The opinion of the court was delivered by: Wall, Magistrate Judge
Before the court is a motion by the pro se plaintiff, Dominick Siani, seeking a "finding of adverse inference" based on the defendants' alleged spoliation of electronic records. DE. The defendants opposed the motion, and, in response to a court order, filed further affidavits in opposition. A spoliation hearing was held on July 27, 2010. Having considered the motion papers, the affidavits and the testimony and evidence submitted at the hearing, I find that the motion must be DENIED. Also before the court is the plaintiff"s motion for additional depositions and permission to file a reply (DE), made prior to the scheduling of the spoliation hearing. Because the hearing obviates the need for the relief sought, that motion is also denied, as moot.
General familiarity with this lawsuit is assumed. On this motion, the plaintiff argues that the defendants failed to preserve electronic evidence and that he is thus entitled to an adverse inference based on the spoliation of evidence. Throughout the discovery process, Siani raised issues of "gaps" in production of electronic messages, and now argues that parties Hubert Keen and Dudley Blossom and non-parties Marybeth Incandela and George LaRosa, employees of the defendant college, deleted emails in contravention of their duty to preserve. The defendants argue that they observed all of their preservation obligations, and were under no duty to preserve every conceivable email, especially those of non-parties.
The "Anticipation of Litigation" and Litigation Holds
As will be discussed in greater detail later, a 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)). The relevant litigation here - the instant lawsuit - was filed on January 30, 2009, but the plaintiff argues that a duty to preserve evidence arose a year prior to that filing. He points, in this regard, to the fact that the defendants hired the law firm of Bond Schoenek & King in early 2008, and that Marybeth Incandela, in an affidavit filed in regard to an earlier motion in this action, explained that the firm was hired "to obtain legal advice in connection with issues arising under the Freedom of Information Law and employment issues, including those related to [Siani]." See DE. Ms. Incandela noted Siani's earlier lawsuit and the fact that only two months after it was settled, he had "alerted the administration of his concerns regarding alleged ongoing age discrimination." Id.
Siani's earlier lawsuit against the defendants was settled in early November 2007. Siani states that on December 5, 2007 he became aware of "further violations of his rights under the ADEA and NYHRL," and on March 11, 2008 became aware of "acts of retaliation, harrassment and defamation." DE[38-2], ¶22. In a letter dated March 13, 2008, Siani informed defendants W. Hubert Keen (President of the college) and Beverly Kahn (Provost and Vice-President of Academic Affairs), of his concerns about "Potential Discriminatory Behavior," noting his belief that there existed "facts and circumstances that support a prima facie case of age discrimination, disparate treatment and retaliation regarding . . . the designation of the Business Management Department Chair." He further noted that he would be pursuing several paths of investigation, including the SUNY Discrimination Complaint Procedure and FOIL requests. Siani Aff., ¶27 & Ex. 7. On March 17, 2008, he made a FOIL request for the electronic email activity logs of several of the defendants, including Kevin Rooney and Dudley Blossom. Id. at ¶25. In response, the college's FOIL officer advised Siani, inter alia, that Blossom was routinely deleting email files and he could not supply the records sought in regard to Blossom. Id. at ¶26. That FOIL request ultimately led to the filing of an Article 78 proceeding in the state court on July 29, 2008.
Prior to initiating the Article 78 proceeding, on June 27, 2008, Siani filed a complaint with the EEOC, and the defendants were notified of that claim by notice dated July 9, 2008. The notice informed the defendants, inter alia, of the duty to preserve personnel records made or kept pursuant to 29 CFR §1602.14. Id, Ex. 10. Defendant Kevin Rooney, an Assistant Vice President of Administrative Services who oversees the defendant college's IT department, reports that the college received notice that Siani had filed an EEOC claim on July 16, 2008.
On July 29, 2008, Rooney backed up the electronic mailboxes of all of the defendants named in the EEOC charge onto an external server so that he would be able to back up any accidental deletions. Rooney Aff., DE[38-10, Ex. C], ¶6; see also Hg. Transcript, DE, 50:8 -51:11. He did not back up his own mailbox or those of any non-parties. On August 1, 2008, Rooney directed a litigation hold memo regarding Siani to 11 people, including, as relevant to this motion, Keen, George LaRosa, and Blossom. The memo was copied to Marybeth Incandela.
The memo noted that a duty to preserve relevant documents and records arises "as soon as it is 'reasonably foreseeable' that a claim may be asserted," and noted that since "Siani has filed an EEOC Notice of Discrimination Charge, that obligation unquestionably exists." Very specific instructions about the preservation of records, including emails, were set forth. DE[38-2], ¶¶31-34 & Ex.12.
On August 13, 2008, Joel Pierre-Louis, the college's Associate Counsel, sent a second Litigation Hold Letter to, among others, Keen, LaRosa, Rooney and Blossom. Id., Ex.13. Although the copy of the letter before the court has been redacted on attorney-client privilege grounds, the face of the letter is described as a "Notice to Preserve Information/Freezing/Do Not Destroy Records, Documents, Paper & E-mails." Kevin Rooney reports that on February 11, 2009, a third litigation hold letter was issued by SUNY's counsel and distributed to all defendants, as well as Mr. LaRosa, with a copy to the Human Resources Department, that is, to Ms. Incandela. DE[38-10, Ex. C] at¶9. Both Rooney and defense attorney Patricia Hingerton state that they reminded the defendants repeatedly about their preservation obligations, and Rooney did a second back-up of all defendants' electronic mailboxes other than his own, on September 11, 2009. See DE[38-10]; Rooney Aff., ¶9. Despite these litigation hold activities, the plaintiff asserts, emails were deleted and other litigation hold failures occurred.
Gaps and Deletions in Electronic Mail Records
The plaintiff recounts relevant discovery activity in this litigation, and reports that when he received the defendants' response to his document demands in June 2009, he "discovered numerous discrepancies in comparing the e-mails (identified as being relevant) on the electronic activity logs . . . with the actual documents produced." Siani Aff., DE[38-2], ¶¶37-38. In a letter dated October 23, 2009, Siani notified the defendants of perceived time gaps in the electronic activity logs. Id., ¶39, Ex. 15. The disputes over the "gaps" were eventually largely resolved by the parties, but on this motion Siani raises issues regarding the deletion of emails by four individuals: (1) non-party Marybeth Incandela, Director of Human Resources at the defendant college; (2) non-party George LaRosa, Senior Vice President and Chief Financial Officer; (3) defendant Hubert Keen, President of the college; and (4) defendant Dudley Blossom, Chair of the Business Management Department.
The Incandela Emails: The plaintiff reports that Marybeth Incandela deleted emails and cannot produce electronic documents for the period April 20, 2007 to December 31, 2008 for sent email logs and April 20, 2007 to January 21, 2009 for received email logs. She had not been named on the litigation hold lists issued by defendants, but allegedly had received copies of at least one of them. In her deposition testimony on January 12, 2010, Ms. Incandela, a non-party to this lawsuit, stated that she was unaware of multiple litigation holds until she reviewed documents just before her deposition and admitted that she had, in fact, deleted things from her email in order not to overload the system. At the hearing, she testified that some emails were deleted after the holds were issues because it was her practice to routinely clean her email box, but that she had preserved relevant emails. DE, 101:10-102:23. She also testified that she had cross referenced her emails with those of the defendants, going through more than 1200 pages of documents, and found none relevant to this lawsuit. Id., 105:12-106:1. The defendants ...