                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                        FEB 22 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

 RAFAEL GARCIA MIRANDA and OLGA                   No.    15-55716
 MARTHA GARCIA,
                                                  D.C. No.
                  Plaintiffs-Appellants,          8:13-cv-01826-JVS-DFM

   v.
                                                  MEMORANDUM *
 DARON WYATT,

                  Defendant-Appellee.

                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                      Argued and Submitted February 10, 2017
                               Pasadena, California

Before: SCHROEDER and MURGUIA, Circuit Judges, and GLEASON,** District
Judge.

        Rafael Garcia Miranda and Olga Martha Garcia (collectively “Plaintiffs”)

appeal the district court’s decision denying Plaintiffs’ request to give an adverse

inference jury instruction. A district court’s refusal to give an adverse inference


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
jury instruction is reviewed for abuse of discretion. United States v. Fries, 781

F.3d 1137, 1146 (9th Cir. 2015). “A district court abuses its discretion if it does

not apply the correct law or if it rests its decision on a clearly erroneous finding of

material fact.” Jeff D. v. Otter, 643 F.3d 278, 283 (9th Cir. 2011) (citation

omitted). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

      The district court’s denial of an adverse inference jury instruction was based

on neither an incorrect application of the law nor a clearly erroneous finding of

material fact. The parties agree that Residential Funding Corp. v. DeGeorge

Financial Corp., 306 F.3d 99 (2d Cir. 2002), provides an appropriate test for

determining when an adverse inference instruction can be given. Though the

district court concluded that an adverse inference jury instruction was permissible,

the district court was not legally required to issue such an instruction. The district

court explained that Plaintiffs were permitted to argue their position to the jury,

that there was nothing “maligned” in the erasure of the DVD, and that the jury was

permitted to make its own conclusions about the deletion of the video. The

decision to give an adverse inference jury instruction is made on a case-by-case

basis and “commensurate to the spoliating party’s motive or degree of fault in

destroying the evidence.” Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976,

992–93 (N.D. Cal. 2012); see also Residential Funding, 306 F.3d at 108. The

district court therefore did not abuse its discretion in concluding that an adverse


                                           2
inference instruction was inappropriate under the factual circumstances of this

case. See Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363,

368 (9th Cir. 1992) (recognizing a district court’s “broad discretion to make

discovery and evidentiary rulings conducive to the conduct of a fair and orderly

trial” (citation omitted)).

       AFFIRMED.




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