OPINION AND ORDER
Plaintiff Centrifugal Force, Inc., d/b/a Wise Choice Software (“CFI”), has moved for sanctions pursuant to Fed.R.Civ.P. 37 against defendants Beny Sofer, Inc. (“BSI”) and BSI’s principal Beny Sofer (collectively, the “Sofer Defendants”), as well as defendants Michael Mardkha and Aleksander Staszulonek d/b/a PowerLine Computers (“Staszulonek” or “Power-Line”) on the ground that they engaged in the spoliation of evidence. For the reasons stated below, the motion for sanctions is denied.
I. BACKGROUND
A. The Nature of the Action and the Spoliation Allegations
In its amended complaint, CFI alleges that Mardkha and PowerLine infringed its copyright in a computer program called “RightClick” by copying and incorporating elements of RightClick into a program called “Jagsys.”
See
First Amended Complaint, filed Nov. 14, 2008 (Docket # 32) (“Am. Compl.”) ¶¶ 116-20, 147, 150, 154-57. CFI asserts that the Sofer Defendants infringed CFI’s RightClick program
In this motion, CFI maintains that the defendants, acting in concert, “willful[ly] and deliberately] destroyed] ... electronic evidence highly relevant and probative of plaintiffs claims of infringement and, in particular, the Sofer Defendants’ contributory infringement.” Memorandum of Law Submitted in Support of Plaintiffs Motion for Sanctions Against Defendants for their Spoliation of Evidence, filed Oct. 22, 2010 (Docket # 126) (“PI. Mem.”) at 2. CFI claims that this destruction of evidence consisted of: (1) the destruction of email evidence, id. at 9-10; (2) changes to and destruction of elements of the Jagsys program, id. at 6-9; and (3) “removal and replacement of BSI’s computer hard drives,” id. at 2, 10,19, 20. To remedy the alleged spoliation, CFI seeks “an order striking the pleadings of each of the defendants and entering judgment against them by default, due to their Willful, deliberate and bad faith spoliation of material evidence.” Id. at 1. In the alternative, CFI requests an order “granting [CFI] summary judgment on the issue of defendants’ liability on Counts I and IV in the First Amended Complaint”; “precluding each of the defendants from offering evidence of non-infringement and/or evidence supporting defendants’ affirmative defenses”; “precluding each of the defendants from contesting the plaintiffs’ damage calculations”; or “instructing the jury that an adverse inference may be drawn against each of the defendants based upon their destruction of evidence.” Id. CFI also seeks its costs and attorneys’ fees. Id.
B. Procedural History
CFI filed its original complaint on June 17, 2008,
see
Complaint, filed June 17, 2008 (Docket # 1) (“Compl.”), and an amended complaint on November 14, 2008,
see
Am. Compl. On October 22, 2010, following extensive discovery, CFI filed the instant motion for sanctions.
1
On December 22, 2010, Mardkha filed his opposition to the motion, which included a cross-motion for summary judgment.
2
On January 6, 2011, the Court issued an order stating that it would treat these papers as Mardkha’s opposition to the motion for sanctions to the extent relevant to that motion.
See
Order, filed Jan. 6, 2011 (Docket # 143). On December 29, 2010, the Sofer Defendants filed their opposition papers,
3
and on
II. DISCUSSION
A. Legal Principles Relating to Spoliation
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.’ ”
Byrnie v. Town of Cromwell, Bd. of Educ.,
A party seeking spoliation sanctions has the burden of establishing the elements of a spoliation claim.
Byrnie,
We now turn to CFI’s claims (1) that the Sofer Defendants deleted relevant email evidence; (2) that all of the defendants destroyed or were complicit in destroying evidence relating to the Jagsys program; and (3) that the Sofer Defendants improperly authorized Mardkha to remove and replace BSI’s computer hard drives.
B. Email Evidence
The record provides evidence that a single email, dated July 31, 2008, was deleted by the Sofer Defendants. CFI’s discovery of the deleted email apparently came about because CFI received a document production from Mardkha that included an email from BSI employee Terri Biancardi to Mardkha dated July 31, 2008, which had three attachments. See Mancinelli-Weinstein Email Chain (annexed as Ex. 19 to Mancinelli Decl. II) (“Mancinelli-Weinstein Email Chain”) at 7; Mar. 9, 2011 Letter from Mancinelli; Mar. 11, 2011 Letter from Clayton; Mar. 14, 2011 Letter from Weinstein. This July 31, 2008 email was not, however, included in the production received from the Sofer Defendants. See Mancinelli-Weinstein Email Chain at 7. CFI argues that because “the Sofer Defendants destroyed some relevant emails” — apparently referring to the single July 31, 2008 email — “there is every reason to believe that they destroyed other equally inculpatory emails.” PL Mem. at 10 (emphasis in original). Little evidence has been provided by either side as to the particular circumstances under which the July 31, 2008 email was deleted. Lior Sofer states only that one of the office assistants at his business deleted the email despite instructions that had been issued to staff to preserve any email relating to Mardkha or Jagsys. See Sofer Deck ¶¶ 14-15.
We now consider the elements of a spoliation claim to determine if they have been met with respect to the deleted email.
1. The Duty to Preserve Evidence
All parties agree that the Sofer Defendants had a duty to preserve evidence at the latest in June 2008, when the Sofer Defendants were served with the complaint in this matter. The email was written after this date and thus had to have been deleted after this date. Accordingly, at the time of the deletion of the email, the Sofer Defendants were under a duty to preserve it.
2. Culpability
A party seeking spoliation sanctions must show that “the records were destroyed with a culpable state of mind.”
Bymie,
Some case law holds categorically that “the failure to implement a litigation hold at the outset of litigation amounts to gross negligence.”
Toussie v. Cnty. of Suffolk,
CFI asserts that the Sofer Defendants’ counsel did not himself take suitable steps to institute and monitor a litigation hold. The record reflects that on August 14, 2008, approximately two weeks after he was formally retained as counsel by the Sofer Defendants, counsel spoke with his clients about the duty to preserve evidence, and on August 18, 2008, he sent the Sofer Defendants “a litigation-hold letter, the first of several.” Weinstein Decl. ¶¶ 5-6. CFI criticizes counsel because he did not advise his clients about instituting a hold sooner, did not “take affirmative steps to monitor compliance” with the hold, failed to consult with appropriate technology personnel regarding the hold, did not implement a “suitable archival protocol,” and did not “properly train necessary individuals.” PI. Mem. at 19-22. The Court recognizes that some case law speaks to the obligation of “counsel” to institute a litigation hold.
See, e.g., Zubulake v. UBS Warburg LLC,
Here, the Court is not persuaded that the Sofer Defendants’ efforts to preserve evidence were insufficient. BSI was informed of the obligation to preserve evidence through a letter from plaintiffs attorney that arrived shortly after service of the complaint.
See
Sofer Decl. ¶ 14. Amit Sofer then gave an oral instruction to BSI employees to preserve evidence.
See id.
There has been no showing that this oral instruction was incomplete or was inferior to a written instruction for the purpose of informing BSI employees regarding the requirement that evidence be preserved.
See generally Orbit One Commc’ns, Inc. v. Numerex Corp.,
3. Relevance
As noted, the culpability issue turns on our evaluation of BSI’s efforts to preserve evidence — efforts that arguably could have been improved. But even if we found some fault on the Sofer Defendants’ part, it would at most amount to negligence, and no sanction would be appropriate because the CFI has not proven the applicability of the third factor in the spoliation test: that the deleted email was relevant evidence that would have been favorable to CFI.
See Residential Funding Corp. v. DeGeorge Fin. Corp.,
“whether there is any likelihood that the destroyed evidence would have been of the nature alleged by the party affected by its destruction.” Kronisch,150 F.3d at 127 . The burden falls on the “prejudiced party” to produce “some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files.” Id. at 128.
Byrnie,
Relevance may be established in two ways. “First, it may be inferred if the spoliator is shown to have a sufficiently culpable state of mind.”
Chan,
CFI may also demonstrate relevance by submitting evidence tending to demonstrate that the deleted email would have been favorable to it.
See id.
at 109;
Golia v. Leslie Fay Co.,
C. Evidence Relating to the Jagsys Program
CFI also seeks sanctions on the ground that defendants destroyed certain computer files relating to the Jagsys program. The defendants produced 53 installation files for the Jagsys program, the first version of which dates from several months before the lawsuit. CFI finds them wanting, however, because they “do not account for every version of Jagsys known to have been used by BSI” and that they do not provide information on “what files were added, modified, or removed from the operational version, or ‘runtime environment,’ post-installation.” PL Mem. at 6-7. The crux of CFI’s complaint is that the defendants should have preserved the “runtime environment” and associated files or data (such as “report files” or metadata) beginning with versions dating from June 2008. It argues that the defendants were “obligated to preserve their runtime environments ... for every version installed on any of their computers and/or used by them or their employees since the inception of this lawsuit.” Id. at 7. In other words, plaintiff contends that the defendants’ failure to preserve a particular manifestation of the Jagsys program — specifically, the runtime environments and associated files — entitles them to sanctions.
CFI’s expert, Barbara FrederiksenCross, defines the “runtime environment” as “the version of the software that has been installed and is actually running on the computer,” which includes “both the files that were automatically created during the installation process and any additional files that were manually added, removed or modified after the installation process was completed.” Special Report of Barbara Frederiksen-Cross Addressing Spoliation Issues (annexed as Ex. 1 to Frederiksen-Cross Decl.) (“Frederiksen-Cross Special Report”) ¶ 8 n. 8. Frederiksen-Cross concedes that the installation files defendants have produced “are sufficient to demonstrate the existence of numerous versions of Jagsys,” but she asserts that the installation files are “insufficient to identify the versions of Jagsys that were used by Beny Sofer since the start of this lawsuit,”
id.
¶ 16, and insufficient to identify Jagsys modifications “made directly on the Beny Sofer computer system,” as opposed to those “pro
CFI’s argument that the defendants should have preserved the runtime environments must be viewed in light of two important facts. First, the defendants created various versions of Jagsys because, for many months both before and after the lawsuit was filed, defendants were making changes to the Jagsys program as part of their effort to make the program work on the BSI computers. See Sofer Decl. ¶¶ 8, 12; Mardkha Decl. ¶ 14; Staszulonek Decl. ¶¶ 5-7. These efforts included numerous fixes to the Jagsys program. Thus, the fact that defendants were working to change and create new versions of Jagsys after the complaint was filed does not reflect any inherently improper conduct.
Second, it is undisputed that the defendants have supplied to plaintiffs in discovery 53 installation files for the Jagsys program, dating from April 2, 2008 through December 17, 2008 — in other words, from more than two months before the commencement of the lawsuit until the time defendants abandoned their efforts to update Jagsys. See Staszulonek Decl. ¶ 9; Mardkha Decl. ¶ 19; Frederiksen-Cross Special Report ¶ 5 n. 5. 8 These installation files allow the user to install the Jagsys program onto a computer and to run the Jagsys program as it existed on the date of the installation file, which produces the “runtime environment” as of that date. See Staszulonek Decl. ¶ 10. As a result, the defendants contend that they “have produced installation files sufficient to enable Plaintiff to examine the runtime versions of Jagsys that were used by BSI from April 2, 2008 through December 17, 2008,” and “[t]here were no later versions of Jagsys installed on BSI’s computers.” Id. ¶ 11.
As for the source code for the Jagsys program, the source code was only in the possession of Staszulonek, not Mardkha or the Sofer Defendants, and Staszulonek produced the versions he had, which date from August 5, 2008. Id. ¶¶ 13-15. In any event, the source code existing as of the date of any of the 53 installation files can be decompiled from any of these installation files. Id. ¶ 16. Thus, source codes from versions of Jagsys beginning prior to the lawsuit are available to plaintiff.
The main factual dispute between the parties centers on whether using the installation files to create a runtime environment discloses every single change that the defendants made to the Jagsys program during the period they were modifying Jagsys on the BSI computers after the complaint was filed. Frederiksen-Cross rejects Staszulonek’s opinion that installation files disclose every possible change that was made to the Jagsys program.
See, e.g.,
Frederiksen-Cross Special Report ¶ 16. Frederiksen-Cross states that “comparisons of the runtime environments demonstrate that the Jagsys runtime environments can be modified in an infinite number of ways subsequent to the installation process,” and thus, “where a runtime
With this factual background, we now examine whether plaintiff has met its burden of proving its entitlement to sanctions for spoliation.
1. The Duty to Preserve Evidence
As previously noted, a party seeking sanctions for destroyed evidence must show that “the party having control over the evidence ... had an obligation to preserve it at the time it was destroyed.”
Kronisch,
CFI argues that the duty to preserve in this case “arose the minute [defendants] started making literal copies of RightClick materials.” PI. Mem. at 13. Given that the defendants deny they committed any act of copyright infringement, plaintiffs argument boils down to the proposition that where a plaintiff alleges that a defendant committed a tortious act, the defendant has a duty to preserve evidence as of the time the plaintiff later alleges the tortious act was committed— even in the absence of any evidence that the defendant believed it committed a tortious act or otherwise anticipated future litigation. The only case cited in support of this argument,
Zubulake v. UBS Warburg LLC,
In the alternative, CFI argues that the duty arose on November 6, 2007, when Lior Sofer was forwarded an email from Mardkha stating that a certain problem with the Jagsys program “was inherited from [RightClick].” PL Mem. at 14 (internal quotation marks and citation omitted). Under plaintiffs view, Sofer was supposed to divine from this email that he faced a potential copyright suit and that this suit would require him to preserve all evidence relating to alleged copying of the Right-Click program. This argument is similarly rejected because Mardkha’s email would not put the Sofer Defendants on notice that they faced a potential copyright claim. Mardkha denies any copyright violations and it is undisputed that Sofer “kn[e]w nothing about programming, or writing, or encrypting code.” Sofer Decl. ¶ 4; see also id. ¶ 11 (“At no time until this lawsuit did CFI or anyone else alert [the Sofer Defendants] to the possibility of copyright infringement.”). A problem could have been “inherited” from Right-Click for innocent reasons, such as a defect in a non-copyrightable file created when RightClick was being used.
Accordingly, the Court concludes that the defendants had an obligation to preserve relevant evidence relating to the Jagsys program beginning in June 2008, after they were served with the complaint. The defendants do not dispute that they had a preservation obligation as of this time period. We next turn to the question of whether the defendants acted “with a culpable state of mind,”
Residential Funding Corp.,
2. Culpability
The responsibility to preserve evidence is grounded in the concept of reasonableness. Thus, case law notes that a party has a duty to preserve what it knows, or “reasonably should know,” is relevant in an action and that is “reasonably likely to be requested during discovery.”
Mahar v. U.S. Xpress Enters., Inc.,
Notably, CFI does not contend on this motion that the post-litigation changes that the defendants made to Jagsys might show additional copying of the RightClick program. In fact, it contends the opposite. It contends that during this period the defendants were making changes that
deleted
computer code or files that copied the RightClick program.
See, e.g.,
Frederiksen-Cross Special Report ¶ 48; Frederiksen-Cross Reply Decl. ¶ 16. But any such deletions could not detract from plaintiffs ability to use the prior versions of the Jagsys program to prove its case of infringement. Indeed, beginning with the original complaint filed in June 2008, plaintiff alleged that it had obtained a copy of the Jagsys program in March 2008,
see
Compl. ¶¶ 85-86, and the complaint explains in detail its conclusion that Jagsys copied large sections of the RightClick
Turning to the culpability question, CFI argues that BSI’s bad faith is demonstrated by the fact that its attorney informed “Mardkha not to change programs currently existing on BSI’s computers,” PI. Mem. at 18 (internal quotation marks and citation omitted), but that the defendants went ahead and did so anyway. Indeed, the record reflects that the Sofer Defendants were aware that they needed to preserve a copy of the Jagsys program as it existed at the time of the lawsuit and allowed Mardkha to make changes only on the condition that “he preserve[ ] what was there before on [BSI’s] server.” Sofer Deck ¶ 16. CFI’s argument, however, begs the question of whether BSI or Mardkha had reason to believe that the runtime environment and associated files should be preserved in view of the fact that the defendants were preserving each of the installation files relating to the Jagsys program. It is this issue that is at the heart of the culpability question. Staszulonek opines that preservation of the run-time environment — the method of preservation that CFI insists upon — would in fact have led to the “destruction of evidence” because when “transferred to another computer,” the zip file of the runtime environment of Jagsys might not have been able to “run.” See Staszulonek Mem. at 9. CFI does not address this issue but focuses instead on its contention that it cannot be known for sure that the successive generations of installation files reflect every possible modification that the defendants made between the dates each version of an installation file was saved. See Frederiksen-Cross Reply Deck ¶¶ 11-14. CFI’s expert concludes that “it is not forensieally possible to verify that any change, addition, or deletion to the Beny Sofer runtime environment was ever incorporated into a subsequent Jagsys installation file unless the Beny Sofer runtime environment in which those changes, additions, or deletions occurred was preserved as a baseline so that it could be forensically examined and compared to the Jagsys installation files produced by SoftNet.” Id. ¶ 14.
The Court does not find it necessary to resolve the question of whether each and every change to the Jagsys program is reflected in the installation files. It is common ground that the installation files allow a knowledgeable person to produce the underlying source code and that the installation files reflect any changes to the program that were made as of the date that the installation file was created. And the defendants have put forth plausible reasons for why they thought the installation files were sufficient to preserve all versions of the Jagsys program. As a result, the Court has no trouble concluding that the defendants’ decision to preserve the numerous installation files — and not to preserve the “runtime environment” along with each and every change at the moment those changes were made — does not reflect a culpable state of mind. Instead, it reflects an honest and reasonable belief on the part of the defendants that they were taking the proper steps to preserve evidence in this case. Given that the complaint alleged past acts of infringement, and given that BSI needed to customize the Jagsys program for its use, there was no reason for defendants to believe that it was necessary to document each and every post-litigation modification to the pro
CFI argues that its request for “the Jagsys program as it was actually used and operating on the BSI computers as of June 2008,” meant, “in layman’s terms[,] ... the BSI runtime environment.” Pl. Reply at 3 (internal quotation marks and citations omitted). But CFI never once used the term “runtime environment” in its document requests. And in follow-up letters regarding discovery, it made repeated reference to obtaining discovery of the “installation” of the Jagsys program, but never to “runtime” versions. See Plaintiffs First Request for Production of Documents and Things to Defendants Beny Sofer, Inc., and Beny Sofer (annexed as Ex. 7 to Mancinelli Decl.) at 11 ¶¶ 2, 5; id. at 12 ¶ 16; id. at 15 ¶ 43; Plaintiffs Second Request for Production of Documents and Things and First Set of Interrogatories to Defendants Beny Sofer, Inc., and Beny Sofer (annexed as Ex. 8 to Mancinelli Decl.) at 11 ¶¶ 1-2; Emails Between Weinstein and Mancinelli re: Sofer Document Production Issues (annexed as Ex. 9 to Mancinelli Decl.) at 5; Emails Between Weinstein and Mancinelli re: CFI v Soft-net — Outstanding Discovery from Sofer Defendants (annexed as Ex. 11 to Mancinelli Deck) at 1, 5; Weinstein Decl. ¶ 11. Plaintiff has not pointed to any standard procedure recognized in the computer field under which runtime environments are expected to be preserved.
Finally, plaintiff could have obviated at least part of the problem had it promptly complied with Judge McMahon’s Rules Governing Electronic Discovery. Paragraph 6 of those rules required the parties to “negotiate an agreement that outlines the steps each party shall take to segregate and preserve the integrity of all relevant electronic documents.” The parties could have discussed, as part of the required negotiation, the defendants’ ongoing efforts to customize the Jagsys program and what particular files should be preserved.
In sum, the Court cannot say that any of the defendants acted culpably in their efforts to preserve the computer files in the manner they did. Accordingly, CFI has not made out a claim for sanctions based on the alleged spoliation of this evidence.
3. Relevance
While the above conclusion disposes of the claim for sanctions relating to the Jagsys program, the Court notes that CFI’s claim for spoliation sanctions would fail in any event because it has not met the “relevance” prong of the spoliation analysis.
Even if it could be said that the defendants acted with a culpable state of mind, plaintiff has at most shown that the defendants acted negligently in failing to preserve the runtime environment, given their good faith belief that their preservation efforts were sufficient and the affirmative efforts they made to preserve the multiple installation files. “[W]here the party destroyed evidence due to ordinary negligence [as opposed to bad faith], [t]he burden falls on the prejudiced party to produce some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files.”
Gutman v. Klein,
In its papers, plaintiff never suggests any basis on which to believe that the runtime environments and associated files might have shown additional infringement of the RightClick program. Instead, it suggests that they would show efforts to make Jagsys less like RightClick. Plaintiff does not explain, however, why each of the myriad changes during this period in aid of this alleged effort is likely relevant to plaintiffs claim that Jagsys infringed the RightClick program. In other words, CFI has not explained why proof of each of the incremental changes during the period after the complaint was filed would have allowed it to show infringement in a way that is at all materially different from the proof already available to it. Thus, plaintiff has not met its burden of showing that anything lost by the failure to preserve the runtime environments is sufficiently relevant to the proof of their claims in this case. In the absence of a showing of relevance, the claim for spoliation sanctions must fail.
See Orbit One Commc’ns, Inc.,
D. The Removal and Replacement of BSI’s Computer Hard Drives
CFI argues that it is entitled to sanctions because the Sofer Defendants’ authorized Mardkha to remove and replace their network server hard drives after the commencement of this litigation.
See
PI. Mem. at 2, 19, 20, 22. The defendants have submitted evidence, however, that the “[t]he only hard drives that [Mardkha] ever removed or replaced from BSI’s computer system during this litigation were hard drives on [BSI’s] data server” that contained “BSI’s business documents and data[, which have] nothing to do with
Jagsys.”
Mardkha Deck ¶ 15;
accord
Mardkha Deposition (annexed as Ex. K to Clayton Deck) at 245 (hard drives were removed from BSI’s “data server” not the “Jagsys server”). There is no evidence in the record contradicting this assertion. Therefore, sanctions are not appropriate because a discovery sanction cannot be based on a failure to preserve irrelevant evidence.
See, e.g., Fujitsu,
For the foregoing reasons, CFI’s motion for sanctions (Docket # 121) is denied. Plaintiffs request for attorneys’ fees is similarly denied.
Notes
.See Notice of Motion, filed Oct. 22, 2010 (Docket #121); Declaration of Barbara Frederiksen-Cross with Special Expert Report in Support of Plaintiff’s Motion for Sanctions Against Defendants for Their Spoliation of Evidence, filed Oct. 22, 2010 (Docket # 122) ("Frederiksen-Cross Decl.”); Declaration of Steven Mancinelli in Support of Plaintiff's Motion for Sanctions Against Defendants for Their Spoliation of Evidence, filed Oct. 22, 2010 (Docket # 124) ("Mancinelli Decl.”); Declaration II of Steven Mancinelli with Appendix of Documents Referenced in the JLI Special Expert Report, filed Oct. 22, 2010 (Docket # 125) ("Mancinelli Decl. II”); PL Mem.
. See Notice of Cross-Motion for Summary Judgment, filed Dec. 22, 2010 (Docket # 134); Declaration of Dr. Aleksander Staszulonek, filed Dec. 22, 2010 (Docket # 135) ("Staszulonek Decl.”); Declaration of Michael Mardkha, filed Dec. 22, 2010 (Docket # 136) ("Mardkha Decl.”); Declaration of Catherine M. Clayton, filed Dec. 22, 2010 (Docket # 137) ("Clayton Decl.”); Statement of Material Facts Pursuant to Local Rule 56.1, filed Dec. 22, 2010 (Docket # 138); Memorandum of Law in Opposition to Plaintiff's Motion for Spoliation and in Support of Defendant Michael Mardkha's Cross-Motion for Summary Judgment, filed Dec. 22, 2010 (Docket # 139).
.
See
Memorandum of Law, filed Dec. 29, 2010 (Docket # 140); Declaration of Lior Sof
. See Defendant's Aleksander Staszulonek d/b/a PowerLine Computers Memorandum of Law Submitted in Opposition to the Plaintiff’s Motion for Sanctions Against Defendants for their Spoliation of Evidence, filed Feb. 1, 2011 (Docket # 154) ("Staszulonek Mem.”); Defendant's Aleksander Staszulonek d/b/a PowerLine Computers Motion to Reject the "Special Report of Barbara FrederiksenCross Addressing Spoliation Issues” Entirely, dated Dec. 23, 2010 (Docket # 175). By order of this Court, Staszulonek's "[mjotion to [rjeject” the report of CFI’s expert, Frederiksen-Cross, was deemed to constitute opposition to the spoliation motion (and not as a motion for affirmative relief). See Memorandum Endorsed, filed Jan. 24, 2011 (Docket # 152).
. See Reply Declaration of Barbara Frederiksen-Cross in Further Support of Plaintiff's Motion for Sanctions Against Defendants for Their Spoliation of Evidence, filed Feb. 5, 2011 (Docket # 155) (“Frederiksen-Cross Reply Decl.”); Reply Declaration of Steven Mancinelli in Further Support of Plaintiff's Motion for Sanctions Against Defendants for Their Spoliation of Evidence, filed Feb. 5, 2011 (Docket # 156); Reply Memorandum of Law in Further Support of Plaintiff's Motion for Sanctions for Defendants’ Spoliation of Evidence, filed Feb. 5, 2011 (Docket #157) (“PL Reply”); Reply Declaration of Steven Mancinelli Submitting Certificate of Service in Connection with Plaintiff's Spoliation Motion, filed Feb. 8, 2011 (Docket # 158).
. See Letter from Steven Mancinelli to Hon. Gabriel W. Gorenstein, dated Mar. 9, 2011 (Docket #167) ("Mar. 9, 2011 Letter from Mancinelli”); Letter from Catherine M. Clayton to Hon. Gabriel W. Gorenstein, dated Mar. 11, 2011 (Docket # 168) ("Mar. 11, 2011 Letter from Clayton”); Letter from Eric Weinstein to Hon. Gabriel W. Gorenstein, dated Mar. 14, 2011 (Docket # 169) ("Mar. 14, 2011 Letter from Weinstein”).
. See Defendant's Aleksander Staszulonek d/b/a PowerLine Computers Addendum to Memorandum of Law Submitted in Opposition to the Plaintiff's Motion for Sanctions Against Defendants for their Spoliation of Evidence, dated Mar. 17, 2011 (Docket # 177); Letter from Steven Mancinelli to Hon. Gabriel W. Gorenstein, dated Mar. 22, 2011 (Docket # 178).
. The plaintiff goes to great lengths to analyze the Sofer Defendants’ production independent of the production of the other defendants. See Frederiksen-Cross Special Report at ¶¶ 7-15. But the Court does not find it significant that the Sofer Defendants preserved only a subset of the 53 installation files inasmuch as Mardkha and PowerLine preserved all 53 versions; the Sofer Defendants relied on Mardkha and PowerLine to preserve the pre-litigation version of the program, see Sofer Decl. ¶ 16; and the parties are co-defendants working together in defense of this lawsuit, despite any cross-claims among them. In addition, Staszulonek points out that some files were installed "remotely or onsite from a laptop computer.’’ Staszulonek Decl. ¶ 7.
. As already noted, the concept of "relevance” in the context of a spoliation claim means "something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence.”
Residential Funding Corp.,