Singh et al v. Penske Truck Leasing Co.,L.P., et al
OPINION AND ORDER. For the reasons in this Opinion and Order, plaintiffs' motion seeking sanctions for spoliation of evidence (Docket #50) is denied. re: 50 FIRST MOTION for Sanctions for Spoliation filed by Tapinder Singh. (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/26/2015) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TAPINDER SINGH, et al.,
OPINION AND ORDER
13 Civ. 1860 (VSB) (GWG)
PENSKE TRUCK LEASING CO., L.P.,
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Tapinder Singh and Harvinder Kaur bring this motion seeking sanctions for
spoliation of evidence against defendant Penske Truck Leasing Co., L.P. (“Penske”).1 For the
reasons stated below, this motion is denied.
Tapinder Singh and his wife, Harvinder Kaur, assert claims for personal injuries and
derivative liability stemming from Singh’s fall from the hydraulic lift gate of a Penske truck on
January 11, 2012. See Third Amended Complaint, filed July 22, 2013 (Docket # 23)
(“Compl.”), ¶¶ 16, 23-26. In October 2004, Penske had entered into a Vehicle Lease Service
Agreement with the restaurant Papa John’s. See Vehicle Lease Service Agreement, dated Oct. 6,
See Notice of Motion, dated Nov. 19, 2014 (Docket # 50) (“Notice of Motion”);
Memorandum of Law Submitted in Support of Plaintiffs’ Motion for Sanctions Against
Defendant for Their Spoliation of Evidence, dated Nov. 19, 2014 (Docket # 51) (“Pl. Mem.”);
Declaration of Michael F. Rubin in Support of Plaintiffs’ Motion for Sanctions Against
Defendant for Spoliation of Evidence, dated Nov. 19, 2014 (Docket # 52) (“Rubin Decl.”);
Affirmation in Opposition to Plaintiff’s Motion for Sanctions for Spoliation of Evidence, dated
Nov. 25, 2014 (Docket # 53) (“Dunn Aff.”); Memorandum of Law in Opposition to Plaintiff’s
Motion to Strike Defendant’s Answer Based Upon Alleged Spoiliation [sic] of Evidence, dated
Nov. 25, 2014 (Docket # 54) (“Def. Mem.”); Reply to Defendant’s Opposition to Plaintiffs’
Motion for Spoliation of Evidence, dated Dec. 3, 2014 (Docket # 55); Declaration of Michael F.
Rubin in Support of Plaintiffs’ Reply to Defendant’s Opposition to Plaintiffs’ Motion for
Spoliation of Evidence, dated Dec. 3, 2014 (Docket # 56).
2004 (annexed as Ex. B to Rubin Decl.). Under this agreement, Penske leased vehicles to Papa
John’s, and Penske was required “to keep the [Leased] Vehicles in good repair and operating
condition.” Id. ¶ 1. On the date of the accident, Singh was employed by Papa John’s as a
delivery driver. See Deposition of Tapinder Singh, dated Nov. 8, 2013 (annexed in part as Ex. A
to Rubin Decl.), at 12-14. Singh was operating one of the Penske vehicles, identified as unit
number 491646 (“Vehicle 491646”), when he was injured. See Penske Incident Report, dated
Jan. 11, 2012 (annexed as Ex. E to Rubin Decl.). Plaintiffs allege that on January 11, 2012,
Singh was “preparing to make a delivery” in the Bronx when “he observed what he believed to
be a dangerous leak of hydraulic fluid from the liftgate area of [Vehicle 491646].” Compl. ¶ 13.
Penske came to repair the lift gate that same day. Id. ¶ 14. “Upon being advised that the truck
was repaired and was safe to operate,” Singh proceeded to the next delivery location. Id. ¶ 15.
Plaintiffs allege that when Singh operated the lift gate, “the liftgate failed and [Singh] was
caused to fall from the liftgate to the ground where he sustained serious personal injuries.” Id.
Penske has a “preventative maintenance program,” under which the leased trucks are
inspected approximately every 90 to 100 days (the “PM Inspection”). See Deposition of
Dominick D’Ambrosio, dated Feb. 7, 2014 (annexed in part as Ex. D to Rubin Decl.), at 15-16.
These PM Inspections are conducted using a pre-printed checklist (the “PM Checklist”). See
Deposition of Patrick Dorta, dated Feb. 7, 2014 (annexed as Ex. G to Dunn Aff.) (“Dorta Dep.”),
On January 3, 2012, eight days before Singh’s accident, Vehicle 491646 underwent a
scheduled PM Inspection. This is reflected in a “Repair Order” issued the same day, which notes
that “PM” inspections occurred as to the “reefer trailer,” lift gate, and trailer. See Penske Truck
Leasing Co. L.P. Repair Order 7434-155812, dated Jan. 3, 2012 (annexed as Ex. B to Rubin
Decl.) (“Jan. 3 Repair Order”). The individual who conducted the inspection, Patrick Dorta,
testified at a deposition that he would not have conducted the January 3, 2012 PM Inspection
without also completing a PM Checklist. See Dorta Dep. at 74.
The Jan. 3 Repair Order also lists various “complaints,” such as “reefer doors don’t
close” and “adj belts.” See id. at 1-3. For each complaint, there is a box that is filled in for
“cause,” “correction,” and “notes.” Id. Job No. 4 of the Repair Order lists one complaint as
“liftgate inop.” Id. at 2. It indicates that the “cause” is “wiring,” and that the “correction” is
“repair lift gate wiring.” Id. The “notes” state: “repair lift gate wiring as needed; secure wiring
and verify proper operation.” Id. On January 5, 2012, a repair was made to the “interior light
wiring cargo box.” Penske Truck Leasing Co. L.P. Repair Order 7434-157200, dated Jan. 5,
2012 (annexed as Ex. E Part 1 to Dunn Aff. at 10). Following Singh’s injury, Vehicle 491646
underwent further repairs as reflected in a Repair Order dated January 19, 2012. See Penske
Truck Leasing Co. L.P. Repair Order 7434-157430, dated Jan. 19, 2012 (annexed as Ex. B to
Rubin Decl.). This Repair Order indicates that the “pump box” needed to be replaced because it
was “rotted away and falling off.” Id. Under “correction,” the form states: “replace reservoir
assembly — hydraulic system/lift gate.” Id. These repairs were also reflected in a “Customer
Audit Report.” See Penske Truck Leasing Co. Customer Audit Report by Unit, dated Oct. 25,
2012 (annexed as Ex. C to Dunn Aff.) (“Customer Audit Report”), at 10.
On September 18, 2012, and October 18, 2012, plaintiffs sent letters to Penske informing
it of the impending litigation and requesting documents related to Vehicle 491646. See Rubin
Decl. ¶ 16; Letter from Michael F. Rubin, Esq., dated Oct. 18, 2012 (annexed as Ex. A to Dunn.
Aff.); Letter from Michael F. Rubin, Esq., dated Sept. 18, 2012 (annexed as Ex. A to Dunn Aff.).
Penske says that it received both letters on October 25, 2012. See Affidavit of Merit in
Opposition to Plaintiff’s Motion for Sanctions Based Upon Spoliation of Evidence, dated Nov.
24, 2014 (annexed as Ex. B to Dunn Aff.) (“Hansen Aff.”), ¶ 3. Upon receipt of plaintiffs’
letters, Penske Litigation Claims Examiner Kresten Hansen “opened a litigation claim” and
“conducted a search for the pertinent documents related to the subject trailer.” Id. ¶ 4.
Specifically, Hansen “saved electronic copies of the Penske ServiceNet records for [Vehicle
491646], including a Customer Audit Report, as well as copies of all of the electronic Repair
Orders, and outside vendor service records.” Id. ¶ 6. Hansen also requested the “Unit Jacket
File,” which is “the physical file maintained by Penske for [Vehicle 491646] where nonelectronic records regarding its maintenance are located, including Driver Vehicle Incident
Reports and [PM] Checklists.” Id. ¶ 5. However, “[t]he Preventative Maintenance Form
completed by service technician Mr. Patrick Dorta for the Preventative Maintenance performed
on the subject trailer on January 3, 2012,” — that is, the PM Checklist — “was not contained in
the Unit Jacket File when [Hansen] requested it on October 25, 2012.” Id. ¶ 12. Hansen
explains that the Unit Jacket File is the only location where such a record would be kept and he
does not know why the PM Checklist for the January 3, 2012 PM Inspection was not in that file.
Id. ¶ 13. The contents of the Unit Jacket File were provided to plaintiffs. Id. ¶ 9.
Plaintiffs now seek sanctions based on Penske’s failure to produce the PM Checklist of
January 3, 2012 (the “January 3 PM Checklist”). Specifically, they seek either entry of default
against Penske or an adverse inference instruction to the jury. Pl. Mem. at 1.2
Plaintiffs’ notice of motion also mentions as a form of relief an order precluding
Penske from offering evidence of “non-negligent truck maintenance, and/or defendant’s
affirmative defenses.” Notice of Motion at 1. This request, however, is not referred to, let alone
discussed, in either of plaintiffs’ memoranda of law. Nor is it mentioned in the affidavit of
LAW GOVERNING MOTIONS FOR SPOLIATION SANCTIONS
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.’”
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (quoting West v.
Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). A party seeking spoliation
sanctions has the burden of establishing the elements of a spoliation claim. Id. at 109; accord
Centrifugal Force, Inc. v. Softnet Commc’n, Inc., 783 F. Supp. 2d 736, 740-41 (S.D.N.Y. 2011)
(citation omitted). These elements are (1) that “the party having control over the evidence . . .
had an obligation to preserve it at the time it was destroyed”; (2) that the evidence was
“destroyed with a culpable state of mind”; and (3) that the destroyed evidence was “relevant” to
the party’s claim or defense. Byrnie, 243 F.3d at 107-09 (alteration in original) (citations and
internal quotation marks omitted); accord Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162
(2d Cir. 2012). Any sanction imposed should be designed to “(1) deter parties from engaging in
spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the
risk; and (3) restore the prejudiced party to the same position he would have been in absent the
wrongful destruction of evidence by the opposing party.” West, 167 F.3d at 779 (citations and
internal quotation marks omitted); accord Chin, 685 F.3d at 162. Additionally, “[i]t is well
accepted that a court should always impose the least harsh sanction that can provide an adequate
remedy. The choices include — from least harsh to most harsh — further discovery,
cost-shifting, fines, special jury instructions, preclusion, and the entry of default judgment or
dismissal.” Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685
counsel in support of the motion. See Rubin Aff. ¶ 22. Accordingly, we do not address it
F. Supp. 2d 456, 469 (S.D.N.Y. 2010) (internal citations omitted), abrogated on other grounds by
Chin, 685 F.3d 135.
Obligation to Preserve
To meet the first element, plaintiffs must show that Penske “had an obligation to preserve
[the evidence] at the time it was destroyed.” Byrnie, 243 F.3d at 107 (citation and internal
quotation marks omitted). In the usual situation, “[t]he obligation to preserve evidence arises
when [a] 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.” Fujitsu Ltd. v. Fed. Exp. Corp.,
247 F.3d 423, 436 (2d Cir. 2001) (citation omitted); accord R.F.M.A.S., Inc. v. So, 271 F.R.D.
13, 23 (S.D.N.Y. 2010); Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 171 (E.D.N.Y.
2009); Treppel v. Biovail Corp., 249 F.R.D. 111, 118 (S.D.N.Y. 2008). Thus, this obligation to
preserve evidence arises “most commonly when suit has already been filed, providing the party
responsible for the destruction with express notice, but also on occasion in other circumstances,
for example, when a party should have known that the evidence may be relevant to future
litigation.” Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) (citations omitted).
This case does not represent the usual situation, however. In the typical case where a
party is seeking spoliation sanctions, a court must determine when the party responsible for the
evidence is chargeable with the duty to preserve it. Here, Penske had an obligation to preserve
the evidence from the moment it was created. This obligation arose because of the Federal
Motor Carrier Safety Regulations — specifically, 49 C.F.R. § 396.3, which is made applicable
to Penske by 49 C.F.R. § 390.3.
Section 396.3 provides that the “records required by this section shall be retained where
the vehicle is either housed or maintained for a period of 1 year.” Id. § 396.3(c). Penske does
not contest that 49 C.F.R. § 396.3 applies to it; instead Penske argues that it is not required to
“retain every piece of paper related to one of its vehicles” but rather only “a record of its repairs,
which Penske has done.” Def. Mem. at 11. However, the text of the regulation makes clear that
Penske is required to retain, inter alia, any “record of inspection, repairs, and maintenance.” 49
C.F.R. § 396.3(b)(3) (emphasis added). Penske does not explain why a PM Checklist created
during a PM Inspection is not a “record of inspection” within the meaning of the regulation.
The Second Circuit has held that
under some circumstances, . . . a regulation can create the requisite obligation to
retain records, even if litigation involving the records is not reasonably
foreseeable. For such a duty to attach, however, the party seeking the inference
must be a member of the general class of persons that the regulatory agency
sought to protect in promulgating the rule.
Byrnie, 243 F.3d at 109 (citation omitted); see also Scalera, 262 F.R.D. at 173-74
(records-retention regulation imposed on defendants an obligation to preserve documents).
Here, the purpose of the regulations is “to promote the safe operation of commercial motor
vehicles” and “to minimize dangers to the health of operators of commercial motor vehicles and
other employees whose employment directly affects motor carrier safety.” 49 U.S.C. § 31131(a).
Defendants do not contest that Singh is a member of the general class of persons that the
regulations were intended to protect. Thus, we conclude that the spoliation doctrine obligated
Penske to preserve the January 3 PM Checklist for a period of at least one year. Penske
concedes that it could not find the record when it looked in October 2012, within the one year
retention period imposed by the regulation. See Hansen Aff. ¶¶ 12-13. Thus, the loss or
destruction of the record necessarily occurred while Penske had an obligation to preserve it.
Culpable State of Mind
A party seeking spoliation sanctions must also show that the evidence was destroyed
“with a culpable state of mind.” Byrnie, 243 F.3d at 109. Failures to preserve evidence “occur
along a continuum of fault — ranging from innocence through the degrees of negligence to
intentionality.” Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999) (citation and
internal quotation marks omitted). The Second Circuit has held that spoliation sanctions may be
appropriate where evidence was destroyed merely “negligently.” Byrnie, 243 F.3d at 109.
Here, there is no evidence at all that Penske acted in bad faith or intentionally destroyed
the document. Nor do we see a basis for finding “gross negligence.” See generally Chin, 685
F.3d at 162 (“We reject the notion that a failure to institute a ‘litigation hold’ constitutes gross
negligence per se.”) (citation omitted); see also Zimmerman v. Poly Prep Country Day Sch.,
2011 WL 1429221, at *22 (E.D.N.Y. Apr. 13, 2011) (“Gross negligence has been described as a
failure to exercise even that care which a careless person would use.”) (citation and internal
quotation marks omitted).
Whether Penske has been shown to have acted negligently is a closer question. In
Byrnie, the Second Circuit noted that while “a regulation may supply the duty to preserve
records,” the party seeking sanctions must still “demonstrate first that the records were destroyed
with a culpable state of mind (i.e. where, for example, the records were destroyed knowingly,
even if without intent to violate the regulation, or negligently).” 243 F.3d at 109. Plaintiffs
point to the federal regulation that required Penske to preserve the inspection record and argue
that a “violation of a regulation is considered to be at least some evidence of negligence.” Pl.
Mem. at 7.
Plaintiffs’ argument invites us to look to tort rules in determining Penske’s culpability.
Penske does not oppose this exercise, and we find it appropriate to do so inasmuch as
“negligence” is a tort standard. Under New York law, “a violation of a regulation — as opposed
to a statute — is not negligence per se but merely ‘some evidence’ of negligence.” Pasternack v.
Lab. Corp. of Am., 892 F. Supp. 2d 540, 555 (S.D.N.Y. 2012) (quoting Chen v. United States,
854 F.2d 622, 627 (2d Cir. 1988)). We do not see any reason not to apply the same logic in the
spoliation context. Thus, we conclude that the fact that Penske did not maintain the PM
Inspection record as required by federal regulations constitutes “some evidence” of negligence
on Penske’s part, though it does not definitively answer the question of whether Penske acted
In light of the obligation to preserve the January 3 PM Checklist imposed on Penske by
the regulation, we would expect that Penske would be able to explain what efforts it made to
comply with the regulation. But Penske merely informs the Court that the “Unit Jacket File” is
the only location where an inspection record “would be kept” and that the January 3 PM
Checklist was not there when an employee looked for it. Hansen Aff. ¶¶ 12-13. Penske gives no
explanation of its procedures for maintaining Unit Jacket Files, the location of the Unit Jacket
Files, who is given access to these files, or anything else about how they are kept. Given the
lack of procedures for maintaining the integrity of these files, we conclude that Penske acted
negligently in failing to maintain a copy of the January 3 PM Checklist. See M & T Mortg.
Corp. v. Miller , 2007 WL 2403565, at * 9 (E.D.N.Y. Aug. 17, 2007) (“the failure of the . . .
defendants to preserve or produce . . . records in the face of the widely known legal obligation to
do so is probative of their culpable state of mind.”).
With respect to the relevance factor, a court must determine
“whether there is any likelihood that the destroyed evidence would have been of
the nature alleged by the party affected by its destruction.” Kronisch, 150 F.3d at
127. The burden falls on the “prejudiced party” to produce “some evidence
suggesting that a document or documents relevant to substantiating his claim
would have been included among the destroyed files.” Id. at 128.
Byrnie, 243 F.3d at 108. In this context, the term “relevance” means “something more than
sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence.” Residential
Funding Corp., 306 F.3d at 108-09 (internal quotation marks and footnote omitted). However,
courts must take care not to “hold the prejudiced party to too strict a standard of proof
regarding the likely contents of the destroyed [or unavailable] evidence,” because doing so
“would subvert the . . . purposes of the adverse inference, and would allow parties who have . . .
destroyed evidence to profit from that destruction.” Kronisch, 150 F.3d at 128.
Relevance may be established in two ways. “First, it may be inferred if the spoliator is
shown to have a sufficiently culpable state of mind.” Chan v. Triple 8 Palace, Inc., 2005 WL
1925579, at *8 (S.D.N.Y. Aug. 11, 2005). Where the moving party “adduces evidence that its
opponent destroyed potential evidence (or otherwise rendered it unavailable) in bad faith or
through gross negligence (satisfying the ‘culpable state of mind’ factor), that same evidence of
the opponent’s state of mind will frequently also be sufficient to permit a jury to conclude that
the missing evidence is favorable to the party (satisfying the ‘relevance’ factor).” Residential
Funding Corp., 306 F.3d at 109 (footnote omitted). As we have noted, there has been no
showing of bad faith or gross negligence with respect to the loss of the January 3 PM Checklist.
Accordingly, we cannot infer that the January 3 PM Checklist was relevant based on the
Penske’s state of mind alone.
“Where the party destroyed evidence due to ordinary negligence, the burden falls on the
prejudiced party to produce some evidence suggesting that a document or documents relevant to
substantiating his claim would have been included among the destroyed files.” Gutman v. Klein,
2008 WL 4682208, at *7 (E.D.N.Y. Oct. 15, 2008) (citations omitted and internal punctuation
altered). In other words, it is not enough for plaintiff to show that the lost evidence is probative.
Rather, plaintiff must show that the evidence would have been favorable to its case. See Chin,
685 F.3d at 162 (movant must show, inter alia, that “‘a reasonable trier of fact could find that
[the destroyed evidence] would support [the movant’s] claim or defense’”) (quoting Residential
Funding Corp., 306 F.3d at 107); accord In re Pfizer Inc. Securities Litig., 288 F.R.D. 297, 315
(S.D.N.Y. 2013) (citing cases); Golia v. Leslie Fay Co., Inc., 2003 WL 21878788, at *10
(S.D.N.Y. Aug. 7, 2003) (plaintiffs established that the missing “documents were relevant, by
proffering sufficient evidence from which a jury could conclude that the documents contained
evidence that would have been favorable to their claims”) (citation omitted). Thus, sanctions
will be denied in the absence of any “extrinsic evidence . . . tending to show that the destroyed
evidence would have been unfavorable to the spoliator.” Turner v. Hudson Transit Lines, Inc.,
142 F.R.D. 68, 77 (S.D.N.Y. 1991); accord Hawley v. Mphasis Corp., 302 F.R.D. 37, 49-50
(S.D.N.Y. 2014) (denying sanctions where movant did not “demonstrate that the documents
would support his claims”).
Plaintiffs contend that the January 3 PM Checklist meets the “relevance” requirement
because “repair records that reflect on the quality, and even the existence, of the PM Inspection,
are no doubt relevant to the claim made.” Pl. Mem. at 9. However, the mere fact that the
January 3 PM Checklist is relevant in the sense that it may be probative of the issues underlying
plaintiffs’ claims is not sufficient to show that it would have been “unfavorable” to Penske or
that it would have supported plaintiffs’ claims. While plaintiffs emphasize that the January 3
PM Checklist was created merely days before Singh’s accident, id. at 8-9, they fail to provide
any evidence as to why the close proximity in time means that the January 3 PM Checklist
would be favorable to them or unfavorable to Penske. Plaintiffs also assert that “without the
[PM] checklist and its related documents, [they] cannot know if the inspection revealed the need
for repairs that were not made.” Id. at 10. But this argument is simply an assertion that the
January 3 PM Checklist is probative of the issues in this case, not that it contained evidence
favorable to plaintiff’s case.
In the end, plaintiffs fail on this prong because “some extrinsic evidence demonstrating
that a reasonable trier of fact could find that the missing evidence would support [plaintiffs’]
claims is necessary.” Hawley, 302 F.R.D. at 47-48 (punctuation altered and citations omitted);
accord Arista Records LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, 439 (S.D.N.Y. 2009)
(“[W]hen the destruction of evidence is negligent, relevance must be proven through extrinsic
evidence by the party seeking sanctions.”) (citation omitted). Absent this showing, the claim for
spoliation sanctions must fail. See Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D.
429, 441 (S.D.N.Y. 2010) (“Sanctions [are not] warranted by a mere showing that a party’s
preservation efforts were inadequate.”).
All this being said, we emphasize that this ruling applies only to plaintiffs’ request for
spoliation sanctions. It does not address the relevance or admissibility at trial of the fact that
Penske lost the January 3 PM Checklist. Also, this ruling does not address the question of
whether a permissive adverse inference instruction may be appropriate notwithstanding
plaintiffs’ failure to meet the elements of a spoliation claim. As the Second Circuit has made
clear, a permissive (as opposed to mandatory) adverse inference instruction does not necessarily
reflect a sanction, and its delivery to a jury does not require the same findings necessary to
impose a spoliation sanction. See Mali v. Fed. Ins. Co., 720 F.3d 387, 391-94 (2d Cir. 2013);
Klipsch Grp., Inc. v. Big Box Store Ltd., 2014 WL 904595, at *4 (S.D.N.Y. Mar. 4, 2014) ("a
permissive adverse-inference instruction does not amount to a sanction and hence does not
require" the findings necessary to impose a spoliation sanction). The decision whether to grant a
permissive adverse inference instruction will necessarily be informed by factors and evidentiary
support different from what is necessary to obtain a spoliation sanction. Accordingly, this
Opinion and Order should not be construed as opining on whether plaintiffs are entitled to such
an instruction at trial of this matter.
For the foregoing reasons, plaintiffs' motion seeking sanctions for spoliation of evidence
(Docket # 50) is denied.
Dated: February 26, 2015
New York, New York
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