Siani v. State University of New York at Farmingdale et al

Filing 99

MEMORANDUM AND OPINION. As set forth in the attached Memorandum and Order, plaintiff's motion seeking to set aside the August 10, 2010 Discovery Order of Magistrate Judge Wall is denied. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/28/2011. (Nagiel, Svetlana)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 09-CV-407 (JFB) (WDW)
_____________________

DOMINICK J. SIANI,
Plaintiff,
VERSUS

STATE UNIVERSITY OF NEW YORK AT FARMINGDALE, ET. AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
June 28, 2011
___________________

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Dominick J. Siani
(hereinafter “Siani” or “plaintiff”) brought
this action against the State University of New
York at Farmingdale, W. Hubert Keen,
Beverly L. Kahn, Lucia Cepriano, Lorraine
Greenwald, Francine Federman, Kevin C.
Rooney, Dudley Blossom, Daniel S. Marrone,
Kenneth F. O’Brien, Annette Wanderer, and
Linda Calderone (collectively “defendants”),
alleging violations of the Age Discrimination
in Employment Act, 29 U.S.C. § 621 et. seq.,
the Fourteenth Amendment, as well as various
claims under New York state law.
Pending before the Court is plaintiff’s
motion, pursuant to Rule 72(a) of the Federal
Rules of Civil Procedure, to set aside or
modify the August 10, 2010 Discovery Order
of Magistrate Judge William D. Wall
(hereinafter the “Order”), which denied

plaintiff’s motion for an adverse inference
based on defendants’ alleged spoliation of
electronic records. Specifically, Magistrate
Judge Wall held that: (1) the duty to preserve
documents arose before the defendants
initiated efforts to preserve material in July of
2008 so that the duty to preserve was
breached; (2) the defendants were negligent in
failing to preserve documents and thereby
acted with a culpable state of mind; but (3)
plaintiff failed to demonstrate that any
unpreserved documents were either relevant
or favorable to the claims he alleges against
defendants.
For the reasons set forth below, this Court
finds no error in the thorough and
well-reasoned Order issued by Magistrate
Judge Wall and, therefore, plaintiff’s motion
is denied.

been relevant and favorable to plaintiff’s
claims. (Id. at 10-11.)

I. BACKGROUND
A. The August 10, 2010, Order

On March 15, 2011, defendants countered
that their litigation hold was set at the
appropriate time. (Defs’ Br. at 4-10.) They
further argued that they did not act with a
culpable state of mind because they took a
number of steps to ensure that documents
were preserved, including backing up e-mails
of “key players” and “repeated written and
oral directives regarding the Defendants’
preservation duty.” (Id. at 11.) Finally,
defendants asserted that some of the
individuals whose e-mail logs had gaps did
not have a duty to preserve documents as
early as plaintiff suggested because there was
no wrongdoing attributed to them in plaintiff’s
EEOC complaint and, in any event, that
plaintiff failed to demonstrate that any
unpreserved emails were somehow relevant or
favorable to him. (Id. at 12-14.)

On March 15, 2010, plaintiff moved,
pursuant to Federal Rule of Civil Procedure
37(e)1, for an adverse inference finding based
on defendants’ alleged failure to implement
and effectively carry out a litigation hold,
which allegedly resulted in the spoliation of
electronic documents. Specifically, plaintiff
asserted that defendants had a duty to preserve
all relevant documents as early as January of
2008, but a formal litigation hold was not put
in place until August of 2008. (Pl.’s Br. at 3,
4.) Plaintiff further argued that the defendants
were grossly negligent in making “no effort”
to enforce the litigation hold, and thereby
acted with a culpable state of mind. (Id. at 6,
8.) As proof of the failure to preserve
documentation, plaintiff pointed to: (1) gaps
in e-mail activity logs for non-party George
LaRosa (“LaRosa”), non-party Marybeth
Incandela (“Incandela”), defendant Dudley
Blossom (“Blossom”), and defendant Hubert
Keen (“Keen”); and (2) Kevin Rooney’s
(“Rooney”) failure to back up e-mails and
suspend routine destruction of electronic files.
(Id. at 6-7, 11.) Finally, plaintiff asserted that
defendants acted in bad faith by destroying
documents when there was a litigation hold in
place and that, as a result, it could be inferred
that the unpreserved documents would have

On April 8, 2010, Magistrate Judge Wall
ordered that Incandela, Rosa, Keen, Blossom,
and Rooney submit affidavits to the court
regarding their deletion of electronic files,
which were received and considered by
Magistrate Judge Wall. On April 22, 2010,
plaintiff submitted a letter supplementing his
memorandum of law on the adverse inference
issue. A spoliation hearing was held before
Magistrate Judge Wall on July 27, 2010.
By Order dated August 10, 2010 (Docket
No. 51), Magistrate Judge Wall denied
plaintiff’s motion for an adverse inference.
Magistrate Judge Wall made the following
rulings: (1) “the defendants should reasonably
have anticipated litigation at the latest as of
the end of March 2008,” when Siani stated in
a letter to Keen that he was prepared to
proceed “within the prescribed legal process,”
and therefore the defendants should have

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Plaintiff made the motion to Magistrate Judge
Wall under Federal Rule of Civil Procedure 37(e),
which states that a court may not impose sanctions
on a party for documents “lost as a result of the
routine, good-faith operation of an electronic
information system.” It is apparent that plaintiff
intended to make the motion pursuant to Federal
Rule of Civil Procedure 37(b), which permits an
adverse inference finding where a party has failed
to comply with a discovery order.

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resolution of discovery disputes deserves
substantial deference.” Weiss v. La Suisse,
161 F. Supp. 2d 305, 321 (S.D.N.Y. 2001);
see also Litton Indus., Inc. v. Lehman Bros.
Kuhn Loeb Inc., 124 F.R.D. 75, 77 (S.D.N.Y.
1989) (“[I]n resolving discovery disputes, the
Magistrate is afforded broad discretion, which
will be overruled only if abused.” (quotation
omitted)).

“started a litigation hold as to those parties
who would most likely be defendants in a
lawsuit” instead of waiting until July of 2008
so that the duty to preserve documents was
breached (id. at 11, 14); (2) defendants made
efforts to implement and enforce litigation
holds, with in-house counsel “issuing two or
three litigation hold directives,” but failed to
halt routine deletion procedures so that
defendants did not act in bad faith or with
gross negligence, but simply acted negligently
in overseeing the preservation process and the
culpable state of mind requirement was thus
satisfied (id. at 15-16); but (3) Siani did not
present extrinsic evidence suggesting that the
unpreserved documents would likely have
been relevant or favorable to his claims so that
plaintiff was not entitled to an adverse
inference (id. at 16-17.)

III. Discussion
The Court finds no grounds to disturb
Magistrate Judge Wall’s Order and concludes
that it is both legally and factually correct.2

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Although in his motion to Magistrate Judge
Wall plaintiff solely requested that an adverse
inference finding be made, on appeal he requests,
in the alternative, that this Court impose a costshifting monetary sanction and “consider
imposing fines for counsel’s gross negligence.”
(Pl.’s App. Br. at 25.) As an initial matter, “[a]n
argument raised for the first time on appeal is
typically forfeited.” Katel Ltd. Liab. Co. v. AT&T
Corp., 607 F.3d 60, 68 (2d Cir. 2010). Plaintiff
does not explain in his brief why he failed to raise
these alternate forms of relief before Magistrate
Judge Wall. Further, plaintiff’s brief on appeal
focuses entirely on the adverse inference charge,
solely referencing the alternative requests for
relief at the very end. In any event, this Court
concludes that imposing a fine on defendants is
not appropriate because this Court affirms the
Order for the reasons set forth below. To the
extent plaintiff is seeking to “[e]xtend discovery .
. . on the cross-referencing process performed by
Defendants just prior to the spoliation hearing and
credited by the Court as a mitigating factor” (Pl.’s
App. Br. at 24), plaintiff had the opportunity to
question witnesses at the spoliation hearing about
the cross-referencing process. It is also apparent
that the cross-referencing was just one factor that
Magistrate Judge Wall considered in evaluating
the credibility of Incandela, LaRosa, and Keen so
that even if the cross-referencing process was not

B. Procedural History
On August 23, 2010, plaintiff appealed the
Order denying his motion for an adverse
inference. On September 2, 2010, defendants
filed their opposition to plaintiff’s appeal.
The Court fully considered the arguments and
submissions of the parties and on August 10,
2010, the Court ruled from the bench,
affirming the Order and advising the parties
that the Court would issue a written opinion
explaining its reasoning. The Court affirms
the Order for the reasons set forth below.
II. Standard of Review
Rule 72(a) of the Federal Rules of Civil
Procedure states that a district court shall set
aside a discovery order of a magistrate judge
only when it has been shown that the
magistrate’s order is “clearly erroneous or is
contrary to law.” See Fed. R. Civ. P. 72(a);
see also 28 U.S.C. § 636(b)(1)(A). Indeed, it
is well settled that “[a] magistrate judge’s
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nature alleged by the party affected by its
destruction.” Scalera v. Electrograph Sys.,
Inc., 262 F.R.D. 162, 178 (E.D.N.Y. 2009)
(quoting Residential Funding Corp. v.
DeGeorge Fin. Corp., 306 F.3d 99, 108-09
(2d Cir. 2002)). Relevance may be inferred
from a sufficiently culpable state of mind such
as where documents were destroyed in bad
faith or under “some circumstances” where
defendants were grossly negligent in
destroying documents. See Residential
Funding, 206 F.3d at 109. Relevance may
also be established through extrinsic evidence
tending to show that the missing evidence
would have been relevant and favorable to the
moving party. See Id.; Scalera, 262 F.R.D. at
178.

Siani does not dispute the Order’s holding that
defendants had a duty to preserve documents
as of March 2008. Nor does Siani dispute that
the defendants acted with a culpable state of
mind. Instead, Siani contests Magistrate
Judge Wall’s determination that he failed to
demonstrate that the unpreserved material was
relevant and favorable to his claims. Siani
essentially argues that because defendants
allegedly acted with gross negligence and in
bad faith–even though Magistrate Judge Wall
concluded that they had not–this Court should
infer that the unpreserved material would be
relevant and favorable to Siani’s position.
This Court disagrees with Siani. Magistrate
Judge Wall’s determination that the
defendants merely acted negligently, rather
than in bad faith or with gross negligence, was
not clearly erroneous or contrary to
established law.
Moreover, this Court
concludes that there was no factual or legal
error in any other portion of Magistrate Judge
Wall’s analysis.

As noted above, the gravamen of the
dispute is over whether Siani sufficiently
demonstrated that the unpreserved documents
would be relevant and favorable to him. Siani
does not argue that he presented extrinsic
evidence tending to show that the unpreserved
documents would have been relevant and
favorable to his case. For example, Siani
could have put forward some favorable
documents he obtained through discovery
from the individuals who did not preserve all
of their documents. See, e.g., Chan v. Triple
8 Palace, Inc., No. 03CIV6048 (GEL)(JCF),
2005 WL 1925579, at *8 (S.D.N.Y. Aug. 11,
2005). Instead, Siani argues that defendants
were grossly negligent and acted in bad faith
in failing to preserve documents, so that
Magistrate Judge Wall should have inferred
that missing documents would have been
relevant and favorable to plaintiff. This Court
concludes that Magistrate Judge Wall did not
clearly err in concluding that defendants were
merely negligent and did not act in bad faith.

A spoliation inference is available if: (1)
relevant evidence is destroyed, (2) with
culpability, (3) when the defendant was under
a duty to preserve the evidence. See Byrnie v.
Town of Cromwell, Bd. of Educ., 243 F.3d 93,
107-09 (2d Cir. 2001) (quoting Kronisch v.
United States, 150 F.3d 112, 128 (2d Cir.
1998)). Ordinary negligence is sufficient for
a finding of a culpable state of mind.
Zubulake v. UBS Warburg LLC, 220 F.R.D.
212, 220 (S.D.N.Y. 2003). “[T]he party
seeking an adverse inference must adduce
sufficient evidence from which a reasonable
trier of fact could infer that the destroyed or
unavailable evidence would have been of the
accurate, this Court would not disturb Magistrate
Judge Wall’s ruling. (Docket No. 51 at 5-6, 1314.) Thus, the Court solely addresses plaintiff’s
request for an adverse inference charge.

With respect to the determination that the
defendants did not act in bad faith, Magistrate
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Judge Wall was in the best position to assess
the credibility of Blossom, Keen, Rooney,
Incandela and LaRosa, all of whom testified at
the spoliation hearing, and Magistrate Judge
Wall credited their explanations for why
emails were deleted.3 (Docket 51 at 5-8, 1314 (noting, for example, LaRosa’s demeanor
during testimony indicating LaRosa was
“surprised” that an e-mail log entry that
seemed relevant to the litigation represented
an e-mail that he deleted).) In light of their
testimony, Magistrate Judge Wall concluded
that documents were deleted “in the context of
routine clean-up procedures” that were not
suspended after the litigation hold was put in
place. (Docket No. 51 at 16.) This
determination was not clearly erroneous or
contrary to established law. See, e.g., Vega v.
Walsh, No. 06-cv-6492 (ARR)(JO), 2010 WL
2265043, at *4 (E.D.N.Y. May 28, 2010) (“As
the government notes, the Magistrate Judge’s
credibility determination is entitled to
considerable deference.” (citing Jordan v.
Lefevre, 293 F.3d 587, 594 (2d Cir. 2002));
Taveras v. City of New York, No. 06 CV
3807(SJ),
2008 WL 5062334, at *3
(E.D.N.Y. Apr. 22, 2008) (“The Court finds
that, although the representations made by
Defendant’s counsel with respect to the
availability of the NYPD Patrol Guide raise
some potentially serious ethical questions,
[Magistrate] Judge Levy’s decision must be
given deference under the circumstances.
First, Plaintiff’s argument is based on what he
perceives to be his adversary’s lack of
credibility. Given that it was Judge Levy who
conducted the various hearings on this issue,
and therefore was able to evaluate both
parties’ credibility directly, his decision

should be given considerable weight. This
Court, on the other hand, was not present for
the hearings and would have to rely strictly on
the written record in order to determine
whether or not Defendant’s counsel was
acting in good faith.”)

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Nor will this Court disturb Magistrate
Judge Wall’s finding that defendants solely
acted negligently, rather than with gross
negligent. It is evident that defendants did
take some steps to implement a litigation hold.
Magistrate Judge Wall concluded that Rooney
implemented two backups, issued two or three
litigation hold directives, and credited
Rooney’s testimony that he continued to
remind the “relevant parties” to preserve
documents. (Docket No. 51 at 16.) In light of
these steps and the determination that the
defendants did not act in bad faith, Magistrate
Judge Wall concluded that defendants’
imperfect efforts to implement a litigation
hold did not rise to the level of gross
negligence. Cf. Pension Comm. of the Univ.
of Montreal Pension Plan v. Banc of Am. Sec.,
LLC, 685 F. Supp. 2d 456, 476-77, 479-80
(S.D.N.Y. 2010) (finding gross negligence
where plaintiffs did not implement a litigation
hold for two years after the case was
transferred to the Southern District of New
York and where they blatantly failed to
request documents from key players, took no
steps to preserve documents knowing there
was a litigation hold and submitted misleading
and inaccurate declarations). The Court
concludes that this determination was not a
clearly erroneous determination.4 See, e.g.,
Anderson v. City of Bessemer, 470 U.S. 564,
574 (1985) (“Where there are two permissible

Magistrate Judge Wall concluded that the files
of Blossom and Rooney were not missing any
documents so that there were no documents made
unavailable to plaintiff. (Docket No. 51 at 12.)

Even if this Court were conducting a de novo
review of the Order, this Court would nevertheless
affirm the Order for the reasons set forth above
and in the Order.

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views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”);
Palmer v. Monroe Cnty. Sheriff, 378 F. Supp.
2d 284, 288 (W.D.N.Y. 2005) (same).
IV. CONCLUSION
Accordingly, for the reasons set forth
above, plaintiff’s motion seeking to set aside
the August 10, 2010 Discovery Order of
Magistrate Judge Wall is denied.
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge
Dated: June 28, 2011
Central Islip, New York

***
Plaintiff is proceeding pro se. The attorneys
for defendants are John L. Belford, IV, Esq.,
and Patricia M. Hingerton, Esq., State of
New York, Office of Attorney General, 300
Motor Parkway, Suite 205, Hauppauge,
N.Y. 11788.

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