Bouchard v. United States Tennis Association, Inc. et al
MEMORANDUM AND ORDER: I adopt Judge Bloom's order in its entirety. The plaintiff's motion for spoliation sanctions is denied. Ordered by Judge Ann M. Donnelly on 9/5/2017. (Greene, Donna)
Case 1:15-cv-05920-AMD-LB Document 41 Filed 09/05/17 Page 1 of 5 PageID #: 487
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
- against 15 Civ. 5920(AMD)
UNITED STATES TENNIS ASSOCIATION,
INC.,and USTA NATIONAL TENNIS
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y.
•k SEP 0 5 2017 k
ANN DONNELLY,District Judge.
The plaintiff, Eugenie Bouchard, brings this action against the defendants, the United
States Tennis Association Inc. and the USTA National Termis Center, Inc., alleging that the
defendants' negligence and failure to warn her ofa dangerous condition on the premise caused her
to slip and fall, and hit her head in the women's locker room at the 2015 U.S. Open.^ On May 16,
2017, the plaintiff filed a motion for sanctions under Federal Rule of Civil Procedure 37, arguing
that the defendants intentionally destroyed security camera recordings ofthe night ofthe accident.
The plaintiff sought both an adverse inference jury instruction and punitive monetary sanctions.
In a Memorandum & Order dated August 10, 2017, Magistrate Judge Bloom denied the
plaintiffs motion for sanctions related to the defendants' destruction of video recordings.^ (ECF
^ Familiarity with the facts ofthis case is presumed.
^ Judge Bloom granted the plaintiffs motion for sanctions in connection with the defendants' failure to disclose the
full amount oftheir insurance coverage, and ordered the defendants to pay the costs oftwo private mediation sessions.
Because neither party challenges this portion ofJudge Bloom's decision, I will not address it.
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34.) Before me now are the plaintiffs objections to Judge Bloom's order. (ECF 36.) For the
reasons that follow, I adopt Judge Bloom's thorough and well-reasoned decision in its entirety and
deny the plaintiffs motion for sanctions.
1. Applicable Standard
A magistratejudge is empowered by the Federal Magistrate's Act and Federal Rule ofCivil
Procedure 72 to make findings as to nondispositive pretrial matters and to issue an order that is
binding in and of itself. See Joza v. WW JFK LLC, No. 07-cv-4153, 2010 WL 3619547, at *2
(B.D.N.Y. Sept. 10, 2010); 28 U.S.C. § 636(b)(1)(A).
A magistrate judge's ruling
on nondispositive pretrial matters, including discovery sanctions, will not be overturned unless the
ruling is clearly erroneous or contrary to law.^ Fed. R. Civ. P. 72(a); Magee v. Paul Revere Life
Ins. Co., 178 F.R.D. 33, 37(E.D.N.Y.1998)(citing Thomas E. Hoar, Inc. v. Sara Lee Corp., 900
F.2d 522, 525 (2d Cir. 1990)). An order is clearly erroneous if, based on all the evidence, a
reviewing court "is left with the definite and firm conviction that a mistake has been
committed." United States v. Isiofia, 370 F.3d 226, 232(2d Cir. 2004). "An order is contrary to
law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure." Hamill
V. Prudential Ins. Co. o/ytm., No. 11 Civ. 1464, 2013 WL 27548, at *4 (E.D.N.Y. Jan. 2,
2013)(citation and internal quotation marks omitted). Under this highly deferential standard,
magistrate judges are "afforded broad discretion in resolving discovery disputes, and reversal is
appropriate only if that discretion is abused." Aboeid v. Saudi Arabian Airlines Corp., No. 10 Civ.
^ The plaintiff refers to Judge Blooms decision as a "Report and Recommendation." In fact, it is a binding order. See
Joza, 2010 WL 3619547, at *2("Because the instant matter is a nondispositive discovery-related matter, disposition
of it by a magistrate judge in the form of an order, and not a report and recommendation, was appropriate,").
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2518, 2011 WL 5117733, at *2 (E.D.N.Y. Sept.6, 2011)(citing Conway v. Icahn, 16 F.3d 504,
510(2d Cir. 1994)).
2. Spoliation Sanctions
"Spoliation is the destruction or significant alteration ofevidence, or the failure to preserve
property for another's use as evidence in pending or reasonably foreseeable litigation," Estate of
Jackson ex rel Jackson v. City ofSuffolk, No. 12-cv-1455, 2014 WL 3513403, at *4 (E.D.N.Y.
July 15, 2014). Under Rule 37(e), a court may issue an adverse inference for failure to preserve
electronically stored information "only upon finding that the party acted with the intent to deprive
another party of the information's use." Fed. R. Civ. P. 37(e)(2). If there is no intent to deprive,
but the moving party is prejudiced by the destruction of information, a court may impose less
severe sanctions that place the prejudiced party in the position that it would have been had the
destruction not occurred. Fed. R. Civ. P. 37(e)(1).
a. Intent to Deprive
Judge Bloom held that the defendants did not act with intent to deprive the plaintiff of
information by destroying video footage of the fitness center and media room on the night of the
plaintiffs accident. I am in complete agreement with her conclusion, which is based on a thorough
analysis of the law and the facts. As Judge Bloom explained, the defendants promptly produced
video recordings ofthe area immediately outside ofthe women's locker room within a three-hour
window of the plaintiffs accident. Judge Bloom also noted that there were no security cameras
inside the women's locker room where the accident actually occurred. Thus,"[gjiven where the
accident occurred and the facts as alleged in the complaint, it is entirely reasonable that the
defendants believed that their production fully complied with their obligations under the plaintiffs
preservation letter." (ECF 34, at 11.)
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The plaintiffargues that the failure to preserve video footage ofthe fitness center and media
room was "unreasonable" because footage of those areas might become relevant. The test is
whether the defendants acted with intent to deprive the plaintiffs of this information. Judge
Bloom's decision—^that that there was no intent to deprive the defendants ofrelevant information
when the defendants preserved and produced the pertinent video recordings—is neither erroneous
nor contrary to the law.
The plaintiff also argues that Judge Bloom should have placed more emphasis on the
defendants' failure to institute a "litigation hold." But the failure to adopt good preservation
practice is only "one factor in the determination of whether discovery sanctions should issue."
Chin V. Port Auth. OfNew York & New Jersey, 658 F.3d 135, 162 (2d Cir. 2012); Orbit One
Commc'ns, Inc. v. Numerex Corp., 271 F.R.D. 429,441 (S.D.N.Y. 2010)("Rather than declaring
that the failure to adopt good preservation practices is categorically sanctionable, the better
approach is to consider such conduct as one factor."). The absence of a litigation hold is not
dispositive because, as Judge Bloom found, the defendants "fully complied" with their
preservation obligations by preserving the videotaped footage that was relevant to the plaintiffs
accident. (ECF 34, at 11.)
The plaintiff also disputes Judge Bloom's ruling that the plaintiff was not prejudiced by
the destruction of the additional video recordings. According to the plaintiff, the additional
recordings would have helped establish the timeline leading up to the accident, and might
undermine the deposition testimony of Eva Scheumman, a trainer, about the sequence of events.
(ECF 36, at 7.) As Judge Bloom pointed out, the plaintiff can establish a timeline based on the
video camera recordings from outside the women's locker room.
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Scheumman's deposition testimony about the time leading up to the plaintiffs accident supports
the plaintiffs position. Thus, Judge Bloom did not abuse her discretion in denying the plaintiffs
motion for sanctions; on the contrary, her decision was completely correct.
Accordingly, I adopt Judge Bloom's order in its entirety. The plaintiffs motion for
spoliation sanctions is denied.
s/Ann M. Donnelly
United States District Judge
Dated: Brooklyn, New York
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