In Shukla v. Sharma (EDNY Aug. 21, 2009), a Hindu Priest, claimed that the Ashram he lived and worked for in New York illegally trafficked him into the US in 2000 and enslaved him. Defendants denied the allegations pointing to plaintiff's ability to come and go as he pleased, access to the internet, cell phones, phone cards, e-mail, duties that took him away from the Ashram, as well as television appearances promoting the Indian community. Defendants claimed that despite plaintiff's admitted ability to call 911, plaintiff never reported his alleged enslavement for years. Plaintiff countered that he was psychologically coerced.
The opinion in this case is a Report and Recommendation ("Report") from a magistrate judge. The primary discussion of the Report is a summary judgment motion by defendants, but a spoliation motion also considered by the magistrate brings the Report to our attention. The magistrate recommended denial of the summary judgment motion, because credibility determinations were needed to make sense of the two competing sides of the story.
Given the he-said-she-said nature of the litigation, information on a laptop computer used by plaintiff was deemed highly relevant by the magistrate. Although plaintiff made no complaints to authorities about his enslavement for seven years, the court theorized that correspondence, such as e-mail to friends and family, may hold some insight into plaintiff's state of mind. The laptop apparently existed at the time the complaint was filed. Yet, despite repeated requests and a court order, the laptop or its contents were never produced. This was a problem because plaintiff testified that he owned the laptop during his deposition. He told the court, however, that it belonged to an unidentified member of the congregation in response to the motion. Making matters worse the mystery owner vanished without a trace, taking the laptop with him.
Because there was no evidence that the laptop was willfully destroyed to keep it out of the hands of defendants, the court reminded us that mere negligent destruction of highly relevant evidence can lead to spoliation sanctions. Here the sanctions recommended consist of an adverse inference jury instruction and costs associated with repeated attempts to compel discovery of the laptop.
One reminder of a party's litigation hold duties from the court is a recurring theme in legal hold cases:
Plaintiff's behavior in allowing these records to be removed from this country without first making copies or at the very least providing them to his attorney so that copies could be made was, at best, negligent. Morever, counsel had the responsibility to advise plaintiff of his obligation to maintain these records and ensure retention of these documents. See Chan v. Triple 8 Palace, Inc., No. 03 CV 6048, 2005 WL 1925579, at *7 (S.D.N.Y. Aug. 11, 2005) (noting that the "utter failure to establish any form of litigation hold at the outset of litigation is grossly negligent").
The Chan decision was also cited by Acorn v. Co. of Nassau ("the failure to implement a litigation hold at the outset of litigation amounts to gross negligence.")
The court also reminded us about the path to spoliation following the negligent destruction of relevant evidence:
Even where it cannot be shown that the destruction of evidence was done willfully or in bad faith, sanctions may still be imposed upon a finding of negligence. See Indemnity Ins. Co. of N. Am. v. Liebert Corp., No. 96 CV 6675, 1998 WL 363834, at *3 (S.D.N.Y. June 29, 1998) (holding that sanctions may be awarded for spoliation not just "where the evidence was destroyed willfully or in bad faith, since a party's negligent loss of evidence can be just as fatal to the other party's ability to present a defense") (internal citation omitted); see also Great Northern Ins. Co. v. Power Cooling, Inc., No. 06 CV 874, 2007 WL 2687666, at *9 (E.D.N.Y. Sept. 10, 2007); Smith v. City of New York, 388 F. Supp. 2d 179, 189 (S.D.N.Y. 2005). Where the documents were alleged to have been destroyed due to a party's negligence, there must be a showing that the destroyed evidence would have been favorable to the party seeking sanctions. De Espana v. Am. Bureau of Shipping, No. 03 CV 3573, 2007 WL 1686327, at *6 (S.D.N.Y. June 6, 2007) (noting that "where the culpable party was negligent, there must be extrinsic evidence to demonstrate that the destroyed evidence was relevant and would have been unfavorable to the destroying party"); Zubulake v. UBS Warburg LLC, 220 F.R.D. at 221. While there must be "'some showing indicating that the destroyed evidence would have been relevant to the contested issue,'" Barsoum v. N.Y.C. Hous. Auth., 202 F.R.D. at 400 (quoting Kronisch v. United States, 150 F.3d at 127), the relevance factor is primarily concerned with whether there has been prejudice to the party seeking sanctions. Id.; see also Kron-isch v. United States, 150 F.3d at 127; Sovulj v. United States, No 98 CV 5550, 2005 WL 2290495, at *5 (E.D.N.Y. Sept. 20, 2005).
In addition to the cases cited by the court above, we reported on Bolger v. District of Columbia, which also held that negligent destruction of evidence is sufficient to support an adverse inference instruction.
Because defendant's theory centered on plaintiff's failure to complain to anyone about his captivity, the court did not view the lack of evidence from the laptop as so egregious as to warrant dismissal. The court held:
Nevertheless, because there appears to be a complete and utter failure on the part of plaintiff to comply with the Court's Orders, if the district court were to find that plaintiff's claims should not be dismissed for the reasons set forth above, the Court respectfully recommends that defendants' motion for an adverse inference would be warranted as a sanction for the spoliation of this information. In addition, the Court awards defendants reasonable attorneys' fees and costs incurred in connection with defendants' counsel's repeated efforts to obtain this discovery and in preparing this section of the instant motion.
To obtain a copy of the Report and Recommendation, click here: Download Sharma