Ungar v. City of N.Y.

MOSHE UNGAR, Plaintiff, v. THE CITY OF NEW YORK,POLICE OFFICER MICHAEL VICTORIA,Shield # 25392, POLICE OFFICER JASON WHYTE,Shield # 29767, POLICE OFFICER ALBERT ROBLES,Shield # 5848, SGT. RAYMOND GONZALEZ,Shield No. 599, SERGEANT YANDEI PERALTA,Shield No. 4060, E.M.T TECHNICIAN ROMAN FRANKLIN,Shield # 1589, POLICE OFFICERS JOHN/JANE DOE(S) #S 1-10, Defendants.

15-CV-6091

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 1, 2018

MEMORANDUM AND ORDER

GLASSER, Senior United States District Judge:

Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983 and state law against the City of New York (the "City") and Police Officer Michael Victoria, Police Officer Jason Whyte, Police Officer Albert Robles, Sergeant Raymond Gonzalez, Sergeant Yandei Ubarek s.h.a. Yandei Peralta, E.M.T. Technician Roman Franklin and Police Officers John/Jane Doe(s) 1-10 (collectively, the "Individual Defendants"). Presently before the Court are Plaintiff's objections pursuant to Fed. R. Civ. P. ("Rule") 72(a) to Magistrate Scanlon's Memorandum & Order ("M&O") (ECF No. 90) denying Plaintiff's motion for spoliation sanctions. For the following reasons, Plaintiff's objections are denied.

BACKGROUND

On February 28, 2015, Plaintiff was being held at Kings County Central Booking on unrelated assault charges. (Pl. Ex. A).¹ At approximately 5:00 p.m., another individual in the cell, Luis Marte, punched Plaintiff with a closed fist, causing a laceration to his lower lip. (Pl. Ex. A). Plaintiff states that, just before the attack, Marte approached him, made anti-Semitic comments, and violently hit the walls with his fists. (Pl. Ex. B at 49:16-50:14, 57:2-9, 108:3-13). Plaintiff is Jewish and was wearing a skullcap at the time. (Pl. Ex. B at 58:1-6). The Kings County District Attorney's Office subsequently prosecuted Marte for the assault. (Pl. Ex. F; Tr. at 38:23-24). Plaintiff commenced this action on October 22, 2015. (ECF No. 1). Plaintiff's Third Amended Complaint alleges that the Individual Defendants were in the vicinity of the assault but failed to intervene. (ECF No. 25 ¶ 15).

During discovery, Plaintiff's counsel became aware of a possible video recording of the incident. Defendants turned over an internal NYPD communication, dated as of March 22, 2016, indicating that the relevant footage no longer existed because the device used for surveillance only stores video for 90 days. (Pl. Ex. H). Plaintiff's Notice of Claim was served on the City of New York on May 14, 2015, 75 days after the incident. (Pl. Ex. D). After disclosure of the March 22, 2016 document, Plaintiff brought the instant motion for spoliation sanctions, seeking, inter alia, an adverse inference instruction and an order striking Defendant's answer. (ECF No. 54, at 10). In response, Defendants produced another internal NYPD document, dated March 8, 2017, indicating that the relevant recordings are overwritten after 30 days. (Def. Ex. A).

A hearing was conducted on January 22, 2018, at which Captain William J. Tobin, Sergeant Kelley Sealy, and Assistant District Attorney ("ADA") Chelsea Toder all testified. The testimony, as credited by the magistrate and incorporated into her findings of fact, established that the 30-day figure was correct and that the 90-day figure given in the prior document was drafted in error. (Tr. at 15:17-20; 72:21-25; M&O at 13 and n. 15). The magistrate found that the footage was destroyed as part of this 30-day process, before Plaintiff sent his Notice of Claim, and was therefore unrecoverable. (M&O at 13).

As to Plaintiff's motion for sanctions, the magistrate held that the City had a duty to preserve the video and that the duty was breached. (M&O at 10-11). However, the magistrate also held that Defendants did not act with the requisite "intent to deprive" Plaintiff of the use of the video, as required by Rule 37(e)(2), because Plaintiff's Notice of Claim was not served until after the video was deleted. (ECF No. 90, at 13-14). The magistrate also found that other sanctions would be inappropriate because Plaintiff had not established that the destruction of the video was prejudicial to his claim. (ECF No. 90, at 14-16). Therefore, Plaintiff's request for sanctions was denied.

STANDARD OF REVIEW

Rule 72(a) of the Federal Rules of Civil Procedure and the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(A), provide that a district court shall reverse a magistrate judge's ruling regarding a non-dispositive matter only where the order is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); see Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007). A ruling is "clearly erroneous" if the reviewing court is "left with the definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948))."Pursuant to this highly deferential standard of review, magistrates are afforded broad discretion in resolving discovery disputes and reversal is appropriate only if their discretion is abused." Lanzo v. City of New York, 1999 WL 1007246, at *2 (E.D.N.Y. Sept. 21, 1999) (quoting Derthick v. Bassett-Walker Inc., 1992 WL 249951, at *8 (S.D.N.Y. Sept. 23, 1992)), reconsideration denied, 2000 WL 516407 (E.D.N.Y. Mar. 20, 2000). Questions of law, however, are reviewed de novo. See PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010); In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 2018 WL 4158290, at *9 (E.D.N.Y. Aug. 30, 2018); Wakefern Food Corp. v. Prospect Plaza Improvements, LLC, 2010 WL 4514287, at *2 n. 2 (D. Conn. Nov. 2, 2010).

DISCUSSION

I. Federal Rule of Civil Procedure 37(e)

Spoliation sanctions based on a failure to preserve electronically stored information are governed by Rule 37(e), which came into effect in its present form on December 1, 2015. Rule 37(e) provides:

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.

Rule 37(e) is best understood by reference to the pre-existing, common law standards governing spoliation sanctions, which the 2015 amendments to the Rule superseded but did not completely displace. Pursuant to the Second Circuit's decision in Residential Funding Corp. v. DeGeorge Financial Corp., a party seeking an adverse inference instruction was required only to demonstrate:

"(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"

306 F.3d 99, 107 (2d Cir. 2002); see also Arista Records LLC v. Usenet.com, Inc. 608 F.Supp.2d 409, 430 (S.D.N.Y. 2009) (expanding Residential Funding Corp. to sanctions other than adverse inference instructions); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003) (same). Under this standard, a movant was not required to demonstrate that the spoliator acted with knowledge or bad faith; a court had discretion to sanction a party for even negligent spoliation. See Residential Funding, 306 F.3d at 108.

In the context of adverse inference instructions based on a failure to preserve electronically stored information, the amendments to Rule 37(e) replaced the "culpable state of mind" element under Residential Funding with a more stringent "intent to deprive" requirement. See Fed. R. Civ. P. 37(e)(2), Advisory Committee Note, 2015 Amendments (noting that the provision "rejects cases such as [Residential Funding] that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence"). The reason for this modification is simple logic. As the Advisory Committee Note explains:

Adverse-inference instructions were developed on the premise that a party's intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to the party responsiblefor loss or destruction of the evidence. Negligent or even grossly negligent behavior does not logically support that inference.

Id. (emphasis added). This rationale is consistent with Professor Wigmore's commentary on the subject:

It has always been understood—the inference, indeed, is one of the simplest in human experience—that a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit.

2 John Henry Wigmore, Evidence in Trials at Common Law § 278 (Chadbourn rev. 1979) (emphasis added), cited in Cost v. State, 417 Md. 360, 371-372, 10 A.3d 184, 191 (Md. 2010). Thus, a party's conscious dereliction of a known duty to preserve electronic data is both necessary and sufficient to find that the party "acted with the intent to deprive another party of the information's use" under Rule 37(e)(2). Whether the spoliator affirmatively...