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Acorn v. County of Nassau

March 9, 2009


The opinion of the court was delivered by: Wall, Magistrate Judge


Before the court is plaintiffs' letter application seeking sanctions "including the finding of adverse inference, striking of the pleadings, costs and/or any other sanctions" against defendant Nassau County for its abuse of the discovery process. See Docket Entry ("DE") [116]. Nassau County submitted opposition, DE [121], and oral argument was held. For the reasons set forth herein, plaintiffs' motion is granted in part and denied in part.


Plaintiffs commenced this action in May 2005, served the Complaint in June 2005, and served an Amended Complaint on November 30, 2005. Defendant Nassau County moved to dismiss the Amended Complaint in March 2006, and that motion was denied on July 21, 2006. An initial scheduling conference before the undersigned was held on September 6, 2006.

During discovery, plaintiffs raised several concerns regarding the sufficiency of Nassau County's discovery responses. In May 2008, plaintiffs served requests for interrogatories on Nassau County regarding its document retention policies and its production of documents in this case. On May 28, 2008, the undersigned issued an order granting plaintiffs' motion to compel Nassau County's responses to those interrogatories and directed that the responses be served by June 4, 2008. DE [115]. Nassau County complied with that order and served its responses.

According to plaintiffs, the response to one of the interrogatories indicated that although Nassau County was served with the original complaint on June 16, 2005, it did not instruct any of the departments named in the complaint to preserve documents until September 12, 2006. See Smith Decl., Ex. 3, Deft's Resp. to Interrog. No. 2, DE [117]. In response to another interrogatory concerning its efforts to locate electronic documents other than e-mails, Nassau County stated that it "does not possess either the resources or the technology to locate and access non-e-mail electronic documents created by such programs as Word, Excel or PowerPoint." Id. Deft's Resp. to Interrog. No. 6.

Upon reviewing the responses to interrogatories, plaintiffs made the current request for sanctions against the County on two grounds -- the County's alleged failure to institute a litigation hold with regard to this action and to suspend routine document destruction, and the County's failure to conduct a search of electronic documents for potentially responsive materials. Plaintiffs seek an order directing that an adverse inference instruction be given to the jury at trial, striking of pleadings, costs and/or other sanctions.


I. Spoliation of Evidence -- Failure to Implement a Litigation Hold

Plaintiffs allege that Nassau County failed to preserve evidence relevant to the instant litigation by failing to institute a litigation hold, thus leading "to the destruction of countless responsive documents." Pls' ltr at 1, DE [116]. They argue that failure to implement a litigation hold amounts to gross negligence and supports a finding of spoliation and the imposition of sanctions.

Generally, 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." West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). If the evidence is relevant to a party's claim, its spoliation "can support an inference that the evidence would have been unfavorable to the party responsible for its destruction." Zubulake v. UBS Warburg LLC ("Zubulake V), 229 F.R.D. 422, 430 (S.D.N.Y. 2004) (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998)). "A party seeking an adverse inference instruction (or other sanctions) based on the spoliation of evidence must establish the following three elements:

(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a 'culpable state of mind' and (3) that the destroyed evidence was 'relevant' to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense." Zubulake V, 229 F.R.D. at 430. The court will address those elements in turn.

a. Duty to Preserve Evidence

The duty to preserve evidence "arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation." Zubulake v. UBS Warburg LLC ("Zubulake IV"), 220 F.R.D.212, 216 (S.D.N.Y. 2003) (quoting Fujitsu Ltd v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001). Once the duty to preserve arises, a litigant is expected, at the very least, to "suspend its routine document and retention/destruction policy and to put in place a litigation hold." Zubulake IV, 220 F.R.D. at 218; see also Doe v. Norwalk Cmty Coll., ...

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