Rosario v. City of New York et al

Filing 427

ORDER: For the reasons discussed at the conference, it is hereby ORDERED that Defendants' motion for reconsideration is GRANTED. Plaintiff's expert, Mr. Grant, is directed to conduct a search of Plaintiff's phone and iCloud account f or purposes of identifying communications between January 27, 2021 to the present, between Plaintiff and individuals who were or are on Plaintiff's witness lists in this action. It is further ORDERED that Defendants' motion for an adverse inference is DENIED without prejudice to renewal following further factual investigation regarding Plaintiff's intent in deleting the text messages and the content of any deleted messages with non-party witnesses. Defendants are permitted to question non-party witnesses regarding any communications they may have had with Plaintiff relating to this action for purposes of impeachment. It is further ORDERED that by July 27, 2022, Plaintiff shall file the letters and accompanying exhibits he previously submitted to Chambers via email concerning the aforementioned motions. If Plaintiff believes any of the materials contain confidential motion, he shall file a motion to seal pursuant to the Court's Individual Rules, explaining why the materials should be afforded confidential treatment. (Signed by Judge Lorna G. Schofield on 7/27/2022) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
:
RICHARD ROSARIO,
:
Plaintiff,
:
:
-against:
:
CITY OF NEW YORK, et al.,
:
Defendants. :
:
-------------------------------------------------------------X

18 Civ. 4023 (LGS)
ORDER

LORNA G. SCHOFIELD, District Judge:
WHEREAS, on July 25, 2022, Defendants filed a letter motion (Dkt. No. 425) requesting
(i) reconsideration of the Court’s Order, dated July 25, 2022 (Dkt. No. 421), denying Defendants’
motion to compel production of Plaintiff’s communications with non-party witnesses and (ii)
sanctions under Federal Rule of Civil Procedure 37, including at least an adverse inference, based
on Plaintiff’s deletion of communications with non-party witnesses.
WHEREAS, on July 25, 2022, Plaintiff submitted, via email, to Chambers (i) a letter
motion opposing Defendants’ motion for sanctions and (ii) text messages between Plaintiff and
non-party witnesses Chenoa Ruiz and Michael Serrano. The letter and text messages are attached
to this Order.
WHEREAS, on July 26, 2022, Plaintiff submitted, via email, the attached chart of
communications that the expert identified on Plaintiff’s phone.
WHEREAS, a conference was held on July 26, 2022, to discuss the motions. For the
reasons discussed at the conference, it is hereby
ORDERED that Defendants’ motion for reconsideration is GRANTED. Plaintiff’s
expert, Mr. Grant, is directed to conduct a search of Plaintiff’s phone and iCloud account for
purposes of identifying communications between January 27, 2021 to the present, between

Plaintiff and individuals who were or are on Plaintiff’s witness lists in this action. It is further
ORDERED that Defendants’ motion for an adverse inference is DENIED without
prejudice to renewal following further factual investigation regarding Plaintiff’s intent in deleting
the text messages and the content of any deleted messages with non-party witnesses. Defendants
are permitted to question non-party witnesses regarding any communications they may have had
with Plaintiff relating to this action for purposes of impeachment. It is further
ORDERED that by July 27, 2022, Plaintiff shall file the letters and accompanying
exhibits he previously submitted to Chambers via email concerning the aforementioned motions.
If Plaintiff believes any of the materials contain confidential motion, he shall file a motion to seal
pursuant to the Court’s Individual Rules, explaining why the materials should be afforded
confidential treatment.
Dated: July 27, 2022
New York, New York

2

July 25, 2022
Via Email: [e-mail]
Honorable Lorna G. Schofield
United States District Judge
U.S. District Court, Southern District of New York
Thurgood Marshall Courthouse
40 Foley Square
New York, NY 10007
Re: Rosario v. City of New York, et al., Case No. 18-cv-4023
Dear Judge Schofield,
Defendants’ extraordinary request for extreme sanctions—up to and including dismissal
of the case or preclusion of key evidence—has no legal basis. Because Defendants’ motion
addresses the deletion of ESI, Rule 37(e) controls. See Eur. v. Equinox Holdings, Inc., No.
20CV7787JGKKHP, 2022 WL 832027, at *3 (S.D.N.Y. Mar. 21, 2022) (holding since 2015
when Rule 37(e) was amended, it provides the exclusive test for “when corrective measures for
spoliation of ESI are appropriate”) (citing 2015 Advisory Notes to Rule 37(e)); see also Fashion
Exch. LLC v. Hybrid Promotions, LLC, No. 14CV1254SHSOTW, 2019 WL 6838672, at *3
(S.D.N.Y. Dec. 16, 2019) (“Rule 37(e) replaces the prior framework for claims regarding a
failure to preserve ESI.”). Under Rule 37(e), no sanction at all is warranted for several reasons. 1
I.

The messages are not lost.

First, sanctions under Rule 37(e) are available “only where ESI has been ‘lost’ and
‘cannot be restored or replaced through additional discovery.’” Goldman v. Sol Goldman Invs.
LLC, No. 20CV06727MKVSN, 2022 WL 2118199, at *3 (S.D.N.Y. June 11, 2022) (quoting
Fed. R. Civ. P. 37(e)). Thus even if a party himself has deleted messages, there can be no
sanctions if the messages are provided from another source, because they are not “lost.” Id. at *4
(holding sanctions are not available where Plaintiff deleted an email that was subsequently
1

It is unclear if Defendants are arguing for sanctions on any other basis. Although Rule 37 now
provides the explicit framework in this context, Defendants cannot meet any other test for
sanctions, either. For example, sanctions under inherent authority require “a particularized
showing of bad faith” which Defendants cannot make. In re Keurig Green Mountain SingleServe Coffee Antitrust Litig., No. CV14MD2542VSBSLC, 2022 WL 1082087, at
*5 n.7 (S.D.N.Y. Apr. 11, 2022).
1

produced from another source: “The email was not lost because [the recipient] produced it at his
deposition. Therefore, spoliation sanctions may not be awarded for Plaintiff’s failure to produce
the May 28 email, and the Court need not inquire into Plaintiff’s state of mind.”); CBF Industria
de Gusa S/A v. AMCI Holdings, Inc., No. 13CV2581PKCJLC, 2021 WL 4190628, at *11
(S.D.N.Y. Aug. 18, 2021) (noting that deleted messages that can be obtained from the other
parties are not permanently lost or unrecoverable under Rule 37); Morgan Art Found. Ltd. v.
McKenzie, No. 18CV4438ATBCM, 2020 WL 5836438, at *19 (S.D.N.Y. Sept. 30, 2020)
(holding Rule 37 sanctions were not available because deleted messages which still exist in
another account “are not permanently lost, and in fact they have already been produced”).
That is precisely the circumstance here; although Mr. Rosario deleted the text message
chains from his own phone, they have been obtained from other participants: Plaintiff’s counsel
and John Torres. Because Defendants have not and cannot establish that any relevant messages
are “lost” and “cannot be restored or replaced through additional discovery,” their request for
sanctions fails at the first step. 2 See Watkins v. New York City Transit Auth., No. 16 CIV. 4161
(LGS), 2018 WL 895624, at *10 (S.D.N.Y. Feb. 13, 2018) (Defendants have “the burden of
establishing the elements of a spoliation claim by a preponderance of the evidence.”).
II.

There is no prejudice to cure.

Second, even assuming Defendants could establish that relevant evidence was actually
lost (which they cannot), the Court would next have to “find[] prejudice to [Defendants] from
loss of the information” before it could “order measures no greater than necessary to cure the
prejudice.” Fed. R. Civ. P 37(e). “Prejudice” in this context requires more than some probative
value: “the mere fact that deleted materials were relevant does not itself establish prejudice.”
Pugh-Ozua v. Springhill Suites, No. 18-CV-1755 (RA), 2020 WL 6562376, at *4 (S.D.N.Y.
Nov. 9, 2020). Rather there must be some evidence—beyond pure speculation—that the lost
materials would be helpful to Defendants’ case. Simon v. City of New York, No. 14-CV-8391
(JMF), 2017 WL 57860, at *7 (S.D.N.Y. Jan. 5, 2017).
Here, Defendants have not been prejudiced because they have the messages at issue. See,
e.g., Fed. R. Civ. P. 37(e)(1) advisory committee’s note to 2015 amendment (explaining that ESI
“often exists in multiple locations” and so “loss from one source may often be harmless when
substitute information can be found elsewhere”). Defendants are also not prejudiced because the
Court has already ruled the messages are at best tangentially relevant to the issues to be tried, far
more prejudicial than probative under Rule 403, and therefore not themselves admissible. The
2

There is no dispute entirety of chain with counsel has been produced. Our understanding is that
John Torres intended to produce the entirety of the other two chains through screen shots, and we
have produced the entirety of what he sent us to Defendants, which we understand captures the
substance of the exchange. To the extent any stray words were cut off by the way he created the
screenshots, as Defendants suggest they believe, we can follow up with John Torres, which we
had proposed to do once he was in New York next week for his testimony so that we could view
his phone ourselves. In the abundance of caution, as other witnesses are traveling to New York,
Plaintiff’s counsel is seeking any recent text messages with Plaintiff regarding the case and, if
any exist, will produce them.
2

Court’s ruling—that Defendants may conduct some limited impeachment related to the subject
of communications between Mr. Torres and Plaintiff, which they must clear with the Court in
advance—already puts Defendants in exactly the same position they would have been in had Mr.
Rosario not deleted the texts from his phone. Any additional sanction does not cure prejudice
(there is none) but rather would put Defendants in a better position than they would otherwise
have been, even though they have not lost access to any evidence. See Fashion Exch. LLC v.
Hybrid Promotions, LLC, 2019 WL 6838672, at *3 (“A Rule 37(e)(1) sanction may only be
imposed upon a finding of prejudice from the loss of the information, and the sanction imposed
may be ‘no greater than necessary to cure the prejudice.’” (quoting Fed. R. Civ. P. 37(e))).
III.

The extreme sanctions Defendants seek are available only upon a showing by clear
and convincing evidence that Plaintiff deleted with an intent to deprive, which
Defendants cannot establish.

There is no basis for the sanctions Defendants seek. The extreme sanctions Defendants
seek—including an adverse inference instruction or dismissal of a claim or the action as a
whole—are available “only upon a finding that [Plaintiff] acted with the intent to deprive
[Defendants] of the information’s use.” Fed. R. Civ. P. 37(e)(2); see also Watkins v. New York
City Transit Auth., No. 16 CIV. 4161 (LGS), 2018 WL 895624, at *10 (S.D.N.Y. Feb. 13, 2018)
(“Litigants in the Second Circuit seeking sanctions under Rule 37(e)(2) now have the burden of
proving ‘intent to deprive,’ rather than ordinary or gross negligence.”) (cleaned up); see also
Eur, 2022 WL 832027, at *4 (“[T]he Court must be careful not to impose any measures taken to
cure spoliation under subsection (e)(1) that has the effect of the sanctions specified under
subsection (e)(2) of the Rule, which are reserved for those cases where there is a finding of
‘intent to deprive.’”).
Defendants bear the burden of proving this ‘intent to deprive’ by clear and convincing
evidence. Eur., 2022 WL 832027, at *4. Importantly, “the intent contemplated by Rule 37 is not
merely the intent to perform an act that destroys ESI but rather the intent to actually deprive
another party of evidence.” Leidig v. Buzzfeed, Inc., No. 16CIV542VMGWG, 2017 WL
6512353, at *11 (S.D.N.Y. Dec. 19, 2017). Such intent could be inferred “when the data loss
cannot be credibly explained other than by bad faith.” CBF Industria de Gusa S/A, 2021 WL
4190628, at *18. Thus, for example, if the evidence “clearly and convincingly show[s] that
Defendants sought out emails that could disadvantage them in this case, and then chose those
particular emails to delete, for the purpose of keeping them out of [the opposing party’s] hands”
that could satisfy the burden. Lokai Holdings LLC v. Twin Tiger USA LLC, No. 15CV9363
(ALC) (DF), 2018 WL 1512055, at *16 (S.D.N.Y. Mar. 12, 2018).
On the other hand, if there is no evidence of selective deletion, or if the evidence is
capable of more than one interpretation, that would not support a finding of “intent to deprive.”
Id. Similarly, a party’s attempts to retrieve destroyed ESI weigh against a finding of “intent to
deprive.” See CBF Industria de Gusa S/A, 2021 WL 4190628, at *19.
Here, the record does not support a finding of “intent to deprive” by any standard,
certainly not by clear and convincing evidence as would be required. There was no selective
deletion; the record is clear that as a result of his paranoia and the memory of having all of his
3

communications monitored while he was in prison, Mr. Rosario routinely clears his phone of all
of his text messages. There is nothing nefarious about this; nor is there any requirement that he
preserve the vast majority of messages he sends, as they are not related to this case. The
messages at issue here themselves demonstrate Mr. Rosario was not in a stable frame of mind
when the texts were sent, and by the time he had calmed down to the point that counsel could
remind him of the obligation to preserve these texts, Mr. Rosario had already followed the
practice he uses with his other communications and deleted them. Most importantly, in the
middle of this text chain Mr. Rosario copied in his counsel, which is completely inconsistent
with any intent to hide this exchange from Defendants. Mr. Rosario then voluntarily produced
his cell phone to a forensic expert to attempt to recover the texts. 3
In short, Defendants fall far short of their burden in justifying any of the extreme
sanctions they seek. See, e.g., Rhoda v. Rhoda, No. 14 CIV. 6740 (CM), 2017 WL 4712419, at
*1 (S.D.N.Y. Oct. 3, 2017) (“The adverse inference instruction is an ‘extreme sanction and
should not be given lightly.’”); Fashion Exch. LLC v. Hybrid Promotions, LLC, No. 14-CV-1254
(SHS), 2021 WL 1172265, at *7 (S.D.N.Y. Mar. 29, 2021) (“‘[P]reclusion is an extreme sanction
and, before ordering preclusion, a court must consider less extreme’ sanctions.”).
IV.

Defendants should not be permitted to question Plaintiff about the destruction.

Plaintiff concedes Defendants should be permitted to question about the substance
addressed in the texts that relates to this case—in other words, whether the witnesses have ever
asked for or received any benefit for their testimony, and the nature of their relationship to Mr.
Rosario. But there is no basis to permit questioning about the deletion of the texts themselves.
That would amount to a discovery sanction, which as explained above is not merited under Rule
37(e). In other words, it is a sanction greater than necessary to cure the prejudice, which is
impermissible. See Fashion Exch. LLC v. Hybrid Promotions, LLC, 2019 WL 6838672, at *3
(“A Rule 37(e)(1) sanction may only be imposed upon a finding of prejudice from the loss of the
information, and the sanction imposed may be ‘no greater than necessary to cure the prejudice.’”
(quoting Fed. R. Civ. P. 37(e))). Furthermore, permitting questioning about the deletion would
falsely suggest the deleted texts are far more probative than they are, as well as introducing a
confusing sideshow into the trial, about a dispute that is irrelevant. It would also improperly
suggest litigation misconduct, where there is none.

3

Defendants’ mention of the 2019 deletion of Instagram posts has no bearing on this issue. After
maintaining an active and public social media profile for years, Mr. Rosario decided it was
exacerbating symptoms of his PTSD and made it private. Plaintiff’s counsel attempted to
download the entirety of the history of his posts so that they could then be produced to
Defendants; believing this had been done Mr. Rosario subsequently deleted his account. Counsel
later learned that among the hundreds of downloaded posts we had inadvertently missed some of
the Instagram content. In other words, the error there was counsel’s, not Mr. Rosario’s. And
there is no evidence any of the deleted posts—which Defendants had had access to while the
posts were public—were in any way relevant to this suit.
4

Respectfully submitted,
/s Anna Benvenutti Hoffmann
Anna Benvenutti Hoffmann
Counsel for Plaintiff

Cc: all counsel

5

Via email: [e-mail]

July 22, 2022

Honorable Lorna G. Schofield
United States District Judge
U.S. District Court, Southern District of New York
Thurgood Marshall Courthouse
40 Foley Square
New York, NY 10007
Re: Rosario v. City of New York, et al., Case No. 18-cv-4023
Dear Judge Schofield:
The following chart is Plaintiff’s best attempt to describe the text messages recovered
from Plaintiff’s phone. Plaintiff’s expert, Jerry Grant, is still in custody of the phone. Upon the
Court’s request, Plaintiff’s counsel contacted Mr. Grant, who had to pull the data again. There
were parts of four text message chains recovered, all dated July 18. Plaintiff’s expert has
informed Plaintiff’s counsel that he will be able to provide more information between 9:30am
and 10:00a.m.
Participant
Nick Brustin
Woman 1 1
Woman 2
(non-identifiable)

Dates
July 18
July 18
July 18
July 18

General Subject Matter
Personal nature
Personal nature
No context (an emoji)

Respectfully submitted,
/s/ Anna Benvenutti Hoffmann
Anna Benvenutti Hoffmann
Counsel for Plaintiff
Cc: all counsel

1

Plaintiff believes but cannot yet confirm that woman number 1 is Plaintiff’s ex-wife.

1