Raymond et al v. The City of New York et al
Filing
245
OPINION & ORDER re: 222 SECOND MOTION for Sanctions for Spoliation of Evidence against all Defendants. filed by Ritchie Baez, Pedro Serrano, Sandy Gonzalez, Edreweene Raymond. Plaintiffs' Third Sanctions Motion is DENIED, and Defendants' request for an award of attorneys' fees is also DENIED. The parties are reminded to file a letter on ECF certifying the completion of all discovery by Monday, December 14, 2020. (ECF No. 242). The Clerk of Court is respectfully directed to close ECF No. 222. (Signed by Magistrate Judge Sarah L Cave on 12/2/20) (yv)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EDREWEENE RAYMOND, et al.,
Plaintiffs,
CIVIL ACTION NO.: 15 Civ. 6885 (LTS) (SLC)
-v-
OPINION & ORDER
THE CITY OF NEW YORK, et al.,
Defendants.
SARAH L. CAVE, United States Magistrate Judge.
Before the Court is the motion of Plaintiffs Edreweene Raymond, Pedro Serrano, Sandy
Gonzalez, and Ritchie Baez (“Plaintiffs”) asking the Court to impose on Defendants City of New
York (the “City”), William J. Bratton, James P. O’Neill, Christopher McCormack and Constantin
Tsachas (“Defendants”) the sanction of an adverse inference (“Plaintiffs’ Third Sanctions
Motion”) for each of 20 missing New York City Police Department (“NYPD”) Monthly Conditions
Impact Reports (the “Monthly Reports”). (ECF Nos. 222–24). Defendants oppose Plaintiffs’ Third
Sanctions Motion and request an award of attorneys’ fees for their costs incurred in opposing
the Motion. (ECF No. 230).
For the reasons set forth below, Plaintiffs’ Third Sanctions Motion is DENIED and
Defendants’ request for attorneys’ fees is also DENIED.
I.
A.
BACKGROUND
Factual Background
The factual background of this five-year-old employment discrimination action has been
set forward in detail in the decisions of the Honorable Laura Taylor Swain, granting Defendants’
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motion to dismiss the amended complaint (ECF No. 60); granting in part and denying in part
Plaintiffs’ motion for leave to file a second amended complaint (ECF No. 86); and the decision of
the undersigned granting in part and denying in part Plaintiffs’ motion to compel and for
spoliation sanctions (ECF No. 178) (the “March 5 Order”). Accordingly, the Court includes only
the factual and procedural background material to the resolution of Plaintiffs’ Third Sanctions
Motion.
Plaintiffs seek compensatory damages to redress the alleged deprivation of rights under
the United States Constitution, federal, New York State, and New York City laws. (ECF No. 87
¶ 1). Plaintiffs, who are Latino and African-American Police Officers, allege that their employer,
the NYPD, violated their rights and discriminated in their employment based on their race and
national origin. (Id. ¶ 2). Plaintiffs allege that they were:
under supervisory pressure to comply with the illegal quotas; . . . suffered negative
employment consequences as a result of the failure to meet the illegal quotas; . .
. racially discriminated against with respect to performance evaluations, the
performance monitoring program, and the administration of discipline and
punishment[;] . . . expressed [their] opposition to the illegal quotas and [have]
been retaliated against[; and] penalized for reporting, opposing[,] and
complaining about the illegal quotas and [their] racially discriminatory application
...
(Id. ¶¶ 18–21).
On August 31, 2015, Plaintiffs filed the original Complaint. (ECF No. 1). Following
significant motion practice described in Judge Swain’s decisions listed above, (ECF Nos. 60, 86),
the operative Second Amended Complaint was filed on July 11, 2018 (ECF No. 87). Amid
extensive discovery motion practice, in the March 5 Order, the Court granted, inter alia, Plaintiffs’
request for an adverse inference concerning the destruction of Serrano’s Memo Book. (ECF
No. 178 at 33). On July 2, 2020, Judge Swain affirmed the March 5 Order. (ECF No. 217).
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Although Plaintiffs first requested the Monthly Reports in 2018, this dispute was not
raised with the Court until 2020, as detailed in the Procedural History below.
1. Monthly Reports
The NYPD’s Patrol Guide established Monthly Reports as an administrative tool for
measuring performance levels of uniformed officers as part of the evaluation process. (See ECF
No. 223-2). The procedure set forth in the Patrol Guide calls for officers to document daily their
assignment, activities performed, and conditions addressed within the assignment. (Id. at 3).
The Patrol Guide directs supervisors to collect the Monthly Reports periodically, review and sign
them, and mark whether the officer’s “impact on declared conditions” is “effective” or
“ineffective,” and to provide a justification for the rating. (Id. at 4). Supervisors also prepare
Squad Supervisor Recapitulations (the “Recapitulations”) using the Quest for Excellence
Application. (Id. at 5). The Recapitulations, which are signed by the Squad Supervisor, include
officers’ numerical scores in 25 categories, including monthly activity measured in total numbers
of stops, arrests (by classification of offense), overtime hours and tours on patrol, the officers’
quarterly points, and total quarterly points earned to date. (See ECF No. 223-17 at 2). The
Recapitulations may also include additional notes, such as the location of enforcement activity
(see ECF No. 223-17) or management notes from the squad supervisor. (See ECF No. 208-2 at 2)
(“squad has been counseled on the need to consistently address conditions as well as the need
to be well rounded and address all types of conditions, including quality of life and traffic
conditions.”)
In turn, the Recapitulations and the Monthly Reports are submitted up the NYPD
command hierarchy for review, and four times annually supervisors inscribe on the reverse side
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of the Monthly Reports a Quarterly Performance Review. (ECF No. 223-2 at 5–6). The Quarterly
Performance Review is “prepared [in] March, June, September, [and] December[.]” (ECF No. 22313 at 3). Pursuant to the Quarterly Performance Review, supervisors fill out the reverse side of
the Monthly Reports, which includes a ranking from one (1) (below standards) to three (3) (above
standards) for the following standards:
1.
2.
3.
4.
5.
6.
Officer took initiative in correcting conditions
Officer’s enforcement activity addressed declared conditions
Officer took appropriate follow-up steps to properly address conditions
Officer’s administrative reports were accurate
Officer related well during community interactions
Officer presented an overall professional image
(See ECF No. 223-13 at 7). These scores are aggregated in both the “Quarterly Points Total,”
ranging from a minimum score of six points to a maximum of seventeen, 1 and an officer’s “Year
to Date Points.” (See ECF No. 223-13 at 7).
Plaintiffs seek spoliation sanctions for Defendants’ failure to produce in discovery in this
action the following 20 Monthly Reports:
1.
2.
3.
4.
Plaintiff Pedro Serrano (four): January, August, September, and December
2012;
Plaintiff Ritchie Baez (twelve): February, March, May–December 2013,
January and February 2014;
Plaintiff Sandy Gonzalez (three): October 2013, January 2014 and February
2014;
Plaintiff Edwin Raymond (one): May 2015.
(ECF No. 224 at 6–7).
1
The maximum possible score for question six is two, a professional appearance.
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2. Serrano’s EEOC charge of discrimination
On August 3, 2012, approximately three years before Plaintiffs filed this action, an Equal
Employment Opportunity Commission (“EEOC”) Notice of Charge of Discrimination (the “EEOC
Notice”) concerning Serrano was sent to the NYPD. (ECF No. 223-11). On August 27, 2012, the
EEOC’s New York State Office received a charge of discrimination from Serrano (the “EEOC
Charge”). 2 (ECF No. 223-12). The EEOC Charge alleged that Serrano was subjected to race-based
discrimination at the NYPD, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq.:
I have been subject to unfair intimidation by my commanding officer and forced
to racially profile African Americans and Hispanics for arrest or to serve with
summons. I was given a negative evaluation because I had not made enough of
this sort of arrest. . . I believe I have been discriminated against based on my
race[.]
(ECF No. 223-12). Serrano attached to the EEOC Charge a three-page memorandum, entitled
“Hostile Work Environment,” which provided additional detail and anecdotes recounting
instances of violating conduct and offensive statements. (See ECF No. 223-12 at 3–5).
On July 31, 2013, the EEOC issued a Dismissal and Notice of Rights (the “EEOC Dismissal”),
closing its file on Serrano’s charge because “the EEOC [was] unable to conclude that the
information obtained establishes violations of the statutes.” (ECF No. 232-2 at 2). The EEOC
Dismissal advises that “your right to sue based on [the Title VII charge] will be lost” if not filed
within 90 days of receipt, (Ex. 232-2 at 2), which was October 29, 2013. (Id.) Serrano did not
pursue the matter further for close to three years, as noted below.
It is not clear why the date on the EEOC Notice precedes the date of the EEOC Charge received by the
EEOC’s New York State Office, but it is clear that NYPD was on notice of Serrano’s EEOC Charge in August
2012. (ECF No. 178 at 30).
2
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3. Plaintiffs’ lawsuits and related preservation notices
On March 2, 2015, Plaintiffs Gonzalez, Baez, and Serrano (but not Raymond) filed a
putative class action on behalf of Latino and African-American police officers alleging racial
discrimination. Gonzalez v. City of New York, No. 15 Civ. 1498 (AT) (the “Gonzalez Action”). On
April 17, 2015, Richard Lovina, an attorney and Lieutenant in the NYPD, issued a preservation
notice pertaining to the Gonzalez Action.3 (ECF No. 232-3). On August 13, 2015, the Gonzalez
Action was voluntarily dismissed pursuant to Federal Rule of Civil Procedure 41(A)(1)(A)(i). (See
Gonzalez v. City of New York, No. 15 Civ. 1498, ECF No. 12).
This action was filed on August 31, 2015. (ECF No. 1). On October 21, 2015, Lieutenant
Lovina issued a preservation notice related to this action. (ECF No. 232-3).
B.
Procedural History
Plaintiffs first requested the Monthly Reports in late November or early December 2018,4
in Plaintiff’s “First Set of Requests for Production of Documents and Things to Defendant”
(“Plaintiff’s First Requests”). (See ECF No. 232-4 at 6). Plaintiffs’ First Requests sought the
“monthly activity reports submitted by plaintiff Raymond from January 2013 to January 2018”
(Request #6); “copies of all Quest for Excellence — Police Officer’s Monthly Conditions Impact
Defendants have not submitted the preservation notices Lieutenant Lovina issued, but the Lovina
Declaration notes that “[i]n 2015, I was assigned to NYPD’s Special Litigation Support Unit, which provides
assistance to the New York City Law Department in defending the NYPD in large, complex federal class
actions.” (ECF No. 232-3 at 2).
4
Plaintiff’s First Discovery Demands are dated November 28, 2018, (see ECF No. 232-4 at 7), but
Defendants assert that Plaintiff’s First Discovery Demands were not served until December 5, 2018. (ECF
No. 230 at 13). Notably, in Defendants’ January 11, 2019 letter motion for an extension of time to
complete discovery, filed with Plaintiffs’ consent, Defendants also noted that they were not served with
the discovery requests until December 5, 2018. (ECF No. 101).
3
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Measurement Report[s] submitted by plaintiff Raymond from January 2013 to January 2018”
(Request #7); and Monthly Reports for comparators (Request #10). (ECF No. 232-4 at 6).
In an email dated May 24, 2019, Defendants’ counsel sought to memorialize a meet-andconfer with Plaintiffs’ counsel regarding the demand for the Monthly Reports. (See ECF No. 2325). As to Request #6, Defendants stated that they had “already produced all monthly activity
reports contained in plaintiffs’ files, and defendants will also produce electronic records showing
the total number of arrests and summons plaintiffs made.” (ECF No. 232-5 at 2). Similarly, as to
Request #10, Defendants stated that they would “produce electronic records showing the
number of arrests and summons for plaintiffs’ alleged comparators, similar to the documents
that will be produced in response to No. 6.” (ECF No. 232-5 at 3). As to Request #7, Defendants
wrote that they “[would] search for plaintiffs’ Quest for Excellence Monthly Conditions Impact
Measurement Reports in their possession” but noted that they “disagree[d] [as] to the applicable
time period, as defendants do not agree with plaintiffs’ request for documents going to the
present.” (Id. at 2). In opposition to Plaintiffs’ Third Sanctions Motion, Defendants asserted that
the parties agreed that the substitute production of arrest and summons statistics satisfied
Plaintiffs’ requests for the Monthly Reports and that “Plaintiffs’ counsel raised no objection.”
(ECF No. 230 at 13).
Plaintiffs made several subsequent applications to the Court concerning discovery
disputes but did not raise any issue concerning the Monthly Reports until January 30, 2020. As
the Court has previously observed, “Plaintiffs first raised the issue of Monthly Reports in 2018
and participated in a meet and confer without objecting to Defendants’ alternative production
of summons and arrest statistics, but made no mention of the issue again in subsequent meet7
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and-confers nor in the discovery conferences with the Court.” (ECF No. 178 at 39 (citing ECF Nos.
173 at 1–2; 127-7; 127-12)). Even after the Court in June 2019 permitted Plaintiffs to file a motion
for spoliation sanctions, Plaintiffs did not raise the Monthly Reports in their July 21, 2019 Motion
to Compel and for Spoliation Sanctions (“Plaintiff’s First Sanctions Motion”). (See ECF Nos. 121,
126). Plaintiffs’ First Sanctions Motion sought an adverse inference sanction pertaining to
Serrano’s Memo Book and the destruction of cell phones but made no mention of the Monthly
Reports. (See ECF Nos. 126–29).
On November 2, 2019, after the parties had briefed Plaintiffs’ First Sanctions Motion, (see
ECF Nos. 126–29,132–33, 136), Plaintiffs requested the Monthly Reports in a supplementary
document request. (See ECF No. 197-3). In response to Plaintiffs’ letter-motion for a discovery
conference anticipating a second motion to compel and for sanctions (see ECF No. 151), the Court
ordered Plaintiffs to file a new motion to compel encompassing all of the allegations laid out in
various prior filings and terminated Plaintiff’s First Sanctions Motion as moot. (ECF No. 152).
Plaintiffs’ subsequent motion to compel and for sanctions (“Plaintiffs’ Second Sanctions Motion”)
again failed to raise any dispute concerning the Monthly Reports. (See ECF Nos. 155–58).
Not until January 30, 2020, in Plaintiffs’ letter-motion for a discovery conference did they
raise the Monthly Reports (“Plaintiff’s January 2020 Motion”). (See ECF No. 169).
In the March 5 Order, the Court resolved Plaintiffs’ Second Sanctions Motion and
Plaintiff’s January 2020 Motion. (ECF No. 178). With respect to the Monthly Reports, the Court
ordered that “[t]o the extent that the Monthly Reports are in fact performance evaluations,
Plaintiffs are entitled to their production as limited by the claims permitted by Judge Swain’s
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2018 Order.” (Id. at 40). The March 5 Order required Defendants to produce the Monthly
Reports related to:
“Gonzalez’s, Baez’s, and Serrano’s federal discrimination claims relating to
negative performance evaluations against McCormack, limiting production for
Serrano to Monthly Reports relative to his 2012 performance rating” and
“Raymond’s claim against Tsachas, limited to his 2015 performance evaluation.”
(ECF No. 178 at 41). Also in the March 5 Order, the Court explained that, based on Serrano’s
filing of the EEOC complaint in August 2012, “as of August 2012, the City had a duty to preserve
[Serrano’s] Memo Book.” (ECF No. 178 at 30). At a telephone conference held on March 10,
2020, the Court ordered Defendants to produce these Monthly Reports by no later than April 10,
2020 (“March 10 Order”). (ECF No. 181).
On April 10, 2020, Defendants produced certain Monthly Reports to Plaintiffs pursuant to
the Court’s March 5 and March 10 Orders and noted where responsive documents had been
previously produced. (ECF No. 223-1). Defendants’ letter accompanying the production noted
that:
For Plaintiff Serrano, the Monthly Reports for January, September and December
2012 were not produced because they “were not scanned in for Serrano’s squad for
these months, but the monthly information collected was preserved.”
For Plaintiff Baez, other than the January and April 2013 Reports, the Monthly Reports
for “were not scanned in for Baez’s squad” although “the monthly information
collected in the Reports was preserved.”
For Plaintiff Gonzalez, Defendants previously produced Gonzalez’ 2013 Monthly
Reports.
For Plaintiff Raymond, Defendants noted that the Monthly Reports for July through
November 2015 had been previously produced; produced reports for January through
June 2015, except for May, which was “not located,” and noted that Raymond was
“not assigned to a Transit District 32 Squad” in December 2015.
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(ECF No. 223-1 at 3). Defendants subsequently produced Serrano’s January 2012 report, which
Defendants located in their review pursuant to a court order issued in Floyd v. City of New York,
No. 08 Civ. 1034 (AT). (ECF No. 233).
On May 18, 2020, following Plaintiff’s Letter-Motion for a Discovery Conference (ECF
No. 197) (“Plaintiff’s May 2020 Motion”), the Court ordered Defendants to make a reasonable
search and produce Monthly Reports for Serrano (January–December 2012); Gonzalez (January
2013–March 2014); and Baez (January 2013–March 2014). (ECF No. 205).
On June 8, 2020, Plaintiffs filed another Letter-Motion concerning the Monthly Reports
(“Plaintiffs’ June 2020 Motion”) (ECF No. 208), noting that Defendants produced the
Recapitulations (also known as the “Squad Sergeant Reports”) “for the missing Monthly Reports,”
which Plaintiffs described as “consist[ing] of raw information related to the Plaintiffs but
possess[ing] no comments.” (ECF No. 208 at 1–2). Defendants responded on June 17, 2020 (ECF
No. 211) and Plaintiffs replied the following day. (ECF No. 212). On June 23, 2020, the Court
directed the parties to complete fact discovery before briefing a spoliation sanctions motion
stemming from Plaintiffs’ June 2020 Motion. (ECF No. 216).
On July 27, 2020, Plaintiffs filed the Third Sanctions Motion.
(ECF Nos. 222–24).
Defendants filed their opposition on August 12, 2020, (ECF Nos. 230, 232) and on August 14, 2020
Defendants filed a supplemental letter concerning Serrano’s January 2012 Monthly Report. (ECF
No. 233). On August 19, 2020, Plaintiffs filed their reply. (ECF No. 234).
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C.
Outstanding Monthly Reports
Although Plaintiffs’ Third Sanctions Motion initially addressed 20 Monthly Reports,
following briefing and Defendants’ subsequent productions, only 18 Monthly Reports remain
outstanding:
1. Plaintiff Pedro Serrano (three Reports): August, September, December
2012;
2. Plaintiff Ritchie Baez (twelve Reports): February, March, May–
December 2013, January and February 2014;
3. Plaintiff Sandy Gonzalez (two Reports): January 2014 and February
2014;
4. Plaintiff Edwin Raymond (one Report): May 2015.
II.
A.
DISCUSSION
Legal Standards for Spoliation
The Federal Rules of Civil Procedure require a party to produce documents and other
tangible objects within the party’s “‘possession, custody, or control.’” Coventry Capital US LLC v.
EEA Life Settlements Inc., 333 F.R.D. 60, 64 (S.D.N.Y. 2019) (quoting Fed. R. Civ. P. 34(a)(1)).
Documents and tangible objects “are considered to be under a party’s control when that party
has the right, authority, or practical ability to obtain” them. Bank of N.Y. v. Meridien BIAO Bank
Tanzania Ltd., 171 F.R.D. 135, 146 (S.D.N.Y. 1997). Once 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,” it has an obligation to preserve that evidence. Fujitsu Ltd. v. Fed. Express Corp.,
247 F.3d 423, 436 (2d Cir. 2001); see Creative Res. Grp. of N.J., Inc. v. Creative Res. Grp., Inc., 212
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F.R.D. 94, 106 (E.D.N.Y. 2002) (finding that the duty to preserve arose when the problems that
led to filing of the lawsuit first surfaced).
Relevance is construed broadly, and the requested discovery must be more than a mere
“fishing expedition.” Alter v. Rocky Point School Dist., No. 13 Civ. 1100 (JS) (AKT), 2014 WL
4966119, at *4–5 (E.D.N.Y. Sept. 30, 2014). Although
a litigant is under no duty to keep or retain every document in its possession . . .
it is under a duty to preserve what it knows, or reasonably should know, is relevant
in the action, is reasonably calculated to lead to the discovery of admissible
evidence, is reasonably likely to be requested during discovery and/or is the
subject of a pending discovery request.
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (internal citations omitted).
The filing of a charge of discrimination with the EEOC may trigger a duty to preserve
evidence. See Zubulake, 220 F.R.D. at 216. This is so because “[t]he duty to preserve arises, not
when litigation is certain, but rather when it is ‘reasonably foreseeable.’” Alter, 2014 WL
4966119, at *8 (citing Byrnie v. Town of Cromwell, 243 F.3d 93, 107 (2d Cir. 2001), superseded
on other grounds by, Szewczyk v. Saakian, 774 F. App’x 37 (2d Cir. 2019)). To fulfill its obligation
to preserve evidence “a litigant must take affirmative steps to prevent inadvertent spoliation.”
R.F.M.A.S., Inc. v. So, 271 F.R.D. 13, 24 (S.D.N.Y. 2010). Discovery from “key players” in the
litigation should be preserved. See Alter, 2014 WL 4966119, at *9 (key players included
individuals mentioned in the complaint as present during critical events and to whom plaintiff
reported discriminatory behavior).
The Second Circuit has defined spoliation as “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
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Cir. 1999). Spoliation sanctions are not warranted where “the information was preserved in
other locations.” GenOn Mid-Atlantic, LLC v. Stone & Webster, Inc., 282 F.R.D. 346, 359 (S.D.N.Y.
2012); see Paluch v. Dawson, No. 06 Civ. 01751, 2009 WL 3287395, at *3 (E.D. Pa. Oct. 13, 2019)
(finding plaintiff was not prejudiced by absence of videotape where he “ha[d] a number of other
resources” to prove his claim, including his own and other witnesses’ testimony). “In situations
where sanctions are warranted, district courts have broad discretion in ‘crafting an appropriate
sanction for spoliation.’” Alter, 2014 WL 4966119, at *5 (quoting West, 167 F.3d at 779).
Where spoliation has occurred, a court may impose the sanction of an adverse inference,
which is “an inference that the evidence would have been unfavorable to the party responsible
for its destruction.” Zubulake, 220 F.R.D. at 216. A party seeking an adverse inference sanction
for spoliation must establish:
(1) that the party having control over the evidence had an obligation to preserve
it at the time it was destroyed; (2) that the records were destroyed with a
“culpable state of mind”; and (3) that the missing evidence is “relevant” to the
party’s claim or defense such that a reasonable trier of fact could find that it would
support that claim or defense.
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002).
The mental culpability element requires that the party breached a discovery obligation
knowingly in bad faith, through gross negligence, or through ordinary negligence. Residential
Funding Corp., 306 F.3d at 108, 113. “In the discovery context, negligence is a failure to conform
to the standard of what a party must do to meet its obligation to participate meaningfully and
fairly in the discovery phase of a judicial proceeding.” In re Pfizer Inc. Secs. Litig., 288 F.R.D. 297,
314 (S.D.N.Y. 2013) (internal citations omitted). Failing to institute a litigation hold is not gross
negligence per se, but a factor the court should consider, along with “whether the party
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implemented good document or evidence preservation practices.” Alter, 2014 WL 4966119, at
*11 (internal citation omitted).
To prevail on their request for sanctions, then, Plaintiffs here must
set forth with any degree of specificity, the materials which would have been
helpful in prosecuting [their] claims. Relevance cannot be established solely on
the basis of conjecture. Nor can a finding of relevance be grounded solely on the
basis that some evidence in the custody of key witnesses no longer exists.
Plaintiff[s] ha[ve] the burden of articulating what that evidence is with some
degree of factual detail.
Alter, 2014 WL 4966119, at *12. Plaintiffs bear the burden of adducing “sufficient evidence from
which a reasonable trier of fact could infer that the destroyed or unavailable evidence would
have been of the nature alleged by the party affected by its destruction.” Chan v. Triple 8 Palace,
No. 03 Civ. 6048 (GEL) (JCF), 2005 WL 1925579, at *7 (S.D.N.Y. Aug. 11, 2005) (citing Residential
Funding Corp., 306 F.3d at 108–09).
Finally, “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. Secs. Litig., 288 F.R.D. at 316 (internal citation omitted). This is so because an adverse
inference instruction is “an extreme sanction and should not be imposed lightly.” Treppel v.
Biovail Corp., 249 F.R.D. 111, 120 (S.D.N.Y. 2008). “The noncompliant party bears the burden to
demonstrate that the other parties did not suffer any prejudice from spoliation.” R.F.M.A.S., Inc.,
271 F.R.D. at 24–25. “Where the discovery violation involves spoliation or withholding of
evidence, the absence of prejudice can be shown by demonstrating, for example, that the other
parties were able to obtain the same evidence from another source, or that during discovery they
never asked for the evidence later shown to have been spoliated. Id. at 25. The adverse inference
is meant to restore a prejudiced party to the “position he would have been in absent the wrongful
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destruction of evidence by the opposing party.” Kronisch v. United States, 150 F.3d 112, 126 (2d
Cir. 1998).
B.
The Parties’ Arguments
1. Plaintiffs’ arguments
Plaintiffs frame the failure to preserve and produce the Monthly Reports as a deliberate
violation of City policy in order to avoid civil liability. (See ECF No. 224 at 5).
According to Plaintiffs, Serrano’s EEOC Charge put Defendant City of New York on notice
that it should preserve records for Serrano “as well as for his fellow 40th Precinct minority
colleagues” — Plaintiffs Baez and Gonzalez — “from August 3, 2012 forward.” (ECF No. 224 at
21). Plaintiffs argue that the failure to follow internal municipal policies such as the NYPD
Administrative Guide § 320-01 and Operations Order 13 and 44 “can give rise to an inference of
spoliation.” (ECF No. 224 at 21–23). 5
Plaintiffs’ argument that the Monthly Reports were “purposefully destroyed” (ECF
No. 224 at 5) relies on the affidavit of a retired NYPD employee, Deputy Inspector Edward
Carrasco (the “Carrasco Affidavit”), who concludes, based on his experience, that, as opposed to
NYPD Administrative Guide 320-01, “Maintenance and transfer of command-level personal records”
became effective September 27, 2016, for the purpose of “maintain[ing] readily available personnel data
for each member of the command and provid[ing] for the orderly transfer of records to a member’s new
command.” (ECF No. 223-6 at 2). Administrative Guide § 320-01 directs that the commanding officer
shall maintain personal folders for the members of each command, which include, among other
documents, the officers’ Monthly Reports. (Id.)
5
NYPD Operations Order 13, and 44 are both titled “Destruction of Records” and specify the length of time
the NYPD was required to retain various types of documents. (See ECF Nos. 223-7, 223-8). Operations
Order 44 went into effect on December 18, 2012 and Operations Order 13 was not issued until March 13,
2017. (Id.)
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an administrative oversight, “a more plausible explanation for these missing Reports is they were
deliberately not scanned and the hard copies deliberately destroyed.” (ECF No. 224 at 24). At a
minimum, Plaintiffs argue, the failure to preserve the Monthly Reports was negligence. (ECF
No. 224 at 25).
Plaintiffs argue that the missing Monthly Reports are relevant to their claims because
Serrano’s August and December 2012 Monthly Reports each would have included a quarterly
score (ECF No. 224 at 26), as to the veracity of which “Plaintiffs are simply left to wonder.” (ECF
No. 224 at 26). Plaintiffs also argue that the Monthly Reports are relevant as “the primary
medium” by which officers explain their work. (ECF No. 224 at 14, 26–27). For this reason, the
Recapitulations are inadequate. (ECF No. 224 at 7). Because the Monthly Reports have not been
produced, Plaintiffs argue they have been prejudiced and an adverse inference sanction is
warranted.
2. Defendants’ arguments
Defendants counter that sanctions are unwarranted and disproportionate because they
have produced Recapitulations corresponding to the 18 missing Monthly Reports, which
document Plaintiffs’ monthly activity for each month in question, and therefore, Plaintiffs have
not been prejudiced. (See ECF No. 230). As further evidence of the lack of prejudice, Defendants
describe Plaintiffs’ delayed attention to the Monthly Reports, which lagged behind the service of
relevant document requests and conferences. (See ECF No. 230 at 13–16).
Defendants also argue that there was no preservation obligation as to Raymond, Baez,
and Gonzalez until the filing of this and similar lawsuits in 2015, because, on its face, Serrano’s
EEOC Charge applied only to him. (ECF No. 230 at 10–12). Defendants maintain that the duty to
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preserve as to Serrano ceased on October 29, 2013, the final day he could have instituted
litigation following the EEOC Dismissal. (ECF No. 230 at 20). Defendants argue that the violation
of NYPD’s internal record retention policies does not mandate an inference of spoliation. (ECF
No. 230 at 20–21).
C.
Analysis
1. Duty to preserve
a. Serrano
The Court finds that Serrano’s EEOC Charge, which discussed only his own claims, placed
Defendants on notice of future litigation involving Serrano and established a duty to preserve
relevant evidence as to him. As noted above, an EEOC charge can trigger the duty to preserve
evidence. See Zubulake, 220 F.R.D. at 216; Hawley v. Mphasis Corp, 302 F.R.D 37, 48 (S.D.N.Y.
2014) (observing that “courts in this Circuit regularly find that an EEOC charge puts an employer
on notice that it likely faces future litigation” and collecting cases). In fact, the Court held in the
March 5 Order that “as of August 2012, the City had a duty to preserve [Serrano’s] Memo Book”
because the NYPD was aware after the filing of the EEOC complaint that Serrano was likely to
commence civil litigation. (ECF No. 178 at 30). Defendants do not dispute this determination.
(See ECF No. 230 at 19). Accordingly, once Defendants received notice of Serrano’s EEOC Charge,
they were obligated to preserve relevant evidence as to Serrano’s claims, see Hawley, 302 F.R.D.
at 50, that is, evidence that they knew, or reasonably should know, “is relevant in the action, is
reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be
requested during discovery and/or is the subject of a pending discovery request.” Zubulake, 220
F.R.D. at 217 (internal citation omitted). The EEOC Notice pertaining to Serrano’s EEOC Charge
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was sent to the NYPD on August 3, 2012, (ECF No. 223-11), therefore, as the Court has previously
held, Defendants had an obligation to preserve relevant evidence pertaining to Serrano’s claims
as of that date. See Zubulake, 220 F.R.D. at 217.
The parties disagree as to the scope of Defendants’ preservation obligation. Plaintiffs
argue that “Defendants were ordered to preserve evidence related to other similarly situated
officers who may have similar claims,” citing the EEOC Notice. (ECF No. 224 at 20–21).
Specifically, the EEOC Notice states that an employer facing a discrimination charge must
preserve employment records “relating to the aggrieved person and to all other aggrieved
employees holding positions similar to that held . . . by the aggrieved person.” (ECF No. 223-11).
Accordingly, Plaintiffs submit that Defendants’ preservation obligation is not limited just to
Serrano but also includes Plaintiffs Baez and Gonzalez, who were also at the 40th Precinct in
August 2012. (ECF No. 224 at 21). Defendants counter that by Plaintiffs’ own allegations, Baez
and Gonzalez were not aggrieved employees until 2013. (ECF No. 230 at 18). In particular,
Defendants point to Plaintiffs’ Second Amended Complaint, which avers that, “[i]n the 40th
Precinct, since January 2013, police officers such as Ritchie Baez are required to meet an
enforcement activity target . . .” (ECF No. 87 ¶ 92) (emphasis added).
The Court concludes that the EEOC Charge imposed an obligation on Defendants to
preserve evidence only as to Serrano, not the other Plaintiffs. An EEOC charge that causes a
defendant to anticipate litigation by a separate individual or group may result in a duty to
preserve as to that separate party as well. See Adorno v. Port Auth., 258 F.R.D. 217, 228 (S.D.N.Y.
2009). Thus, in Adorno, an EEOC charge by the Asian Jade Society, an Asian fraternal police
organization alleging discrimination by the Port Authority was found to result in a preservation
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duty as to Hispanic officers who first filed an EEOC charge several years later alleging
discrimination by the Port Authority on the grounds of national origin, race and ethnicity.
Adorno, 258 F.R.D. at 226, 228. Critical to the Court’s holding, the Asian Jade Society’s EEOC
charge gave the Port Authority reason to anticipate litigation on similar grounds, “overlapped”
with the Hispanic officers’ claims and concerned many of the same documents. Id. at 228.
In contrast to Adorno, however, Plaintiffs have not established that Defendants were on
notice as to claims by Baez, Gonzalez, and Raymond as a result of Serrano’s EEOC Charge, which
by the language on its face applied only to him rather than to a class of similarity-situated officers.
(See ECF No. 223-12). The EEOC Charge does not name or refer to any other NYPD employee —
such as the other Plaintiffs in this action — as being aggrieved victims of discrimination. (See ECF
No. 223-12). Similarly, the EEOC Notice sent to the NYPD lists only Serrano as the individual who
“claims to be aggrieved,” rather than as “filing on behalf of other(s).” (ECF No. 223-11 at 2).
The Court does not find persuasive Plaintiffs’ argument that references to “[m]ost of the
people in my [precinct] are Black or Hispanic” in the “Hostile Work Environment” memorandum
attached to the EEOC Charge (see ECF No. 223-12 at 3–5) encompassed the other Plaintiffs and
would impose a duty to preserve as to other African-American or Hispanic officers. (See ECF No.
224 at 21). This argument fails to consider the sentence within its context, in which Serrano
recounted a supervisor’s instruction to arrest more community members. Serrano alleged in the
“Hostile Work Environment” memorandum that:
I was told by the XO [a nonparty supervisor at the 40th Precinct] that in order for
me to get a better evaluation I must arrest, summons, and stop [sic] Question and
frisk more people. I expressed to her that the 40 pct. Is one of the poorest pct. In
the Bronx and that they deserve to be warned first before summoning them. She
disagreed and called them animals. I was insulted because I am Puerto Rican.
Most of the people in my pct. are Black or Hispanic. . . She was showing me how
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she wanted me to treat the locals . . . I don’t believe that just because a person is
black or Hispanic, that they deserve to be arrested or summons. I believe they are
causing a hostile work environment and race discriminating [sic] against me and
the public.
(ECF No. 223-12 at 4–5) (emphasis added). Accordingly, Plaintiffs have not demonstrated that
the EEOC Charge triggered Defendants’ preservation obligations as to anyone other than Serrano.
The remaining question is the duration of Defendants’ duty to preserve evidence
concerning Serrano’s claim. Defendants argue that the duty to preserve as to Serrano terminated
on October 29, 2013, “the final day Serrano could have instituted ‘litigation relating to the [EEOC]
charge[,]’” because “the NYPD could not have reasonably foreseen that Serrano, Baez, and
Gonzalez would bring race discrimination claims under different statutes in March 2015, long
after the deadline to file a Title VII lawsuit elapsed.” (ECF No. 230 at 20). Although Defendants
are correct that the duty to preserve does not “continue[] indefinitely,” Allstate Ins. Co. v.
Hamilton Beach/Proctor Silex Inc., 473 F.3d 450, 458 (2d Cir. 2007), the Court disagrees that the
duty to preserve terminated before this action was filed on August 31, 2015 (ECF No. 1) solely
because the deadline to file a Title VII lawsuit elapsed. Plaintiffs timely filed this action, and based
on the unresolved nature of Serrano’s claim following the EEOC Charge, litigation remained
reasonably foreseeable. Cf., e.g., Edwards v. Hearst Commc’ns Inc., No. 15 Civ. 9279 (AT) (JLC)
2017 WL 6458612, at *4 (S.D.N.Y. Dec. 18, 2017) (finding that duty to preserve ended on dismissal
of a lawsuit with prejudice because future litigation was not reasonably foreseeable given the
absence of similar lawsuits against defendant); Stinson v. City of New York, No. 10 Civ. 4228
(RWS), 2016 WL 54684, at *8 n.3 (S.D.N.Y. Jan. 5, 2016) (noting that duty of preservation ended
once arbitration concluded).
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Accordingly, the Court finds that Defendants’ duty to preserve evidence as to Serrano
commenced in August 2012 and remained in effect at the time this action commenced in August
2015.
b. Baez, Gonzalez, and Raymond
While the duty to preserve may predate the filing of a complaint, such as by the filing of
a notice of claim, Plaintiffs do not provide any facts that would have put Defendants on notice
that litigation as to the other Plaintiffs was reasonably foreseeable. See Alter, 2014 WL 4966119
at * 8–9 (duty to preserve arose with filing of Plaintiff’s notice of claim and collecting cases in
which events predating the commencement of a lawsuit triggered the duty to preserve). As
discussed above, Serrano’s EEOC Charge did not give rise to an obligation to preserve evidence
as to the other Plaintiffs. Accordingly, the Court finds that Defendants’ duty to preserve evidence
as to Baez, Gonzalez, and Raymond did not arise until the complaints were filed on their behalf.
See Edwards, 2017 WL 6458612 at *1. As to Gonzalez and Baez, this was on March 2, 2015, when
the Gonzalez Action was filed. (See 15 Civ. 1498 (AT), ECF No. 1). As to Raymond, this was not
until August 31, 2015, when this action was filed. (See ECF No. 1).
c. Effect on Plaintiffs’ Motion
The failure to preserve evidence will not be subject to the imposition of an adverse
inference unless there was first a duty to preserve that evidence. See Tchatat v. O’Hara, 249 F.
Supp. 3d 701, 708 (S.D.N.Y. 2017) (denying spoliation sanctions where “there was no suit filed
against the defendants at the time the evidence at issue was allegedly lost”); Smith v. City of New
York, 388 F. Supp. 2d 179, 189 (S.D.N.Y. 2005) (denying motion for spoliation sanctions “[b]ecause
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plaintiffs cannot show that defendants were under an obligation to preserve the [District
Attorney’s office files pertaining to plaintiffs] at the time they were purportedly misplaced . . .”).
As the Court has explained, Defendants did not have a duty to preserve evidence relating
to Baez and Gonzalez until March 2, 2015. The fourteen Monthly Reports pertaining to Baez and
Gonzalez, which are from 2013 and 2014 (see ECF No. 224 at 6), predate the duty to preserve,
and therefore, no sanction is warranted. Likewise, Raymond’s one missing Monthly Report,
dated May 2015, predated Defendants’ duty to preserve, and is therefore also does not warrant
sanctions. Accordingly, the only remaining Monthly Reports for which an adverse inference could
potentially be warranted are the three Monthly Reports pertaining to Serrano from August,
September, and December 2012.6 (See ECF No. 224 at 6).
2. Culpable state of mind
“[T]he party seeking sanctions must show that the party with control over the evidence
had a ‘culpable state of mind.’” Adorno v. Port Auth., 258 F.R.D. at 227 (quoting Byrnie, 243 F.3d
at 109) (declining to impose spoliation sanctions for lost promotional documents in employment
discrimination action). The Court must take a case-by-case approach to determine if the party
has such a culpable state of mind, that is, bad faith, gross negligence, or simple negligence.
Stinson, 2016 WL 54684, at *5. Gross negligence alone may establish that the evidence was
unfavorable to the spoliating party. Id. at *7 (citing Reilly v. Natwest Markets Grp. Inc., 181 F.3d
253, 267–68 (2d Cir. 1999)). By contrast, where spoliation is negligent or reckless but not willful,
6
Defendants produced Serrano’s January 2012 Monthly Report. (See ECF No. 233 at 7–8).
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the party seeking an adverse inference must demonstrate that the destroyed evidence would
have been favorable. See Zubulake, 220 F.R.D. at 221 (internal citation omitted).
The record before the Court is unclear as to whether the Monthly Reports were
destroyed, and if so, how or when they were destroyed; it is clear only that they have not been
located and produced. According to Defendants’ April 10, 2020 letter accompanying the
production of some of the Monthly Reports, Serrano’s three missing Monthly Reports were “not
scanned in.” (ECF 223-1 at 3). Defendants contend now that they “reasonably believe” that the
18 Monthly Reports at issue “were lost because the Squad Supervisors did not scan them (and
the Reports of other officers) into the Quest application, although they did preserve the monthly
activity in the Recapitulations.” (ECF No. 230 at 21–22). Plaintiffs counter with the Carrasco
Affidavit, which concludes, based on how many Monthly Reports are missing, that “a more
plausible explanation. . . is they were deliberately not scanned and the hard copies deliberately
destroyed.” (ECF No. 223-27 at 5).
The Court finds that, notwithstanding that 18 Monthly Reports have not been located and
produced, Defendants did attempt to comply with their discovery obligations once this action
was filed. Defendants distributed a preservation notice on April 17, 2015, roughly six weeks after
the filing of the Gonzalez Action, and on October 21, 2015, a month before this action was filed.
(ECF No. 232-3 at 2–3). At most, Defendants failed to follow through on collecting Monthly
Reports following the preservation notice. See Alter, 2014 WL 4966119, at *11 (declining to
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impose an adverse inference and finding the failure to initiate a litigation hold until “well over
two years after the Notice of Claim was filed” was a factor that the court should consider).
In
addition
to
distributing the
preservation
notices,
Defendants produced
Recapitulations, which contain much of the same information as the Monthly Reports,
corresponding to each missing Monthly Report. As noted, the Recapitulations include fields for
officers’ monthly activity, measured in total numbers of stops, arrests (by classification of
offense), overtime hours and tours on patrol, as well as the officers’ quarterly points and
quarterly points earned to date. (See ECF No. 223-17 at 2).
The Court does not find the Carrasco Affidavit persuasive, given that Deputy Inspector
Carrasco does not have personal knowledge concerning the failure to preserve or locate these
Monthly Reports in this case, and only speculates that “a more plausible explanation” is that the
Reports were “deliberately not scanned, and the hard copies deliberately destroyed.” (ECF
No. 223-27 at 5). See Century Pac., Inc. v. Hilton Hotels Corp., 528 F. Supp. 2d 206, 217 (S.D.N.Y.
2007) (striking exhibit as inadmissible for lack of personal knowledge of defendant’s intent and
for lack of relevance).
Similarly, the Court finds unpersuasive Plaintiffs’ argument that the apparent failure to
adhere to record retention guidelines found in the NYPD’s Patrol Guide and Administrative Guide
creates an inference of spoliation. In Byrnie, the Second Circuit explained that “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.” 243 F.3d 93, 109 (internal citation omitted and
emphasis added). Consequently, the Second Circuit determined that the violation of an EEOC
record-retention regulation could give rise to such an inference. Id. By contrast, the NYPD is a
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municipal law-enforcement agency, not a regulatory agency, and Plaintiffs do not argue that any
regulations by a regulatory agency have been violated. (See ECF Nos. 224, 234). Further, the
record is not established that the cited NYPD guidelines were even violated, because it is unclear
whether the Monthly Reports were destroyed, and if so, when. Accordingly, the proposed
inference of spoliation is not warranted.
Accordingly, the Court finds that the failure to preserve the Monthly Reports was, at most,
negligent, but did not rise to the level of gross negligence. See Port Auth. Police Asian Jade Soc’y
of N.Y. & N.J. v. Port Auth. of N.Y. & N.J., 601 F. Supp. 2d 566, 569–70 (S.D.N.Y. 2009) (denying
motion for an adverse inference in racial discrimination lawsuit, where the loss of 32 personnel
folders attributed to defendant’s “fail[ure] to take any measures to preserve [their contents]
after the institution of the EEOC charge was negligent” not grossly negligent). The failure to
preserve the Monthly Reports represents perhaps a sloppily-implemented litigation hold, but this
negligent conduct does not rise to the level of intent to destroy evidence. Alter, 2014 WL
4966119, at *11–12 (explaining that failure to implement a litigation hold does not prove
willfulness or gross negligence but was, at most, negligence). Therefore, despite the failure to
preserve the Monthly Reports, the Court does not find that the City failed to “conform to the
standard of what a party must do to meet its obligation to participate meaningfully and fairly in
the discovery phase of a judicial proceeding.” In re Pfizer Inc. Sec. Litig., 288 F.R.D. at 314 (internal
citation and quotation omitted).
The circumstances here are distinguishable from Stinson, where the court found that the
totality of the circumstances, including the defendant’s unjustified “three-year failure to issue a
litigation hold in this action,” combined with specific instances of NYPD personnel destroying
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relevant documents, including “shredding materials from CompStat meetings” and “throwing
away. . . monthly activity reports” amounted to gross negligence that warranted a permissive,
not a mandatory, adverse inference. 2016 WL 54684, at *2, 5–6, 8.
3. Relevance to Plaintiffs’ claims
As the party seeking spoliation sanctions, Plaintiffs bear the burden of establishing that
relevant evidence “actually existed and was destroyed.” GenOn, 282 F.R.D. at 357 (quoting Orbit
One Commc’ns Inc. v. Numerex Corp, 271 F.R.D. 429, 441 (S.D.N.Y. 2010)). Because the Court
has found that the spoliation here was, at most, negligent, rather than willful, Plaintiffs must
show “not only that [Defendants] destroyed relevant evidence as that term is ordinarily
understood, but also that the destroyed evidence would have been favorable to [them].”
Zubulake, 220 F.R.D. 212 at 221 (citing Residential Funding, 306 F.3d at 108–09). “Such a showing
can be made on the basis of extrinsic evidence,’” such as deposition testimony. Rhoda v. Rhoda,
No. 14 Civ. 6740 (CM), 2017 WL 4712419, at * 4 (S.D.N.Y. Oct. 3, 2017) (internal citation omitted).
Plaintiffs argue that Serrano’s missing Monthly Reports are “directly relevant to Plaintiff
Pedro Serrano’s 2012 performance evaluation” because the missing reports from August and
December 2012 would each reflect a quarterly score. (ECF No. 224 at 25–26). Plaintiffs also
argue that the Monthly Reports are relevant because they can contain comments by supervisors
and “provide a police officer with ‘sections where you can put down what you did to help the
community, what you did to correct a condition, what you did to help stop some kind of violence
. . .” (Id. at 14, 26–27). Accordingly, “[a]s a result of this missing evidence, Plaintiffs are simply
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left to wonder whether Plaintiff . . . Serrano had [his] quarterly points altered to change [his]
annual evaluation score[.]” (ECF No. 224 at 26).
Serrano’s September and December 2012 Monthly Reports were material to the
performance evaluation scheme, because each would have included a Quarterly Performance
Review. (See ECF No. 223-13 at 18–19, 23–24). By contrast, Serrano’s August 2012 Monthly
Report would not have included a quarterly score or Quarterly Performance Review. (See ECF
No. 223-13 at 16–17). Accordingly, the Court determines that the September and December
2012 Monthly Reports are relevant. Plaintiffs do not, however, adequately establish that these
two missing Monthly Reports would have been favorable to their case. That Plaintiffs are “simply
left to wonder” whether Serrano’s evaluation score had been altered (ECF No. 224 at 26),
amounts to conjecture, much like their earlier argument that missing cell phones “may” contain
relevant text messages. (See ECF No. 178 at 27 (quoting Alter, 2014 WL 4966119 at *12)).
Moreover, the Court is not persuaded that any written statements by Plaintiffs on the
Monthly Reports, such as their descriptions of how they performed their duties, or any comments
by their supervisors would have been favorable to Plaintiffs. By comparison, any such lost written
statements here are similar in significance to the unpreserved “Handwrittens” in Adorno, which
were “one-line expressions of interest in promotion,” by plaintiffs alleging discriminatory
promotion and appointment practices. 258 F.R.D. 217 at 229. While that information might have
had “arguable relevance,” the court found that the plaintiffs failed to establish that they would
have been unfavorable to the defendants because “[i]t is hard to imagine that these documents,
if they existed, would significantly assist plaintiffs, and it is hard to imagine what adverse
inference a jury could reasonably draw from the fact they no longer exist.” Id. at 229. As in Asian
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Jade Society, although the lost performance evaluations “were an important part of the
promotion process,” here “the record is insufficiently developed” to warrant the imposition of
an adverse inference against Defendants. 601 F. Supp. 2d at 570.
Accordingly, the Court finds that Plaintiffs have not established that the Monthly Reports
would have been favorable to their claims.
4. Prejudice
The “extreme sanction” of an adverse inference, Zubulake, 220 F.R.D. at 220, is
unwarranted if the opposing party has not suffered prejudice. See In re Pfizer Inc. Sec. Litig., 288
F.R.D. at 316 (internal quotation omitted). Here, having reviewed the other related documents
and information produced to Plaintiffs in discovery and from Plaintiffs’ own failure to seek relief
as to the Monthly Reports until 2020, more than a year after first requesting the Monthly Reports,
the Court finds that Plaintiffs have not demonstrated that they have been prejudiced.
Discovery produced by Defendants included Recapitulations corresponding to each
Monthly Report, which included summons and arrest statistics for Plaintiffs, annual evaluations,
deposition testimony, and tape recordings “in which [Plaintiffs] discuss their monthly activity
with their supervisors,” (ECF No. 230 at 27), as well as roll call records showing each officer’s daily
tour. (ECF No. 178 at 36). As noted above, the Recapitulations encompassed Plaintiffs’ monthly
activity, with fields for the total numbers of stops, arrests organized by offense classification,
overtime hours and tours on patrol, as well as the officers’ quarterly points and quarterly points
earned to date. (See ECF No. 223-17 at 2). In addition, Plaintiffs took the deposition testimony
of Lieutenant Andrew Hatki, who described recordkeeping procedures for the Monthly Reports
(see ECF No. 223-9 at 2–3), and Deputy Inspector Christopher McCormack, who testified about
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the contents of the Monthly Reports. (See ECF No. 223-10 at 2). In light of this evidence, the
likelihood of prejudice from the failure to produce the Monthly Reports is, virtually, “a nullity.”
Rhoda, 2017 WL 4712419 at *4; see also Chin v. Port Auth. of N.Y. and N.J., 685 F.3d 135, 162 (2d
Cir. 2012) (affirming denial of adverse inference in discrimination lawsuit in light of the “limited
role of the destroyed folders. . . and the plaintiffs’ ample evidence regarding their relative
qualifications when compared with the officers who were actually promoted.”). In contrast, in
the March 5 Order, the Court found that the failure to preserve Serrano’s Memo Book was
prejudicial because “given the breadth of information that and frequency with which Serrano
wrote in his memo books” — he alleged that he contemporaneously recorded each incidence in
which he was retaliated against, threatened or punished — the incomplete production of only
five pages of the Memo Book, “two of which are blank and one of which has only three lines of
information[,]” “obviously omit[ted] large portions of the Memo Book.” (ECF No. 178 at 31-32).
Consequently, the Court determined that these incomplete pages that were produced were
insufficient to replace the Memo Book, in contrast to cases where “several other resources were
available in the absence of the destroyed evidence.” Id. at 32. Unlike Serrano’s Memo Book,
here, in light of the production of Recapitulations and other documents, Plaintiffs have not
suffered prejudice from the failure to produce Serrano’s Monthly Reports.
Accordingly, the Court finds that Plaintiffs have not established that they have suffered
prejudice from Defendants’ failure to produce the 18 Monthly Reports.
*
*
*
In sum, the Court concludes that Plaintiffs have not shown that the sanction of an adverse
inference is warranted for Defendants’ failure to produce the 18 missing Monthly Reports. The
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record is unclear as to whether these Monthly Reports were destroyed or simply cannot be
located, which the Court has concluded is due, at most, to negligence. Fifteen of the missing
Monthly Reports – those for Raymond, Baez, and Gonzalez – predate any duty to preserve
evidence, and Plaintiffs have not met their burden of establishing that the three missing Monthly
Reports for Serrano would have been favorable to them. Finally, Plaintiffs have not shown that
they were prejudiced.
D.
An Award of Attorney’s Fees is Unwarranted
Defendants request an award of attorneys’ fees for reasonable costs incurred in opposing
Plaintiffs’ Third Sanctions Motion, without citation to any legal authority. Their request appears
to be seeking a fee award based on the Court’s inherent powers, which “requires a specific finding
that an attorney acted in bad faith. Moreover, inherent-power sanctions are appropriate only if
there is clear evidence that the conduct at issue is (1) entirely without color and (2) motivated by
improper purpose.” Crawford v. City of New London, No. 3-cv-1371 (JBA), 2014 WL 2168430, at
*5 (D. Conn. May 23, 2014) (denying defendant’s application for attorneys’ fees in opposing
plaintiff’s unsuccessful motion for spoliation sanctions that “was based on weak evidence at
best”) (quoting Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110, 114 (2d Cir. 2009)).
Defendants are not entitled to attorneys’ fees because they have not established that
Plaintiffs’ Third Sanctions Motion was entirely baseless and motivated by an improper purpose.
To the contrary, Plaintiffs’ Third Sanctions Motion arose from a legitimate dispute concerning
Defendants’ failure to preserve evidence relevant to Serrano’s claims. Though the Court
concludes Plaintiffs are not entitled to spoliation sanctions, their position and legal arguments
are not “entirely without color.” Crawford, 2014 WL 2168430 at *5.
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Accordingly, Defendants’ request for attorneys’ fees is DENIED.
III.
CONCLUSION
For the reasons set forth above, Plaintiffs’ Third Sanctions Motion is DENIED, and
Defendants’ request for an award of attorneys’ fees is also DENIED. The parties are reminded to
file a letter on ECF certifying the completion of all discovery by Monday, December 14, 2020.
(ECF No. 242).
The Clerk of Court is respectfully directed to close ECF No. 222.
Dated:
New York, New York
December 2, 2020
_________________________
SARAH L. CAVE
United States Magistrate Judge
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