As many pop music fans are aware, Taylor Swift got sued. Former radio DJ David Mueller was terminated after he allegedly, “grabbed Taylor Swift’s buttocks beneath her dress” during a photo shoot at a June 2013 event. A professional photograph captures the very moment in question and can be viewed here. Mr. Mueller denies ever grabbing Taylor Swift.
Mueller then sued Taylor Swift for defamation and “tortious interference with his employment contract” for three million dollars; that is, that Taylor Swift’s allegation about the butt grab was fabricated, that she wrongfully pressured the radio station to fire him, causing Mr. Mueller three-million dollars in damage.
In response, Taylor Swift counter-sued Mr. Mueller for assault and battery (the intentional, harmful and/or offensive touching of her person without her consent). Taylor Swift is only seeking $1.00 in nominal damages, but is seeking attorney fees and punitive damages. The trial is underway now.
1. First Legal Take: The Wheels of Justice Turn Slowly
It has taken over four years for this matter to go to trial. The alleged assault and battery occurred in June 2013. Now, over four year later, in August 2017, the trial is underway. There are a variety of circumstances that can delay trial. However, it is common in California for trials to occur years after the underlying legal dispute and injury occurs. Appeals of any verdict, which are also common, will further delay the finality of any jury verdict by additional years. The wheels of justice do turn slowly.
2. Second Take: Mr. Mueller Destroyed Important Evidence
Shortly after Taylor Swift’s accusations against Mr. Mueller surfaced, Mr. Mueller was interrogated by his bosses about the incident. Unbeknownst to his bosses, Mr. Mueller secretly recorded the two hour conversation. Mr. Mueller allegedly admitted at the meeting that he may have touched Taylor Swift’s buttocks but that it was “incidental”.
Mr. Mueller then stored the secret audio recordings on an iPhone, a laptop computer, and an external hard drive. However, even after contacting a lawyer to sue Swift, Mr. Mueller gave away, lost, and/or destroyed all the electronic devises and no longer has the recording. No one but Mueller has heard the recordings.
In response, Taylor Swift filed an order for “sanctions” (meaning a request to impose a penalty) against Mueller for the bad faith “spoliation of evidence”. Taylor Swift won her motion for sanctions, and as a result Mr. Mueller will be cross-examined in front of the jury on the issue of why he destroyed highly relevant evidence after litigation was contemplated. While this line of questioning may not ultimately make the tabloid headlines, it will undoubtedly be a top trial highlight for Taylor Swift’s attorneys who will have a field day on this issue. Mr. Mueller will be lucky to prevail in light of this issue alone.
As a lesson from this case, employees should never secretly record conservations with their bosses. It is a crime in California to do so. Next, prospective litigants should preserve all evidence, good and bad. Destroying evidence will naturally cause jurors to infer that the evidence was destroyed because it was very harmful for their case, especially if the evidence was objective in nature (such as a tape recording or photograph). Similarly, California jury instructions permit jurors to distrust weaker evidence when stronger evidence can be produced, as was the case here.
3. Why is T-Swift suing for just a buck?
Taylor Swift is suing her alleged groper for just $1.00… well, sort of. A person may sue for what are called “nominal damages” meaning the Plaintiff may not have not suffered much actual harm, but that a token amount of nominal damages should be awarded as a symbolic gesture. As a famous example, President Teddy Roosevelt sued and won six cents in nominal damages against a newspaper publisher who falsely claimed that, “Roosevelt was getting drunk… and not that infrequently.” The former president really just wanted to prove a point to protect his reputation.
However, even if Taylor Swift wins nominal damages of just one dollar, she could still argue for and possibly obtain “punitive damages” (damages awarded to punish the wrongdoer’s particularly despicable conduct). A case involving a sexual assault could generate very large punitive damages against Mr. Mueller, particularly in light of Ms. Swift’s graphic testimony where she described the incident. Similarly, Ms. Swift could win her attorneys fees. Attorney’s fees could be in tens of millions of dollars after four years of contested litigation with a celebrity-level trial team.
4. The Photographic Evidence Is Damning
A key piece of evidence of in the trial will be the photograph that captured the very instant in question. It may be viewed here. Jurors in any case are allowed to draw “reasonable inferences” from evidence and apply common sense. The photograph in question shows a grinning Mr. Mueller with his arm and hand behind Taylor Swift’s lower back noticeably near her bottom. In this writer’s testimony opinion, it will be very difficult for Mr. Mueller to prevail in light of this photograph, particularly in light of the spoliation of evidence issue and the testimony of Taylor Swift. Perhaps Mr. Mueller was hoping for a quick settlement against deep pockets when the case commenced, but has now bitten off more than he can chew.
Brian Mathias is a plaintiff’s employment law attorney and former assistant professor of constitutional law in Santa Cruz, California. Brian represents employees in all aspects of employment discrimination, defamation, and wage-and-hour class actions.