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Boris Liberman v. Fedex Ground Package System

January 18, 2011


The opinion of the court was delivered by: Robert M. Levy United States Magistrate Judge


Plaintiff Boris Liberman ("plaintiff") commenced this personal injury suit against defendants FedEx Ground Package System, Inc. ("FedEx") and one of its employees ("John Doe" or "employee") on May 12, 2009. On September 29, 2010, plaintiff moved to strike FedEx's answer on spoliation grounds. For the reasons set forth below, plaintiff's motion is granted in part and denied in part.


Familiarity with the facts of this litigation is assumed. Briefly, plaintiff contends that on September 26, 2006, John Doe was delivering packages to 470 Park Avenue South in New York, New York ("470 Park Ave. South"), and that, in the course of his deliveries, he negligently struck plaintiff with a hand-truck fully loaded with heavy boxes. (Complaint, dated May 12, 2009 ("Compl.").) Plaintiff claims that, as a result of FedEx's and John Doe's negligence, he suffered serious, severe, and permanent injuries. (Id. ¶¶ 26--27.)

This action has a long and complicated procedural history. Plaintiff originally filed a case against FedEx, as well as other related FedEx entities, on February 4, 2007 in Kings County Supreme Court. (Affirmation of Steven Brill, Esq., dated Sept. 29, 2010 ("Brill Aff."), Ex. A.) At that time, plaintiff identified an individual named Villanueva Sancheze ("Sancheze") as the FedEx delivery agent in question and also named him as a defendant. (Declaration of William P. Davis, Esq., dated Oct. 19, 2010 ("Davis Decl.), ¶¶ 8--9; Brill Aff., Ex. A.) The case was subsequently removed to federal court. (Id. ¶ 5, Ex. B.) On March 19, 2007, plaintiff's original counsel, Michael F. Kremins, Esq. ("Kremins"), sent a letter to FedEx's counsel stating that, because he and plaintiff had been unable to identify the delivery agent, plaintiff was discontinuing the action without prejudice, to continue investigating the identity of the individual who had delivered the packages. (Brill Aff. ¶ 7, Ex. D.) Subsequently, on March 29, 2007, the parties filed a stipulation of discontinuance without prejudice. (Id. ¶ 8, Ex. E.)

On June 4, 2007, Kremins sent another letter to FedEx's counsel; in the letter, he requested that FedEx provide him with a printout of all of its deliveries made to 470 Park Ave. South on September 26, 2005.*fn1 (Id. ¶ 9, Ex. F.) On July 11, 2007, Kremins contacted Eneslow, The Foot Comfort Center ("Eneslow"), a business located at 470 Park Ave. South, and he requested records of FedEx deliveries made to the business on September 26, 2006. (Second Reply in Support of Plaintiff's Motion to Strike Answer, dated Nov. 11, 2010 ("Pl.'s Second Reply"), Ex. 1.) Eneslow gave plaintiff tracking numbers of packages it had received on that date. (Id.)

On November 13, 2008, plaintiff, represented by new counsel, Sullivan & Brill LLP, filed an order to show cause against FedEx in Kings County Supreme Court, for pre-action discovery. (Brill Aff. ¶ 10, Ex. G.) On January 29, 2009, the court granted plaintiff's motion and ordered FedEx to provide plaintiff with the names and addresses of FedEx's employees who delivered packages with three particular tracking numbers to 470 Park Ave. South on the date of the alleged incident. (Id., Ex. G.) Plaintiff had selected these tracking numbers from among those in Eneslow's records for that day because, according to Eneslow's records, the deliveries occurred closest to plaintiff's estimate of the time of the accident. (Transcript of Oral Argument, dated Nov. 10, 2010 ("Oral Arg. Tr."), at 9.) The court also ordered FedEx to produce any and all incident and accident reports regarding an incident occurring at that building on that date. (Brill Aff., Ex. G.) On May 4, 2009, FedEx served plaintiff with a letter indicating that it was unable to identify the employee(s) based upon the information provided in the order. (Id. ¶ 11, Ex. H.)

On May 12, 2009, plaintiff commenced the instant action in Kings County Supreme Court. The case was subsequently removed to this court on June 8, 2009. (Id. ¶ 13, Ex. J.) On May 24, 2010, plaintiff deposed Stephen Perratore ("Perratore"), FedEx's pickup and delivery manager in charge of operations in Manhattan. (See Transcript of Deposition of Stephen Perratore, dated May 24, 2010 ("Perratore Dep. Tr."), annexed as Ex. L to Brill Aff.) Perratore testified that a "trace" of a package's tracking number in FedEx's computer systems will provide information on who delivered that package. (Id. at 27--28.) He also indicated that he had recently attempted to trace the three tracking numbers that plaintiff provided in its order to show cause, but stated that he had found that the information related to the tracking numbers was no longer available. (Id. at 27.) Finally, he testified that tracking numbers are ordinarily reused about a year after a delivery, and, accordingly, information on tracking numbers from one or two years earlier would usually no longer be available. (Id. at 29.)

On June 8, 2010, plaintiff deposed Ricardo Griffith ("Griffith"), FedEx's other pickup and delivery manager in Manhattan. (See Transcript of Deposition of Ricardo Griffith, dated June 8, 2010 ("Griffith Dep. Tr."), annexed as Ex. M to Brill Aff.) Griffith testified that he and Perratore had recently performed an unsuccessful trace of the tracking numbers provided by plaintiff. (Id. at 19--20.) Griffith also testified that he had contacted FedEx's IT department to see if anyone there could find the information requested; according to his testimony, the IT department told him the tracking numbers had been reused in 2009 and that, accordingly, the information was no longer available. (Id. at 20.)

Plaintiff now moves to strike defendant's answer on spoliation grounds. He argues that FedEx was "initially in possession of the documentation necessary to identify the individual who delivered the package on September 26, 2006," and that it "failed in its obligation to maintain and preserve" this documentation. (Brill Aff. ¶ 22.) Plaintiff contends that, as a result of FedEx's purported spoliation of the records, his ability to investigate the facts, depose the delivery person, and establish negligence were lost. (Id.) FedEx counters that the purportedly spoliated evidence "was not destroyed at a time that litigation was either pending or reasonably foreseeable" and that, furthermore, the lack of such evidence does not prejudice the plaintiff. (Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Strike, dated Oct. 19, 2010 ("Def.'s Mem. of Law"), at 1.)


"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 and Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (citation omitted). "[A] district court may impose sanctions for spoliation, exercising its inherent power to control litigation." Id. (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43--45 (1991); Sassower v. Field, 973 F.2d 75, 80--81 (2d Cir. 1992)). There are three elements that a party moving for sanctions based on spoilation of evidence must establish: (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. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004) (citing Byrnie v. Town of Cromwell, 243 F.3d 93, 107--08 (2d Cir. 2001)). I will address each of these elements in turn.

A. FedEx's Obligation to Preserve the Evidence

A party seeking sanctions for destroyed evidence must first show that "the party having control over the evidence . . . had an obligation to preserve it at the time it was destroyed." Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). This obligation usually arises when a "party has notice that the evidence is relevant to litigation -- most commonly when suit has already been filed . . . but also on occasion in other ...

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