Khatibi v. Bonura et al
OPINION AND ORDER: Before the Court is Plaintiff Kian Daniel Khatabi's ("Plaintiff" or "Khatabi") objections to Magistrate Judge Paul E. Davison's Order dated September 21, 2012 ("the Order"). For the reasons stated above, Plaintiff's objections are OVERRULED, and for the reasons set forth in Magistrate Judge Davison's Order and in this Order, Plaintiff's motion for the imposition of sanctions based upon spoliation is DENIED in its entir ety. The parties are directed to appear for a status conference on May 23, 2017 at 11:30 AM. (As further set forth in this Order.) (Status Conference set for 5/23/2017 at 11:30 AM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 4/21/2017) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KIAN DANIEL KHATABI,
– against –
OPINION AND ORDER
10 Civ. 1168 (ER)
STEPHEN BONURA, ROBERT MAZZEI, THE
VILLAGE OF PLEASANTVILLE, and THE
VILLAGE OF PLEASANTVILLE POLICE
Before the Court is Plaintiff Kian Daniel Khatabi’s (“Plaintiff” or “Khatabi”) objections
to Magistrate Judge Paul E. Davison’s Order dated September 21, 2012 (“the Order”). Plaintiff’s
Rule 72 Objections (“Pl.’s R. 72 Obj.”) Doc. 108. In the Order, Judge Davison denied Plaintiff’s
request for discovery sanctions against Defendants Village of Pleasantville (“Village”), Village
of Pleasantville Police Department (“VPPD”), Stephen Bonura (“Bonura”), and Robert Mazzei
(“Mazzei”) (collectively, “Defendants”) for the alleged spoliation of evidence. Memorandum
and Order Denying Motion for Sanctions (“Order”) (Doc. 57). For the reasons stated herein, the
Court OVERRULES Plaintiff’s objections.
A detailed factual background and procedural history relevant to the underling motion are
set forth in the Order and the parties’ submissions, familiarity with which is assumed.
Briefly stated, in February 1998, following an investigation by Defendants, Plaintiff was
arrested for allegedly stabbing two victims during a fight at a bar, William Boyar (“Boyar”) and
Brian Duffy (“Duffy”). See Order at 2. Following a jury trial in February 1999, Plaintiff was
convicted of assault in the first degree and criminal possession of a weapon in the fourth degree,
and was sentenced to an indeterminate prison term of seven to fourteen years on the assault count
and a concurrent term of one year on the weapon possession count. Id. After a series of
unsuccessful attempts to appeal the decision, in November 2007, more than eight years later,
Plaintiff’s brother confessed to his family that he was in fact the one who committed the stabbing
and that Plaintiff was innocent. Id. at 2–3. Based upon his brother’s confession, in April 2009,
Plaintiff moved to vacate his judgment of conviction and dismiss the indictment. Id. at 3. In
September 2008, based on this newly discovered evidence, the state court reversed Plaintiff’s
conviction and ordered a new trial. Id. In December 2008, the Westchester County District
Attorney’s Office moved to dismiss Plaintiff’s indictment, and the state court granted the motion.
On February 16, 2010, Plaintiff initiated this civil action against Defendants, alleging that
during the course of the underlying police investigation and prosecution of Plaintiff, Defendants
engaged in various violations of his civil rights under federal and New York state law, as well as
related state law torts. See Doc. 1 (“Complaint”). Plaintiff seeks compensatory damages,
punitive damages, and attorneys’ fees and costs.
By motion dated July 16, 2012, Khatabi sought sanctions for the destruction of or failure
to preserve during the course of the criminal investigation and prosecution the following
evidence: (1) handwritten notes purportedly taken by Lead Detective Mazzei during his
interviews of the victims; (2) clothing that was worn by the victims on the night of the stabbing
that was not recovered by the police; (3) clothing that was worn by the victims that was
recovered by the police near the crime scene but was later lost; (4) a videotape recording
showing Plaintiff inside the police station on the night of the stabbings that was subsequently
taped over; and (5) audio recordings of police transmissions made shortly after the stabbings that
were subsequently taped over. Doc. 44 at 2–3. Pursuant to Plaintiff’s request, Magistrate Judge
Davison heard oral argument on the motion on September 14, 2012. See 9/14/12 ECF Minute
On September 21, 2012, Magistrate Judge Davison issued the Order, declining to impose
sanctions. Doc. 57. On October 5, 2012, Plaintiff filed his Rule 72 Objections to the Order,
asserting fifteen objections. Doc. 58. Defendants filed their response on October 19, 2012.
Doc. 61. The Court rejected Plaintiff’s sixty-four page memorandum in support of his objections
because it exceeded the twenty-five page limit for motion papers outlined in the Court’s
individual practices. Doc. 62. The Court directed Plaintiff to re-file the memorandum of law
within the appropriate page limit by November 26, 2012. Id. In October and early November
2012, in a series of communications via telephone and email, Plaintiff made known to his
counsel that he no longer wished to be represented by them, and directed his attorneys to refrain
from taking any further actions on his behalf. See Declaration of Ameer Benno (Doc. 63-1) at ¶
8. On November 13, 2012, Plaintiff’s counsel filed a motion requesting to withdraw as counsel.
See Docs. 66–74.
On January 22, 2013, the Court granted counsel’s motions to withdraw. See 1/22/2013
ECF Minute Entry. At the January 22, 2013 Conference, Plaintiff’s former counsel provided a
status update for the Court, indicating that as a result of the breakdown in the relationship,
Plaintiff was not in a position to file the amended spoliation motion under the original deadline.
See Doc. 79 at 2–3.
On April 24, 2013, a status conference was held, and the Court inquired about the
status of his objections to Judge Davison’s Order, but no deadlines were set regarding an
amended filing. See Doc. 82 at 23–24. On January 13, 2014, new counsel appeared for
Plaintiff. Doc. 94. At the status conference on March 14, 2014, the Court ordered Plaintiff
to submit his amended objections to the spoliation motion by June 16, 2014.
03/14/2014 Minute Entry.
On May 21, 2014, Plaintiff filed his amended and narrowed objections to the Order,
arguing that spoliation sanctions are warranted for the loss of: (1) the handwritten notes
purportedly taken by Mazzei; (2) the hat and shirt worn by the victims that was recovered near
the crime scene; and (3) the videotape recording showing Plaintiff inside the police station at the
time of the stabbings. Pl.’s R. 72 Obj. at 1. Thus, Plaintiff does not challenge the Order with
respect to the clothing that was not recovered by the police and audio recordings of police
transmissions. See id.
Standard of Review
As a threshold matter, the parties dispute the appropriate standard of review. Plaintiff
argues the Court should review the Order de novo because “Plaintiff sought terminating
sanctions and a Magistrate Judge’s determination of a dispositive motion is subject to de novo
review by the District Judge.” Pl.’s R. 72 Obj. at 8. Defendants contend that the appropriate
standard is whether the Order is clearly erroneous or contrary to law because the underlying
sanctions motion is a non-dispositive motion. Defendants’ Response to Plaintiff’s Rule 72
Objections to Magistrate Judge Davison’s September 21, 2012 Memorandum and Order on
Plaintiff’s Motion for Sanctions for the Alleged Spoliation of Evidence (“Defs.’ Resp.”) (Doc.
112) at 2. Rule 72 of the Federal Rules of Civil Procedure, which sets forth the procedures for
objecting to a magistrate’s pretrial order or recommendation, divides pretrial matters into two
categories: Rule 72(a) speaks to pretrial matters “not dispositive of a party’s claim or defense”
while Rule 72(b) governs pretrial matters that are so dispositive. Fed. R. Civ. P. 72. The former
invokes a “clearly erroneous” or “contrary to law” standard of review while the latter requires a
“de novo” determination. See id.
Here, the Court referred the discovery dispute to Judge Davison as a “non-dispositive
motion dispute” and shortly thereafter referred the entire case for general pre-trial purposes. See
Docs. 30, 33. In the sanctions motion, Plaintiff requested, inter alia, that the Court strike
defendants’ answers and grant Plaintiff default judgment on his claims. Doc. 44 at 22. Pursuant
to those referrals, Judge Davison had the authority to impose sanctions for spoliation—as long as
those sanctions were non-dispositive. See, e.g., UBS Int’l Inc. v. Itete Brasil Instalacoes
Telefonicas Ltd., No. 09 Civ. 10004 (LAK) (JCF), 2011 WL 1453797, at *1 n.2 (S.D.N.Y. Apr.
11, 2011) (explaining that a magistrate judge lacks authority to dismiss a case as a sanction for
spoliation, but “has the authority to issue less severe sanctions, including preclusion orders, in
the course of overseeing discovery”); R.F.M.A.S., Inc. v. So, 748 F. Supp. 2d 244, 247–48 & n. 1
(S.D.N.Y. 2010) (holding that a magistrate judge had authority to preclude evidence as a
sanction for spoliation). A magistrate judge can recommend default judgment as a sanction for
spoliation for the Court’s consideration, although he cannot impose such a sanction unilaterally.
See Fed. R. Civ. P. 72(b); see also Kiobel v. Millson, 592 F.3d 78, 101 (2d Cir. 2010) (Leval, J.,
concurring) (explaining that a magistrate judge has authority to impose only those discovery
sanctions that are non-dispositive); Dorchester Fin. Holdings Corp. v. Banco BRJ S.A., 304
F.R.D. 178, 180 (S.D.N.Y. 2014) (magistrate judge to whom pretrial proceedings, including nondispositive motions, have been referred, has the authority to impose sanctions for spoliation,
including the preclusion of evidence, so long as those sanctions are non-dispositive, and the
review of any such non-dispositive decision is under a clearly erroneous or contrary to the law
standard, but dispositive spoliation sanctions, such as dismissal, could only be recommended and
that recommendation is subject to de novo review).
To determine whether a magistrate judge’s ruling regarding discovery sanctions is
“dispositive,” the Court must look to the effect of the sanction—if imposed. See Kiobel, 592
F.3d at 97 (“Analyzing the effects of the particular sanction imposed by a magistrate judge, to
determine whether it is dispositive or nondispositive of a claim, is the approach that best
implements Congress’s intent.”) (emphasis added). Thus, in determining between dispositive
and non-dispositive discovery sanctions, the critical factor is what sanction the magistrate judge
actually imposes, rather than the one requested by the party seeking sanctions. Gomez v. Martin
Marietta Corp., 50 F.3d 1511, 1519–20 (10th Cir. 1995) (rejecting argument that magistrate
judge ruled on dispositive motion because litigant sought entry of a default judgment and
explaining that “[e]ven though a movant requests a sanction that would be dispositive, if the
magistrate judge does not impose a dispositive sanction,” the order is treated as non-dispositive
under Rule 72(a)); 12 Wright, Miller & Marcus, FEDERAL PRACTICE & PROCEDURE § 3068.2, at
342–44 (2d ed. 1997) (disputes about handling of discovery ordinarily viewed as non-dispositive
under Rule 72 and treated as dispositive only when “the magistrate judge actually imposes” a
dispositive sanction); cf. La Barbera v. ASTC Labs., Inc., No. Civ. 2006-5306 (DLI) (MDG),
2007 WL 1423233, at *1 (E.D.N.Y. May 10, 2007) (“However, since entry of default is a
potential sanction, whether my decision is a matter within my pretrial reference authority
depends on the sanction imposed.”); but see Estate of Jackson ex rel. Jackson v. Cty. of Suffolk,
No. 12 Civ. 1455 (JFB), 2014 WL 3513403, at *3 (E.D.N.Y. July 15, 2014) (in case where
Plaintiff requested to strike Defendants’ pleading and enter default judgment, “[i]n an abundance
of caution, the Court has treated the Spoliation Order as a Report and Recommendation and
conducted a de novo review of the entire Spoliation Order.”).
Here, Magistrate Judge Davison ultimately denied the motion for sanctions, including
denying Plaintiff’s request for default judgment. See Order at 36. Therefore, because Judge
Davison did not impose any terminating sanctions, the Court treats his ruling as non-dispositive
and considers whether his Order is clearly erroneous or contrary to law. See Fed. R. Civ. P.
72(a). An order is clearly erroneous only when the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed. See, e.g., Surles v. Air
France, 210 F. Supp. 2d 501, 502 (S.D.N.Y. 2002). It is contrary to law if “it fails to apply or
misapplies relevant statutes, case law or rules of procedure.” MacNamara v. City of New York,
249 F.R.D. 70, 77 (S.D.N.Y. 2008). This is a highly deferential standard, and the objector thus
carries a heavy burden. U2 Home Entm’t, Inc. v. Hong Wei Int’l Trading Inc., No. 04 Civ. 6189,
2007 WL 2327068 (JFK), at *1 (S.D.N.Y. Aug. 13, 2007).
“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). “[T]he spoliation
doctrine is predicated on evidence actually existing and being destroyed.” Khaldei v. Kaspiev,
961 F. Supp. 2d 564, 569 (S.D.N.Y. 2013) (quoting Orbit One Commc’ns v. Numerex Corp., 271
F.R.D. 429, 441 (S.D.N.Y. 2010) (internal quotation marks omitted)). Thus, “for sanctions to be
appropriate, it is a necessary, but insufficient, condition that the sought-after evidence actually
existed.” Farella v. City of New York, 2007 WL 193867, at *2 (S.D.N.Y. Jan. 25, 2007)
(emphasis in original).
Where, as here, a party seeks “severe” sanctions for the alleged spoliation of evidence—
such as the preclusion of critical evidence, an adverse inference instruction, or dismissal of the
case—it must establish that: (1) the party having control over the evidence had an obligation to
preserve it at the time it was destroyed; (2) the evidence was destroyed “with a culpable state of
mind;” and (3) the destroyed evidence was “relevant” to the party’s claim or defense such that a
reasonable trier of fact could infer that it would support that claim or defense. Residential
Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002). Moreover, “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.” In re Pfizer Inc. Sec. Litig.,
288 F.R.D. 297, 316 (S.D.N.Y. 2013) (citation omitted); see also Riley v. Marriott Int’l, Inc., No.
12 Civ. 6242P, 2014 WL 4794657, at *5 (W.D.N.Y. Sept. 25, 2014) (“Although a finding that
the moving party has been prejudiced is not a prerequisite to the imposition of sanctions, before
awarding more severe sanctions — such as dismissal, preclusion, or the imposition of an adverse
inference — the court must consider . . . whether the innocent party has suffered prejudice as a
result of the loss of relevant evidence.”) (internal quotation marks, brackets, and citations
There is no dispute that Defendants lost the victims’ clothing that was retrieved at the
scene or that they taped over the video of Plaintiff at the police station. In his objections,
Plaintiff argues that:
(1) he has established that the handwritten interview notes actually
existed; (2) Defendants had a duty to preserve all of the evidence at issue; and (3) the loss of
evidence was intentional, in bad faith, and grossly negligent. The Court considers each objection
1. Existence of the Handwritten Notes
Magistrate Judge Davison denied Plaintiff’s motion with respect to the loss of Mazzei’s
handwritten interview notes based on the finding that Plaintiff did not establish that the
handwritten notes actually existed. Order at 10–13. Plaintiff argues that this finding is contrary
to the factual record because Mazzei possessed additional handwritten notes taken during his
interviews of the victims. Pl.’s R. 72 Obj. at 10–11. Specifically, Plaintiff argues that two
categories of handwritten notes existed and disappeared: (1) a page long witness statement from
Duffy; and (2) additional “scratch notes” from Mazzei’s interviews with the victims. Pl.’s R. 72
Obj. at 10–11. Plaintiff avers that these notes would have indicated that the victims lacked a
memory of the incident and identified Plaintiff in a photo array only as someone who may have
been at the bar where the stabbing took place, but not the actual assailant. Id. at 11. Thus,
Plaintiff argues that the factual record supports the inference that the “handwritten notes
disappeared to allow Boyar and Duffy to falsely implicate the Plaintiff based on Mazzei’s
representation to them that Plaintiff was the stabber and to prevent Plaintiff’s criminal attorney
from ascertaining that Boyar had no memory of the stabbing and that Duffy implicated someone
other than the Plaintiff.” Id. Magistrate Judge Davison concluded that the testimony Plaintiff
cited in his spoliation motion did not demonstrate a concession that Mazzei took or destroyed
any additional handwritten notes during the victim interviews at issue. Order at 11–12. The
As to the page long witness statement from Duffy, in his spoliation motion, Plaintiff
relied on Mazzei’s prior deposition and in-court testimony to support his claim that Mazzei
possessed handwritten notes regarding his interview from the criminal investigation. In
Plaintiff’s objections filed with this Court, he cites and attaches additional trial testimony from
Mazzei dated February 5, 1999 that was not cited in Plaintiff’s spoliation brief to Judge Davison
or its supporting documentation. The additional testimony states:
Q. I think you indicated on direct that you spoke with Brian Duffy?
A. That’s correct.
Q. And when you spoke with Brian Duffy, sir, did you take any notes?
A. Yes, I did.
Q. And the notes, sir, that you took, were they several pages, or how would you
describe it, sir?
A. It was approximately one page.
Q. Would it be fair to say it was approximately roughly four lines; would that be a
A. That was not his total statement.
Q. Oh that was not his total statement. There were some other handwritten notes,
sir, that were taken when you interviewed Mr. Duffy?
A. Yes, but once they were put into the computer, the handwritten notes were
Q. Sir, before the handwritten notes would be thrown out, would you have the
witness review the computer statement, the typed statement, I presume?
Q. And with respect to Mr. Duffy, did you have him review any typed statement,
A. Yes, I did, I did.
Q. And before you presented the typed statement to Mr. Duffy, did you have -- let
me rephrase it. Who typed the statement?
A. I did.
Q. So you know that the typed statement was the same as the handwritten statement
-A. That’s correct.
Q. That you ultimately threw out, correct?
A. That’s correct.
Doc. 109-48 (“February 5, 1999 Trial Proceedings”) at 340–41.
Plaintiff did not reference or attach this exhibit to his original spoliation motion. “[N]ew
arguments and factual assertions cannot properly be raised for the first time in objections to the
R & R, and indeed may not be deemed objections at all.” Tarafa v. Artus, No. 10 Civ. 3870
(AJN), 2013 WL 3789089, at *2 (S.D.N.Y. July 18, 2013) (citation omitted); see also Toth v.
N.Y.C. Dep’t of Educ., No. 14 Civ. 3776 (SLT), 2017 WL 78483, at *7 (E.D.N.Y. Jan. 9, 2017)
(“a district court generally should not entertain new grounds for relief or additional legal
arguments not presented to the magistrate” (quoting Ortiz v. Barkley, 558 F. Supp. 2d 444, 451
(S.D.N.Y. 2008)); Gonzalez v. Garvin, No. 99 Civ. 11062 (SAS), 2002 WL 655164, at *2
(S.D.N.Y. Apr. 22, 2002) (dismissing petitioners objection “because it offers a new legal
argument that was not presented in his original petition”). Thus, the Court finds no clear error
based on the record before Magistrate Judge Davison in regards to his analysis that the testimony
cited by Plaintiff did not demonstrate any concession that Mazzei took or discarded additional
handwritten notes—whether those be scratch notes or a one page statement—during the victim
interviews at issue. See Order at 11–12. 1 The statements in the record before Magistrate Judge
Davison were speculative and uncertain—Mazzei acknowledged that he “maybe” made
additional handwritten notes and that it was his normal practice to throw away handwritten notes
after he typed them into the computer. See id. Accordingly, Plaintiff’s objection with regard to
the existence of the handwritten notes is OVERRULED.
Even if this evidence were before Magistrate Judge Davison and this Court found his holding regarding the
existence of the handwritten notes to be clear error, this Court still finds that sanctions are not appropriate for the
reasons discussed below.
2. Duty to Preserve
Plaintiff argues that Defendants had a duty to preserve the handwritten interview notes,
clothing, and videotape at the time that they were lost or destroyed and that Magistrate Judge
Davison denied Plaintiff’s motion based on flawed reasoning regarding duty to preserve. Pl.’s R.
72 Obj. at 12–16. “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. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y.
2003) (citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)). Plaintiff avers that
the Defendants had an obligation to preserve all of the aforementioned evidence “during the
criminal investigation and thereafter while Plaintiff’s various litigations continued.” Pl.’s R. 72
Obj. at 12. Magistrate Judge Davison held that Defendants could not have been expected to have
reasonably anticipated the instant civil action at the time of the criminal investigation and
prosecution of Plaintiff. Order at 14.
As support for its objection, Plaintiff relies largely on Manganiello v. City of New York,
612 F.3d 149, 154–58 (2d Cir. 2010)—a case that both parties fully briefed before Magistrate
Judge Davison, and one that Judge Davison expressly distinguished in his Order. Relying on
Manganiello, Plaintiff argues that a police officer has an obligation to preserve evidence
obtained during the course of its criminal investigations, and its failure to do so will justify the
imposition of spoliation sanctions in a subsequent civil lawsuit. See Pl.’s R. 72 Obj. at 13.
Judge Davison rejected Plaintiff’s argument, stating:
The Court notes two important distinctions between Manganiello and the present
case. First, in Manganiello, the underlying criminal prosecution resulted in an
acquittal, see Manganiello, 612 F. 3d at 154, and therefore the civil litigation in that
case arguably became foreseeable immediately after the criminal prosecution
ended. In the present case, on the other hand, the instant litigation arguably did not
become foreseeable until several years after the conclusion of the underlying
criminal prosecution, when Plaintiff filed his § 440.10 motion on the basis of his
brother’s confession. Second, in Manganiello, there was no dispute that defendants
owed a duty to preserve the file for purposes of the criminal investigation and
prosecution given that the contents of the file had been gathered by the police and
specifically committed to the lead officer for safekeeping, see id. at 166–67; the only
dispute in that case, therefore, was whether such a duty could give rise to a duty to
preserve for purposes of a spoliation motion in a subsequent civil proceeding. In the
instant motion, on the other hand, Plaintiff seeks spoliation sanctions on the basis of
Defendants’ failure to secure or preserve individual items of evidence for which
Defendants claim that they did not owe any duty to preserve, even in the context of the
criminal investigation and prosecution. See Def.’s Mem. at 7-10. Accordingly,
because the facts of Manganiello are distinct from the facts of the present motion, the
Court next considers whether Defendants may have been obligated to preserve any of
the individual items of evidence at issue for purposes of Plaintiffs criminal case and, if
so, whether any failure to do so may provide the basis for spoliation sanctions in the
Order at 17–18.
The Court OVERRULES Plaintiff’s objection to Magistrate Judge Davison’s ruling
with respect to the duty to preserve. Even assuming arguendo that Magistrate Judge Davison
erred in his application of law regarding the duty to preserve, any such error was harmless
because Judge Davison explicitly stated that his ruling was not based on any lack of duty to
preserve, but rather Plaintiff’s inability to establish the remaining elements for spoliation
sanctions—culpable state of mind, relevance, and prejudice. See Order at 22–23 (“Given the
disputes regarding whether these items were in fact exculpatory or otherwise relevant and
discoverable, whether Plaintiff was aware that these items were in Defendants’ possession at
the time of the criminal investigation, and whether Plaintiffs criminal defense counsel
adequately requested production of these items so as to require that Defendants preserve them,
the Court will assume arguendo that Defendants owed a duty to preserve the . . . video
recordings and clothing obtained from the scene of the crime for purposes of the criminal
investigation at the time that these items were lost or destroyed.
Even assuming that
Defendants owed such a duty, however, the Court remains unpersuaded that spoliation
sanctions are warranted for the reasons set forth below.”). Thus, Magistrate Judge Davison’s
Order is not dependent on any failure to establish a duty to preserve, and the Court agrees with
his conclusion that even assuming arguendo that Defendants owed a duty to preserve the
evidence, spoliation sanctions are not warranted.
3. Culpable State of Mind, Relevance, and Prejudice
Plaintiff challenges Magistrate Judge Davison’s findings that there was insufficient
evidence in the record to establish Defendant’s culpable state of mind under the second prong of
the spoliation analysis. First, as discussed above, Plaintiff argues that the record establishes that
Mazzei’s handwritten notes existed and that Mazzei admitted to intentionally discarding them.
Pl.’s R. 72 Obj. at 16. Second, Plaintiff argues that Defendants’ failure to preserve the articles of
clothing was intentional, in bad faith, or at minimum grossly negligent, and that any purported
explanation of an innocent loss is untenable. Id. at 17–18. Third, Plaintiff argues that the loss of
the videotape was intentional because Defendants failed to take minimal steps to preserve the
video and withheld its contents from the prosecutor. Id. at 18. Plaintiff again relies on
Manganiello in arguing that sanctions should be imposed. Id. at 17.
“The state of mind with which the evidence was destroyed affects what showing is
required of the movant.” In re: Gen. Motors LLC Ignition Switch Litig., No. 14-MD-2543
(JMF), 2015 WL 9480315, at *3 (S.D.N.Y. Dec. 29, 2015). Specifically, where a party willfully
destroys evidence, courts presume the relevance of the destroyed evidence. See, e.g., Sekisui
Am. Corp. v. Hart, 945 F. Supp. 2d 494, 504–05 (S.D.N.Y. 2013). Where the party engaged in
gross negligence, a court may infer relevance. See Chin v. Port Auth. of N.Y. & N.J., 685 F.3d
135, 162 (2d Cir. 2012) (“[A] finding of gross negligence merely permits, rather than requires, a
district court to give an adverse inference instruction.”). And where destruction of evidence
occurs as the result of ordinary negligence, a presumption of relevance never applies. See
GenOn Mid-Atlantic, LLC v. Stone & Webster, Inc., 282 F.R.D. 346, 358 (S.D.N.Y. 2012); see
also Zubulake, 220 F.R.D. at 221 (“This corroboration requirement is even more necessary
where the destruction was merely negligent, since in those cases it cannot be inferred from the
conduct of the spoliator that the evidence would even have been harmful to him.” (internal
quotation marks omitted)).
The term “relevant” in this context “means something more than sufficiently probative to
satisfy Rule 401 of the Federal Rules of Evidence.” Residential Funding, 306 F.3d at 108–09.
Instead, to establish relevance, the party seeking sanctions “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. at 109 (internal quotation marks omitted).
As discussed above, as to the handwritten notes, the Court agrees with Magistrate Judge
Davison that Plaintiff did not sufficiently establish their existence such that the notes can form
the basis of a spoliation motion.
As to the clothing, Magistrate Judge Davison found that Defendants’ failure to preserve
the clothing was “at worst negligent” because it was inadvertently lost during a renovation of the
police station and not due to any deliberate actions. Order at 25. Although Plaintiff argues that
Mazzei was in charge of overseeing the relocation of the evidence and that the Chief testified
that all evidence was moved to the new building and secured, the Court discerns nothing in the
record to suggest any bad faith or deliberate actions by Mazzei. Here, the Court agrees with
Judge Davison, who was in the best position to test the credibility of the witnesses, that
Defendants’ conduct with respect to the loss of the clothing was at worst negligent, so therefore a
presumption of relevance is unwarranted. See, e.g., Zubulake, 220 F.R.D. at 221. 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.” Great N. Ins. Co. v. Power
Cooling, Inc., No. 06 Civ. 874 (KAM), 2007 WL 2687666, at *11 (E.D.N.Y. Sept. 10, 2007)
(internal quotation marks omitted). Magistrate Judge Davison held that the court was
“unpersuaded by Plaintiff’s speculation that a reasonable jury could conclude that this clothing
would support his claims that Defendants lacked probable cause for his arrest or withheld
exculpatory evidence from him, or that this clothing would otherwise be favorable to Plaintiff in
this litigation.” Order at 29. The Court finds no clear error with respect to Magistrate Judge
Davison’s holding regarding the clothing, and therefore finds spoliation sanctions are not
appropriate for the loss of this evidence.
As to the video recording, Magistrate Judge Davison concluded that “it was negligent, or
perhaps even grossly negligent, for Defendants to permit [the] tape to be erased within sixty days
of the incident . . . .” Order at 25–26. Plaintiff argues that the destruction of the videotape was
intentional because Mazzei and Bonura were aware of its relevance and failed to take even
minimal steps to preserve it, which was in violation of department regulations, statutory
obligations, and good police procedure. Pl.’s R. 72 Obj. at 18–19. Plaintiff also argues that an
inference of bad faith or intentional destruction can be drawn because there is a note in the police
file, “which appears to be in Bonura’s handwriting, that says ‘do not release to defendants’
attorney.’” Id. at 19. However, while there appears to be no dispute that this handwritten note is
contained within the police file, there is no evidence to suggest that the note refers to the
Judge Davison analyzed the relevance of the video evidence “assuming that Plaintiff has
established that Defendants’ failure to preserve . . . was . . . grossly negligent . . . ” and held that
while Plaintiff offered some extrinsic evidence to demonstrate the potential relevance of the
videotape—namely a chronology report setting forth the times at which Plaintiff entered and
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