Ottoson v. SMBC Leasing and Finance, Inc. et al, No. 1:2013cv01521 - Document 80 (S.D.N.Y. 2017)

Court Description: OPINION re: 55 MOTION for Sanctions against Plaintiff Maureen Ottoson, filed by Lisa Savinon, SMBC Leasing and Finance, Inc., David Ward. The motion of the Defendants for an adverse inference is granted, and their application for fees and costs is adjourned to the settlement of final judgment. Defendants' motion for sanctions against Plaintiff is granted, an adverse inference instruction will be given, and the application for fees and costs is adjourned, and as further set forth herein. (Signed by Judge Robert W. Sweet on 7/13/2017) (ras)

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Ottoson v. SMBC Leasing and Finance, Inc. et al UN I TED STATES DIS TRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------ - -- - -- -- -- - - - - -x Doc. 80 Cl -rrv1 ·T t EL ::'Cf iUJ'. HCALLY FILED OC#: DATE F L D: i f d I l':L_. MAUREEN OTTOSON , Plaintiff , - against - 13 Civ . 1521 OPINION SMBC LEASING AND FINANCE , INC ., DAVID WARD and LISA SAV I NON , Defendants. ---------------------------------------- x A P P E A RA N C E S : Attorneys for Pla i ntiff COREY STARK PLLC 110 East 59 th Street , 22nct Floor New York , NY 10022 By : Corey Stark , Esq . Attorneys for Defendants PROSKAUER ROSE LLP 11 Times Square New York , NY 10036 By : Andrew E . Rice , Esq . Lloyd B . Chinn , Esq . Dockets.Justia.com ' Sweet , D . J. Defendants SMBC Leasing and Finance, Inc . David Ward ("Ward " ) , and Lisa Savinon ("Savinon") ("SMBCLF") , (collectively , the "Defendants") have moved pursuant to Rule 37 of the Federal Rules of Ci vil Procedure for sanctions to be imposed upon plaintiff Maureen Ottoson ("Ottoson" or the "Plaintiff") for spoliation of evidence , specifically seeking an adverse inference instruction, and fees and costs . For the reasons set forth below, the motion of the Defendants for an adverse inference is granted , and their app l ication for fees and costs is adjourned to the settlement of final judgment . I. Prior Proceedings Plaintiff filed this action accusing Defendants of discrimination based on a perception of disability arising from a report allegedly in SMBCLF ' s possession on March 2 , 2013 . Plaintiff was employed by SMBCLF as an Assistant Vice President performing contract administration from April 30 , 2012 through August 1, 2012 . Plaintiff ' s Complaint ( "Compl . ") 1 <JI<JI 2 5 , 2 6. On July 9 , 2012, Plaintiff ' s then - counsel Jesse Rose ("Rose") sent a demand letter to Defendants' Human Resources Department threatening litigation and requesting Plaintiff ' s personnel file . Declaration of Andrew E. Rice [hereinafter, "Ri ce Deel ."], Ex. X (Rose Letter to Smith). Plaintiff alleges that on or around August 31 , 2012 , she filed a Charge of Discrimination with the U. S . Equal Employment Opportunity Commission ("E EOC"), and that she received a Notice of Right to Sue dated January 31 , 20 13. Compl. 4-5 . The Complaint alleges that subsequent to her hire , SMBCLF performed a background check on Plaintiff , the results of which included a "governme nt / insurance rep o rt" (the "Rep ort " ) that contained "inaccurate and defamatory information about Ottoso n, her home, and her state of mind." Compl . 20 ; 29 . Pl aintiff testified during her deposition that she fi rst learned of the existence o f this Report in the 1980s. Rice Dee l., Ex . C (Relevant Excerpts of Plaintiff ' s May 2014 and September 20 15 Depositions) [hereinafter , "Tr ." ] , at 538 : 7 - 9 . Plaintiff alleges that De fendants "formed the inac curate belief that Ottoson suffers from a mental impairment and disability " based on the contents of the alleged Report . Compl . 30 , 48 . Plaintiff further alleges that she was terminated based on SMBC LF' s misperception that she was disabled , and in retaliation for 2 complaining about discrimination based on perceived disability . Id . 47 , 49 . Plaintiff stated at her deposition that , as of November 2013 , eight months after she filed this lawsuit , she had no proof that the Report existed . Tr . at 596 : 17-19 . Despite issuing more than a dozen subpoenas to past employers and others , Plaintiff failed to receive the Report. Rice Deel. 23; see Tr . 596:8 - 11 ("Q .. . So as of November 2013, you had not obtained the report from any source, correct? A. No , I didn ' t ." ) . Defendants have repeatedly denied having ever seen or received the Report , and have stated under penalty of perjury that they did not, and do not, possess the Report. See , e . g ., ECF No . 33 ; Rice Deel. , Ex . V (Excerpts of Deposition of Defendant David Ward) at 82 , 88-91 ; Rice Deel ., Ex . W (Excerpts of Deposition of Defendant Lisa Savinon) at 86 - 87 , 107-09. In light of Plaintiff ' s allegations, on November 21 , 2013 , Defendants propounded requests in their First Request for the Production of Documents that either specifically or generally called for the production of documents concerning the Report and/or Plaintiff ' s communications concerning the Report , including : 3 .' "documents memorializing communicat i ons with any individual , including but not limited to any current or former employees of SMBCLF , concerning the Comp l aint o r any of [ Pl a i ntiff ' s ] a ll egations in this action " (Request No . 14) ; "documents, including , but not limited to , emails, instant messages , text messages or other messages on any social media or networking website in [P l aintiff ' s] possession , custody or control concerning SMBCLF or the allegations in this Complaint" (Request No. 15) ; " documents that contain [Plaintiff ' s] records , notes , descriptions , conversations , discussion or thoughts concerning the allegations in the Complaint " (Request No . 16) ; " documents concerning the ' Report ' identif i ed in Paragraph 18 of the Comp l aint " (Request No . 19) ; " documents concern i ng the allegation i n Paragraph 18 of the Complaint t hat '[ a]f t er Ms . Ottoson ' s employment ended , JOHN DOE2 disclosed to Ms. Ottoson the existence of a government/insurance report . given the JP Morgan ' s Human Resource department conta i n i ng a background check of Ms . Ottoson along wi th a comprehens i ve employment summary & many negative persona l references " (Request No . 20) ; " documents written or prepared by , to , from , concerning , or concerning any communications with any potential witnesses in this action and/or any persons mentioned in the Complaint" (Request No . 63); " written or recorded statements , op i n i ons , and reports , the information for which h as been obta in ed from any individua l or entity contacted or interviewed in connection with t hi s action (inc l uding dra f ts of such statements , opin i ons , and/or reports) " (Request No. 64) ; " statements , in whatever form , from third parties concerning [ Plaint i ff ' s ] allegations in this action" (Request No . 71) ; and " documents concern i ng , referring or relating to the subject matter of this action , the allega t ions in the Complaint , and/or the damages or ot h er relief sought 4 ) ' • ' in the Complaint, that have not been produced in response to the above requests" (Request No . 73 ) . Rice Deel ., Ex . A. These requests unquestionably encompassed written communications Plaintiff may have had with witnesses concerning the alleged Report . Plaintiff produced documents concerning the Report in response to Defendants ' Fi rst Request for the Production of Documents. In particular , on December 23 , 2013, Plaintiff produced signed statements from three former co-workers , not from SMBCLF , who purported in such statements to have viewed the Report years before her employment at SMBCL F: Ralph Berger (" Mr. Berger") , Philip Weinstock ("Mr. Weinstock") , and Francesca Aversa (" Ms . Aversa " ). Rice Deel ., Ex . D (Berger Statement executed January 9 , 2013) ; Ex . E (Aversa Statement dated November 24 , 2 012) ; Ex . F (Weinstock Statement dated January 31 , 20 1 3) . On March 31 , 2014 , Plaintiff produced , via email from Rose , " addenda " from Mr . Berger and Ms . Aversa . Rice Deel. , Ex . H (Rose Email to Rice) ; Ex . I dated Ma r ch 18 , 2014) ; Ex . J (Addendum to Berger Statement (Addendum to Aversa Statement dated March 11 , 2014) . 5 ) ' > 1 One of the three individuals , Mr. Berger , later directly provided Defendants with numerous email communications that he had with Plaintiff concerning the written statements that he provided to her . Rice Deel . 8 ; Exs . K- S . In one email , Plaintiff directs Mr. Berger to " JUST COPY & PASTE & PLEASE TYPE THE WORK " ADDENDUM " ON TOP AS FOLLOWS. " Rice Deel ., Ex . Q (Ottoso n- Berger emai l dated Marc h 1 4 , 20 1 4) . I n a n other ema il to Mr. Berger , Plaintiff tells him to "[ p ] lease write the following statement below in the fol l owing format ." Rice Deel ., Ex . P (Ottoson - Berger email dated March 10 , 2014) ; see also Rice Deel. , Ex. 0 (Ottoson - Berger email dated February 1 , 20 1 4) ( " In case Jesse [Rose ] speaks to him again , p l ease tell him Bond i ng Insurance because that is what your notarized letter to him stated ." ) . Even after she was on notice that Defendants had received documents from Mr. Berger , Pl a i nt i ff did not produce any communications with the three witnesses or drafts of their statements . Rice Deel . 6 , 21 ; Exs . T- U. Further , to the extent that Plaintiff was no longer in possession or control of such documents , Pl aint i ff fai l ed to prov i de any explanat i on or information about such documents or the c i rcumstances of their loss , as required by Defendants ' for Production. Rice Dee l. instruct i ons to their Request 6 ; Ex. A . 6 . ' , J Defendants informed the Court by letter dated April 24, 20 1 5, ECF Nos . 34-35 , about the serious quest i ons concerning Plaintiff ' s conduct in this matter, as was then relevant to Plaint i ff ' s motion to compel a Rule 30(b) (6) deposition. Defendants also wrote to Plaintiff ' s counsel , on April 27 , 2015 , to demand supplemental responses to Defendants ' First Request for the Production of Documents concerning Plaintiff ' s communications about the Report . Rice Dee l . , Ex . T . Plaintiff did not formally respond to the April 27 l etter for several weeks , and the parties met and conferred by telephone concerning a potential motion to compel by Defendants on May 18 , 2015. Rice Deel . 19-20 . During that call , Plaintiff's counsel agreed to produce Plaintiff for further deposit i on . Id . 20 . Later that day , Plaintiff ' s counsel served a letter stating that Plaintiff had "not ident i fied any responsive documents within her possession or control ," and that Plaintiff ' s counsel was " not aware of evidence that suggests that Plaintiff destroyed any documents whatsoever on or after the date that she commenced this action ." Rice Deel ., Ex . U. On September 10 , 2015 , the parties submitted a Stipulation and Proposed Order that was so - ordered by the Court . ECF No . 38 . This Stipulation , inter alia , extended the end date 7 '' ; I of discovery , extended other relevant deadlines , and provided that Defendants reserve their rights to take further discovery or engage in motion practice arising out of Plaintiff's continued deposition . Id . Plaintiff appeared for a continued deposition on September 29 , 2015 . During her deposition, defense counse l asked Plaintiff about her email practices and she admitted to having a " habit " to "automatically" delete her email . Tr . 632 : 18-22 . The following exchange established Pl aintiff ' s ongoing deletion of her email : Q. . .. And so , with respect to e -mail , e -mail s that you sent to and from other people , perhaps Mr . Berger , Ms. Aversa , Mr. Weinstock , and others , about your claims, did you make any attempt to preserve , to keep those e-mails , prior to commencing your lawsuit against SMBC? A. I don ' t Q. You don ' t A. No. Q. And so , then it's possible that you had e-mail exchanges prior to December of 2013 re l ating to your claims that you deleted because you didn't think that there was any necessity that you keep them for this lawsuit? A. I don ' t recall that . Q. Well , let me ask you this: Was it your practice to delete e -mail? recall so . recall doing so? 8 ,' A. It ' s a habit to do that if it ' s -- you know , I do that automatically . I'm pretty particular about that. Q. So prior to December of 2013 , did you take any steps to change your habits in that regard and keep e - mails that related to your claims against SMBC? A. Prior to December , Q. You don ' t recall making any effort to keep e mails prior to December of 2013? I don ' t recall specifically . MR . STARK : Objection to form. You can answer. A. I don ' t recall anything . Q. Okay . I'm not sure what that means . Did you take any steps prior to December '1 3 t o change your normal habit of deleting e - mails so that you would keep any documents relat in g to your claims against SMBC? A. I don ' t recall anything to what you had just stated . Q. You don ' t recall doing anything to change your normal habits? MR . STARK : Objection to form . A. I don ' t recall . Q. You don't recall doing anything to change yo ur norma l habits? A. I don ' t Q. Okay . So , then , you may well have continued , t o the best of your recollection , until December of ' 13 , you continued deleting you r e-mail whether it had anyth ing to do with this case or not? recall. MR. STARK: Objection to form. 9 ' • A. If you don ' t recall , you don ' t recall . So I cannot answer that question if I truly do not recall . Q. So you don ' t remember one way or another whether you changed this habit of yours by which you would routinely delete e - mails , you don ' t know whether you did or didn ' t change that approach until December of 2013? A. I don ' t Q. Now , after December of 2013 , did you make any changes in your e - mai l deletion h abits? A. That I don ' t Q. Let me ask you this : Have you ever , dur i ng any time while your EEOC charge was pending against SMBC , or after your lawsuit was f iled, have you ever changed your practice with respect to de l et i ng al l of your e - ma il s? recall . remember . MR . STARK : Objection to the form . A. I don ' t remember . Q. Have you ever done anything at any time to be carefu l about preserv i ng electronic communications , e - mails , relating to your claims against SMBC? A. I understand your question , but I don ' t Q. So how about since April of this year? Have you taken any steps s i nce Apri l of 2015 to ensure that you're not delet i ng e l ectronic documentation that relates to your claims aga i nst SMBC? A. I don ' t Q. How about yesterday? A. I don ' t Q. How about last month? Di d you do anything last month , in August , to make sure you weren ' t recall. remember . remember . 10 ' ' > I deleting communications relating to this lawsuit against SMBC? A. Q. Is there any time ever that you remember doing anything at all to make sure you weren't deleting documents related to this l awsuit? A. Tr. I don't recall. No , I don't recall. 631 : 23-636:7 . When asked whether she had specific ema ils with Mr . Berger , the Plaintiff stated that she did not have any of them , but acknowledged that the emails concerned Mr . Berger preparing a statement to supp ort her in this litigation. Plaintiff was asked about Exhibit K, the email chain dated November 6 and 8 , 2013 : Q. Did you at that time retrieve this e-mail (indicating) from Mr . Berger and provide it to counsel? A. No , I didn't . Q. And then , more recently, you ' re that is SMBC, has requested all it has obtained from Mr. Berger , you produce them , right? You're A. Yes , I am. Q. You haven ' t turned over any further e - mails, have you? A. There was nothing in my in-box or "sent" folder. Q. While you had an EEOC charge pending against SMBC and counsel , what happened to this e-mail? 11 aware that we have , of these e-mails that it's requested that aware of that? . ' A. I don't recall. It definitely was not in my in - box as of December 2013 or "s ent " folder." Tr. 580 : 7 -1 7 ; 580 : 24 -581:5. Plaintiff was asked if she had the emails in Exhibit L , the email chain dated November 5 and 6 , 2013 : Q. . . . d id you look for these documents to see if you had them? A. I did l ook . Q. And you did not have them? A. I did not have them. Q. And you did not turn them over? A. I did not have them. Tr . 590:17 - 23. When Plaintiff was asked whether she had Exhibit M, the emai l chain dated November 8 - 10, 2013 , she stated "I recall looking for them [the emails co nstituting Exhibit M] when [Mr. Stark ] did ask me . But nothing was there ." Tr. 614 :14-15. Plaintiff testified that she has Mr. Berger ' s email address , Tr. 552 : 19-20 , that her email address is on the emails with Mr . Berger, Tr. 581:6-11 , that she sends ema ils to Mr . Berger , Tr . 577:4 - 7 , that she was " communicat ing with Mr. Berger about the preparation of a statement for [her], " Tr . 588 : 7 - 11 , and that she believed it was "possible" that she sent these emails to Mr . 12 Berger, see, e.g ., Tr. 581 :1 6 , 588 : 6, 589 : 4 . Plaintiff ' s explanation for not producing these emails was that she "does not recall " sending or recei v ing the emails to Mr . Berger. See, e . g ., Tr. 581 :1 9 , 588:2, 588:18. Defense counsel asked whether Plaintiff had exchanged emails with Mr . Berger since April 2015 . Plaintiff replied , "I don't recall." Defense counsel continued, "If you had, would they be in your possession? " Plaintiff asked , " You mean today? " Defense counsel : "Correct ." Plaintiff ' s counsel interjected, "At your home, not with you ." Plaintiff replied, "That would be correct ." Defense counsel: "They would be in your possession?" Plaintiff : "I would imagine they would be. But I believe-no, because I don't have it. I don ' t remember. " Tr. 680:15 - 681 :5. When asked whether she "actually searched for and produced some documents in response to [Defendants ' December 2013 document requests] ," Plaintiff replied , " Whatever I had I gave [Mr. Rose] as of December 20 13." Defense counsel continued , "And I believe you included in that production some e - mails . Do you recall that?" Plaintiff: "I don ' t recall ." Tr. 614 : 25-615 :9. Plaintiff testified that she does not recall making any attempt to preserve emails that she sent to or received from Mr. Berger , 13 ' ' Ms . Aversa, or Mr . Weinstock prior to commencing this l awsuit . Tr . 631-32 . Plaintiff was questioned about a particular November 6 , 2013 email (Exh ibit L) in which she wrote to Mr . Berger that her then - lawyer , Rose , "might now think he will be unable to go forward with my case ," Tr . 595:22-23 , because "we have NO Report and NO Proof that it exist [sic] ," Tr . 596:6 - 7 . When asked whether she threw documents like this email away , Ottoson responded , "I don ' t recall 2013 . " Tr . 583 : 12 . When pressed , Plaintiff responded , "I don ' t have it currently . " Tr . 583:17 . When asked if she had moved or changed address , she simply said "No , " Tr . 583 : 21 , if she had suffered a f i re or flood , she answered "I don ' t recall when , " Tr . 583 : 25 , or whether she had turned over relevant documents to her attorneys , she answered " I don't recall. " Tr. 584 : 4 . Plaintiff has admitted that she emailed or otherwise communicated with Mr . Berger about his written statements that she produced in discovery , including , specifically , within the context of the parties ' dispute over " bonding insurance " discovery , Tr . 577, 588 , 650 - 51 , 662 - 63 , but testified that she could not locate and thus did not produce such communications , even those created after she commenced this action. Tr . 579 - 80 , 14 589 - 90, 614 , 668 - 69 , 680 - 81 , 684. Plaintiff claimed that she was unaware of her obligation to maintain relevant communications . See, e . g ., Tr . 629-31; Tr. 630 : 22 - 23 (" I don ' t recall any obligation, to be honest with you ." ) . Plaintiff conceded that she does not recall whether she searched for responsive communications or whether she made any efforts , even after commencing this action, to mainta i n relevant communications . Tr . 615 , 631-36 , 683 - 84. In light of Plaintiff ' s deposition testimony , Defendants served additional discovery requests on October 16 , 2015 . See Rice Deel ., Ex . Y (Second Set of Interrogatories); Ex . Z (Second Document Requests) ; Ex . AA (Notice of Inspection) . As explained in Defendants ' motion to compe l, the second discovery requests sought: (1) documents and information concerning Plaintiff ' s communicat i ons with third parties regarding the Report , as well as documents and informat i on that could reasonably lead to the discovery of such communications; (2) to undertake a forensic examination of Plaintiff ' s computers and personal electronic devices to establish the extent of Plaintiff's spo l iation and to determine whether any deleted emails or files could be retrieved; ( 3) the identity of Plaintiff ' s telephone service providers a n d the identity of any personal computing or te l ecommunications devices that Plaintiff 15 has used since April 30 , 2012 ; and (4) Plaintiff ' s use of telephone services since April 30 , 2012 . ECF No . 42 , at 10 - 11 . Plaintiff cont i nued to engage i n discovery during this time as well . On October 22 , 20 1 5 , Defendants ' Ru l e 30(b) (6) witness was deposed by Plaintiff . Rice Deel . 30 . Later , on December 4 , 2015 , Plain ti ff iss u ed a s u bpoena to New York University . ECF No . 43 - 4 . On December 7 , 2015 , Defendants ' counsel conferred with Pl aintiff ' s counsel via telephone to attempt to resolve Plaintiff ' s objections to Defendants ' Deel. d i scovery requests . Rice 31 . Plaintiff ' s counsel indicated that Pla i nt i ff does not possess a computer or other persona l electron i c device , but did not otherwise agree to provide documents or informat i on in response to Defendants ' second discovery requests . Id . As of the date of that call , Plaintiff had not served any wr i tten responses , other than objections , to Defendants ' second discovery requests . Id . On December 1 0 , 2015 , Defendants submit t ed a l etter to the Court with consent of Plaint i ff seek i ng an extension of time for t h e parties to submit the j oint proposed pretr i a l order in light of the existence of discovery disputes that would be the 16 subject of Defendants ' forthcoming motion to compe l and motion for sanctions . ECF No. 39 . The letter requested the "deadline be extended to April 3 , 2016, or , if later , within 14 days after the disposition of Defendants ' motions" ( i.e., the motions to compel and for san ctions) . Id. The Court so - ordered Defendants ' request on December 11 , 2015 . ECF No . 40. Defendants filed their motion to compel on December 23 , 2015 . ECF Nos . 41 , 42. On February 4 , 2016 , the Court held oral argument on the motion and granted it in part , order ing that "Plaintiff shall comply with the instant discovery requests. " ECF Minute Entry, Feb . 4 , 20 16. On March 2 , 2016, Defendants received via mail Plaintiff ' s Supp lementa l Response t o Defendants ' Notice of Inspection , Rice Deel ., Ex . AB , and Supplemental Response to Defendants ' Second Set o f Int errogatories , Rice Deel ., Ex . AC. See Rice Deel . 32 - 33 . Plaintiff responded to Defendants ' Notice of Inspection by stating : "Plaintiff does not possess any personal computers or electronic communications devices . " Rice Deel., Ex. AB at 3 . Plaintiff responded to Defendants ' supplemental interrogato ries by stating : "Plaintiff has not subscribed to te l ephone service during the assigned time period [April 30 , 20 1 2 to the present]. Plaintiff did , however, have a 17 prepaid TracFone, which she lost in May 2012 . " Rice Deel. , Ex. AC at 2 - 3. Plaintiff also stated that she "reca lls using computers that belong to [her brother] William Ottoson " and other computers. Id. at 3 . On March 21 , 2016 , Defendants received via mail Plaintiff's Supp l emental Response to Defendants ' for Documents. Rice Deel. , Ex. AD; Rice Deel. Second Request 34 . Plaint if f ' s production consisted of a single three -page Verizon bill dated February 1, 2016, which reflected services delivered to Plaintiff's residence address but in the name of Plaintiff's mother, Mary Ottoson . Rice Deel., Ex. AD at 6- 8 . The bill shows that Verizon provided telephone services to Plaintiff's address for a tel ephone number associated with her, that at least one international call was made in January 20 1 6 (it appears domest i c ca lls are not listed), and that Ver iz on provided internet services to her address . Id. On July 6 , 2016 , Defendants ' counsel wrote to Plainti ff' s counsel regarding def i ciencies in Plaintiff ' s responses to Defendants' second discovery requests . Rice Deel., Ex. AE at 1 - 2 . In the letter , Defendants highlighted Plaintiff ' s def i c i ent production of Verizon bills and sought such documents f or the ent ire relevant time period . Defendants also requested 18 information concerning William Ottoson ' s computer and noted that Plaintiff has internet . Id. Plaintiff ' s counsel responded v i a letter on July 29 , 2016 , refusing to produce the requested d i scovery. Id . at 3 . Defendants ' counsel reiterated his requests on August 5 , 2016 . Id . at 4 . Plaint i ff ' s counse l responded v i a lette r dated August 18 , 2016 producing certa i n documents and stating that Plaintiff is unab l e to provide information " concern i ng the identification of the make , manufacturer name , model name , or serial number of the computer that Plaintiff used that belonged to William Ottoson . because that computer is mi ssing ," wi thout providing any further information as to how or when that al l eged l y came to pass . Id . at 5. Pl ainti f f a l so produced Verizon bills for the time period March 2016 to August 2016 , though the re l evant time period was Apr il 30 , 20 1 2 to the present . Id. ; Rice Deel . 35 . On September 22 , 2016 , Defendants ' counsel reiterated deficiencies in Plaintif f' s production and reserved all rights with respect to the outstanding discovery . Id . at 6 . 19 Defendants filed the instant motion on October 5 , 2016 , which was heard and marked fully submitted on March 30 , 2017 . II. The Applicable Standards The obligation to preserve evidence app li es to a l l relevant documents in existence and arises when a party "reasonably anticipates litigation . " As explained by the Second Circuit : This obligation to preserve evidence arises when the party has notice that the ev i dence i s relevant to litigation - most commonly when suit has already been filed, providing the party responsible for the destruction with express notice , but also on occasion in other circumstances , as for example when a pa r ty s h ould have known that the evidence may be relevant to future litigation . Kronisch v . United States , 150 F . 3d 112 , 1 26 (2d Ci r . 1998) , overruled on other grounds , Rotella v . Wood , 528 U. S . 549 (2000) . 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, 20 779 (2d Cir . 1999). Pursuant to Federal Rule of Civil Procedure 37(e) , a court may sanction a party for failing to preserve relevant electronically stored information ("ESI") if the court finds that the party was "act[ing] with the intent to deprive another party o f the information's use in the litigation." Fed. R. Ci v . P. 37(e) (2) . In addition , the court may imp ose discovery sanctions pursuant to "its inherent power to manage its own affairs ." Residential Funding Corp . v . DeGeorge Fin . Corp ., 30 6 F.3d 99, 106-07 (2d Cir . 2002) , superseded by rule on other grounds as recognized by CAT3, LLC v . Black Lineage, Inc ., 164 F . Supp . 3d 488, 495 (S.D . N.Y . 2016) ; see Reilly v . NatWest Mkts. Grp. Inc ., 181 F.3d 253, 267 (2d Cir. 1 999) (" Whether exerc ising its inherent power, or acting pursuant to Rule 37 , a district court has wide discretion in sanctioning a party for discovery abuses ." ) , superseded by statute on other grounds as recognized by Hernandez v . Jrpac Inc. , No. 14 CIV . 4176 (PAE), 2016 WL 3248493 , at *35 (S . D.N.Y . June 9 , 2016) . Where a party seeks a jury instruction for the spoliation of ESI, it must establish that (1) the spoliating party had control over the evidence and an obligation to preserve it at the time o f destruction or loss ; ( 2) the spoliating party acted with a cu l pable state of mind up on destroying or losing the evidence ; and (3) the missing evidence 21 is relevant to the moving party ' s claim . See Residential Funding , 306 F . 3d at 107 . In addition , there is the " obvious " requirement that " the evidence must have existed ." Stephen v . Hanley , No . 03-cv-6226 , 2009 WL 1437613 , at *2 (E . D. N. Y. May 20 , 2009) . A party seeking spoliation sanctions has the burden of establishing the elements of a spoliation claim by a preponderance of the ev i dence . Sekisui Am . Corp . v . Hart , 945 F . Supp . 2d 494 , 509 - 10 (S . D. N. Y. 2013) (awarding sanctions for the destruction of ESI in the form of an adverse inference jury instruction) . The choice of an appropriate remedy for spoliation "is confined to the sound discretion of the trial judge and is assessed on a case - by-case basis ." Fujitsu Ltd . v. Fed . Express Corp ., 247 F.3d 423 , 436 (2d Cir . 2001) (citation omitted) . Sanctions should be designed to deter parties from engaging in spoliat i on , place the risk of an erroneous judgment on a party who wrongfully created the risk , and restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party . Stinson v . City of N . Y ., No. 10 - cv - 4228 , 2016 WL 54684 (S . D. N.Y . 2016) (citing West , 167 F . 3d at 779) ; see also CAT3 , 164 F . Supp. 3d at 502 . Sanctions should be tailored according to the prej u dice suffered by the party seeking sanctions and the destroyer ' s 22 degree of culpab ility . Richard Green Mcclendon , 262 F . R.D . 284 , 292 (Fine Paintings) v. (S.D . N. Y. 2009) (citations omitted). The prejudiced party must not be held "to too strict a standard of proof regarding the likel y contents of the destroyed or unavailable evidence , " because doing so "wo uld allow parties who have destroyed evidence to profit from that destruction . " Pension Comm ., 685 F. Supp . 2d at 468 Funding , 306 F . 3d at 109) (quoting Residential (inte rnal quotation marks, brackets , and ellipses omitted ) . III. An Adverse Inference Based on Spoliati on is Appropriate In the context of a motion for spoliation sanctions, "relevance" means that " the destroyed evidence would have been favorable to the movant." In re Methyl Tertiary Butyl Ether Prods. Liability Litig ., 643 F. Supp . 2d 482 , 495 2009) (S . D. N.Y . (citation omitted) ; see also Pension Comm. of Univ . of Montreal Pension Plan v. Banc of Am. Sec ., 685 F. Supp. 2d 456 (S.D.N.Y . 2010) , abrogated on other grounds by Chin v . Port Auth . of N . Y . & New Jersey, 685 F.3d 135 (2d Cir . 2012) (referring to requirement that "the evidence would have been helpful in prov ing [the moving party ' s] claims" as requiring "prejudice" ) . "Relevance and prejudice may be presumed when the spoliating party acted in bad faith or in a grossly negligent 23 . , manner." Pension Comm ., 685 F . Supp . 2d at 467 ; see also Sekisui , 945 F . Supp . 2d at 508 ( "When evidence is destroyed intentionally, such destruction is sufficient evidence from which to conclude that the missing evidence was unfavorable to that party. " ) (citation omitted) ; Arista Records LLC v . Usenet . com , 608 F . Supp . 2d 409, 439 (S . D.N.Y . 2009) ( " When evidence is destroyed in bad faith , that alone is sufficient to support an inference that the missing evidence would have been favorable to the party seeking sanctions , and thus relevant ." ) (citations omitted). Here , the evidence establishes relevance and prejudice because the Plaintiff "acte d in bad faith or in a grossly negligent manner ." Pension Comm ., 685 F . Supp . 2d at 467 . The Plaintiff had control over the evidence and an ob ligat ion to preserve it from July 9 , 2012 , the date that her counsel sent a demand lett er to Defendants threatening litigation and requesting Plaintiff ' s personnel file , see Rice Deel ., Ex . X, or , at the latest , from August 3 1, 2012 , when Plaintiff filed a Charge of Discrimination with the EEOC. See Compl . 4 ; Zubulake v. UBS Warburg LLC , 220 F.R.D. 212 , 216 (S.D . N. Y. 2003) ("[T]he duty to preserve evidence arose , at the latest , on August 16, 2001 , when Zubu lak e filed h er EEOC charge ." ) . 24 Following Plaintiff ' s cha rg e filing , she obtained statements from Ms . Aversa , see Rice Deel. , Ex . E (dated November 24 , 2012) , Mr . Berger , see Ex . D (signed on January 9 , 2013) , and Mr . Weinstock , see Ex. F (dated January 3 1, 2013) , which were produced in discovery . On March 31 , 2014 , Plaintiff produced , via emai l from her then-counse l Mr . Rose , " addenda " from Mr . Berger and Ms. Aversa . Rice Deel ., Exhibit H-J. She had a duty to preserve communications with these affiants ; however , Plaintiff has produced no documents or emails concerning her communications with them . Rice Deel . 6 (" Plaintiff did not produce any communicat i ons with Mr. Berger , Mr . Weinstock , or Ms . Aversa , or any drafts o f their statements , nor did Plaint i ff provide any explanation or information about doc uments that were no longer in her possession or contro l." ) . With r espect to emails between Mr . Berger and Pl aint i ff , the ear li est email vo luntarily provided to Defendants ' counsel by Mr . Berger is dated January 6 , 2013 , about six months after Plaintiff ' s preservation duty first arose. See Rice Deel ., Ex . X. The Plaintiff continued to send highly relevant and undeniably respons i ve emails to Mr . Berger throughout this litigati on and during discovery disputes , yet failed to disclose them t o Defendants . The emails indicate efforts by Plaintiff t o direct the exact contents of Mr . Berger ' s witness statement . See 25 Rice Deel., Ex. P (Ema il chain between Ottoson and Berger dated March 9- 10 , 2014) ; Ex. Q (Ottoson - Berger email dated March 14 , 2014) (directing Berger to "JUST COPY & PASTE & PLEASE TYPE THE WORK ' ADDENDUM ' ON TOP AS FOLLOWS" and explaining that she is " sorry tha t I have to ask you but this is needed i mmediately otherwise during the Discovery Dispute next week , the Judge may can [sic] yo u int o the court & I am trying t o avo i d that for you . I will send you anything you have to pay for to get this notarized ." ) ; Ex . R (Email from Ottoson to Berger dated March 1 8 , 2014) . By March 2014 , when these emails were exchanged , Plaintiff had already produced documents , in clud in g the three affidavits , and the parties ' counsel were discussing whether "April 10 is an available date for Ottoson ' s depos iti o n." Rice Deel ., Ex. Hat 5 (Rice Email to Rose dated March 14, 2014) . The emails also indicate that that Pla in tiff operated under the powerful motivator that , without proof of the existence of the Report , Plaintiff ' s case had no basis to continue . Plaintiff ' s November 10 , 2013 email to Mr . Berger shows that she understood the central relevance of the Report to her case : " After our mediation meeting, I feel that [Mr. Rose ] has given up because of the opposition . He is young and inexperienced . He also tried desperately to get me into dropping everything for nothing because as we all know : We don ' t have the 26 report . No Report - No Case ." Rice Deel ., Ex. M. The missing evidence - communications in which Plaintiff discussed the existence of the Report with the only witnesses purported to have knowledge of it - is indisputably relevant to her case . As Plaintiff's deposition testimony and available writings make c l ear , she knew what would happen to her case if there was no evidence of the Report ' s ex i stence . Defendants have provided this court with sufficient evidence , both direct and circumstantial , that : (1) Plaintiff communicated with Mr . Berger via email (see Rice Deel. , Exs . KS) ; (2) Plaintiff failed to take any reasonable steps to preserve these commun ications and/or (3) (see Rice Deel., Ex. Cat 631 - 32) ; Plaintiff failed to produce these communications in violation of her discovery obligations . The logical inferences that can be drawn from these facts are that Plaintiff : intentionall y deleted the emails ; (a) (b) did n ot intentionally take any steps to preserve those emails ; or (c) still has those emails in her possession but has failed to produce them . Any of these scenarios satisfies the requisite level of intent required by Federal Ru l e of Civi l Procedure 37(e). See , e . g ., Arrowhead Capital Fin ., Ltd . v . Seven Arts Entm ' t , Inc ., No. 14 - cv - 6512 , 20 16 WL 4991623 , at *20 (S . D.N . Y. Sept . 16 , 2016) (ordering sanctions in part because defendants failed " to make prompt 27 , r ( . that has occurred " because "[d]efendants failed to take reasonable steps to preserve the ESI related to this case, " "additional efforts to ensure the preservation of these materials once the spoliation letter was received" should have been made , and " [s]uch irresponsible and shiftless behavior can only lead to one conclusion-that [defendants] acted with the intent to deprive Plaintiff of the use of this information at trial") ; Brown Jordan Int ' l, Inc . v. Carmicle , No . 14 - cv - 60629 , 2016 WL 815827 , at *37 (S . D. Fla . Mar. 2, 2016) (imposing adverse inference sanctions against defendant for spoliation of evidence because the court found that defendant failed to take reasonable steps to preserve electronically stored information on his personal and company- owned devices) ; Internmatch, Inc . v . Nxtbigthing, LLC, No . 14 - cv - 5438 , 20 1 6 W 491483, at *4-5 , *12L 14 (N . D. Cal . Feb . 8 , 2016) (granting plaintiff a preclusion order , an adverse inference instruction , and attorneys ' fees as sanctions because defendants willfully spoliated evidence by intentionally discarding devices that contained the electronic versions of the evidence despite having a duty to preserve relevant evidence). During her depositions , Plaintiff admitted that she emailed with Mr. Berger and communicated with him concerning the written statement that he submitted at Plaintiff ' s request about 29 the Report. Tr. at 57 7 , 5 8 8 , 6 50-51, 66 2 - 63 . Moreover , the emails tha t Mr . Berger pr ovided to Defendants show e x tensive communicati o n by email between Plaintiff and Mr . Berg er. 1 Rice Deel ., Exs. K- S. Mr. Berger , a third party witness , who has no identified interest in fabricating o r fraudulently producing emails, pr ov ided these communications to Defendants. The content o f the communi c ati o ns reveal that, at worst , Plaintiff has fabricated the existence of the "Report" on which her entire case rests, and at best , she has pressured witnesses to make certain assertions on her behalf . 2 Plaintiff has admitted that she deleted emails during times wh e n she had a duty to preser v e them , and that she c o uld not recall making any attempt t o preserv e emails that sh e s e nt t o or recei v ed from Mr. Be rger or the other individuals from wh om she obtained written statements for this litigation. Even crediting Plaintiff ' s later contradictory testimony - that at some undefined point in time she ceased her practice of Pl aintiff ' s argument is that De f endants have not " authenticated" t h ese emai l s , which they received f rom Mr . Berger , but at no time does Plaintiff contend that Defendants have fabricated the emai l s . 2 Plaintiff has acknowledged , in emai l s to Mr . Berger , that i f there is " no Report ," then she has " no case ." Rice Deel. , Ex . M. Defendant s have stated , including under penalty of perjury , that t hey have never possessed , read , o r see n any evidence of the existence o f t his suppo s ed " Report ," and deny all allegati o ns relating to any discriminatory motive whatsoever for the i r t ermination of Plaintiff . See De fs . Br . at 2 - 3 ; Rice Deel ., Exs . V & W; ECF No . 33 . 30 routinely deleting emails - the existence of the emails that Mr . Berger provided establishes that Plaintiff destroyed them , and must have done so after her obligation to preserve the communications began . Plaintiff has cited Khadei v. Kaspiev, 961 F . Supp. 2d 564 , 569 (S . D.N . Y. 2013) for the proposition that "the spoliation doctrine is predicated on evidence actually existing and being destroyed." Opp . Br . at 5. While that proposition is correct , the case is inapposite . In Khadei , the court held that the act of "moving photographs to a new location " did not constitute destruction of evidence . Id . at 570. Instead , the court explained that there was absolutely no evidence that any actual evidence (i . e. , again , the photographs) were destroyed or significantly altered . Id. Plaintiff was able to , and actually did , perform a full inspection of the photographs and of their location no matter where the photographs were located . Id . In Khadei , the non - spoliating party was able to inspect the photographs because they still existed , albeit in another location . Here, Defendants are unable to inspect all of Plaintiff ' s email communications with all of her witnesses because Plaintiff "failed to take reasonable steps to preserve" them , in violation of Rule 37(e) , and this critical evidence cannot be "restored or replaced ." 31 Plaintiff also cites to Farella v . City of N . Y. , No . 05 - cv - 5711 , 2007 WL 193867 , at *1-2 (S . D. N. Y. 2007) , where Plaintiffs (City firefighters and police officers) alleged that they suffered harm from l ead exposure at a firing range. Plaintiffs claimed that the City destroyed and failed to preserve substantial lead exposure data . Id . at *2. Plaintiffs ' mot i on for spoliation sanctions failed because they had no "evidence showing that the ' missing ' evidence ever existed . " Id . Here , Defendants are in possession of Plaintiff ' s emails with Mr . Berger because Mr . Berger provided the emails to Defendants , and therefore , these and other relevant communications existed . Plaintiff has never denied sending or receiving the emails with Mr . Berger . She admitted during her deposition that it was indeed " possible " that she had sent and/or received these emails . Tr . at 581 : 16 , 588 : 6 , 589 : 4 . Where , as here , Defendants have demonstrated the existence of the emails in question by producing such emails , Plaintiff cannot contradict such a demonstration by claiming she does not "recall" sending or receiving such emails . Plaintiff ' s contradi ctory testimony and lack of recollection does not serve to rebut Defendants ' proffered evidence that the emails do indeed exist , were in fact sent to and received by Plaintiff , and were not preserved and/or produced by Plaintiff. 32 An adverse inference in st ru ct i o n is wa r ranted here because Defendants have provided suffic i ent evidence that addit i onal communications between Plaintiff and her witnesses li kely existed , we r e not produced , and were relevant . See DMAC LLC v . City of Peekskill , No . 09 - cv - 5093 , 2012 W 4459290 , at *4 L (S . D. N. Y. 2012) (granting defendant ' s mo t ion for sanctions based u pon spo l iation o f evidence because i t fo und that the mov in g party " proffered sufficient evidence from which a reasonable f a ctfinder could i nfer that additional re l evant e - ma il s f a vorab l e to pla i nt i ffs - existed but were not p r oduced" and awarding an adv erse inference instru ction stating that the destroyed " e - mails would have been favorable to [ the non spoliating party ' s] case " ) . When , as here , a spol i ating party has acted willfully or in bad faith , a j u ry can be instructed t h at " certain facts are deemed admi t ted and must be accepted as t r ue ." Pension Comm ., 685 F . Supp. 2d at 470 (c i tat i ons omitted) ; see also Sawabeh Info . Servs . Co. v . Brody, No . 11-cvL 4 1 64 , 2014 W 46479 , at *3 (S . D.N . Y. 2014) , aff ' d & rev ' d in part on other grounds , 598 F . App ' x 794 (2d Cir . 2015) (descr i bing previous order granting motion for an adverse inference because plaintiffs h ad been " at least grossly negligent in the preservation and production of [ESI] . ") Such an instruction c an be " critical to assisting the innocent party i n establishing the natu r e of the ev i dence that has gone 33 missing ." Id. An adverse inference instruction "i s imposed to ameliorate an y prejudice to the innocent party by filling the evidentiary gap created by the party that destroyed evidence ." OrbitOne Commc ' ns, In c . v . Numere x Corp ., 271 F . R. D. 429 , n.12 IV. 438 (S.D.N . Y. 2010). Defendants' Application for Fees and Costs is Adjourned Under Federal Rule of Civil Procedure 3 7 (a) ( 5) (A) , when a discovery motion is granted pursuant to Rule 37 , the . whose conduct necessitated Court must " require the party . the motion , the party or attorney advising that conduct , or both to pay the movant ' s reasonable expenses incurred in making the motion , including attorneys ' fees ." Fed. R . Civ . P . 37 (a) (5) (A). Even outside the context of a Rule 37(e) dispute , the Court has the inherent authority to award attorneys ' fees and costs to "punish the offending party f or its actions and deter the litigant ' s conduct , sending the message that egregious conduct will not be tolerated ." Best Payphones, Inc . v. City o f N . Y ., No . 01 - cv - 8506 , 2016 WL 792396 (E . D. N.Y . 2016) (i nternal citations omitted). Here , Plaintiff was faced at deposition with emails sent to her own email inbox and from her own email outbox to a person that she alleges is a materia l witness to the central fact in dispute i n this litigation , i.e. , whether this 34 "Report " has ever existed . However , the assessment of costs and fees and any other similar applications will be adjourned to the final determination of this action . V. Conclusion For the reasons set forth above , the Defendants ' motion for sanctions against Plaintiff is granted , an adverse inference instruction will be given , and the application for fees and costs is adjourned . It is so ordered . New York, NY July 1 201 7 J, U . S.D.J. 35

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