Ellis v. PB Ventilating Systems, Inc.

Filing 46

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court adopts the R&R 40 , in its entirety, as the opinion of the Court pursuant to 28 U.S.C. § 636(b)(1). Defendant's Motion 29 is DENIED without prejudice. The Court 9;s ECF Order dated March 6, 2024, is hereby revised such that the deadline to take the first step in dispositive motion practice is adjourned until a date after any additional discovery and as scheduled by Magistrate Judge Marutollo. ORDER ATTACHED. Ordered by Judge Natasha C. Merle on 8/30/2024. (AG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

PETER ELLIS,
Plaintiff,
MEMORANDUM & ORDER
23-cv-04629 (NCM) (JAM)

– against –
PB VENTILATING SYSTEMS, INC.,
Defendant.

NATASHA C. MERLE, United States District Judge:
This Court has received the Report and Recommendation (“R&R”) on the instant
case dated June 17, 2024, from the Honorable Joseph A. Marutollo, United States
Magistrate Judge. ECF No. 40. Defendant timely objected to the R&R. For the reasons
stated below, the Court overrules defendant’s objections and adopts the R&R in its
entirety.
BACKGROUND
Plaintiff brought this action against his former employer for alleged discrimination
and retaliation based on plaintiff’s race and age in violation of Section 1981 of the Civil
Rights Act of 1866, 42 U.S.C. § 1981; the New York State Human Rights Law, New York
State Executive Law § 296; and the New York City Human Rights Law, New York City
Administrative Code § 8-107(1). Compl. 1, ECF No. 1. After the close of fact discovery,
defendant moved for sanctions against plaintiff and his counsel pursuant to Federal Rule
of Civil Procedure 37(e), including dismissal of this action, for plaintiff’s alleged spoliation

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of evidence. ECF No. 29. 1 By R&R, Magistrate Judge Marutollo recommended denial of
defendant’s Motion. Defendant timely objected to the R&R, ECF No. 44 (the “Objection”),
and plaintiff opposed defendant’s Objection, ECF No. 45 (the “Objection Opposition”).
STANDARD OF REVIEW
The Court reviews “de novo any part of the magistrate judge’s disposition that has
been properly objected to.” Fed. R. Civ. P. 72(b)(3). 2 “Merely referring the court to
previously filed papers or arguments does not constitute an adequate objection” pursuant
to Rule 72(b). Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022); see also
New York City Dist. Council of Carpenters v. Allied Design & Constr., LLC, 335 F. Supp.
3d 349, 351 (E.D.N.Y. 2018) (“[O]bjections that are merely perfunctory responses argued
in an attempt to engage the district court in a rehashing of the same arguments set forth
in the original petition will not suffice to invoke de novo review of the magistrate’s
recommendations.”). Nor will a court consider any arguments not previously raised, but
which could have been raised, before the magistrate judge. Carpenters, 335 F. Supp. 3d
at 351.
A district court reviews “[p]ortions of a report and recommendation that are not
properly objected to” for any “clear error on the face of the record.” Park v. Kim, No. 20cv-02636, 2022 WL 3643966, at *2 (E.D.N.Y. Aug. 24, 2022), aff’d, 91 F.4th 610 (2d Cir.

The Court hereinafter refers to the Memorandum of Law in Support of Defendant’s
Motion for Sanctions and Spoliation of Evidence, ECF No. 30, as the “Motion”; Plaintiff’s
Memorandum of Law in Opposition to Defendant’s Motion for Spoliation / Sanctions,
ECF No. 36, as the “Opposition”; and Defendant’s Reply Memorandum of Law in Further
Support of Its Motion for Sanctions and Spoliation of Evidence, ECF No. 36, as the
“Reply.”
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Throughout this Opinion, the Court omits all internal quotation marks, footnotes,
and citations, and adopts all alterations, unless otherwise indicated.

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2024); see also Sosa v. New York City Dep’t of Educ., 368 F. Supp. 3d 489, 494 (E.D.N.Y.
2019) (“General or conclusory objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error.”).
DISCUSSION
A party moving for sanctions pursuant to Federal Rule of Civil Procedure 37(e)
must demonstrate three prerequisites: (1) “electronically stored information that should
have been preserved in the anticipation or conduct of litigation is lost”; (2) the loss was
due to a party’s failure “to take reasonable steps to preserve” the information; and (3) that
information “cannot be restored or replaced through additional discovery.” Fed. R. Civ.
P. 37(e). These prerequisites are “conditions precedent” to the imposition of sanctions
pursuant to Rule 37(e). Chepilko v. Henry, No. 1:18-cv-02195, 2024 WL 1203795, at *4
(S.D.N.Y. Mar. 21, 2024). The burden rests with the movant to demonstrate each element
by a preponderance of the evidence. Id. In order to impose sanctions, the Court must also
find “prejudice to another party from loss of the information.” Fed. R. Civ. P. 37(e)(1);
Charlestown Cap. Advisors, LLC v. Acero Junction, Inc., 337 F.R.D. 47, 65 (S.D.N.Y.
2020) (“Rule 37(e)(1) . . . does not place a burden of proving or disproving prejudice on
one party or the other. The rule leaves judges with discretion to determine how best to
assess prejudice in particular cases.”).
Only if the movant can further demonstrate that “the party acted with the intent to
deprive another party of the information’s use in the litigation,” may a Court presume, or
instruct a jury to presume, that the information was unfavorable or “dismiss the action or
enter a default judgment.” See Fed. R. Civ. P. 37(e)(2); Carroll v. Trump, No. 20-cv-07311,
2024 WL 475140 at *7 (S.D.N.Y. Feb. 7, 2024). Indeed, “[d]ismissal under Rule 37 is

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appropriate only when a court finds willfulness, bad faith, or any fault by the noncompliant litigant.” Park, 91 F.4th at 612.
Magistrate Judge Marutollo found that defendant did not meet its burden as to the
prerequisites for Rule 37(e) sanctions. See R&R at 11–12. Specifically, Judge Marutollo
concluded that defendant “has not demonstrated whether the ESI at issue is
irretrievable.” R&R at 14. Defendant timely objected to the R&R on two grounds: (i)
Magistrate Judge Marutollo erred by finding that defendant had not met its burden to
show the information had been lost; and (ii) Magistrate Judge Marutollo failed to
consider sanctions other than dismissal. The Court agrees with the reasons stated in the
R&R and, for the reasons stated below, adopts the R&R in its entirety.
I.

Objection: Factual Errors

Defendant objects to the R&R on the basis that it “erroneously concludes” that
defendant has not demonstrated that the deleted information is lost. Obj. at 9. 3
Specifically, defendant contends that the R&R fails to address deleted messages with
unnamed employees and “disregards the fact that there was no opportunity” for
defendant to obtain the deleted messages through discovery. Obj. at 9. Upon its de novo
review, the Court finds that defendant has not demonstrated that the deleted messages
are lost, as required by Rule 37(e).
To assess whether information has been lost, the Court must consider whether it
can “be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e). As noted
in the advisory committee’s note to Rule 37, electronically stored information can often
be restored or replaced, especially information that exists on multiple sources. Fed. R.

Throughout this Order, page numbers for docket filings refer to the page numbers
assigned in ECF filing headers.

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Civ. P. 37(e) advisory committee’s note to 2015 amendment (“Because electronically
stored information often exists in multiple locations, loss from one source may often be
harmless when substitute information can be found elsewhere.”). Such is the case with
communication by text messages, which are sent and received by multiple users. See
CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 497 (S.D.N.Y. 2016) (noting that
“relief would not be available under the amended [Rule 37(e)] where, for example, emails
are lost when one custodian deletes them from his mailbox but remain available in the
records of another custodian”). Defendant has made no effort to show that the deleted
messages are irretrievable, nor has it indicated any attempt to obtain the deleted
messages from other custodians, whether through formal discovery or its own internal
processes. 4 Cf. CBF Industria de Gusa S/A v. AMCI Holdings, Inc., No. 13-cv-02581, 2021
WL 4190628, at *16 (S.D.N.Y. Aug. 18, 2021) (finding movant demonstrated permanent
loss based on record of “various recovery efforts” and showing that “additional discovery
would be fruitless”). Defendant’s attempt to rest on plaintiff’s purported wrongdoing is
simply not sufficient to meet its burden under Rule 37(e). See id. (“The law is clear that
the burden remains with the moving party” to show that the information cannot be
restored or replaced.). As Magistrate Judge Marutollo correctly noted, “[a] party need not
pursue every possible avenue for replacing or restoring the ESI, but it must show that it
made some good-faith attempt to explore its alternatives before pursuing spoliation

Defendant also argues that it could not pursue the deleted information through
discovery because of the Court’s denial of the parties’ third request to extend discovery
after scheduling the deposition of the named plaintiff to occur less than one week prior to
the close of fact discovery. See Obj. at 10. That argument is unavailing for the reason the
Court noted at the time: “Actual or anticipated requests for documents and information
following a deposition are routine, not extremely unusual.” ECF Order dated Jan. 18,
2024. This is especially so in light of the fact that, as discussed infra, defendant has failed
to demonstrate a timely attempt to retrieve the deleted information.
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sanctions.” R&R at 16 (quoting Gill v. JUS Broad. Corp., No. 19-cv-04216, 2023 WL
7412275, at *6 (E.D.N.Y. Nov. 9, 2023)). Defendant has made no such showing.
II.

Objection: Lesser Sanctions

Defendant also objects to the R&R on the basis that Magistrate Judge Marutollo
“did not address or consider whether lesser sanctions other than dismissal were
warranted,” including “fees and costs associated with the motion and/or [p]laintiff’s
discovery abuses.” Obj. at 7. In particular, defendant takes issue with the R&R prejudice
analysis, which it contends erred in not considering sanctions for (1) plaintiff’s failure to
identify employees he communicated with on the deleted messages; (2) plaintiff’s alleged
lack of reasonable inquiry as to his discovery production; and (3) defendant’s deposition
of plaintiff “before learning he withheld and destroyed evidence.” Obj. at 8–9.
These objections reveal a misunderstanding as to the function of the prejudice
analysis. Prejudice is a threshold requirement to “any relief whatsoever.” Carroll, 2024
WL 475140 at *7. Magistrate Judge Marutollo properly found that “[a]t this stage, any
finding of any prejudice is premature without further discovery” into whether the
messages were actually lost. R&R at 17. An explicit consideration of sanctions lesser than
dismissal was therefore unnecessary because defendant failed to meet the requirement of
prejudice necessary for any relief under Rule 37(e).
Moreover, Magistrate Judge Marutollo properly concluded that defendant has not
demonstrated that the deletion was prejudicial. While some courts have considered
prejudice “to mean merely that the evidence is probative, similar to the concept of
relevance,” other courts understand it to “require proof that the evidence was not only
probative, but that it would affirmatively support the movant’s claim.” Ungar v. City of
New York, 329 F.R.D. 8, 15 (E.D.N.Y. 2018), aff’d, No. 21-cv-01384, 2022 WL 10219749
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(2d Cir. Oct. 18, 2022). Nonetheless, “[c]ourts in this Circuit generally require some proof
of prejudice in the latter sense before sanctions will issue.” Id.; see also Carroll, 2024 WL
475140 at *9 n.56 (“This Court holds that the party seeking sanctions must prove that the
discarded evidence, had it been preserved, actually would have supported the movant’s
claim.”).
Here, defendant has put forth nothing more than speculation that the deletion was
prejudicial under either definition. As plaintiff has pointed out, defendant did not
establish at plaintiff’s deposition that the deleted messages contained communications
relevant to this case. See Pl.’s Opp’n 14–15 (citing to deposition transcript at ECF 37-1).
Indeed, if any messages between plaintiff and defendant’s custodians are relevant,
plaintiff correctly notes that defendant would have produced those during the course of
discovery in this action. See Pl.’s Opp’n at 16. As to any non-party former employees of
defendant who may have messages to or from plaintiff relating to this case, defendant has
offered no argument as to why those would be relevant, beyond speculating that their
deletion equates with relevance.
Rule 37(e) does not contemplate, let alone endorse, this tautology defendant asks
the Court to embrace. In order for the Court to consider drawing an adverse inference as
to the content and therefore prejudicial nature of the deleted messages, defendant must
first demonstrate that plaintiff deleted the messages with the intent to deprive defendant
of the information. See Carroll, 2024 WL 475140 at *11 (“The movant bears the burden
of proving by clear and convincing evidence not merely the intent to perform an act that
destroys ESI but rather the intent to actually deprive another party of evidence.”)
(emphasis original). As Magistrate Judge Marutollo correctly found, defendant has not
cleared the prerequisite hurdles, let alone demonstrated intent to deprive.
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Without a showing that the deleted information is probative or would support
defendant’s case, the Court does not find that the deletion caused defendant prejudice.
Accordingly, Rule 37(e) sanctions are not appropriate at this time.
CONCLUSION
For the reasons stated above, the Court adopts the R&R, in its entirety, as the
opinion of the Court pursuant to 28 U.S.C. § 636(b)(1). Defendant’s Motion is DENIED
without prejudice. The Court’s ECF Order dated March 6, 2024, is hereby revised such
that the deadline to take the first step in dispositive motion practice is adjourned until a
date after any additional discovery and as scheduled by Magistrate Judge Marutollo.

SO ORDERED.

/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge

Dated:

August 30, 2024
Brooklyn, New York

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