Harvey v. Farber et al

Filing 128

DECISION AND ORDER granting in part and denying in part 126 Motion for Spoliation. Signed by U.S. District Judge Mae A. D'Agostino on 3/6/13. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
GREGORY HARVEY,
Plaintiff,
vs.

9:09-CV-152
(MAD/TWD)

C.O. DRAKE, C.O. JEWEL, C.O. REESE,
C.O. FAHEY, C.O. NEWTON, and C.O. PARISI,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

PHELAN, PHELAN & DANEK, LLP
302 Washington Avenue Extension
Albany, New York 12203
Attorneys for Plaintiff

JOHN J. PHELAN, III, ESQ.
TIMOTHY S. BRENNAN, ESQ.
STANLEY J. TARTAGLIA, ESQ.

MURPHY BURNS BARBER & MURPHY, LLP
226 Great Oaks Blvd.
Albany, New York 12203
Attorneys for Defendants Drake, Jewel,
Reese, Fahey, Newton, and Parisi

THOMAS K. MURPHY, ESQ.
STEPHEN M. GROUDINE, ESQ.

Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
"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). The district court is
vested with wide discretion in determining the appropriate sanction. See Reilly v. Nat-West
Markets Group, Inc., 181 F.3d 253, 267 (2d Cir. 1999). "The right to impose sanctions for
spoliation arises from a court’s inherent power to control the judicial process and litigation, but
the power is limited to that necessary to redress conduct which abuses the judicial process."

Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2000) (citation
omitted).
To secure spoliation sanctions based on the destruction or delayed production of evidence,
a moving party must prove that: (1) the party having control over the evidence had an obligation
to preserve or timely produce it; (2) the party that destroyed or failed to produce the evidence in a
timely manner had a “culpable state of mind”; and (3) the missing evidence is "relevant" to the
moving party's claim or defense, "such that a reasonable trier of fact could find that it would
support that claim or defense." Id. "If these elements are established, a district court may, at its
discretion, grant an adverse inference jury instruction insofar as such a sanction would 'serve . . .
[the] threefold purpose of (1) deterring parties from destroying evidence; (2) placing the risk of an
erroneous evaluation of the content of the destroyed evidence on the party responsible for its
destruction; and (3) restoring the party harmed by the loss of evidence helpful to its case to where
the party would have been in the absence of spoliation.'" Chin v. Port Auth. of New York & New
Jersey, 685 F.3d 135, 162 (2d Cir. 2012) (quotation omitted).
If a party has an obligation to preserve evidence, the degree of the party's culpability and
the amount of prejudice caused by its actions will determine the severity of the sanctions to be
imposed. See Henkel Corp. v. Polyglass USA, Inc., 194 F.R.D. 454, 456 (E.D.N.Y. 2000)
(citations omitted). "Nonetheless, a court should never impose spoliation sanctions of any sort
unless there has been a showing — inferential or otherwise — that the movant has suffered
prejudice." GenOn Mid-Atlantic, LLC v. Stone & Webster, Inc., 2012 WL 1414070, at *7
(S.D.N.Y. 2012) (citing Orbit One Commc'ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 441
(S.D.N.Y. 2010).

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A party seeking spoliation sanctions must show that "the records were destroyed with a
culpable state of mind." Byrnie, 243 F.3d at 109. In Byrnie, the Second Circuit held that this
prong of the spoliation test could be satisfied by showing that "the records were destroyed
knowingly . . . or negligently." Id.
In the present matter, Plaintiff has failed to show that Defendants knowingly failed to
preserve either Defendant Reese's report or the videotapes at issue. Regarding the alleged
videotapes that would have shown several of the alleged incidents, Defendants established that, at
the time in question, Herkimer County Jail had a policy in place whereby the videotapes in the
surveillance cameras would start to tape over earlier portions of the tape ninety days after the date
of the recording unless it was clear that the recording would be required for litigation or other
purposes. The record also makes clear that Plaintiff did not file this lawsuit until almost three
years after the alleged incidents. Plaintiff has not submitted any evidence that he requested these
videotapes prior to commencing this lawsuit (presumably as part of any grievance that may have
been filed). Therefore, the Court finds that Plaintiff has failed to establish that Defendants acted
with a "culpable state of mind" in allowing the videotapes to be erased pursuant to the jail's
policy.
Regarding the report that Defendant Reese testified that he submitted in relation to one of
the March 29, 2006 pepper spray incident, Defendant Reese's trial testimony is the time that
Plaintiff, Defendants' counsel, and the Court became aware that such a report existed at some
time. This report was required by policy of the Herkimer County Jail and Defendant Reese's
testimony established that it was relevant to Plaintiff's case. Considering the extensive discovery
that was provided in this matter, including other evidence substantiating or refuting Plaintiff's
claims, the Court finds that Defendants' failure to preserve this evidence was negligent at best.
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There is no evidence that the destruction or loss of the report was anything but inadvertent or that
any other report or document was not disclosed. In light of Defendants' efforts, the mere fact that
a single report was lost in contravention of the obligation to preserve does not reflect either bad
faith, the intentional destruction of evidence, or gross negligence. See Centrifugal Force, Inc. v.
Softnet Communication, Inc., 783 F. Supp.2d 736, 742 (S.D.N.Y. 2011) (citation omitted).
Considering all of the evidence, the parties submissions, and in light of the threefold
purpose a spoliation sanction is meant to serve, the Court holds that Plaintiff is entitled to an
adverse inference charge as to Defendant Reese's March 29, 2006 report. As such, the Court
grants in part and denies in part Plaintiff's motion for spoliation sanctions.
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for spoliation sanctions is GRANTED in part and
DENIED in part.
IT IS SO ORDERED.
Dated: March 6, 2013
Albany, New York

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