         IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

 SPOKEO, INC.,                                     No. 78897-3-I
                      Appellant.
        v.                                         DIVISION ONE

 WHITEPAGES, INC.                                  UNPUBLISHED OPINION

                      Respondent.


       LEACH, J. — Spokeo primarily appeals the trial court’s decision to award

Whitepages’ judgment as a matter of law notwithstanding a jury’s verdict in its favor.

Spokeo also challenges the trial court’s decision not to answer certain jury questions and

its refusal to give Spokeo’s anticipatory repudiation instructions to the jury. Finally,

Spokeo claims the trial court should not have allowed the jury to decide a spoliation issue,

and it should have sanctioned Whitepages for a discovery violation.

       Spokeo fails to show that substantial evidence supports the jury’s verdict on its

Consumer Protection Act (CPA) claim, or that it was entitled to an anticipatory repudiation

jury instruction. The record shows the trial court did not abuse its discretion by refusing

to answer some jury questions or by refusing to sanction Whitepages for alleged

discovery violations. Finally, the trial court acted within its discretion by submitting a

spoliation issue to the jury to decide. We affirm.




     Citations and pincites are based on the Westlaw online version of the cited material.
No. 78897-3-I / 2

                                          FACTS

        Whitepages is a technology company that provides online information about

people. It sold advertising spaces on its website and used an auction process to sell

companies advertising space for a specified time. Some of the companies purchasing

advertising space also provided online information about people such as names, phone

numbers, addresses, and criminal backgrounds. The parties have referred to these

companies as “endemic partners.” Spokeo was one of these companies. When a

customer arrived at Whitepages’ website, and clicked on Spokeo’s advertisement, the

customer would then visit Spokeo’s website. Spokeo would pay Whitepages for the click

or “interaction.”

       Over time, Whitepages developed its own product for providing information about

people similar to the product provided by some of the endemic partners. Whitepages

notified its advertisers that it was testing this new product. Later, it informed the endemic

partners, including Spokeo, that it would stop holding auctions. Spokeo considered

Whitepages’ actions a breach of contract. It refused to pay Whitepages’ last invoice for

February 2016 even though Spokeo received clicks and customer interactions from the

Whitepages’ website the whole month.

       Spokeo sued Whitepages on April 6, 2016. It asserted claims for breach of

contract and implied duties of good faith, violation of the Washington Consumer

Protection Act (CPA), negligent misrepresentation, fraudulent inducement, statutory

penalties, and injunctive relief. Whitepages responded by suing Spokeo for breach of

contract for not paying its February 2016 invoice.




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No. 78897-3-I / 3


       The jury found for Spokeo on the CPA claim, but found that Whitepages did not

breach the contract, did not make any negligent misrepresentations, or commit fraud. It

also found that Spokeo breached the contract.

       After the trial, the trial court granted Whitepages’ renewed request for judgment as

a matter of law. It decided the “evidence and the reasonable inferences are legally

insufficient to support the jury’s verdict on Spokeo’s CPA claim.” The trial court awarded

Whitepages’ attorney fees based on Spokeo’s contract breach and awarded Spokeo fees

and costs for Whitepages’ spoliation. Spokeo appeals.

                                       ANALYSIS

Washington Consumer Protection Act Claim1

       Spokeo challenges the trial court’s decision under CR 50 to dismiss its CPA claim.

       We review a trial court's CR 50 decision de novo. 2 A trial court properly grants a

judgment notwithstanding the jury’s verdict under CR 50 when “‘viewing the evidence

most favorable to the nonmoving party, the court can say, as a matter of law, there is no

substantial evidence or reasonable inference to sustain a verdict for the nonmoving

party.’“3 “Substantial evidence is evidence sufficient to persuade a fair-minded, rational

person that the premise is true.”4



1
  Spokeo also claims the trial court’s order denying Spokeo’s motion for a new trial is void
under RAP 7.2(e) because the trial court did not have the authority to decide it. Spokeo
filed an appeal. RAP 7.2(e) states that: “If the trial court determination will change a
decision then being reviewed by the appellate court, the permission of the appellate court
must be obtained prior to the formal entry of the trial court decision.” Because denying
Spokeo a new trial would not “change a decision…being reviewed by the appellate court,”
the trial court had authority to enter this order.
2
   Davis v. Microsoft Corp., 149 Wn.2d 521, 531, 70 P.3d 126 (2003).
3
   Davis, 149 Wn.2d at 531 (quoting Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948
P.2d 816 (1997)).
4
   Jenkins v. Weyerhaeuser Co., 143 Wn. App. 246, 254, 177 P.3d 180 (2008).


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No. 78897-3-I / 4


       Spokeo claims the trial court “ignored the law of the case” and applied law different

than stated in the court’s instructions to the jury.

       Contrary to Spokeo’s position, a “court must follow Washington law, not jury

instructions” when considering a motion for judgment as a matter of law. 5 This means

that an appellate court looks to controlling case law, and not jury instructions, when

reviewing a trial court’s CR 50 decision.

       The CPA declares unlawful “[u]nfair methods of competition and unfair or

deceptive acts or practices in the conduct of any trade or commerce.” 6 To prevail on a

private CPA claim, the plaintiff must prove (1) an unfair or deceptive act or practice,

(2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to a person's

business or property, and (5) causation.7

Unfair or Deceptive Act or Practice and Public Interest Impact

       “Whether an action constitutes an unfair or deceptive practice is a question of

law.” 8 An act or practice is unfair or deceptive if it has the capacity to deceive a substantial

portion of the public.9 “Implicit in the definition of ‘deceptive’ under the CPA is the

understanding that the practice misleads or misrepresents something of material

importance.”10




5
  Kim v. Dean, 133 Wn. App. 338, 349, 135 P.3d 978 (2006) (quoting Hanson v. Ford
Motor Co., 278 F.2d 586, 593 (8th Cir. 1960).
6
  RCW 19.86.020.
7
  Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 784–
85, 719 P.2d 531 (1986).
8
  Columbia Physical Therapy, Inc., PS v. Benton Franklin Orthopedic Assocs., PLLC,
168 Wn.2d 421, 442, 228 P.3d 1260, 1270 (2010).
9
  State v. Pacific Health Ctr, Inc., 135 Wn. App. 149, 170, 143 P.3d 618 (2006).
10
   Holiday Resort Comty. Ass'n v. Echo Lake Assoc., LLC, 134 Wn. App. 210, 226, 135
P.3d 499 (2006).


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No. 78897-3-I / 5


       An act or practice is injurious to the public interest if it “(a) [i]njured other persons;

(b) had the capacity to injure other persons; or (c) has the capacity to injure other

persons.” 11 A plaintiff must show “not only that a defendant's practices affect the private

plaintiff but that they also have the potential to affect the public interest.” 12

        “Ordinarily, a breach of a private contract affecting no one but the parties to the

contract is not an act or practice affecting the public interest...It is the likelihood that

additional plaintiffs have been or will be injured in exactly the same fashion that changes

a factual pattern from a private dispute to one that affects the public interest.” 13 This

means when a transaction essentially involves a private dispute, a party may have more

difficulty showing that the public has an interest in the subject matter. 14 Here, Spokeo

claims that because Whitepages injured it and the other endemic partners, “the evidence

was more than sufficient to meet [the public interest] test.” But, this evidence does not

prove the public interest prong of the CPA claim. “Only acts that have the capacity to

deceive a substantial portion of the public are actionable.” 15

       Our Supreme Court has identified four factors to consider when analyzing public

interest impact:

               “(1) Were the alleged acts committed in the course of defendant's
       business? (2) Did defendant advertise to the public in general? (3) Did
       defendant actively solicit this particular plaintiff, indicating potential
       solicitation of others? (4) Did plaintiff and defendant occupy unequal


11
   RCW 19.86.093(3).
12
   Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wn.2d 59, 74, 170
P.3d 10 (2007) (citing Hangman Ridge, 105 Wn.2d at 788; Lightfoot v. MacDonald, 86
Wn.2d 331, 335–36, 544 P.2d 88 (1976)).
13
   Hangman Ridge, 105 Wn.2d at 790–91 (citing Lightfoot, 86 Wn.2d at 334, and McRae
v. Bolstad, 101 Wn.2d 161, 166, 676 P.2d 496 (1984)).
14
   Hangman Ridge, 105 Wn.2d at 790.
15
   Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 86 Wn. App. 732, 744, 935 P.2d
628 (1997) (citing Hangman Ridge, 105 Wn.2d at 785).


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No. 78897-3-I / 6


       bargaining positions? As with the factors applied to essentially consumer
       transactions, not one of these factors is dispositive, nor is it necessary that
       all be present. The factors in both the “consumer” and “private dispute”
       contexts represent indicia of an effect on public interest from which a trier
       of fact could reasonably find public interest impact.”[16]

       Whitepages’ acts only affected Spokeo and the other endemic partners. These

parties are sophisticated businesses and occupy equal bargaining positions.17 And, while

Whitepages committed the accused acts in the course of its business, it did not target its

actions at the public. They were not likely to injure additional parties, unlike cases where

the courts found the public interest prong satisfied. 18

       When an unfair or deceptive act only affects a select few in a niche market, as

here, it does not affect “public interest.” 19 “Significantly, conduct that is not directed at

the public, but, rather, at a competitor, lacks the capacity to impact the public in general.” 20

       Spokeo has not explained how Whitepages’ actions did, or had the potential to,

affect a large number of people, and it fails to show how Whitepages’ conduct affected

the public in any way. Because Spokeo fails to establish the public interest element of its

CPA claim, no substantial evidence exists showing Whitepages violated the CPA.

Jury Questions

       Spokeo claims the trial court should have answered two jury questions asking

whether the jury must find all the elements in both independent negligent



16
   Hangman Ridge, 105 Wn.2d at 790–91.
17
   Broten v. May, 49 Wn. App. 564, 571, 744 P.2d 1085 (1987).
18
   Edmonds v. John L. Scott Real Estate, Inc., 87 Wn. App. 834, 847, 942 P.2d 1072
(1997), Stephens v. Omni Ins. Co., 138 Wn. App. 151, 178, 159 P.3d 10 (2007).
19
   Goodyear, 86 Wn. App. at 744-45.
20
   Evergreen Moneysource Mortg. Co. v. Shannon, 167 Wn. App. 242, 261, 274 P.3d
375 (2012) (citing Goodyear, 86 Wn. App. at 744).


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No. 78897-3-I / 7



misrepresentation instructions to find for Spokeo on the negligent misrepresentation

claim.

         The trial court has discretion to decide whether to give further instructions to a jury

after deliberations begin.21 An appellate court reviews for abuse of that discretion by a

trial court's refusal to give an additional instruction. 22 When a jury instruction accurately

states the law, the trial court need not provide further instructions.23 The court has no

duty to answer the jury's question.24

         During deliberations, the jury asked two questions related to Spokeo’s negligent

misrepresentation claim involving jury instructions 30 and 32. Jury instruction 30 stated:

         Spokeo has the burden of proving by clear, cogent, and convincing
         evidence each of the following elements for the claims of negligent
         misrepresentation:

         (1) that Whitepages supplied information for the guidance of Spokeo in Spokeo’s
             business transactions that was false;
         (2) that Whitepages knew or should have known that the information was supplied
             to guide Spokeo in business transactions;
         (3) that Whitepages was negligent in obtaining or communicating the false
             information;
         (4) that Spokeo relied on the false information;
         (5) that Spokeo’s reliance on the false information was reasonable; and
         (6) that the false information proximately caused damages to Spokeo…

         Jury instruction 32 stated:

         Spokeo has the burden of proving by clear, cogent, and convincing evidence each
         of the following elements for the claim of negligent misrepresentation:

         (1) that Whitepages had a duty to disclose to Spokeo certain information;

21
   State v. Ng, 110 Wn.2d 32, 42, 750 P.2d 632 (1988).
22
   A.C. v. Bellingham Sch. Dist., 125 Wn. App. 511, 516, 105 P.3d 400 (2004).
23
   Ng, 110 Wn.2d at 42–44; State v. Sublett, 156 Wn. App. 160, 184, 231 P.3d 231
(2010).
24
   State v. Langdon, 42 Wn. App. 715, 718, 713 P.2d 120, review denied, 105 Wn.2d
1013 (1986).


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No. 78897-3-I / 8


       (2) that Whitepages did not disclose this information to Spokeo;
       (3) that Whitepages was negligent in failing to disclose this information;
       (4) that Plaintiff was damaged by the failure to disclose this information.

       On February 20, 2018, the jury’s first question asked was if it must “find [whether]

all of the elements in both [i]nstructions are true to give a verdict for Spokeo?” The court

replied, “Please read both instructions carefully and follow both instructions as

applicable.”

       On February 22, 2018, the jury asked again for “clarification on whether one or

both sets of criteria need to be satisfied in order for our verdict to be for Spokeo,” stating

that “[s]everal of our votes depend on this.” The court instructed, “The jury instructions

and the admitted exhibits contain all of the information that is relevant for purposes of

reaching your verdict regarding the plaintiff[’]s claims.     Please read the instructions

carefully and follow them as applicable.” The jury found for Whitepages on Spokeo’s

negligent misrepresentation claim.

       Spokeo analogizes this case to State v. Campbell.25 There, the court held that the

instructions “did not accurately inform the jury of the law.” 26 Spokeo’s analogy has a fatal

flaw. The court’s original instructions accurately informed the jury of the applicable law.

Spokeo does not dispute the accuracy of these instructions. Instead, Spokeo contends

the court should have clarified whether the jury had to find all elements described in each

instruction to find for Spokeo on the negligent misrepresentation claim.




25
   163 Wn. App. 394, 260 P.3d 235, rev'd on other grounds, No. 66732–7–I, 2012 WL
5897625 (Wash. Ct. App. Nov. 26, 2012).
26
   163 Wn. App. at 401.


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No. 78897-3-I / 9



       Because Spokeo does not assign any error to any actual jury instruction or cite to

conflicting controlling law, 27 and because a trial court is not required to further instruct a

jury about accurate jury instructions, the trial court did not abuse its discretion in failing to

answer the jury’s questions.28

Waiver of Affirmative Defense

       Spokeo challenges the trial court’s ruling that because Spokeo did not affirmatively

plead the anticipatory repudiation defense it waived this defense. Where the parties do

not dispute the facts, we review waiver as a question of law subject to de novo review. 29

       Assuming, without deciding, that Spokeo did not waive the anticipatory repudiation

defense, it fails to show it was entitled to a jury instruction on this defense. For a party to

be entitled to have the jury instructed about an affirmative defense, the record must

include sufficient evidence “to permit a reasonable juror to conclude that the defendant

has established the defense…by a preponderance of the evidence.”30

       First, Spokeo does not challenge the jury’s finding that Whitepages did not breach

the contract.   So, we accept this unchallenged finding as true for purposes of this

appeal.31   A Whitepages breach would be required for Spokeo to succeed on the

anticipatory repudiation affirmative defense.       Since Spokeo accepts the finding that




27
   State v. Logan, 102 Wn. App. 907, 10 P.3d 504 (2000) (quoting DeHeer v. Seattle
Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).
28
   Spokeo also fails to provide any controlling case law on this issue in its 30-page reply
brief.
29
   Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 440–41, 191 P.3d 879 (2008).
30
   State v. Trujillo, 75 Wn. App. 913, 917, 883 P.2d 329 (1994).
31
   State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).


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Whitepages did not breach its contract with Spokeo, it cannot show that the court’s refusal

to instruct on anticipatory repudiation harmed it.

         Also, Spokeo does not identify evidence in the record that shows it was entitled to

the defense. It claims an anticipatory repudiation occurred because Whitepages charged

Spokeo for clicks and impressions after it terminated the Marketplace Program. But,

Spokeo does not dispute it continued receiving clicks after Whitepages discontinued

Marketplace. So, Spokeo fails to explain how Whitepages anticipatorily repudiated the

contract. The trial court did not abuse its discretion by refusing to give Spokeo’s proposed

anticipatory repudiation jury instructions.

Discovery Violations

         Spokeo asserts the trial court should not have allowed the jury to decide a

spoliation issue about evidence related to Whitepages’ messaging platform “Yammer.”

         If a party commits spoliation, the fact finder may infer the evidence was harmful to

the party’s case.32 After Spokeo sued Whitepages, both parties agreed on a Stipulated

Protective Order and Confidentiality Agreement. Spokeo then asked the court to compel

discovery. The trial judge granted this request in part by ordering Whitepages to “fully

respond” to Spokeo’s discovery requests “as modified.”

         Whitepages’ employees used a Microsoft messaging platform called Yammer to

communicate with each other. Whitepages ended its Yammer license agreement and

Microsoft informed Whitepages that it deleted Whitepages’ communications. Spokeo

requested copies of “Yammer.com conversations from Whitepages’ employees.” In April



32
     Pier 67, Inc. v. King Cty, 89 Wn.2d 379, 385-86, 573 P.2d 2 (1977).


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No. 78897-3-I / 11


2017, Whitepages responded that it had no such documents in its possession, custody,

or control, and because Whitepages’ had discontinued use of Yammer, it could not

produce documents.

       After Spokeo made numerous requests about discovery, the court ordered

Whitepages to “make the Yammer files available to a third-party vendor chosen by

Plaintiff’s counsel on an expedited basis.”       Although Whitepages only produced 31

Yammer messages, a third-party discovery vendor found 187 Yammer messages using

the same search terms used by Whitepages, which was 156 more messages than

Whitepages produced.

       Spokeo claimed that Whitepages’ withholding of the Yammer messages

“substantially prejudiced” it. The trial court made the following find about this issue:

               “At a minimum, the Defendant’s actions and omissions kept the
       native Yammer files out of the Plaintiff’s reach during the discovery phase
       of this case, and prevented the Plaintiff from having any reasonable
       opportunity to evaluate the files and follow up on any leads that there may
       be in those files during discovery. The court finds that the serious
       investigative disadvantage that the Defendant’s conduct caused the Plaintiff
       is substantial prejudice. As noted above, it is not possible to quantify
       precisely the amount of prejudice because it cannot be known how many
       files have been deleted, corrupted, fragmented, omitted, or otherwise lost.
       It also cannot be known where possible leads from any of the native
       Yammer files might have taken the Plaintiff during discovery, what
       additional written discovery requests the Plaintiff may have served, or what
       additional depositions the Plaintiff might have taken, or what additional
       relevant evidence the Plaintiff might have pursued and found.”

       When discussing sanctions, the court stated, “the Plaintiff is entitled to recover its

reasonable costs, including its reasonable attorneys’ fees and costs, incurred in litigating

Plaintiff’s CR 37(b) discovery violation, which necessarily includes the fees and costs

incurred in litigating the spoliation issue.” The trial court also ruled it would give the jury

an instruction “allowing (but not requiring) the jury to infer that the Yammer.com account



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No. 78897-3-I / 12


was terminated for the reason that the Defendant was concerned that some information

in the native Yammer files was (or might be) adverse to the Defendant’s case” and an

instruction “allowing (but not requiring) the jury to infer that, had the native Yammer files

been turned over during discovery, the files would have contained relevant admissible

evidence favorable to the Plaintiff’s claims and harmful to Whitepages’ defense.”

        Spokeo asks this court to hold that whenever a party fails to produce evidence, the

court must draw a spoliation inference. But, it provides no authority to support its claim.

Rather, the one case it does cite, Pier 67, Inc. v. King Cty., states that when a party

destroys evidence, the only inference that the fact-finder may draw is that such evidence

would be unfavorable to him. 33 This does not mean when a party destroys evidence the

court is required to draw this inference. It simply means, that at most, a fact-finder may

conclude the evidence is unfavorable. Spokeo does not support with any authority its

claim that the trial court should not have allowed the jury to decide the spoliation issue.

The trial court did not abuse its discretion by allowing the jury to decide what inference to

draw.

PowerPoint Slides

        Spokeo next claims the trial court should have sanctioned Whitepages when it

learned it failed to disclose certain PowerPoint slides from a January 2015 Board meeting.

        A trial court has discretion to impose sanctions for discovery violations and we will

not reverse those decisions absent a showing of abuse of discretion.34 A trial court




33
   89 Wn.2d 379, 385-86, 573 P.2d 2 (1977).
34
   Henderson v. Tyrrell, 80 Wn. App. 592, 604, 910 P.2d 522 (1996) (citing to Washburn
v. Beatt Equip. Co., 120 Wn.2d 246, 283, 840 P.2d 860 (1992); Hampson v. Ramer, 47
Wn. App. 806, 813, 737 P.2d 298 (1987).


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No. 78897-3-I / 13


abuses its discretion when its order is manifestly unreasonable or based on untenable

grounds.35 A trial court would necessarily abuse its discretion if it based its ruling on an

erroneous view of the law. 36

       To decide whether spoliation requires a sanction, courts weigh: “(1) the potential

importance or relevance of the missing evidence; and (2) the culpability or fault of the

adverse party.” 37

       Spokeo claims Whitepages “withheld 54 slides from the January 2015

PowerPoint.”     But, Spokeo does not cite where the record it shows this.38           More

significantly, Spokeo does not show that the nondisclosure of the PowerPoint slides

prejudiced it.

       The trial court found that the documents Spokeo claims Whitepages withheld were

in Spokeo’s possession, and Spokeo failed to complain about incompleteness when they

were in their possession. The trial court stated, during a February 7, 2018 hearing, that

it did not see any prejudice at that time and again at a February 12, 2018 hearing stated,

“I don’t think there is sufficient evidence of prejudice on the record.” The court also noted

that Whitepages made a prima facie case showing its failure to produce the missing slides

was a mistake. Because Spokeo provides no basis for the assertion that the trial court

abused its discretion in failing to impose sanctions, this claim fails.




35
   Holbrook v. Weyerhaeuser Co., 118 Wn.2d 306, 315, 822 P.2d 271 (1992); Watson v.
Maier, 64 Wn. App. 889, 896, 827 P.2d 311, review denied, 120 Wn.2d 1015, 844 P.2d
436 (1992).
36
   Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 2460–61, 110
L. Ed. 2d 359 (1990).
37
   Henderson, 80 Wn. App at 607.
38
   RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828
P.2d 549 (1992).


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No. 78897-3-I / 14


Attorney Fees

       Spokeo requests attorney fees and costs under the CPA claim. Because we affirm

the dismissal of Spokeo’s CPA claim, we deny its request for attorney fees. Whitepages

also requests attorney fees and costs for “defending the verdicts on the breach of contract

claims.” Because Spokeo did not appeal the jury verdict on the breach of contract claim,

we deny Whitepages’ request for attorney fees.

                                     CONCLUSION

       We affirm. The record contains insufficient evidence to support the jury’s verdict

on Spokeo’s CPA claim. Also, the trial court did not abuse its discretion by declining to

respond to the jury’s questions with additional instructions. Spokeo identifies no evidence

in the record showing how Whitepages anticipatorily repudiated the contract.          And,

Spokeo fails to show the trial court abused its discretion by allowing the jury to decide

what inference to draw from spoliation. Finally, Spokeo fails to show how the trial court

abused its discretion in failing to sanction Whitepages.




WE CONCUR:




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