for the spoliation of evidence, courts have considered a variety of factors, two of which generally carry the most weight: (1) the degree of culpability of the party who lost or destroyed the evidence; and (2) the degree of actual prejudice to the other party.” Id. at *4, 1998 U.S.App. LEXIS 2739 at *13. The Tenth Circuit recently found “[a] spoliation sanction ... proper where (1) the party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of evidence.” Burlington N., 505 F.3d at 1032 (citing 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 989 (10th Cir.2006)); see also Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 620-21 (D.Colo.2007) (unpublished) (<HOLDING>). However, the destruction need not be in bad
holding that spoliation may be a basis for a cause of action where a third party has negligently destroyed material evidence but stating that jury charges that presume missing evidence weighs against the spoliator and discovery sanctions  are available when spoliation is charged against an opposing party holding that an adverse inference for spoliation of evidence requires proof that evidence was destroyed with a culpable state of mind and that it was relevant to the partys claim or defense recognizing that a 11 evidence must be relevant to be admissible holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted holding that to consider whether to apply a spoliation sanction the evidence must be relevant to an issue in the case and the party who destroyed the evidence must be under a duty to preserve the evidence