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Scalera v. Electrograph Systems

September 29, 2009


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge



Before the Court is Plaintiff Mary Kay Scalera's motion seeking sanctions, in the form of an adverse inference instruction, against Defendants Electrograph Systems, Inc. ("Electrograph"), Kathy Koziol, Rose Ann Gordon, and Alan Smith (collectively, "Defendants") for spoliation of evidence [DE 38]. Defendants have opposed the motion [DE 39] and Plaintiff submitted a reply in further support of her motion [DE 41]. In addition, the parties appeared before the Court and presented extensive oral argument in support of their respective positions. For the reasons set forth below, Plaintiff's motion for sanctions is DENIED.


A. The Amended Complaint

Plaintiff commenced this action by filing the original Complaint on January 4, 2008. She subsequently filed an Amended Complaint on September 30, 2008 [DE 23]. Plaintiff brings causes of action under the Americans with Disabilities Act of 1991 ("ADA") and the New York Human Rights Law ("NYHRL") based upon Defendants' alleged failure to accommodate her disability. Plaintiff asserts that since about 1995, before she became employed by Defendants, she has suffered from "noticeable muscular weakness." Am Compl. ¶ 18. The muscular weakness continued throughout the time she was employed by Defendants and had been initially diagnosed as muscular dystrophy. The diagnosis was eventually revised to Pompe disease. Id. ¶¶ 19-20. Plaintiff suffers from "muscle weakness and damage" as well as "limited mobility" in that she has difficulty walking, bending, twisting, reaching, and walking up or down stairs. Id. ¶ 21.

Plaintiff claims that she is disabled within the meaning of the ADA and the NYHRL. Id. ¶ 23. Plaintiff further alleges that during her employment (which commenced in approximately September 2005 and was terminated on October 11, 2006), she requested two reasonable accommodations which Defendants failed to provide. First, Plaintiff claims that Defendants failed to install in the restroom a raised toilet seat suitable for use by handicapped individuals. Id. ¶¶ 29-35. According to Plaintiff, her use of the non-handicapped-accessible toilet seat left her suffering "non-operable, left-sided flank pain and experienc[ing] serious pain along her left side." Id. ¶ 35. Second, Plaintiff alleges that Defendants failed to accommodate her request for a handrail on the two steps leading out of the side door of the building, which was the only door Plaintiff could use to enter or exit the building due to her medical condition. Id. ¶¶ 36-51. On July 13, 2006 "due to the absence of a handrail," Plaintiff states that she fell while exiting the side door of the building. Id. ¶ 45. The fall purportedly caused "grave injuries" to Plaintiff's spine as well as "radicular back pain and bladder and bowel symptoms." Id. ¶ 46. Plaintiff also maintains that the fall "further worsened Ms. Scalera's left-sided flank pain and resulted in increased muscle weakness." Id.

Plaintiff alleges that she made "two separate requests" for a raised handicapped toilet seat to Defendant Kathy Koziol, who is identified as "the Director of Operations." Id. ¶ 31. According to Plaintiff, Defendant Koziol told her "that the main women's bathroom would be renovated in February 2006 and that it would be made handicapped accessible," which, according to Plaintiff, did not happen. Id. ¶¶ 32, 34. With respect to Plaintiff's request for a handrail outside the side door, Plaintiff asserts in the Amended Complaint that after her interview for the job (but before she was officially hired), Joe Koos, the "Director of Information Technology," told Plaintiff that "Electrograph should install a handrail if they hired Ms. Scalera. Plaintiff agreed with him." Id. ¶ 36. Plaintiff alleges that she specifically requested the installation of a handrail in November 2005 -- after she began her employment -- by speaking to Defendant Rose Ann Gordon, the Director of Human Resources. Id. ¶ 41. Defendant Gordon allegedly replied that "'she would see if it posed a hardship and would get back to Ms. Scalera,'" but no handrail was ever installed. Id. ¶¶ 41-42. Plaintiff states that she made another request to Defendants to install the handrail in March 2006, but that this request was not acted upon. Id. ¶ 42.

B. Facts Giving Rise to the Instant Motion

On August 13, 2008, Plaintiff served her First Request for Production of Documents upon Defendants, which included requests for (1) all emails sent or received by Electrograph employees regarding Plaintiff's medical condition, (2) all emails sent by Electrograph employees regarding Plaintiff's request or need for any accommodation for her medical condition, (3) all emails sent on Electrograph's "Inter-Office email system" to and from Plaintiff from 2005 to the present, "including any emails predating Plaintiff's employment." See Pl.'s Mot., Ex. E at 15-16.

Plaintiff also requested all "backup and/or archive (computer) data which was generated by Defendants" and related to Plaintiff's employment. Id. at 17.

According to Plaintiff, Defendants produced only "a handful of emails relating to Ms. Scalera, maintaining that the emails were stored on backup tapes and that these tapes are corrupted and could not be restored." Pl.'s Mot. at 3-4. Specifically, on November 4, 2008, Defendants' counsel sent Plaintiff's counsel a letter stating that Electrograph had retained an outside vendor to restore the electronic data contained on the backup tapes. Pl.'s Mot., Ex. F. A copy of a letter from RDA Enterprises, Inc. (the outside vendor retained by Defendants) was attached to defense counsel's letter. The vendor's letter summarizes the steps the outside vendor took to attempt to restore the data contained on Electrograph's email backup tapes. According to the outside vendor, Defendants provided RDA Enterprises with a total of sixteen backup tapes. First, the vendor ran an inventory process to see if the tapes "met the criteria with restorable data." Id. Only two of the tapes met that criteria. Id. However, the vendor was not able to restore the data on either of those two email backup tapes. Id. Plaintiff argues that Defendants' loss of this information amounts to spoliation and, as a result, the Court should impose sanctions in the form of an adverse inference against Defendants. Pl.'s Mot. at 5.


The parties' arguments mirror the analytical framework articulated by the court in Toussie v. County of Suffolk, 2007 WL 4565160, at *6 (E.D.N.Y. Dec. 21, 2007), which sets forth the three elements that must be shown by a party seeking sanctions for spoliation. A party seeking an adverse inference instruction as a sanction for the spoliation of evidence must establish that:

(1) "the party having control over the evidence had an obligation to preserve it at the time it was destroyed," (2) "the records were destroyed with a 'culpable state of mind,'" and (3) "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." Id.

A. Duty to Preserve

1. When Did the Duty to Preserve Arise?

As to the first element, Plaintiff argues that Defendants had a duty to preserve the destroyed information and also asserts various theories as to when this duty attached. First, Plaintiff contends that Defendants' obligation to preserve the information arose immediately following Plaintiff's July 13, 2006 fall down the steps outside Electrograph's side entrance Pl.'s Mot. at 6. According to Plaintiff, Electrograph's July 14, 2006 accident report acknowledges that "had a railing been installed, Ms. Scalera might not have fallen." Id. Plaintiff maintains that if Defendants were aware of Plaintiff's disability,*fn1 Defendants had a duty to accommodate that disability -- "which would include installing railings, where necessary." Id. (citing Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008)). Thus, Plaintiff asserts that if her injury was caused by the absence of the railing, "Defendants should have known that they were potentially liable for failing to accommodate Ms. Scalera's disability." Id. at 7. Thus, according to Plaintiff, immediately following her July 13, 2006 accident, Defendants knew or should have known that some of their internal employees' emails would be relevant to a potential litigation and that Electrograph therefore was under a duty to preserve those emails.

Second, Plaintiff argues that "within two weeks of Ms. Scalera's fall, she had hired an attorney and filed for worker's compensation." Id. According to Plaintiff, because Defendants knew about Plaintiff's pending worker's compensation case, "Electrograph was under a duty to retain documents relating to Ms. Scalera's disability and injury." Id.

Third, Plaintiff contends that "even if litigation was not reasonably foreseeable to Defendant[s] . . . Defendant[s] had a duty to retain all documents relating to Ms. Scalera's employment, disability and requests for accommodations, pursuant to ADA regulations. Id. (citing 29 C.F.R. § 1602.14). Plaintiff relies on the Second Circuit's decision in Byrnie v. Town of Cromwell Board of Education, which states that: "[W]here, as here, a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of the duty necessary to justify a spoliation inference in an employment discrimination action." Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 109 (2d Cir. 2001). Finally, Plaintiff claims that "even if the Court were to find that Electrograph did not have an obligation to retain relevant documents at the time of Ms. Scalera's injury, it is clear that Electrograph had actual knowledge of the likely litigation no later than November 2006, when Ms. Scalera filed her EEOC Charge." Pl.'s Mot. at 8.

In opposing the motion, Defendants contend that "Electrograph first anticipated litigation regarding any claim of discrimination when it received the Notice of Claim from the EEOC," which was sometime in late November or early December 2006. Defs.' Opp'n at 4. Defendants argue that a letter sent by Plaintiff's attorney to the building landlord -- not Electrograph -- "making a claim for negligence in maintaining the stair and personal injury" did not put Electrograph on notice that Plaintiff intended to bring a discrimination claim against the company. Id.*fn2 Defendants also maintain that "plaintiff's submission of a worker's comp claim and retaining an attorney for worker's comp, an employee's exclusive remedy in New York, also leads to the conclusion that there would be no claim by plaintiff for discrimination." Id. Defendants add that Plaintiff's worker's compensation paperwork was filed in July 2006 and does not make any reference to discrimination. Id. (citing Pl.'s Mot., Ex. A at ES 000000137).

2. The Information Allegedly Destroyed

Plaintiff asserts that only a "handful of emails" were produced by Defendants when, by her own account, Plaintiff "regularly utilized [her] email to communicate with co-workers and supervisors at Electrograph" during the tenure of her employment. This fact demonstrates on its face, according to Plaintiff, that Defendants have failed to produce numerous emails sent or received by Plaintiff. See Reply at 3; Decl. of Mary Kay Scalera ("Scalera Decl.") ¶¶ 2, 4. During oral argument, Plaintiff's counsel highlighted a statement made by one of Plaintiff's co-workers, Carolyn Reutter, that emails she received on her Electrograph email system "would stay in [her] inbox . . . unless [she] deleted it or the technical support employees purged the emails," and that this apparently only happened "once every couple of years." See Decl. of Carolyn Reutter ("Reutter Decl.") ¶¶ 34, 35. Moreover, Erich Liendo, the Internal Support Manager of Electrograph's IT department stated that "documents can be stored locally on the hard drives of individual computers assigned to specific employees at Electrograph," and that such documents "may or may not also be backed up as 'ESI,' depending on whether the document was created on the network or only locally at a particular end-user's computer." Aff. of Erich Liendo ("Liendo Aff.") ¶ 4. Given all of this information, Plaintiff concludes that there must have been relevant emails exchanged between Electrograph employees in the relevant time period that were not produced by Defendants.

Plaintiff points to specific examples of documents produced during discovery which Plaintiff claims demonstrate the existence of certain emails that Defendants failed to produce. For example, Defendants produced the second pages of two different emails "concerning Ms. Scalera's disability and resulting injury" but did not produce the first pages. See Pl.'s Mot., Ex. A at 000000341, 000000342. Moreover, Plaintiff points out that one of those emails is clearly a "string email," but Defendants did not "produce the underlying email correspondence." Reply at 3; Pl.'s Mot, Ex. A at 000000341. Furthermore, Plaintiff asserts that although Defendants touted their production of emails regarding their provision of a raised chair to Plaintiff as an accommodation for her physical condition, Defendants never actually produced any such emails -- the only emails in the record regarding this topic were produced by Plaintiff. Reply at 3; Pl.'s Mot., Ex. D at 00635-637. Thus, according to Plaintiff, these documents demonstrate that additional emails did exist at one time but were never produced by Defendants.

Next, Plaintiff claims that the hard drive on the computer of Defendant Rose Ann Gordon, the former Director of Human Resources for Electrograph, was wiped clean. Reply at 3-4. According to Defendant Gordon's Declaration, she maintained all employee personnel files and "[a]ll materials received via email or other electronic means in Human Resources were promptly printed and placed in the appropriate employee's file." Decl. of Rose Ann Gordon ("Gordon Decl.") ¶ 3. In addition, Defendant Gordon claims that all documents in the personnel file were scanned into a computer program called DocStar. Id. Human Resources maintained "all documents relating to one's employment, termination, disability, requested accommodations, workplace accidents and workers compensation claims," according to Defendant Gordon Id. ¶ 4. In addition, "[a]ny request for accommodation for any reason had to be made through Human Resources." Id. ¶ 5. Defendant Gordon denies that Plaintiff (or any other employee on her behalf) ever requested that a handrail be installed on the steps outside the side door of the building -- "[a]ny such request for accommodation would come to Human Resources." Id. ¶ 6.

Plaintiff notes that according to Defendant Gordon's Declaration, she retired from her position at Electrograph in January 2007 -- some two months after Plaintiff filed her EEOC Charge. Gordon Decl. ¶ 2. According to the Liendo Affidavit, however, it was "not possible" to search Defendant Gordon's local hard drive. Liendo Aff. ¶ 7. Liendo explains that:

[C]omputers at Electrograph are not tagged or otherwise catalogued. Hence, after an employee's workspace is cleared, it is generally not possible to track a given computer to a specific prior employee. In addition, once an employee leaves Electrograph, all data on the hard-drive of the computer assigned to such employee is removed. For "executive" employees, this occurs as a matter of course within 30 days of the last day of employment. For "non-executive" employees, data on the hard drive is removed immediately prior to the computer being re-assigned to another employee at the company.

Id. Plaintiff argues that despite (1) Defendant Gordon's job responsibilities and the nature of the documents that would have come through her office, and (2) the fact that Defendant Gordon retired two months after Plaintiff's EEOC charge was filed, Defendants failed to ...

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