
    Rafael Garcia MIRANDA, and Olga Martha Garcia, Plaintiffs-Appellants, v. Daron WYATT, Defendant-Appellee.
    No. 15-55716
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 10, 2017 Pasadena, California
    Filed February 22, 2017
    Mark W. Eisenberg, Eisenberg Law Firm, APC, North Palm Beach, FL, for Plaintiffs-Appellants
    Moses Wilbur Johnson, IV, Esquire, Anaheim City Attorney’s Office,, Anaheim, CA, for Defendant-Appellee
    Before: SCHROEDER and MURGUIA, Circuit Judges, and GLEASON, District Judge.
    
      
      The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation.
    
   MEMORANDUM

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 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 suGh 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., Ltd., 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 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 fan- and orderly trial” (citation omitted)). .

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     