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Archive for the ‘Magistrate Judge A. Kathleen Tomlinson’ Category

Case Blurb: Scalera; Inherent Authority of a Federal Court to Impose Sanctions

Posted by rjbiii on December 16, 2009

The court has the inherent power to impose sanctions for the spoliation of evidence, even where there has been no explicit order requiring the production of the missing evidence.

Scalera v. Electrograph Sys., 2009 U.S. Dist. LEXIS 91572 (E.D.N.Y. Sept. 29, 2009)(citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002))

See Case Summary here.

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Posted in 2nd Circuit, Case Blurbs, E.D.N.Y., Magistrate Judge A. Kathleen Tomlinson, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Scalera; Definition of Spoliation

Posted by rjbiii on December 16, 2009

“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.'”

Scalera v. Electrograph Sys., 2009 U.S. Dist. LEXIS 91572 (E.D.N.Y. Sept. 29, 2009)

See the Case Summary here.

Posted in 2nd Circuit, Case Blurbs, E.D.N.Y., Magistrate Judge A. Kathleen Tomlinson, Spoliation | Leave a Comment »

Case Blurb: Scalera; Courts states test for Imposition of Adverse Inference for Spoliation (2nd Cir.)

Posted by rjbiii on December 16, 2009

A party seeking an adverse inference instruction as a sanction for the spoliation of evidence must establish that:
(1) “the party having control over the evidence had an obligation to preserve it at the time it was destroyed,”
(2) “the records were destroyed with a ‘culpable state of mind,'” and
(3) “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.”

“A party seeking sanctions for spoliation has the burden of proving that the alleged spoliator had an obligation to preserve evidence, acted culpably in destroying it, and that the evidence would have been relevant to the aggrieved party’s case.”

Scalera v. Electrograph Sys., 2009 U.S. Dist. LEXIS 91572 at *6-7, 23 (E.D.N.Y. Sept. 29, 2009)(citing Toussie v. County of Suffolk, 2007 U.S. Dist. LEXIS 93988, 2007 WL 4565160, at *6 (E.D.N.Y. Dec. 21, 2007) and Ramirez v. Pride Dev. & Constr. Corp., 244 F.R.D. 162, 164 (E.D.N.Y. 2007)).

See Case Summary here.

Posted in 2nd Circuit, Adverse Inference, Case Blurbs, E.D.N.Y., Magistrate Judge A. Kathleen Tomlinson, Spoliation | Leave a Comment »

Case Summary: Scalera; Triggering Mechanism for Litigation Holds

Posted by rjbiii on December 15, 2009

Scalera v. Electrograph Sys., 2009 U.S. Dist. LEXIS 91572 (E.D.N.Y. Sept. 29, 2009).

Status: Plaintiff, an individual, sought sanctions against Defendants (a company and two individuals) for spoliation of evidence.

Factual Background: Plaintiff is a former employee of Defendants. Plaintiff asserted that prior to her employment by Defendants, she had suffered from “noticeable muscular weakness.” Initially diagnosed as Muscular Dystrophy, the diagnosis was changed to Pompe disease. Plaintiff claimed that she was disabled within the meaning of the Americans with Disabilities Act of 1991 (ADA) and the New York Human Rights Law (NYHRL), and that Defendants failed to suitably accomodate her disabilities.

Procedural History: Plaintiff filed the original Complaint on January 4, 2008. She subsequently filed an Amended Complaint on September 30, 2008. Plaintiff served her First Request for Production of Documents upon Defendants on August 13, 2008. Plaintiff requested (1) all emails sent or received by Electrograph employees regarding Plaintiff’s medical condition, (2) all emails sent by Electrograph employees regarding Plaintiff’s request or need for any accommodation for her medical condition, (3) all emails sent on Electrograph’s “Inter-Office email system” to and from Plaintiff from 2005 to the present, “including any emails predating Plaintiff’s employment.” Plaintiff also requested all “backup and/or archive (computer) data which was generated by Defendants” and related to Plaintiff’s employment.

In response to the request, Defendants produced certain documents. Plaintiff characterized the production as consisting of a handful of emails relating to Ms. Scalera. According to Plaintiff, defendants stated that other emails were stored on backup tapes and that these tapes were corrupted and could not be restored. On November 4, 2008, Defendants sent Plaintiff’s counsel a letter stating that Electrograph had retained an outside vendor to restore the electronic data contained on the backup tapes. Defendants provided RDA Enterprises with a total of sixteen backup tapes. First, the vendor ran an inventory process to see if the tapes “met the criteria with restorable data.” Only two of the tapes met that criteria. However, the vendor was not able to restore the data on either of those two email backup tapes.

Argument: The court began by articulating the analytical framework found in Toussie v. County of Suffolk, 2007 U.S. Dist. LEXIS 93988, 2007 WL 4565160, at *6 (E.D.N.Y. Dec. 21, 2007). A party seeking an adverse inference instruction as a sanction for the spoliation of evidence must establish that:
(1) “the party having control over the evidence had an obligation to preserve it at the time it was destroyed,”
(2) “the records were destroyed with a ‘culpable state of mind,'” and
(3) “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.”

Plaintiff argued that Defendants had a duty to preserve the destroyed information while asserted various theories as to when this duty attached. Plaintiff contended that Defendants’ obligation to preserve the information arose immediately following Plaintiff’s July 13, 2006 fall down the steps outside Electrograph’s side entrance. According to Plaintiff, Electrograph’s July 14, 2006 accident report acknowledges that “had a railing been installed, Ms. Scalera might not have fallen.” Plaintiff maintained that if Defendants were aware of Plaintiff’s disability, Defendants had a duty to accommodate that disability — “which would include installing railings, where necessary.” Thus, Plaintiff asserts that if her injury was caused by the absence of the railing, “Defendants should have known that they were potentially liable for failing to accommodate Ms. Scalera’s disability.” Thus, according to Plaintiff, immediately following her July 13, 2006 accident, Defendants knew or should have known that some of their internal employees’ emails would be relevant to a potential litigation and that Electrograph therefore was under a duty to preserve those emails.

Plaintiff also noted that within two weeks of her fall, she had hired an attorney and filed for worker’s compensation. Because, argued Plaintiff, the company was aware of the pending worker’s compensation case and retention of counsel, Defendants were under a duty to preserve documents relating to Ms. Scalera’s disability and injury.

In opposition to Plaintiff’s motion, Defendants stated that they first anticipated litigation regarding any claim of discrimination when they received the Notice of Claim from the EEOC,” which was sometime in late November or early December 2006. Defendants argue that a letter sent by Plaintiff’s attorney to the building landlord — not Electrograph — “making a claim for negligence in maintaining the stair and personal injury” did not put Electrograph on notice that Plaintiff intended to bring a discrimination claim against the company. Defendants also maintained that “plaintiff’s submission of a worker’s comp claim and retaining an attorney for worker’s comp, an employee’s exclusive remedy in New York, also led them to the conclusion that there would be no claim by plaintiff for discrimination.” Defendants added that Plaintiff’s worker’s compensation paperwork was filed in July 2006 and did not make any reference to discrimination.

The court stated that Plaintiff evidently did not address the letter mentioned above by Defendant’s in their written arguments and there was some confusion with this point in their oral arguments. Plaintiff claimed to regularly use her e-mail to communicate with coworkers and supervisors during the tenure of her employment, and this fact on its face establishes that failed to produce numerous documents covered by the discovery request. During oral argument, Plaintiff’s counsel highlighted a statement made by one of Plaintiff’s co-workers, Carolyn Reutter, that emails she received on her Electrograph email system “would stay in her inbox . . . unless she deleted it or the technical support employees purged the emails,” and that this apparently only happened “once every couple of years.”

The Internal Support Manager of Electrograph’s IT department stated that “documents can be stored locally on the hard drives of individual computers assigned to specific employees at Electrograph,” and that such documents “may or may not also be backed up as ‘ESI,’ depending on whether the document was created on the network or only locally at a particular end-user’s computer.” Plaintiff concluded, therefore, that there must have been relevant emails exchanged between Electrograph employees in the relevant time period that were not produced by Defendants.

Plaintiff also pointed to specific examples that “proved” the failure to produce. Plaintiff submitted two e-mails she claimed were not produced in whole. Plaintiff further argued that one of those emails is clearly a “string email,” but Defendants did not “produce the underlying email correspondence. Plaintiff asserted that although Defendants touted their production of emails regarding their provision of a raised chair to Plaintiff as an accommodation for her physical condition, that Plaintiff was the only party producing such e-mail; Defendants failed to produce any Plaintiff continued by claiming that the hard drive on the computer of Defendant Rose Ann Gordon, the former Director of Human Resources for Electrograph, and the computer Plaintiff used at work, were wiped clean because (and according to an affidavit filed by Defendants) once an employee left Electrograph, all data on the hard-drive of the computer assigned to such employee was removed.

Defendants countered that despite all ESI was backed up to tape on a daily basis, although documents stored on local hard drives might not have been backed up, and they were unaware that this material would not be available (remember that the outside vendor was unable to restore data from any of the back-up tapes). With respect to Ms. Gordon’s hard drive, Defendants essentially argued that no relevant documents resided on the drive prior to wiping. Defendants granted that the emails referring to the provision of a raised chair were produced by Defendant but noted that those emails predated the start of Plaintiff’s employment and were made after having extended an offer for employment to Plaintiff but before she had begun working for the company.

Discussion:
The court concluded that Defendant’s obligation to preserve relevant emails arose as of the time Defendants received Plaintiff’s EEOC Charge. The court noted that the general rule that an employee’s disability must be accomodated where the disability is obvious or otherwise known to the employer without notice from the employee. Whether specific accomodations were requested by the Plaintiff was in dispute, and Plaintiff’s claims that a hand-rail had been requested at the spot where she then fell, should have alerted Defendants to possible pending litigation. The court dismissed their arguments to the contrary as pushing logic beyond the boundary of reasonableness.

The court found that the filing of a worker’s compensation claim by Plaintiff did not trigger a duty to preserve. The court did not find “controlling” Defendants’ argument that Plaintiff’s choice to bring a claim under worker’s compensation implied that she would not be bringing a claim under the ADA. The court stated that Plaintiff had failed to point to case law that supported the proposition that an employer should reasonably anticipate a forthcoming disability discrimination action each time an employee files a worker’s compensation claim in circumstances such as those in the instant matter. Finally, the court noted that nothing in the worker’s compensation forms completed by Plaintiff indicated that she had requested a handrail.

As to Plaintiff’s contention that the ADA required the retention of certain documents, the court cited Byrnie v. Town of Cromwell, 243 F.3d 93 (2d Cir. 2001) for the proposition that where a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination case. After examining the language in the Act, the court ruled:

According to the regulations, therefore, upon their receipt of Plaintiff’s EEOC Charge, Defendants were under an obligation to preserve Plaintiff’s “personnel or employment record” as that term is defined in the regulation. The regulation also makes clear that Defendants’ duty did not cease upon their provision of Plaintiff’s HR file to the EEOC during their initial investigation.

The court next reviewed Plaintiff’s arguments concerning Ms. Scalera’s (plaintiff’s) “wiped” hard drive. It quickly dismissed these claims by reasoning that because the “wiping” occurred prior to the notice of the EEOC charge, Defendants were not under a duty to preserve.

The court then moved to the subject of Ms. Gordon’s hard drive, which also had been wiped. The destruction of data in this situation occurred nearly two months after Defendants had received notice of the EEOC charge. The court stated that Defendants’ argument that the destruction of Defendant Gordon’s hard drive did not amount to a breach of a duty to preserve because Defendant Gordon printed all relevant documents and maintained them in Plaintiff’s Human Resources file does not get them off the hook. The court cited Treppel v. Biovail Corp., 233 F.R.D. 363 (S.D.N.Y. 2006) for the proposition that permitting the downgrading of data to a less accessible form — which systematically hinders future discovery by making the recovery of information more costly and burdensome — is a violation of the preservation obligation. The court reasoned that Plaintiff had the right to test the accuracy of Defendants’ representations of facts and is not obligated to simply take Defendants’ word for it that all relevant emails and documents that were on Defendant Gordon’s hard drive actually made their way into Plaintiff’s personnel file.

On the matter of other emails, the court returned to the subject of two “partial” emails that Defendants produced, concluding that these documents fell within the meaning of a “personnel or employment record” that should have been preserved for one year after their creation. If Defendants had executed on that duty, then a duty to preserve would have prevented their destruction once the EEOC charge had been filed.

With respect to those e-mails produced by Plaintiff, but not Defendant, the court was not convinced by Defendants arguments that these had been generated prior to Plaintiff’s employment. The court found that the ADA regulations would have required Defendants to preserve these emails for one year from the time they were created, namely, in September 2005. Even if Defendants had done so, the obligation to preserve these emails would have expired in September 2006 — a month and a half before Plaintiff’s EEOC Charge was filed. Therefore, the court concluded that Defendants had not breached a duty to preserve.

The first element of the analysis, the court stated, was established. However, in turning to the second element, the court articulated the rule that “even where the preservation obligation has been breached, sanctions will only be warranted if the party responsible for the loss had a sufficiently culpable state of mind.” In its examination of the facts, the court concluded that Defendants had been negligent, though not grossly negligent. Defendants, said the court, took no active steps to preserve electronic documents until early 2007, almost two months after the filing of the EEOC charge. Key facts that swayed the court included:

  • Searches of key employees’ hard drives were either never completed at all or were not completed for some time after the EEOC Charge was received.
  • The message was never communicated to the IT department to search the hard drives of two key custodians.
  • And finally, no formal written litigation hold was ever implemented.

The court cited Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) in listed the steps expected from parties under a duty to preserve:
(1) issue a litigation hold at the outset of litigation or whenever litigation is reasonably anticipated,
(2) clearly communicate the preservation duty to “key players,” and
(3) “instruct all employees to produce electronic copies of the their relevant active files” and “separate relevant backup tapes from others.”

The court also repeated Zubulake’s admonition that one of the primary reasons that electronic data is lost is ineffective communication with information technology personnel.

In turning to the final element, the court went off on a different direction, finding that Plaintiff had ultimately failed to demonstrate that any destroyed emails would have been favorable to her position. The court noted that relevance may be inferred if the spoliator is shown to have a sufficiently culpable state of mind, such as acting in bad faith or gross negligence. However, the court had already determined that Defendant was merely negligent. The court further found that Plaintiff had not submitted extrinsic evidence tending to demonstrate that the destroyed emails would have been favorable to her case, leaving the third and final element as not being established.

Result: Plaintiff’s motion for sanctions was denied.

Posted in 2nd Circuit, Back Up Tapes, Case Summary, Data Retention Practices, Duty to Preserve, E.D.N.Y., Litigation Hold, Magistrate Judge A. Kathleen Tomlinson, Reasonable Anticipation of Litigation, Relevance, Sanctions, Spoliation | 2 Comments »