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March 31, 2003


The opinion of the court was delivered by: Charles S. Haight, Jr, Senior United States District Judge


Plaintiff Joan Pastorello brings this action against certain hospital medical, administrative, and security staff*fn1 associated with the Bronx Municipal Hospital Center ("Jacobi"), the New York City Health and Hospitals Corp. ("HHC"), and the City of New York (collectively "the defendants") for violations of her rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution.*fn2 This case is currently before the Court on plaintiff's motion for sanctions for false and misleading disclosure. Pastorello argues that the spoliation, or destruction, of valuable evidence and the response given to her request for this evidence prejudiced her claim and are sanctionable pursuant to Rule 37(c) of the Federal Rules of Civil Procedure.

In considering the motion, it became clear to the Court that the initial record left unanswered key questions related to discovery of the allegedly spoliated materials. To address this, in an Order dated November 15, 2002, see Pastorello v. City of New York, 2002 WL 31557502 (S.D.N.Y. 2002), the Court ordered that the defendant City answer the following questions:

1. On what date did the responsible individual or individuals in the Risk Management Office of Jacobi Hospital (hereinafter "RMO") first receive from the office of the Corporation Counsel a copy of plaintiff's document requests dated August 5, 1995?

2. Did the RMO consider at that time whether plaintiff's Document Request 1(u) included the memo books kept by Hospital security officers? If not, why not?

3. On what date did the RMO receive from the Corporation Counsel a specific request to locate the memo books of the security officers who were involved in the events concerning plaintiff?

4. Describe in detail what the RMO did in response to that request, including:

(a) identifying the officers who were involved with Pastorello on February 27 and 28, 1993;
(b) obtaining security officers' memo books;

(c) examining the contents of those memo books;

(d) communicating further with the Corporation Counsel concerning the memo books.
That Order also recited the factual background of the underlying claim and the discovery background as it was then known. Since the Court's understanding of the discovery proceedings has been enhanced since the last Order, I find it useful to restate that background in full.

Discovery Background

Plaintiff alleges that after being brought to Jacobi following an assault and attempted rape, she was mistreated by hospital medical and security staff, sedated and held there for a period of time against her will between February 26, 1993 and March 2, 1993. Because of her distressed condition and the sedation, Pastorello has only a limited ability to prove the identity of the individual participants, and the nature and extent of their participation.

To substantiate and enhance her recollection, plaintiff submitted a first set of written interrogatories and document requests ("First Interrogatories"), dated August 5, 1995, which she drafted pro se. This included Document Request 1(u), which demanded that the defendants produce:

a clear copy of the logs and records maintained by the HHC hospital police (security guards) at Jacobi Hospital or elsewhere pertaining to the plaintiff's stay from the time the plaintiff was admitted to the Emergency Room at Jacobi Hospital on Friday, February 26, 1993, until she was released from Jacobi Hospital on Tuesday, March 2, 1993.
On its face, the request seemed designed, in part' to help provide documentation on the following incident, as alleged by plaintiff. From the afternoons of February 27 to February 28, Pastorello was debilitated from an allegedly forced injection and taken to a room in Unit 2 South, where she was unable to move (having been tied down with bed sheets), given nothing to eat or drink, prohibited from relieving herself, and administered more injections by Carolyn Griffiths, the nurse-clinician. On the afternoon of February 28, two security officers arrived while Nurse Griffiths waited with a syringe, and were questioned by a patient in the next bed who claimed she hadn't seen Pastorello do anything, since "[t]he minute she moves her head, you guys are back again and she gets a shot." Declaration of Joan Pastorello (April 16, 2001) ¶¶ 21-28 ("Plaintiff's Decl.").

Immediately after this conversation, the police officer asked this patient how to spell her name and appeared to write that along with other notes in a book he was carrying. The officers then refused to assist in the administration of further injections, called someone to check on the situation, and waited with Pastorello in her room. When Nurse Griffiths returned with a syringe, she threw it in the waste basket upon seeing the officers present in the room. Soon after, Pastorello was released from the sheets, reassured and transferred to a psychiatric floor where she remained until March 2. Plaintiff's Decl. ¶ 31-38. Document Request 1(ii) would capture any contemporaneous entries made by the police officers involved in this incident.

Initially these interrogatories and demands were served upon Amy K. Adelman ("Adelman"), who was at that time an Assistant Corporation Counsel. On September 13, 1995, they were received by Annmarie J. Schmitz, RN ("Schmitz"), who has been the Associate Director for Risk Management at Jacobi Medical Center since January 1, 1995. Prior to serving as the Associate Director for Risk Management, Schmitz was the Coordinating Manager in Risk Management from 1991 to 1995, where she was "primarily concerned with occurrence reports, nursing service coordination and some regulatory issues." Declaration of Annmarie J. Schmitz, RN, ¶ 1 (January 2003) ("Schmitz Decl."). In response to Document Request 1(ii), defendants stated ". . . there are no documents responsive to this request."

That answer is potentially problematic because it was discovered in a deposition of Romeo Vairo, a Jacobi security officer, taken on December 1, 2000 that pertinent logs and records existed at one time. A Hospital "tour log" produced in redacted form to plaintiff contains the following entry for 0930 hours (9:30 a.m.) on February 28, 1993: "P/O Grogan & P/O Viaro meds pt. Joan Pastorello 52 yrs RN Griffiths." The parties appear to agree that the name "Viaro" in the tour log is a misspelling of "Vairo." Thus Romeo Vairo may be identified with some certainty as one of the Jacobi security officers who was present at the medication of plaintiff on February 28 while she was still in Unit 2 South. (The tour log identifies "P/O Mendez" as the security officer who, at 1425 hours (2:25 p.m.) on February 28, assisted a nurse in transferring plaintiff from Unit 2 South to Unit 9 West).

Upon deposition, Officer Vairo testified that the officers kept daily logbooks in which they "maintain daily activities from the time we come to work until the time we leave." He then testified that the logbooks are secured with the officers' personal property and kept for three years. Deposition of Romeo Vairo (December 2000), Tr. 40-41 ("Tr".). Thus as of December 2000, when the deposition was taken, Officer Vairo presumably had logbooks dating back to December 1997.

As noted in the November 15, 2002 Order, Vairo's unequivocal testimony establishes that if Jacobi Hospital security officers participating in the events involving Pastorello in February and March, 1993 followed HHC requirements, they made contemporaneous entries concerning those events in their logbooks, and the logbooks existed at the times of plaintiff's demand for documents in August 1995 and defendants' response in November 1995.

In response to the Court's second inquiry as to whether she considered that Document Request 1(u) included the memo books kept by Hospital security officers, Schmitz's response was

no; I did not consider at that time, that the chronological memo books kept by individual Hospital Security officers were included in plaintiff's Document Request No. 1(u). In fact, in 1995, I was not familiar with HHC policy concerning police memo books, and did not know about them, and also did not know that the Police Department kept daily logbooks until early 1996.
Schmitz Decl. ¶ 6.

Schmitz additionally stated that in 1995, when she first addressed the inquiries from the Corporation Counsel's office in this case, she "had no knowledge of the operations or record-keeping procedures of the Hospital Police Department." Schmitz Del. ¶ 1. Schmitz had at least two obvious options to uncover the existence of the police memo books, as well as the Sergeant's log books and General log books, at the time she received Document Request 1(u): She could either have (1) asked the appropriate Sergeant, and perhaps any staff police officer, what kinds of records the security staff was required to keep; or (2) looked at the HHC Operating Procedures, where "Logs and records" of the HHC Hospital Police are specifically defined under HHC procedures, and could include such records as Hospital Police Logs, (HHC Operating Procedure 220-13), Criminal Incident Reports, (HHC Operating Procedure 220-4) and Reports of Incidents and Unusual Occurrences, pursuant to HHC Operating Procedure 120-12.*fn3 Defendant's Memorandum at 8. Instead of taking either of these steps, Schmitz states:

Unfortunately, because of my inexperience with Hospital Police Procedure in 1995, I did not inquire further of the Department concerning `logs and records' in 1995. In fact, in addition to the Sergeant's log books and police memo books, which I learned about for the first time in early 1996, I learned for the first time in 2000, after another inquiry from the Corporation Counsel's office that year, that the Department also kept General log books.
Schmitz Decl. ¶ 8. According to Schmitz, it was because of her "inexperience" that the defendants stated "In response to Document Request No. 1(ii), defendants state that there are no documents responsive to this request."

While at the same time Schmitz, as the Associate Director in Risk Management, was responding to the document requests and interrogatories without first checking to see what kinds of record-keeping mechanisms were in place, Adelman, the Assistant Corporation Counsel assigned to the case at the time, gave the following reason for allowing the defendants to state that there were no responsive documents: "Because there was no request for police memo books in plaintiff's first discovery demands, I did not ...

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