268 F. Supp. 3d 570
S.D.N.Y.2017Background
- Ottoson sued SMBCLF and individual defendants alleging disability-perception discrimination based on a purported background "Report” that she claimed defendants relied on; she filed an EEOC charge and then this suit.
- Defendants repeatedly denied ever possessing the Report; Ottoson produced three signed witness statements from former co-workers who said they had seen the Report years earlier.
- Emails between Ottoson and one witness (Ralph Berger) later provided by Berger to defendants show Ottoson drafting/steering witness statements and acknowledging that “No Report — No Case.”
- Ottoson admitted in deposition she routinely deleted emails, did not recall preserving communications after litigation was threatened/commenced, and failed to produce multiple emails that defendants requested.
- Defendants moved for spoliation sanctions under Rule 37(e) seeking an adverse inference and fees; the court found Ottoson had an obligation to preserve, acted with culpability, and that the missing communications were relevant.
- Court granted an adverse inference instruction for spoliation; application for fees and costs was adjourned until settlement or final judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ottoson had duty/control to preserve communications about the Report | She did not recall obligation to preserve and claimed limited possession of devices | Duty to preserve arose when counsel threatened litigation (July 2012) or at latest when EEOC charge filed (Aug 2012); she controlled relevant communications | Duty existed from demand/EEOC; Ottoson had control and obligation to preserve |
| Whether the missing emails existed and were destroyed or lost | Ottoson asserted lack of recall and did not concede destruction; challenged authentication of emails from Berger | Defendants produced emails from Berger showing Ottoson was a sender/recipient; other responsive emails were missing | Court found emails existed (Berger produced some) and that relevant additional communications likely existed but were not produced |
| Whether Ottoson acted with requisite culpable state of mind under Rule 37(e) | Claimed habit of deleting and lack of recall but denied intentional destruction; argued spoliation requires proof of actual destruction | Pointed to deposition admissions, contemporaneous emails, pattern of nonproduction, and failure to take preservation steps | Court found Ottoson acted in bad faith or at least grossly negligently such that Rule 37(e) intent/prerequisite satisfied |
| Appropriate remedy (adverse inference, fees) | Opposed adverse inference; argued spoliation doctrine requires proof evidence existed and was destroyed | Sought adverse inference and fees/costs as sanctions proportional to prejudice and culpability | Court granted adverse inference instruction; fee application adjourned to settlement/final judgment |
Key Cases Cited
- Kronisch v. United States, 150 F.3d 112 (2d Cir.) (duty to preserve arises when litigation is reasonably anticipated)
- West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir.) (definition of spoliation and sanctions principles)
- Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir.) (district court’s broad discretion to impose discovery sanctions)
- Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423 (2d Cir.) (sanctions discretion and case-by-case remedy selection)
- Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456 (S.D.N.Y.) (bad-faith spoliation permits presumption that missing evidence was unfavorable)
- Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y.) (preservation duty arises at EEOC charge at latest)
- Sekisui Am. Corp. v. Hart, 945 F. Supp. 2d 494 (S.D.N.Y.) (burden to prove spoliation elements by preponderance and sanction precedent)