ONA T. WANG, Magistrate Judge.
Plaintiff Jeffrey Rothman brings this action against Defendants The City of New York, Vincent Flores, Andrew Wunsch, Lawrence Byrne, and James O'Neill, for violations of the United States Constitution, the New York State Constitution, and New York State common law of torts. (ECF 1 ¶¶ 77-112). The bulk of Plaintiff's claims have been dismissed and "what we have left is a case about whether Plaintiff is entitled to recover damages under federal and/or state law for the seizure of his pen (which was returned to him within minutes of its being taken from him), and/or for having papers thrown at him by Flores." (ECF 37 at 38-39).
Presently before the Court is Plaintiff's Motion for Sanctions for alleged spoliation of evidence. (ECF 52). Specifically, Plaintiff seeks spoliation sanctions for Defendants' failure to preserve security video footage and audio recordings of the incident. (Id. at 1-2). Plaintiff requests that the Court: (1) strike Defendants' answer and enter a judgment on the merits, and/or (2) bar the party Defendants from denying the material aspects of Plaintiff's factual narrative, and/or (3) issue an instruction for an adverse inference, and/or (4) strike Defendants' affirmative defenses, and/or (5) reconsider Plaintiff's Fourth Amendment excessive force claim, and/or (6) reconsider its analysis that Plaintiff did not plead sufficient facts that malice could be reasonably inferred with respect to the claims against Defendants Wunsch and Flores, and/or (7) authorize depositions of various individuals regarding Plaintiff's demand for preservation, and/or (8) require Defendants to bear the costs of recovering the destroyed evidence, and/or (9) award fees. (ECF 52 at 2-3). For the reasons set forth below, Plaintiff's motion is
The Court assumes familiarity with the facts as recounted in the Honorable Colleen McMahon's Decision and Order on Defendants' motion to dismiss. (See ECF 37 at 3-5).
On January 9, 2019, Plaintiff filed his Complaint. (ECF 1). On April 5, 2019, Defendants filed a 12(b)(6) motion to dismiss. (ECF 27). On August 5, 2019, the Court granted in part and denied in part Defendants' motion to dismiss. (ECF 37). The Court also issued a scheduling order at the end of its decision and order, stating:
On August 19, 2019, Plaintiff filed a motion for reconsideration of that decision, which was denied on August 21, 2019. (ECF 38, 40). On August 22, 2019, Plaintiff filed a letter motion for "Discovery Clarification and/or Modification-Amendment of Court's August 5, 2019 dated Expedited Discovery Process and Schedule and Matters Related to the Expedited Scheduled Trial date." (ECF 41). On August 23, 2019, Chief Judge McMahon held that the schedule and protocol set out above had not been changed. (ECF 48). On August 27, 2019, the undersigned denied the motion for clarification, finding that the scheduling order was clear. (ECF 46). On that same day, Plaintiff filed a motion for reconsideration of that order. (ECF 47). On September 10, 2019, that motion was denied. (ECF 51).
On September 10, 2019, Plaintiff filed the instant motion for sanctions on the basis that Defendants failed to preserve security video and, potentially, audio recordings of the incident. (ECF 52).
The incident occurred on December 13, 2017. (ECF 1 ¶ 1). The NYPD and the City of New York maintain security footage for thirty days. (See ECF 53 ¶ 17). On December 29, 2017, Plaintiff sent a letter demanding preservation of evidence to the NYPD and the City of New York, and hand delivered the same letter to the Corporation Counsel of the City of New York.
Pretrial matters "not dispositive of a party's claim or defense" may be referred to a magistrate judge for hearing and decision, subject to review, if timely objections are filed, by the district judge on a "clearly erroneous" or "contrary to law" standard. Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). "Discovery motions, including those seeking sanctions . . . are ordinarily considered non-dispositive, and therefore fall within the grant of Rule 72(a), unless the sanction deployed disposes of a claim [or defense]." Seena Int'l, Inc. v. One Step Up, Ltd., No. 15-CV-01095 (PKC) (BCM), 2016 WL 2865350, at *10 (S.D.N.Y. May 11, 2016) (quoting Lan v. Time Warner, Inc., No. 11-CV-2870 (AT) (JCF), 2016 WL 928731, at *1 (S.D.N.Y. Feb. 9, 2016) (internal citations omitted)). "The critical issue . . . is what sanction the magistrate judge actually imposes, not what sanction the moving party seeks." Syntel Sterling Best Shores Mauritius Ltd. v. TriZetto Group, 328 F.R.D. 100, 118 (S.D.N.Y. 2018) (quoting Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3068.2, at 383 (Thomson Reuters 2014)). For reasons discussed below, this Court does not find that casedispositive sanctions are warranted; thus, this Court has the authority to impose them pursuant to 28 U.S.C. § 636(b)(1)(A) and Rule 72(a).
"Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). Rule 37(e) of the Federal Rules of Civil Procedure, amended in 2015, governs sanctions for failure to preserve ESI, and provides as follows:
Fed. R. Civ. P. 37(e).
Pursuant to Rule 37(e), Plaintiffs must show that Defendants "acted with the intent to deprive [Plaintiff] of the information's use in the litigation" before the sanctions listed in subsection (2) of Rule 37(e)—i.e., adverse inference, dismissal, or default judgment—are available. Fed. R. Civ. P. 37(e)(2). Absent a showing of "intent to deprive," Plaintiffs' relief is limited to sanctions under subsection (1) of Rule 37(e). Fed. R. Civ. P. 37(e)(2).
Plaintiff asserts that Defendants spoliated security video footage of the area where the incident occurred and possible audio recordings of the same.
"The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation." Zubulake v. USB Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (citing Kronisch v. United States, 150 F.3d 112, 126-27 (2d Cir. 1998)). When Plaintiff's letter was processed, Defendants acknowledge that they should have implemented a litigation hold by January 12, 2018. (ECF 59 at 8). Accordingly, for purposes of this motion, Defendants' duty to preserve arose on or before January 12, 2018, when Plaintiff's demand letter was processed.
Concerning ESI, Plaintiff must show that Defendants "acted with the intent to deprive [Plaintiffs] of the information's use in the litigation" before the sanctions listed in subsection (2) of Rule 37(e) are available. Fed. R. Civ. P. 37(e)(2). This intent standard is stringent, requiring clear and convincing evidence that the spoliating party acted with the "intent to actually deprive another party of evidence." Leidig v. Buzzfeed, Inc., No. 16-CV-542 (GWG), 2017 WL 6512353, at *11 (S.D.N.Y. Dec. 19, 2017). Absent a showing of "intent to deprive," Plaintiff's relief is limited to sanctions under subsection (1) of Rule 37(e).
Here, the circumstances surrounding Defendants' loss of ESI do not support an inference that Defendants acted with the intent to deprive Plaintiff of evidence. Plaintiff was informed that the footage was destroyed in the course of business and pursuant to a preexisting retention policy. (See ECF 53-3). Although no hold had been placed on the day that the demand was processed, Plaintiff has not provided any evidence to support his assertion that the footage was destroyed "because of the intentional — at best deliberate and reckless indifferent — destruction by the Defendant City's agents." (ECF 54 at 13-14). Absent this showing, and applying Rule 37(e), the Court finds Defendants did not lose or destroy the ESI with a culpable state of mind. Thus, Plaintiffs are not entitled to Rule 37(e)(2) sanctions, i.e., an adverse inference instruction, a preclusion order, or a default judgment.
A party's duty to preserve extends to any evidence "likely to have discoverable information that the disclosing party may use to support its claims or defenses." Zubulake, 220 F.R.D. at 218 (citing Fed. R. Civ. P. 26(a)(1)(A)). The duty also extends to information that is relevant to the claims or defense of any party. Id. (citing Fed. R. Civ. P. 26(b)(1)). A party is not required to preserve every document in its possession. Id. at 217. Instead, "[a party] is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request." Id. (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991)). Notwithstanding his specific reference to video and audio recordings in his preservation letter, in this context, "relevance" means "something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence." Khatabi v. Bonura, No. 10-CV-1168 (ER), 2017 WL 10621191, at *7 (S.D.N.Y. April 21, 2017) (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108-09 (2d Cir. 2002)). The party "must adduce sufficient evidence from which a reasonable trier of fact could infer that the destroyed . . . evidence would have been" favorable to its case. Id. (internal quotation marks and citations omitted).
Plaintiff has not adduced sufficient evidence that the video and any possible audio recordings would have been favorable to his case. When there is nothing in the record to suggest "any bad faith or deliberate actions" by Defendants, a "presumption of relevance is unwarranted." Id. at 7. "Thus, for sanctions to be warranted, there must be extrinsic evidence to demonstrate that the destroyed evidence . . . would have been unfavorable to the destroying party." Id. (internal quotation marks and citation omitted). Plaintiff has not provided any such evidence. What Plaintiff instead provides is a proffer that the video would have depicted his pen being taken, which Defendants do not deny, (ECF 50 ¶ 40), whether Plaintiff's hand and wrist area were grabbed, despite Plaintiff admitting he "simply cannot remember if Wunsch also grabbed" his hand or arm when the pen was taken, (See ECF 64 ¶ 7), and whether the papers thrown at him struck his face, despite Plaintiff stating he "cannot recall specifically where on [his] body the papers made contact." (See ECF 64 ¶ 8). Plaintiff has not provided anything beyond these vague, noncommittal, and speculative statements, and therefore the Court finds that he has not provided sufficient extrinsic evidence to demonstrate relevance here.
For similar reasons, Plaintiff has not established prejudice. To the extent any prejudice could exist, it is minimal and must be weighed against the very small amount of potential damages that may be awarded.
The Court has already noted the "he said-he said" nature of this claim and some of the facts underlying the incident are disputed by the parties. Any prejudice to the Plaintiff, however, is heavily mitigated in this case as Defendants and Plaintiff are available to testify to the events that occurred on December 13, 2017. Given this, the recordings are likely to be duplicative and at best used for impeachment purposes. Furthermore, in order to effectuate Rule 1 of the Federal Rules, discovery was limited in this case given the low amount of potential damages. (See ECF 37 at 39-40). This remains unchanged. The Court reiterates that this is a case concerning "whether Plaintiff is entitled to recover damages . . . for the seizure of his pen (which was returned to him within minutes of its being taken from him), and/or for having papers thrown at him by [Sergeant] Flores." Given the facts underlying the incident and the potential remedy, the Court declines to grant additional discovery here where the speedy and inexpensive resolution of this case would be severely affected.
Plaintiff requests that the Court, in the alternative: (1) strike Defendants' answer and enter a judgment on the merits, (2) bar the party Defendants from denying the material aspects of Plaintiff's factual narrative, (3) issue an instruction for an adverse inference, (4) strike Defendants' affirmative defenses, (5) reconsider Plaintiff's Fourth Amendment excessive force claim, (6) reconsider its analysis that Plaintiff did not plead sufficient facts that malice could be reasonably inferred with respect to the claims against Defendants Wunsch and Flores, (7) authorize depositions of various individuals regarding Plaintiff's demand for preservation, (8) require Defendants to bear the costs of recovering the destroyed evidence, and/or (9) award fees. Requests for relief numbered 1 through 4 are solely available under Rule 37(e)(2), which the Court has already found not to apply because nothing in the record suggests that the Defendants destroyed evidence in bad faith or with an intent to deprive. Thus, Plaintiff is not entitled to these requests for relief.
The remaining sanctions requests fall under Rule 37(e)(1), which are discretionary. This is a case where exercise of the Court's discretion under Rule 37(e)(1) is warranted. Given the facts, the lack of a showing of relevance, and the very small degree of prejudice, if any, to Plaintiff, the Court hereby
Parties are directed to provide a joint status letter by
(ECF 53-1 at 3).