Popat v. Levy et al

Filing 178

ORDER denying 158 Motion for Sanctions. Signed by Hon. H. Kenneth Schroeder Jr. on 9/29/2022. (KER)

Case 1:15-cv-01052-EAW-HKS Document 178 Filed 09/29/22 Page 1 of 17

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SAURIN POPAT, M.D.,
Plaintiff,
v.

15-CV-1052W(Sr)

ELAD LEVY, MD.,
THE STATE UNIVERSITY OF NEW YORK
AT BUFFALO
UNIVERSITY AT BUFFALO SCHOOL
OF MEDICINE AND BIOSCIENCE,
UNIVERSITY AT BUFFALO
NEUROSURGERY GROUP,
UNIVERSITY AT BUFFALO
NEUROSURGERY, INC.,
and
KALEIDA HEALTH,
Defendants.

DECISION AND ORDER
This matter was referred to the undersigned by the Hon. Elizabeth A.
Wolford, in accordance with 28 U.S.C. § 636(b), for all pretrial matters. Dkt. #17.

Currently before the Court is plaintiff’s motion for sanctions pursuant to
Rule 37(e) of the Federal Rules of Civil Procedure (“FRCP”), against defendant UBNS
for its failure to preserve electronically stored information (“ESI”). Dkt. #158. Plaintiff
requests that the Court strike UBNS’s answer or instruct the jury that it could presume

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the evidence UBNS destroyed was helpful to plaintiff and harmful to UBNS. Dkt. #15828, p.22.

BACKGROUND
Plaintiff Saurin Popat is a medical doctor specializing in otolaryngology
and the Director of Head and Neck Surgery for Delaware Medical Group, P.C.
(“Delaware Medical”). Dkt. #60, ¶¶ 32-33. On December 18, 2013, upon
recommendation by defendant Elad Levy, M.D., Chair of Neurosurgery at State
University of New York at Buffalo School of Medicine and Bioscience (“UB Medical
School”),1 plaintiff was appointed to the position of Clinical Assistant Professor of
Neurosurgery at UB Medical School. Dkt. #60, ¶ 18 & Dkt. #108-1, p.142.

By letter dated July 23, 2014, Dr. Levy terminated plaintiff’s position with
the Department of Neurosurgery at UB Medical School effective August 29, 2014. Dkt.
#108-1, p.144. Dr. Levy claims that he terminated plaintiff from his position because of
plaintiff’s attempt to schedule a collaborative surgery when Dr. Levy would be away and
because plaintiff deviated from the agreed upon protocol during that surgery on July 22,
2014. Dkt. #110-5, p.3.

By letter dated July 31, 2014, addressed to the Dean of UB Medical
School, Michael Cain, M.D. (“Dean Cain”), plaintiff requested a formal investigation into
1

Dr. Levy is also Chair of Neurosurgery at Kaleida Health and Chair of Neurosurgery for
University at Buffalo Neurosurgery (“UBNS”), which is part of UBMD, the single largest medical
group in Western New York, with more than 500 physicians in 18 medical specialties. Dkt. #60,
¶ 11.

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alleged racial discrimination during surgery on July 22, 2014 and complained that Dr.
Levy had revoked his adjunct appointment with the Department of Neurosurgery. Dkt.
#158-9.

On August 19, 2014, Dean Cain sent an email to Dr. Levy at his UBNS
email address attaching a copy of plaintiff’s letter and advising that he was referring
plaintiff’s
allegation to UB’s Office of Equity, Diversity and Inclusion.
You may be contacted by the Director, Sharon Nolan Weiss,
in accordance with UB’s policies regarding discrimination
and harassment. Also, since the allegations involve UBNS
as well, UBNS as a corporation should conduct its own
investigation of the occurrences. Larry DiGiulio is able to
serve as an independent fact gatherer on behalf of UBNS. In
the past, the University and a representative of the practice
plan (Larry) have participated in a joint investigation of this
nature.
Dkt. #158-10.

On August 20, 2014, Dr. Levy used his UBNS email address to
acknowledge Dr. Cain’s note regarding plaintiff’s allegations, provide his perspective of
those allegations, and advise that he had requested that UBNS’ CEO proceed with an
independent investigation to assess and address all the concerns of racial insensitivity
raised by plaintiff. Dkt. #158-5, p.5. Dr. Levy copied Dr. Siddiqui, Dr. Kedron and
Licensed Nurse Hopkins at their UBNS email addresses on this email. Dkt. #158-5, p.5.
Dean Cain acknowledged Dr. Levy’s email by email which was also copied to Dr.
SiddiquiDr. Kedron and Licensed Nurse Hopkins. Dkt. #158-5, p.5.

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On August 28, 2014, UBNS Human Resources/Payroll Specialist Kimberly
Drozdowski used her UBNS email address to send an email to Dean Cain attaching a
letter regarding the investigation UBNS completed on the Levy/Popat matter. Dkt. #1722. Dean Cain responded to the UBNS email address that “following UB policy, both the
University under the direction of Sharon Nolan-Weiss and UB Associates under the
direction of Larry Diguilio will follow the specified procedures.” Dkt. #172-2, p.2.

By email dated September 10, 2014, Sharon Nolan-W eiss, Director,
Office of Equity, Diversion and Inclusion for SUNY Buffalo, advised Dr. Levy that
because plaintiff’s claims also relate to matters involving UBNS, the investigation was
being conducted jointly by SUNY Buffalo and UB Associates, Inc. (Chief Compliance
Officer, Lawrence DiGuilio, Esq.). Dkt. #172-4. Later that day, counsel for UBNS
advised counsel for UB Medical School that she represented UBNS and would “be
involved in this claim brought by Dr. Popat.” Dkt. #158-13.

By email dated January 12, 2015, Jody Leonardo used her UBNS email
address to advise Dr. Levy that plaintiff had questioned her as to why she was no
longer referring patients to plaintiff. Dkt. #158-14. By letter dated January 15, 2015,
counsel for UBNS advised UB Medical School of concerns regarding plaintiff’s
communication with Dr. Leonardo and requested that plaintiff be instructed not to
engage in any further contact with any UBNS employee “regarding the circumstances
surrounding the July 22, 2014 surgery, UB’s investigation into his complaint regarding
same, or regarding referral of cases to him going forward.” Dkt. #158-14.
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Plaintiff filed a Charge of Discrimination with the United States Equal
Employment Opportunity Commission (“EEOC”), on June 2, 2015. Dkt. #158-15.
On June 10, 2015, Dr. Levy used his UBNS email address to advise
SUNY counsel’s office that
We contacted our HR director and our legal team. We have
records kept on this matter. We are happy to comply with
the record hold . . . please direct all future communication to
[UBNS counsel].
Dkt. #172-7, p.2. Dr. Levy copied Ms. Drozdowski, Dr. Siddiqui, and UBNS counsel on
this email. Dkt. #172-7, p.2. SUNY counsel responded to Dr. Levy that
The litigation hold was sent to you from UB Counsel
because you are a UB [D]epartment Chair. The UB hold
requires you to preserve all document maintained in the
context of your University role, not as President of UBNS.
Therefore, it would be inappropriate to communicate with
you on this matter through an outside (UBNS) attorney or
have UBNS’ attorney provide University records should they
be needed.
Dkt. #172-7, p.2. Dr. Levy responded:
“Thank you for the clarification. Happy to comply.”
Dkt. #172-7, p.2.

By email dated January 15, 2016, counsel for SUNY Buffalo advised Dr.
Levy that a lawsuit had been filed in federal court and asked him to contact her when
he had been served with the complaint. Dkt. #172-6, p.2. SUNY Buffalo counsel noted
that “UBNS will also likely be served” and advised Dr. Levy to “send a copy of this
Complaint to UBNS’s attorney.” Dkt. #172-6, p.2. SUNY counsel advised that she would
request that the NYS Attorney General represent Dr. Levy in his capacity as an
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employee of SUNY Buffalo. Dkt. #172-6. Dr. Levy responded to SUNY Buffalo counsel
from his UBNS email, copying UBNS counsel. Dkt. #172-6.

On February 4, 2016, counsel for SUNY Buffalo emailed Dr. Siddiqui a
“litigation hold memorandum.” Dkr. #172-7, p.4. Dr. Siddiqui responded from his SUNY
Buffalo email account, with copies to Dr. Levy and Reagan O’Toole at their UBNS email
addresses and to UBNS counsel, that he had received the email. Dkt. #172-7, p.4.

Plaintiff’s First Request for Production of Documents from UBNS, dated
January 16, 2019, requested, inter alia, “all documents concerning the Plaintiff,
including, without limitation, emails among UBNS employees;” any “email
communications sent to or about Plaintiff, or sent to UBNS from Plaintiff that
references, mentions, concerns, pertains to and/or relates to Defendant’s affiliation with
Plaintiff and/or the events of July 22, 2014;” and “[a]ll documents regarding complaints
made against Dr. Levy, including, without limitation, Plaintiff’s complaints, related to
working relationships and/or Defendant Levy’s behavior with others.” Dkt. #158-3, pp.67 & 8, No. 2, 7 & 10.

On March 12, 2019, UBNS responded that with the exception of
communications between members of management and counsel, which were protected
by attorney client privilege, no responsive documents exist, except for the investigative
report that had already been provided. Dkt. #158-16, pp.5 & 8, No. 2 & 7. UBNS f urther
responded that it had “no record of any complaints, verbal or written in any form, of
complaints regarding Dr. Levy’s ‘behavior.’” Dkt. #158-16, p.9, No. 10.
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By letter dated June 4, 2019, plaintiff advised that
it appears that UBNS has not produced all responsive
documents, as Plaintiff is in receipt of documents produced
by other parties that indicate that UBNS likely possesses the
same documents . . . . This raises concerns about the
thoroughness of UBNS’ document retention and/or
production policies and procedures with regard to this
matter. Accordingly, we request that UBNS review its files
and make a supplemental production as quickly as possible.
Dkt. #158-17, p.7.

By letter dated August 29, 2019, counsel for UBNS responded:
As to your general statement that it appears UBNS has not
disclosed any and all responsive documents because you
have received other documents from other parties does not
warrant a response. UBNS and Dr. Levy have made all
appropriate attempts to locate documents and have
provided any and all documents not subject to attorney
privilege and have produced same. Further, the statement
that this raises “concern” of our retention policies, etc simply
because other defendants may have a different policy or
protocol for retention of documents is completely irrelevant,
improper, and requires no further response.
Dkt. #158-4, p.5.

By letter dated September 16, 2021, plaintiff advised UBNS that SUNY’s
document production included an email exchange dated August 20, 2014 between Dr.
Levy and Dr. Cain which copied Dr. Siddiqui, Dr. Kedron and Dr. Hopkins at their UBNS
email addresses that was obviously responsive to plaintiff’s discovery demands but had
not been produced by UBNS. Dkt. #158-5, p.3. Plaintiff requested an explanation as to
why this email exchange was not produced and production of any other responsive
documents that may have been withheld. Dkt. #158-5, p.3.
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By letter dated October 1, 2021, counsel f or UBNS responded that the
Information Technology Director for UBNS advised that
our initial request for all emails/documents was not made
until 2018 when we received your first set of discovery
demands. The email servers at UBNS do not retain emails,
sent or received, for more than twelve (12) months.
Dkt. #158-6, p.3.

By letter dated October 22, 2021, plaintiff responded as follows:
As I’m sure you know, a party has a common law duty to
preserve evidence once that party has notice that the
evidence is relevant to a lititgation or when the party should
have known that the evidence may be relevant to future
litigation. . . . Please explain when, if ever, your firm advised
UBNS to issue a litigation hold and suspend its physical and
electronic document destruction policies. Your October 1
letter suggests that UBNS maintained its usual retention and
destruction policies until receiving your first request for
documents sometime in 2018. Thus, emails relevant to this
litigation from 2014 through at least 2017 were destroyed.
For obvious reasons, this is highly prejudicial to Plaintiff, and
we intend to seek sanctions pursuant to Rule 37 (e).
Dkt. #158-7, p.4.

By letter dated November 2, 2021, UBNS responded:
The email at issue would have auto deleted on or about
February 20, 2015. Your client did not file an EEOC
Complaint until May 2015 and then his Civil Complaint in the
WDNY in the fall of 2015 following the EEOC’s dismissal for
lack of merit. UBNS had no obligation whatsoever to change
its protocol and/or preserve any emails or other documents
prior to any litigation proceedings sans a litigation hold or
pre-suit discovery Order from the Court. [Plaintiff’s counsel]
certainly could have served UBNS with a pre-suit litigation
hold but failed to do so.
Dkt. #158-8, pp.1-2.
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Motion for Sanctions
Plaintiff argues that UBNS’ duty to preserve evidence commenced no
later than August of 2014 when Dr. Levy received plaintiff’s letter complaining of
discrimination and Dean Cain’s instruction that UBNS should conduct its ow n
investigation, at which point UBNS retained counsel. Dtk. #158-28, pp.7-8. Plaintif f also
argues that he is prejudiced by UBNS’ failure to preserve emails because plaintiff has
no way of knowing whether other UBNS employees communicated about plaintiff’s
allegations within UBNS. Dkt. #158-28, pp.19-20. Although plaintiff obtained a copy of
the August 20, 2014 email from discovery provided by other defendants who were
copied on that email, plaintiff argues that he is unable to assess whether any UBNS
employees who were copied on that email corroborated or contradicted Dr. Levy’s
recitation of events. Dkt. #158-28, pp.19 & 21. Plaintiff argues that UBNS’ failure to
preserve ESI was intentional and should warrant an adverse inference that UBNS
destroyed emails that would have supported plaintiff’s claim. Dkt. #158-28, p.22.

UBNS responds that it had no reason to believe its internal emails would
have any bearing on an employment discrimination lawsuit given that plaintiff was not
employed by UBNS and had no contractual agreement with UBNS. Dkt. #168-20, pp.47. UBNS also argues that plaintiff has failed to demonstrate prejudice caused by the
failure to preserve ESI or any intent by UBNS to deprive plaintiff of evidence. Dkt. #16820, pp.7-8. UBNS notes that plaintiff deposed numerous UBNS employees, as well as
many employees of SUNY Buffalo, UB Medical School and Kaledia Health, but f ailed to
ask them if there were any other email communications regarding the surgery on July
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22, 2014 or the termination of his academic appointment with UB or that may relate to
plaintiff’s damages. Dkt. #168-20, pp.8-10. UBNS argues that the Court cannot
conclude that there were internal UBNS emails that reflect on liability or damages when
plaintiff failed to establish that any such evidence ever existed. Dkt. #168-20, p.9.
Furthermore, UBNS argues that it’s email retention policy was in place prior to the
allegations giving rise to this lawsuit and was not instituted to deprive plaintiff of
evidence. Dkt. #168-20, p.10.

Michael Cournyea, Chief Executive Officer at UBNS, submitted an
affirmation in opposition to plaintiff’s motion for sanctions, explaining that due to the
very high volume of email, which causes UBNS servers to become inefficient, certain
providers, including Dr. Levy, have parameters set on their email accounts to help
create space on UBNS servers by auto deleting incoming and outgoing messages that
have not been archived. Dkt. #168-10, ¶ 6. Since at least 2008, Dr. Levy’s email had
been set to auto delete incoming and outgoing messages that were six months old and
had not been archived. Dkt. #168-10, ¶ 6. Dr. Cournyea affirms that “several emails and
letters were retained as part of this litigation at the direction of our counsel,” but the
August 20, 2014 email was not one of them. Dkt. #168-10, ¶¶ 10-11. Dr. Cournyea
affirms that UBNS contacted the third party vendor which archives its data and asked it
to retrieve server data so that UBNS could search for the August 20, 2014 letter, which
it ultimately found. Dkt. #168-10, ¶¶ 14-15. Dr. Cournyea further affirms that UBNS
conducted a general search of this server data “for any additional emails to/from Dr.
Popat or with “popat” identified as the subject and[/]or in the body of the email,” but was
unable to locate any additional emails or documents. Dkt. #168-10, ¶ 16.
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Plaintiff replied that UBNS had admitted its failure to preserve ESI and
noted that other parties to this action had produced additional em ails that should have
been recovered by the search described by Dr. Cournyea. Dkt. #172, ¶¶ 13-22. Plaintiff
argues that it is “simply unthinkable that between July 2014 and the present date there
would be zero responsive emails exchanged between or among UBNS employees.”
Dkt. #172, ¶ 22. Plaintiff emphasizes that UBNS failed to inform plaintiff of its failure to
preserve ESI even after plaintiff raised concerns about UBNS’ document production.
Dkt. #172, ¶ 25.

By letter dated April 8, 2022, UBNS advised plaintiff that it had requested
that the third party vendor conduct additional searches for archive tapes from 2013 and
2014, resulting in the discovery of all of the missing emails referenced by plaintiff with
the exception of the 2013 email chain wherein Dr. Levy instructed UB Medical School to
approve plaintiff’s voluntary appointment and the litigation hold letter from SUNY
Buffalo to Dr. Levy in 2016. Dkt. #177-1. UBNS explained that it was not archiving
emails prior to 2014. Dkt. #177-1.

By letter dated June 20, 2022, UBNS advised that the third party vendor
had retrieved backup tapes from UBNS servers corresponding to the dates of the
emails produced by other parties and UBNS had retrieved “most of the subject emails,”
but no additional emails were discovered following a search for the word “Popat” in the
sender, recipient, subject and/or body of any document stored on those backup tapes.
Dkt. #177.

By letter dated June 22, 2022, plaintiff argues that “UBNS still has never
searched for emails responsive to Plaintiff’s discovery demands for most of the relevant
time period.” Dkt. #176, p.1. Specifically, plaintiff argues that
Even assuming each tape covered a few weeks, this means
UBNS’s search included data from (at most) only a few
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months in 2014; June 2015; and January-February 2016. In
other words, the search did not include NovemberDecember 2014, 11 months in 2015, the last ten months of
2016, or any dates in 2017, 2018, or 2019.
Dkt. #176, p.2. Moreover, even for the time period UBNS claims it has searched,
plaintiff states that it is aware of several responsive emails which should have been
retrieved but were not disclosed. Dkt. #176. Plaintiff argues that
On two separate occasions, UBNS has now searched its
internal records and managed to locate only those emails
that have already been produced by other parties in this
litigation. UBNS contends there is nothing more to find. But
Defendant cannot know that (having never searched its
records for most of the relevant time period), and it is
extraordinarily difficult to believe there were never any
responsive emails exchanged solely between or among
UBNS employees.
Dkt. #176, p.2. Plaintiff replies that it is possible that other witnesses who may have
corroborated plaintiff’s claims or contradicted Dr. Levy’s claims may have been
identified had UBNS preserved its ESI and argues that UBNS’s intent to deprive plaintiff
of this information can be inferred from UBNS’s failure to advise plaintiff of its failure to
preserve email communications. Dkt. #172-8, pp.12-13.

DISCUSSION AND ANALYSIS
Rule 37(e) of the Federal Rules of Civil Procedure provides:
If electronically stored information that should have been
preserved in anticipation of litigation is lost because a party
failed to take reasonable steps to preserve it, and it cannot
be restored or replaced through additional discovery, the
court:
(1) upon finding prejudice to another party from loss of
the information, may order measures no greater than
necessary to cure the prejudice; or
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(2) only upon finding that the party acted with the intent
to deprive another party of the information’s use in
the litigation may:
(A) presume that the lost information
was unfavorable to the party;
(B) instruct the jury that it may or must
presume the information was
unfavorable to the party;
or
(C) dismiss the action or enter a default
judgment.

“The obligation to preserve evidence arises when the party has notice that
the evidence is relevant to litigation or when a party should have known that the
evidence may be relevant to future litigation.” Fujitsu Ltd. v. Fed. Express Corp., 247
F.3d 423, 435 (2d Cir.), cert. denied, 534 U.S. 891 (2001). “While 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). “Once
a party reasonably anticipates litigation, it must suspend its routine document
retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation
of relevant documents.” Id. at 218.

Given Dr. Levy’s overlapping roles as Chair of Neurology at UB Medical
School and Chair of Neurosurgery at UBNS and the interrelationship of both entities
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with SUNY Buffalo, and given Dr. Levy’s consistent use of his UBNS email address to
communicate with SUNY Buffalo, UB Medical School and UBNS regarding plaintiff’s
accusations, UBNS should have been aware of the potential that its servers contained
relevant ESI well before the auto delete feature would have erased any such ESI from
its servers. Dr. Levy requested that UBNS investigate plaintiff’s allegations on August
20, 2014 and counsel for UBNS acknowledged her representation of UBNS with
respect to plaintiff’s claim on September 10, 2014. There is no excuse for UBNS’
apparent failure to make any effort to preserve ESI referencing plaintiff at this time.
UBNS’s argument to the contrary is disingenuous.

The intent standard for imposing the harshest sanctions imposed by Rule
37(e)(2) “is both stringent and specific,” requiring “not merely the intent to perform an
act that destroys ESI but rather the intent to actually deprive another party of evidence”
for use in the litigation. In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig.,
341 F.R.D. 474, 496 (S.D.N.Y. 2022) (internal quotations omitted). If an intent to
deprive is found, no separate finding of prejudice is required, because the finding of
intent to deprive supports an inference that the opposing party was prejudiced by the
loss of information. Id. (internal quotation omitted). The moving party bears the burden
of demonstrating that the spoliating party acted with the intent to deprive. Id. “Although
Rule 37(e)(2) does not specify the standard by which the ‘intent to deprive’ must be
established, it is appropriate, given the severity of the sanctions permitted under that
provision of the Rule, for the intent finding to be based on clear and convincing
evidence.” Charlestown Capital Advisors, LLC v. Acero Junction, Inc., 337 F.R.D. 47,
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66-67 (S.D.N.Y. 2020). Thus, the failure to take reasonable steps to preserve ESI,
without more, is insufficient to warrant sanctions under Rule 37(e)(2). See In re Keurig,
341 F.R.D. at 522 (finding the failure to ensure server remained accessible amounts to,
at most, ordinary negligence); Charlestown, 337 F.R.D. at 67 (disregard of obligation to
preserve, search and produce relevant evidence and lack of technical competence
insufficient); Karsch v. Blink Health Ltd., 17-CV-3880, 2019 WL 2708125, at *22
(S.D.N.Y. June 20, 2019) (failure to take reasonable steps to preserve ESI on server or
to subsequently take reasonable steps to locate and search backup insuf ficient to
conclude intent under Rule 37(e)(2)); Int’l Bus. Machines Corp. v. Naganayagam, 15
Civ. 7991, 2017 WL 5633165, at *6 (S.D.N.Y. Nov. 21, 2017) (failure to place a litigation
hold on emails alleges negligence, rather than intentionality). Concealment and
misleading representations may also be insufficient. Charlestown, 337 F.R.D. at 67. In
the instant case, even assuming that relevant ESI was lost due to UBNS’ failure to
make reasonable effort to preserve ESI, there is insufficient evidence to suggest the
level of intent required to impose sanctions pursuant to Rule 37(e)(2).

Regardless of the circumstances surrounding the initial failure to preserve
ESI, absence of prejudice can be established by subsequent recovery. Because ESI
“often exists in multiple locations,” for example, “loss from one source may often be
harmless when substitute information can be found elsewhere.” F.R.C.P. 37(e) (adv.
comm. n. to 2015 amend). As is the case here, emails sent to or from one party are not
lost if they are produced by other parties. See In re Keurig, 341 F.R.D. at 474, 495-496
(collecting cases). In addition, UBNS affirms that its ESI was archived and that it has
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searched server data for emails referencing plaintiff, ultimately retrieving all but one of
the emails produced by other parties, that one email being dated in 2013, before UBNS
began archiving emails, but discovering no other emails. See, e.g, Capricorn Mgmt.
Sys., Inc. v. Gov’t Emps. Ins. Co, 15-CV-2926, 2019 WL 5694256, at *10 (E.D.N.Y. July
22, 2019) (ESI removed from laptop not lost where it was backed up on server), R&R
adopted by 2020 WL 1242616 (March 16, 2020). The Court finds it reasonable to infer
from the lack of discovery of internal emails during the time period when emails were
being exchanged with external parties that UBNS employees were not engaged in
internal communications at other times either. See, e.g., Gen-On Mid-Atlantic, LLC v.
Stone & Webster, Inc., 282 F.R.D. 346, 358-359 (S.D.N.Y. 2012) (rejecting inference of
prejudice from absence of 6 back up tapes where 14 tapes that were available from the
relevant time period did not contain material ESI), aff’d 2012 WL 1849101 (S.D.N.Y.
May 21, 2012). Lack of prejudice can also be inferred from a lack of evidence that
additional emails existed. See, e.g., Khaldei v. Kaspiev, 961 F. Supp.2d 564 (S.D.N.Y.
2013)(“because plaintiff’s argument that there has been any actual loss of evidence
relevant to the claims or defenses in this case amounts to pure speculation, it is
insufficient to sustain a motion for spoliation sanctions), aff’d 961 F. Supp.2d 572
(S.D.N.Y. 2013); Tri-County Motors, Inc. v. Ameircan Suzuki Motor Corp., 494 F.
Supp.2d 161, 177 (E.D.N.Y. 2007) (speculative assertions as to the existence of emails
do not suffice), aff’d 301 Fed. App’x 11 (2008); See also Int’l Bus. Machs., 2017 WL
5633165, at * 6 (no prejudice found where, even assuming emails were lost, defendant
failed to question plaintiff’s employee as to their content so as to establish the
relevance of any such emails).
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CONCLUSION
Based on the foregoing, plaintiff’s motion for sanctions (Dkt. #158), is
denied.

SO ORDERED.
DATED:

Buffalo, New York
September 29, 2022
s. H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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