see also United States v. Hernandez, 490 F.3d 81, 84 (1st Cir. 2007) (“It is unquestioned that, when instructing a jury, a judge may explain comment upon and incorporate the evidence into the instructions in order to assist the jury to understand it in light of the legal principles.”) (internal quotation marks and citation omitted).
Particularly in light of the “prophylactic, punitive and remedial rationales underlying the spoliation doctrine, ” although the court must give the adverse inference instruction because of defendants’ extensive discovery violations in this case, it is appropriate to tailor the instruction with the examples to guard against the jury improperly speculating about the destroyed evidence instead of making reasonable inferences based on the actual evidence plaintiff introduces at trial. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). Moreover, the court disagrees with Epic that the examples will invite the jury to ignore evidence not mentioned in the examples, since the instructions make clear multiple times that the examples are no more than that (e.g., “By way of example only”). For that same reason, the court will OVERRULE Epic’s suggestion to add additional language regarding the jury’s consideration of other evidence.
Fourth, Epic proposes to change language in the last paragraph of the adverse inference instruction regarding the notice Kaiser sent to TCS. With respect to these suggested edits, the court agrees that the revisions to the end of the sentence provide added clarity to TCS’s obligations to preserve evidence without expanding them, contrary to TCS’s assertion. Accordingly, the court will accept Epic’s proposed changes to that sentence. On the other hand, the court will not remove the reference to TCS’s “contractual” ...