Richard v. Fischer et al
Filing
111
DECISION AND ORDER awarding discovery sanctions. An adverse inference instruction will be given at the time of trial. Defendants are required to pay Plaintiff $124.92 in costs within 30 days. Signed by Hon. Elizabeth A. Wolford on 12/07/2021. (CDH)(A copy of this Decision and Order was mailed to Plaintiff)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOHN WILLIS RICHARD, #91-A-0169,
DECISION AND ORDER
Plaintiff,
v.
6:11-CV-06013 EAW
JENNIFER DIGNEAN and THOMAS TANEA,
Defendants.
BACKGROUND
Pro se plaintiff John Willis Richard (“Plaintiff”), an inmate currently confined at
the Woodbourne Correctional Facility, has asserted various claims against defendants
Jennifer Dignean (“Dignean”) and Thomas Tanea (“Tanea”), employees of the New York
Department of Corrections and Community Supervision (“DOCCS”), pursuant to 42
U.S.C. § 1983. (Dkt. 1). On April 16, 2019, Plaintiff filed a motion to compel discovery
and for sanctions flowing from Defendants’ failure to follow discovery rules and prior court
orders (Dkt. 84), which the Court granted in part and denied in part on October 4, 2019
(Dkt. 96) (the “October Decision”). The background of this matter is set forth in detail in
the October Decision, familiarity with which is assumed for purposes of the instant
Decision and Order.
In the October Decision, the Court concluded sanctions were
warranted as a result of Defendants’ spoliation of evidence but ordered an evidentiary
hearing to decide the appropriate sanctions to be imposed. (Id. at 31).
The evidentiary hearing was held on December 17, 2019. (Dkt. 103). For the
following reasons, the Court concludes an adverse inference instruction is warranted as to
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certain spoliated evidence. The Court further awards Plaintiff $124.92 for reimbursement
of costs.
DISCUSSION
I.
Spoliation
“Spoliation is the destruction or significant alteration of evidence, or the failure to
preserve property for another’s use as evidence in pending or reasonably foreseeable
litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). As
the Second Circuit has explained:
[A] party seeking an adverse inference instruction based on the destruction
of evidence 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
destroyed evidence was “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)
(citation omitted).
“The party seeking sanctions bears the burden of establishing all elements of a claim
for spoliation of evidence.” Treppel v. Biovail Corp., 249 F.R.D. 111, 120 (S.D.N.Y. 2008)
(citation omitted); see also Dilworth v. Goldberg, 3 F. Supp. 3d 198, 200 (S.D.N.Y. 2014)
(“A party seeking spoliation sanctions has the burden of establishing the elements of a
spoliation claim by a preponderance of the evidence.”).
“The determination of an
appropriate sanction for spoliation, if any, is confined to the sound discretion of the trial
judge, and is assessed on a case-by-case basis.” Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d
423, 436 (2d Cir. 2001).
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The above rules apply to tangible evidence, including physical documents.
However, Federal Rule of Civil Procedure 37(e) provides a distinct standard for evaluating
a failure to preserve electronically stored information. In particular, Rule 37(e) provides
as follows:
If electronically stored information that should have been preserved in the
anticipation or conduct 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
(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.
Fed. R. Civ. P. 37(e). Under Rule 37(e), in determining the appropriate sanction for the
failure to preserve ESI, the Court must assess: (1) whether Defendants took “reasonable
steps” to preserve the lost ESI; (2) whether the information can be restored or replaced
through additional discovery; (3) whether Plaintiff has been prejudiced by the loss of the
information; and (4) whether Defendants acted with the intent to deprive Plaintiff of the
information’s use. See CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 495-502
(S.D.N.Y. 2016).
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In the October Decision, the Court found that Defendants had apparently engaged
in spoliation of evidence. (Dkt. 96 at 30-31). The purpose of the evidentiary hearing was
to ascertain the scope of and reasons for such spoliation, in order to determine the
appropriate remedial sanctions. (Id. at 31). Based on the evidence presented at the
evidentiary hearing and for the reasons discussed below, the Court finds that an adverse
inference instruction is warranted with respect to the destruction of certain physical
documents.
A.
Relevant Facts
Before setting out its legal analysis, the Court briefly summarizes the salient facts
set forth in the October Decision and developed at the evidentiary hearing. Plaintiff served
a request for production of documents on Defendants in the summer of 2016. (Dkt. 96 at
3; see Dkt. 45 (request for production of documents dated July 20, 2016, and received by
the Court on September 8, 2016)). Defendants failed to respond to Plaintiff’s request for
production, which resulted in Magistrate Judge Marian W. Payson granting a motion to
compel on July 20, 2017. (Dkt. 59). Judge Payson ordered Defendants to provide written
responses and produce all responsive documents by August 25, 2017.
(Id. at 5).
Defendants did not comply with Judge Payson’s order. Plaintiff then filed a second motion
to compel on April 16, 2019 (Dkt. 84), and at a hearing on July 23, 2019, the Court directed
Defendants to file and serve written responses to the request for production (see Dkt. 96 at
6).
Defendants finally served and filed written responses to Plaintiff’s document
requests on July 26, 2019. (Dkt. 93). In their filing, Defendants responded to requests for
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production 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 19, and 20 by stating: “Does not exist.
According to the Department’s Retention and Disposition of Records Policy, these records
are retained for 5 years and destroyed.” (Id.). These requests for production were
addressed to three general categories of documents: “cell block move sheets,” “‘kipy’
system and/or open program availability sheets,” and grievances filed against Defendants.
(Id.).
At the evidentiary hearing, additional information was presented regarding these
three kinds of documents. As to the cell block move sheets, Jeffrey Minnerly (“Minnerly”),
the Deputy Superintendent for Administration at the Five Points Correctional Facility
(“Five Points”), explained that such documents record an inmate’s cell location. Minnerly
further testified that in his personal experience, such documents were destroyed on a daily
basis at Five Points. On cross-examination, Plaintiff pointed out that DOCCS Directive
20111, entitled “Disposition of Department Records,” provides that “[a]ny . . . records
documenting inmate movement, work locations, or housing” are to be retained at the
facility for five years. Minnerly testified that he did not believe cell block move sheets
would fall into that category, and that in his opinion what Directive 2011 was referring to
were records of inmate movement between different areas of the facility, such as going to
a work location or to sick call. Minnerly also indicated that each unit in the facility would
have a physical logbook that would record inmates moving in and out of a particular block,
and that such logbooks would be retained for five years per Directive 2011.
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A copy of Directive 2011 was admitted into evidence as Defendants’ Exhibit D.
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The testimony at the evidentiary hearing further established that “KIPY” is an
electronic program used by DOCCS to record what job listing activities an inmate was
participating in at a given time. Dignean, a supervising offender rehabilitation coordinator
for DOCCS, testified that open programming availability sheets are printouts made from
the KIPY program and were destroyed on a daily basis. However, Dignean was unaware
of whether electronic copies of past open programming availability sheets were accessible
via the KIPY program or were otherwise backed up.
Finally, with respect to grievances, Minnerly testified that these documents are
retained for three years after they become inactive. There is a three-step process for review
of a grievance within DOCCS, and a grievance does not become inactive until it is finally
resolved or closed.
With these facts established, the Court assesses first the appropriate sanction for
failure to preserve physical documents and then the appropriate sanction for the failure to
preserve ESI.
B.
Failure to Preserve Documents
1.
Control over the Evidence
As an initial matter, the Court finds that Defendants had “control” over evidence
held by DOCCS for purposes of the spoliation inquiry. “[E]ven where a party . . . lacks
actual physical possession or custody of requested documents . . . such party may
nevertheless be found to have control of the documents . . . if the party is legally entitled
to the documents or has the practical ability to acquire the documents from a thirdparty. . . .” Gross v. Lunduski, 304 F.R.D. 136, 142 (W.D.N.Y. 2014). Courts in this
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District have held that the relationship between DOCCS and its employees is “sufficiently
closely coordinated” to find that DOCCS employees have control over evidence held by
DOCCS. Guillory v. Skelly, No. 12-CV-00847S(F), 2014 WL 4542468, at *8 (W.D.N.Y.
Sept. 11, 2014); see also Vigliotti v. Selsky, No. 08-CV-00875 M, 2013 WL 3354423, at
*4 (W.D.N.Y. July 3, 2013) (DOCCS employees “had sufficient nexus to DOCCS” to
arrange for the inspection of prison); see also Stanbro v. Westchester Cty. Health Care
Corp., No. 19-CIV-10857 KMK JCM, 2021 WL 3863396, at *6 (S.D.N.Y. Aug. 27, 2021)
(“[F]ederal district courts have found that . . . state correctional departments and
municipalities ultimately bear responsibility for preserving evidence and litigating cases
filed by prisoners, and as such, a state correctional department’s failure to preserve
evidence may be imputed to individual officer defendants in order to avoid unfair prejudice
to inmate litigants. . . . Several courts in this circuit have similarly opined on the unique
relationship between DOCCS and its correctional officers in the context of spoliated
evidence.” (quotations omitted)).
2.
Duty to Preserve
“An 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.’” NCA Inv’rs Liquidated Tr. v. Dimenna, No. 3:16-cv-156
(VAB), 2019 WL 2720746, at *5 (D. Conn. June 27, 2019) (quoting Fujitsu Ltd., 247 F.3d
at 436). In other words, a party is required “to preserve what it knows, or reasonably should
know, is relevant to 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
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subject of a pending discovery request.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212,
217 (S.D.N.Y. 2003).
Here, Defendants appeared in this matter in June 2011. (See Dkt. 14). This is
accordingly the latest possible date by which they were on notice of this litigation and the
matters involved therein. Because Plaintiff’s complaint relates to actions taken in 2007,
any documents that DOCCS retains for five years should have been available and preserved
at that point.
The Court further finds that the complaint in this matter put Defendants on notice
that any extant cell block move sheets, open program availability sheets, and unit logbooks
documenting movement between cell blocks were relevant and needed to be preserved.
Plaintiff’s complaint expressly alleges that Dignean refused to move him to the “10-block”
or to allow him to participate in open jobs outside of the 9-block because of his race and
religion and that Tanea retaliated against him by refusing to place him on the waiting list
for the “10-block.” (Dkt. 1 at 9-10). Documents reflecting inmate movements between
cell blocks and programming assignments such as those requested by Plaintiff are plainly
relevant to those claims.
The Court does not credit Minnerly’s testimony that the cell block move sheets were
destroyed on a daily basis. Although Minnerly claimed to have personal knowledge to that
effect, his explanation as to how he had obtained that knowledge was not credible. Further,
Minnerly’s explanation as to why such documents would not fall within Directive 2011’s
requirement that all “[a]ny . . . records documenting inmate movement, work locations, or
housing” be maintained for five years did not make sense and was not credible. Instead,
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the Court credits Defendants’ representation in their responses to Plaintiff’s request for
production that these documents were retained for five years and then destroyed.
Accordingly, the Court finds by a preponderance of the evidence that the cell block move
sheets requested by Defendant should have been preserved.
The Court does credit Minnerly’s testimony that each unit had a physical logbook
documenting inmate movement between blocks and that such logbooks were maintained
for five years before being destroyed. This testimony was clearly based on Minnerly’s own
personal knowledge. The Court further finds by a preponderance of the evidence that the
logbook document inmate movement between blocks in Plaintiff’s unit during the relevant
time period should have been preserved.
However, the Court credits Dignean’s testimony that the physical copies of the open
program availability sheets were destroyed on a daily basis. Dignean’s testimony was
based on her own personal knowledge. Further, while Defendants stated in their response
to Plaintiff’s requests for production that “[t]he ‘kipy’ system and/or program availability
sheets” were retained for five years, Dignean testified that she was not personally involved
in drafting that response and had not seen it before the evidentiary hearing. Moreover, the
compound nature of the question and lack of clarity regarding how the records within the
KIPY program itself are stored and maintained provides context for how an incorrect
answer was provided. Because the physical copies of the open program availability sheets
for the relevant time period were destroyed on a daily basis, Defendants cannot be faulted
for having failed to preserve them once put on notice of Plaintiff’s claims.
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Finally, the Court does not find that Plaintiff’s allegations put Defendants on notice
that they need to retain all other grievances that had been filed against them. Plaintiff did
not allege a pattern or practice of wrongdoing by Defendants against other inmates in his
complaint, nor did he identify other inmate grievances as substantiating his claim—he
instead identified discrete instances on which he claimed to have been discriminated
against. The Court does not find that the mere assertion of a discrimination claim against
a DOCCS employee is sufficient to trigger a duty to preserve all grievances asserted against
that individual. See Zubulake, 220 F.R.D. at 217 (noting that the imposition of an overly
broad preservation duty would “cripple [entities] . . . that are almost always involved in
litigation”).
Based on these findings, the Court will proceed with the analysis with respect to the
cell block move sheets and the logbook.
3.
Culpable State of Mind
“A culpable state of mind may be satisfied by a showing that the destruction was
undertaken in bad faith, or was the result of either gross negligence or simple negligence.”
Wilson v. Hauck, 141 F. Supp. 3d 226, 230 (W.D.N.Y. 2015) (citing Residential Funding
Corp., 306 F.3d at 108). Upon notice of litigation, the failure to issue a litigation hold can
constitute gross negligence. See Herman v. City of New York, 334 F.R.D. 377, 384
(E.D.N.Y. 2020) (“Gross negligence may exist where a party failed to take widelyrecognized steps to preserve materials relevant to a claim, such as failing to implement a
litigation hold or preventing the destruction of files pursuant to a pre-existing recycling
policy.”); Crown Castle USA Inc. v. Fred A. Nudd Corp., No. 05-CV-6163T, 2010 WL
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1286366, at *12-13 (W.D.N.Y. Mar. 31, 2009) (plaintiff grossly negligent for failing to
implement litigation hold), adopted, 2010 WL 4027780 (W.D.N.Y. Oct. 14, 2010). Here,
the Court finds by a preponderance of the evidence that no litigation hold was instituted.
Instead, Defendants’ Exhibits A, B, and C, admitted at the evidentiary hearing, demonstrate
that defense counsel identified only a few specific documents and hearing tapes that were
to be located and copied.
Further, even had a litigation hold been properly initiated, that “is only the beginning
of a party’s discovery obligations.” Orbit One Commc’ns, Inc. v. Numerex Corp., 271
F.R.D. 429, 437 (S.D.N.Y. 2010). “Once a ‘litigation hold’ is in place, a party and its
counsel must make certain that all sources of potentially relevant information are identified
and placed ‘on hold.’ Then, counsel must take affirmative steps to monitor compliance so
that all sources of discoverable information are identified and searched.” Id. (quotations
and alterations omitted). None of these steps were taken in this case, nor do Defendants
appear to have taken any other steps, beyond the limited requested by defense counsel
discussed above, to ensure that relevant evidence was retained.
On the record before it, the Court easily finds by a preponderance of the evidence
that Defendants acted with gross negligence in failing to preserve the cell block move
sheets and the logbook.
4.
Relevance of Evidence
With regard to the third factor, “[t]he burden falls on the ‘prejudiced party’ to
produce ‘some evidence suggesting that a document or documents relevant to
substantiating his claim would have been included among the destroyed [evidence].’”
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Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 108 (2d Cir. 2001) (quoting
Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998)). “In this context, the test for
relevance is more than what is necessary to find relevance under Rule 401 of the Federal
Rules of Evidence.” Slater v. Lacapruccia, No. 13-CV-1079S, 2019 WL 1723515, at *5
(W.D.N.Y. April 18, 2019) (citing Residential Funding Corp., 306 F.3d at 108-09).
“Relevance may be assumed where the breaching party acted in bad faith or with
gross negligence.” Mule v. 3-D Bldg. & Constr. Mgmt. Corp., No. CV 18-1997 JS AKT,
2021 WL 2788432, at *14 (E.D.N.Y. July 2, 2021) (citation omitted). “By contrast, when
the destruction of evidence is negligent, relevance must be proven through extrinsic
evidence by the party seeking sanctions.” Arista Records LLC v. Usenet.com, Inc., 608 F.
Supp. 2d 409, 439 (S.D.N.Y. 2009). “This corroboration requirement is . . . necessary
where the destruction was merely negligent, since in those cases it cannot be inferred from
the conduct of the spoliator that the evidence would even have been harmful.” Zubulake,
220 F.R.D. at 221 (quotation omitted). However, “[t]o shift the burden to the innocent
party to describe or produce what has been lost as a result of the opposing party’s willful
or grossly negligent conduct is inappropriate because it incentivizes bad behavior on the
part of would-be spoliators. That is, it would allow parties who have destroyed evidence
to profit from that destruction.” Sekisui Am. Corp. v. Hart, 945 F. Supp. 2d 494, 509
(S.D.N.Y. 2013) (quotation omitted).
Here, the Court finds Defendants’ gross negligence sufficiently egregious to support
the assumption of relevance. As explained above, Defendants took no meaningful steps
whatsoever to preserve the cell block move sheets and the logbook, including by failing to
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institute an appropriate litigation hold. Defendants’ total abrogation of their discovery
obligations presents a circumstance in which relevance may be assumed.
For all these reasons, with respect to the cell block move sheets and the logbook,
the Court finds that the requirements for imposition of an adverse inference instruction due
to spoliation are satisfied.
The form of that adverse inference instruction will be
determined at the time of trial. See Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.
1998) (explaining that “an adverse inference should serve the function, insofar as possible,
of restoring the prejudiced party to the same position he would have been in absent the
wrongful destruction of evidence by the opposing party”).
C.
Failure to Preserve ESI
The Court turns next to the apparent failure to preserve ESI stored in the KIPY
program. As explained above, under Rule 37(e), the Court can impose sanctions for the
failure to preserve ESI only if there is a showing of prejudice. Further, the Court can
impose the most serious sanctions, including an adverse inference instruction, only if
Defendants acted with the intent to deprive Plaintiff of the information’s use in this
litigation. The Court finds that neither of these criteria are satisfied here.
“Rule 37(e)(1) . . . does not place a burden of proving or disproving prejudice on
one party or the other, and leaves judges with discretion to determine how best to assess
prejudice in particular cases.”
Lokai Holdings LLC v. Twin Tiger USA LLC, No.
15CV9363 (ALC) (DF), 2018 WL 1512055, at *12 (S.D.N.Y. Mar. 12, 2018) (quotations
and original alteration omitted). Here, it is unclear what ESI could have been obtained
from the KIPY program at the time the instant lawsuit was commenced. Dignean testified
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that there was no way for end users of the KIPY program to retrieve past versions of the
information served therein. While Defendants did not take any steps to further investigate
whether backup copies of prior KIPY records existed or whether there was a way to retrieve
information that was not apparent to an end user, the Court is not prepared, on the record
before it, to determine that these failures prejudiced Plaintiff.
Further, there is insufficient evidence before the Court to support a finding of intent
to deprive. “[A] party may be found to have acted with an intent to deprive within the
meaning of Rule 37(e)(2) where (1) evidence once existed that could fairly be supposed to
have been material to the proof or defense of a claim at issue in the case; (2) the spoliating
party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party
did so while it knew or should have known of its duty to preserve the evidence; and (4) the
affirmative act causing the loss cannot be credibly explained as not involving bad faith by
the reason proffered by the spoliator.” Moody v. CSX Transportation, Inc., 271 F. Supp.
3d 410, 431 (W.D.N.Y. 2017) (citation omitted). Here, there is no indication in the record
before the Court that Defendants took an affirmative act to destroy any ESI within the
KIPY program. Defendants were certainly at least negligent in failing to take steps to
preserve such ESI, but that is not sufficient for an imposition of sanctions under Rule
37(e)(2). See id.
For these reasons, the Court does not find the imposition of sanctions under Rule
37(e) is warranted due to the failure to preserve ESI from the KIPY program.
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II.
Reimbursement of Costs
In the October Decision, the Court found that Plaintiff was entitled to
“reimbursement of costs expended in compelling [Defendants’] compliance with their
discovery obligations” under Federal Rule of Civil Procedure 37(a). (Dkt. 96 at 28). The
Court afforded Plaintiff 30 days to submit a sworn affidavit detailing such costs, along with
any supporting documents. (Id.). Defendants were given 14 days from such filing to
submit a response. (Id.).
On November 4, 2019, Plaintiff filed a declaration seeking $124.92 in costs, with
supporting documentation. (Dkt. 99). Defendants did not file any response. Having
reviewed Plaintiff’s submission, the Court finds an award of $124.92 in costs is warranted.
CONCLUSION
For the reasons set forth above, the Court finds that an adverse inference instruction
is warranted with respect to Defendants’ spoliation of the cell block move sheets and the
logbook documenting inmate movement between blocks. The Court will decide the form
of the adverse inference instruction at the time of trial.
Plaintiff is awarded $124.92 in costs as a sanction under Rule 37(a). Defendants
shall pay this sum to Plaintiff within 30 days of entry of this Decision and Order.
SO ORDERED.
________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated:
December 7, 2021
Rochester, New York
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