MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. INTRODUCTION

Presently before the Court is Plaintiff's Motion for an Adverse Inference Instruction. (Doc. 54). For the reasons that follow, the Court will deny the Motion. With respect to Plaintiff's arguments concerning evidence spoliation, however, the denial will be without prejudice to Plaintiff's right to renew its Motion at trial.

II. BACKGROUND

On March 17, 2015, Plaintiff, Crestwood Membranes, Inc., d/b/a i2M ("i2M"), filed a Complaint against Defendant, Constant Services, Inc. ("CSI"). (Doc. 1). Prior to the lawsuit, the two parties had been in a business relationship whereby i2M supplied CSI with swimming pool liner vinyl, CSI printed patterns on the vinyl, and i2M sold the printed liners to third party customers. (Id.). i2M's Complaint alleged that CSI infringed on several copyrighted patterns owned by i2M. (Id.). Additionally, i2M claims that CSI's printing practices caused the printed vinyl i2M sold to third party customers to separate at the seams and fade prematurely. (Id.).

At the close of discovery, i2M filed a Motion for Issuance of an Adverse Inference Instruction. (Doc. 54). After the parties fully briefed the Motion, the Court referred it, along with two pending motions for summary judgment, to Magistrate Judge Carlson. On November 15, 2016, Magistrate Judge Carlson issued an Order which denied i2M's Motion for Issuance of an Adverse Inference Instruction as premature. (Doc. 88). The denial, however, was without prejudice to i2M's right to renew the motion before this Court after the pending summary judgment motions had been resolved. (Id.).

On April 13, 2017, after this Court reviewed the two Report and Recommendations and issued rulings on the parties' summary judgment motions, i2M filed a motion seeking leave to renew its Motion for Issuance of an Adverse Inference Instruction. (Doc. 116). The Court subsequently granted i2M's Motion to Renew. (Doc. 161). As a result, the Court now turns to i2M's Motion for an Adverse Inference Instruction.

III. DISCUSSION

Through the present Motion, i2M alleges that (1) CSI's corporate designee, Rosario Pepe, lied during two depositions, (2) CSI engaged in a pattern of discovery violations involving the late production of documents, and (3) CSI either wrongfully destroyed or withheld documents during discovery. (Doc. 55 at 2-10). As a result of these alleged wrongs, i2M argues that it is entitled to a jury instruction that (1) "CSI gave false testimony and intentionally covered up and destroyed evidence of [sic] regarding CSI's responsibility for seam separation and fading problems experienced by customers on products printed by CSI," and (2) "i2M's vinyl is not responsible for the seam separation and fading problems experienced by i2M's customers on products printed by CSI." (Doc. 54 at 5).1

Turning first to i2M's allegation that Pepe gave false testimony, it is well established that this Court may impose sanctions on those who give knowingly false deposition testimony. See Weisberg v. Riverside Twp. Bd. of Educ., 272 F. App'x 170, 173 (3d Cir. 2008); Derzack v. Cty. Of Allegheny, 173 F.R.D. 400, 412-13 (W.D. Pa. 1996). i2M claims that Pepe testified falsely with respect to whether or not CSI's customers, other than i2M, ever complained to CSI about seam separation and fading. Specifically, i2M points to the following exchange that occurred at Pepe's first deposition as a source of false testimony:

(Dep. of Rosario Pepe, November 12, 2015, Doc. 54-3 at 65-66).

i2M claims that this testimony is contradicted by several emails it subpoenaed from one of CSI's customers, O'Sullivan Films, in which employees of O'Sullivan discuss vinyl seam separation problems with Pepe. Pepe was later questioned about those emails and then asked if he stood by the above testimony:

(Dep. of Rosario Pepe, April 20, 2016, Doc. 54-3 at 17).2

i2M argues that the testimony Pepe gave on November 12, 2015, and April 20, 2016, is "dishonest as a matter of law" and should not be submitted to the jury. (Doc. 55 at 2-6; Doc. 68 at 3-4). Even assuming that this type of sanction would ever be warranted — a proposition that this Court is not convinced of based upon the cases i2M cites — the Court does not see this as a case where it can determine, as a matter of law, that a witness is being dishonest. Indeed, upon a fair reading of both the emails and the above testimony, a reasonable jury could conclude that Pepe considered his email conversations about seam separation with employees of O'Sullivan to be part of the research and development process and thus testified that he never received any "complaints" about seam separation from O'Sullivan employees. Further, when presented with the emails and questioned about whether seam separation was ever a topic of conversation with O'Sullivan employees, Pepe testified "not to the level that you want me to say it is, no." (Dep. of Rosario Pepe, April 20, 2016, Doc. 54-3 at 17).

It is up to a jury, and not this Court, to determine if Pepe is a credible witness. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986). If this testimony is offered at trial, i2M will be free to cross-examine Pepe with the emails between him and the O'Sullivan employees and to argue i2M's interpretation of the evidence during closing arguments. Nevertheless, the fact that i2M believes that Pepe was being dishonest based upon its interpretation of Pepe's testimony does not give this Court the right to remove from the jury its functions of assessing the credibility of witnesses, weighing the evidence, and drawing inferences from the facts. Such action would, in essence, be an abrogation of CSI's right to the jury trial it demanded, (Doc. 9). See U.S. CONST. amend. VII; FED. R. CIV. P. 38.

Turning to i2M's second argument — that CSI engaged in a pattern of discovery violations involving the late production of documents — i2M fails to establish why these violations, assuming they occurred, entitles i2M to the adverse inference instruction it requested. The purposes behind imposing sanctions for a party's discovery abuses "are to: (1) penalize the culpable party or attorney; (2) deter others from engaging in similar conduct; (3) compensate the court and other parties for the expense caused by the abusive conduct; and (4) compel discovery and disclosure." Wachtel v. Health Net, Inc., 239 F.R.D. 81, 99 (D.N.J. 2006). Further, in imposing a sanction, "a district court must . . . ensure that the sanction is tailored to address the harm identified." Republic of Phil. v. Westinghouse Elec. Corp., 43 F.3d 65, 74 (3d Cir. 1994).

Here, the proposed jury instruction is in no way related to the claimed discovery violation. i2M's allegation concerns CSI's untimely production of documents. Its proposed jury instruction, however, would direct the jury to make findings in its favor with respect to key issues in this litigation. This would, in effect, create a windfall for i2M as a result of CSI's alleged late production of documents. A result such as this is in no way proportional or tailored to the claimed discovery violation.

Finally, i2M claims that it is entitled to an adverse instruction because CSI either wrongfully destroyed or withheld documents during discovery. The general principles regarding inferences to be drawn from the loss or destruction of one or more documents are well-established in the Third Circuit. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995). "When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document's nonproduction or destruction as evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him." Id. Therefore, "[s]poliation occurs where: the evidence was in the party's control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party." Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012). The party asserting that spoliation has occurred has the burden of establishing these elements. See Gentex Corp. v. Sutter, 827 F.Supp.2d 384, 390 (M.D. Pa. 2011).

i2M argues that spoliation occurred in this case because CSI either withheld or destroyed emails between employees of O'Sullivan Films and Pepe regarding seam separation. i2M points to several pieces of evidence in the record to support its argument. First, in response to i2M's document production request that sought "[a]ll documents related to complaints, concerns, or issued [sic] raised by Defendant's customers or others regarding the problem of seam separation with products printed by Defendant," CSI responded that it had no responsive documents. (Doc. 54-3 at 70). Second, when i2M issued a subpoena to O'Sullivan Films, they produced several emails — some of which were created after this litigation began — between employees of O'Sullivan and Pepe which concerned seam separation. (Id. at 19-53). Third, when confronted with the emails produced by O'Sullivan, Pepe testified that CSI was no longer in possession of any of those emails.3 (Dep. of Rosario Pepe, April 20, 2016, Doc. 54-3 at 16).

The mere fact that CSI maintains that it is no longer in possession of several emails that have been shown to exist is insufficient to show that spoliation occurred. Indeed, although Courts in this circuit are not in agreement as to what level of intent is necessary for spoliation to be attributed to a party, see Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F.Supp.2d 332, 337 (D.N.J. 2004) (noting that "[s]ome courts in the Third Circuit have construed `actual suppression' to mean that the evidence must be intentionally or knowingly destroyed or withheld, . . . [while o]thers have used a more flexible approach that defies being labeled as requiring intentional or knowing destruction"), it is clear that an adverse inference instruction is not appropriate in all cases in which a party fails to produce evidence, see Brewer, 72 F.3d at 334 ("No unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for"). Here, there is no indication in the record of the circumstances under which the relevant emails were not preserved.4 As such, the Court cannot properly evaluate whether an adverse instruction is appropriate in this case. Accordingly, the Court will deny i2M's request for an adverse inference instruction on the basis of spoliation, but allow i2M to renew its request at trial, should the evidence adduced at trial demonstrate that the elements necessary to show spoliation have been established.

IV. CONCLUSION

For the foregoing reasons, the Court will deny i2M's Motion for an Adverse Inference Instruction with the caveat that i2M may renew its spoliation arguments at trial as explained herein. A separate Order follows.