testimony that she had complained about "sexual matters" in 1989 based on her being "called in and terrorized" at Dean Witter. Trial Tr. at 270-71 (Plaintiff's Question, Jerome). When asked to provide greater detail, Jerome offered, "It's very strong male intimidation to the point of, without touching a person, there is a physical reaction by the strength of the words." Trial Tr. at 271 (Jerome). In an abundance of caution, the Court later granted a requested continuance in order to permit proper discovery concerning a different incident that Jerome related she had only recently been able to remember. It was when Jerome returned to testify that the actual nature of the alleged "act of terrorism" was elicited by Dean Witter. Admittedly, I was anticipating something much more dramatic.
When asked to what she was referring regarding the 1989 complaint, Jerome testified to only one event, an incident where she and a male colleague were called into a conference room by Ray Anderson, a Dean Witter manager. Jerome and her colleague had been reading newspapers on the trading floor. According to Jerome, Anderson "rose himself up in an intimidating male stature and proceeded to scream, 'You're fired.'" Trial Tr. 882 (Jerome). While Dean Witter did not attempt to draw forth an elaboration of what, if anything, this "intimidating male stature" consisted of, Jerome conceded that Anderson never got within three and one-half feet of her, nor did he make any sexist or off-color remarks. Id. Finally, as Jerome acknowledged, no adverse personnel action resulted, notwithstanding Anderson's statement that if Jerome and her colleague "had nothing better to do than read the paper, he wanted [their] resignations." Trial Tr. at 885 (Defendant's Question, Jerome). Jerome then pointed out that Anderson had made this statement "in an extremely loud tone of voice." Id. at 885 (Jerome). It is beyond peradventure that one would be hard pressed to consider this an act of terrorism. Fortunately, Hansen did not press the point.
IV. TRADING TICKETS ISSUE
Plaintiff moved during trial for sanctions pursuant to Rule 37(b) of the Federal Rules of Civil Procedure based on Dean Witter's destruction of the trading tickets processed by the TFU desk during the time period that Hansen worked on the desk. Plaintiff claimed at trial that she performed substantially all of the trades at the TFU desk, and pointed out that the trading tickets would be necessary to support her claim, because while all individuals at the desk traded under the same number, the tickets could be used to identify who completed each trade based on the handwriting appearing on each. Dean Witter's failure to retain the tickets, plaintiff argues, constitutes the spoliation of evidence and warrants sanctions. The Court has considered plaintiff's motion, and for the reasons stated below, the motion is DENIED.
The trading tickets at issue were destroyed by Dean Witter pursuant to its internal document retention policy, which provides for a three-year retention period. Although applicable SEC regulations permit the destruction of these documents after a period of three years, the fact that Dean Witter's policy, and observance of that policy, complied with the SEC requirement does not render Dean Witter immune from charges that it despoiled evidence. The same is true concerning Dean Witter's compliance with the EEOC requirement that employers retain certain employee personnel information upon receipt of an EEOC charge filed by the employee.
Instead, I must ascertain whether Dean Witter had an independent duty to preserve the trading tickets for the benefit of Hansen in this litigation. Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72-73 (S.D.N.Y. 1991). Such a finding, I conclude, requires Dean Witter to have been on notice that the tickets would be relevant to the Hansen litigation.
Many Rule 37(b) cases involve the alleged spoliation of evidence that had been demanded in discovery. Whether or not a party had notice of the evidence's relevance is not at issue in those cases because once a discovery request has been made, the party possessing the evidence, by definition, has notice of its relevance. Turner, 142 F.R.D. at 72-73; see also Computer Assocs. Int'l v. American Fundware, Inc., 133 F.R.D. 166, 169 (D. Colo. 1990). Aside from discovery requests, the complaint itself can put an adversary on notice of the duty to preserve evidence that is relevant to the action, as can the communication that litigation is merely anticipated. Turner, 142 F.R.D. at 73.
Although it is a close question, I find that neither the filing of the complaint nor the letters that the EEOC and the New York State Division of Human Rights sent to Dean Witter were such that Dean Witter knew or should have known that the trading tickets would be relevant to this litigation. This is true despite the fact that such documents should have, at the very least, put Dean Witter on notice that the relative performance of Hansen and Relova would be at issue in the litigation. As Dean Witter manager Mitchell Merin explained at trial, due to the nature of the mortgage-back repo trading market, although the trading tickets would indicate who wrote the most trading tickets, they would not reflect who effected the best, most profitable trades on the desk. Trial Tr. 907 (Merin). The absence of any evidence that Dean Witter relied on the trading tickets for the purpose of evaluating the performance of its employees supports that statement. Def.'s Letter Br. Opp'n Pl.'s Rule 37(b) Mot. at 2, n.2 ("No witness testified to relying upon or even needing to rely upon the trading tickets to make the termination decision."). Indeed, it is interesting to note that plaintiff, who vigorously asserts that Dean Witter should have known of the tickets' relevance, did not specifically ask for them significantly earlier than her letter dated May 18, 1993.
Finally, as indicated above, there exists credible testimony from Bernstein and Obermayer that contradicts plaintiff's assertion that she was responsible for most of the trades.
For the reasons stated above, I find that plaintiff has failed to satisfy her burden of proof that Dean Witter's decision to retain Melvyn Relova and terminate plaintiff was motivated by the plaintiff's sex and/or pregnancy. The complaint is dismissed.
New York, New York
Dated: May 31, 1995
Harold Baer, Jr.