The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Plaintiff Centrifugal Force, Inc., d/b/a Wise Choice Software ("CFI"), has moved for sanctions pursuant to Fed. R. Civ. P. 37 against defendants Beny Sofer, Inc. ("BSI") and BSI's principal Beny Sofer (collectively, the "Sofer Defendants"), as well as defendants Michael Mardkha and Aleksander Staszulonek d/b/a PowerLine Computers ("Staszulonek" or "PowerLine") on the ground that they engaged in the spoliation of evidence. For the reasons stated below, the motion for sanctions is denied.
A. The Nature of the Action and the Spoliation Allegations
In its amended complaint, CFI alleges that Mardkha and PowerLine infringed its copyright in a computer program called "RightClick" by copying and incorporating elements of RightClick into a program called "Jagsys." See First Amended Complaint, filed Nov. 14, 2008 (Docket # 32) ("Am. Compl.") ¶ ¶ 116-20, 147, 150, 154-57. CFI asserts that the Sofer Defendants infringed CFI's RightClick program by allowing defendant Mardkha and his companies, ISM Software and/or Softnet Communication, Inc., to copy the Sofer Defendants' licensed copy of RightClick. Id. ¶ ¶ 14-18, 21, 131, 137, 139.
In this motion, CFI maintains that the defendants, acting in concert, "willful[ly] and deliberate[ly] destr[oyed] . . . electronic evidence highly relevant and probative of plaintiff's claims of infringement and, in particular, the Sofer Defendants' contributory infringement." Memorandum of Law Submitted in Support of Plaintiff's Motion for Sanctions Against Defendants for their Spoliation of Evidence, filed Oct. 22, 2010 (Docket # 126) ("Pl. Mem.") at 2. CFI claims that this destruction of evidence consisted of: (1) the destruction of email evidence, id. at 9-10; (2) changes to and destruction of elements of the Jagsys program, id. at 6-9; and (3) "removal and replacement of BSI's computer hard drives," id. at 2, 10, 19, 20. To remedy the alleged spoliation, CFI seeks "an order striking the pleadings of each of the defendants and entering judgment against them by default, due to their willful, deliberate and bad faith spoliation of material evidence." Id. at 1. In the alternative, CFI requests an order "granting [CFI] summary judgment on the issue of defendants' liability on Counts I and IV in the First Amended Complaint"; "precluding each of the defendants from offering evidence of non-infringement and/or evidence supporting defendants' affirmative defenses"; "precluding each of the defendants from contesting the plaintiffs' damage calculations"; or "instructing the jury that an adverse inference may be drawn against each of the defendants based upon their destruction of evidence." Id. CFI also seeks its costs and attorneys' fees. Id.
CFI filed its original complaint on June 17, 2008, see Complaint, filed June 17, 2008 (Docket # 1) ("Compl."), and an amended complaint on November 14, 2008, see Am. Compl. On October 22, 2010, following extensive discovery, CFI filed the instant motion for sanctions.*fn1
On December 22, 2010, Mardkha filed his opposition to the motion,
which included a cross-motion for summary judgment.*fn2
On January 6, 2011, the Court issued an order stating that it
would treat these papers as Mardkha's opposition to the motion for
sanctions to the extent relevant to that motion. See Order, filed Jan.
6, 2011 (Docket # 143). On December 29, 2010, the Sofer Defendants
filed their opposition papers,*fn3 and on February 1,
2011, Staszulonek filed his opposition papers.*fn4
After CFI filed reply papers,*fn5 the Court issued an
order asking the parties
to state their position as to whether CFI had ever received an email
that was allegedly destroyed, see Order, filed Mar. 9, 2011 (Docket #
166), and the parties submitted letters in response.*fn6
Shortly thereafter, with the Court's permission, Staszulonek filed a sur-reply, and plaintiff submitted a sur-sur-reply.*fn7
A. Legal Principles Relating to Spoliation
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.'" Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)); accord Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 288 (S.D.N.Y. 2009). "Although a district court has broad discretion in crafting a proper sanction for spoliation, . . . the applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine." West, 167 F.3d at 779 (citation omitted); accord Adorno v. Port Auth. of N.Y. & N.J., 258 F.R.D. 217, 227-28 (S.D.N.Y. 2009).
A party seeking spoliation sanctions has the burden of establishing the elements of a spoliation claim. Byrnie, 243 F.3d at 109; accord White v. Fuji Photo Film USA, Inc., 2009 WL 1528546, at *1 (S.D.N.Y. June 1, 2009); Adorno, 258 F.R.D. at 227. These elements are (1) that "the party having control over the evidence . . . had an obligation to preserve it at the time it was destroyed"; (2) that the evidence was "destroyed with a culpable state of mind"; and (3) that the destroyed evidence was "relevant" to the party's claim or defense. Byrnie, 243 F.3d at 107-09 (internal quotation marks and citations omitted) (alteration in original). Any sanction imposed should be designed to "(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party." West, 167 F.3d at 779 (internal quotation marks and citations omitted).
We now turn to CFI's claims (1) that the Sofer Defendants deleted relevant email evidence; (2) that all of the defendants destroyed or were complicit in destroying evidence relating to the Jagsys program; and (3) that the Sofer Defendants improperly authorized Mardkha to remove and replace BSI's computer hard drives.
The record provides evidence that a single email, dated July 31,
2008, was deleted by the Sofer Defendants. CFI's discovery of the
deleted email apparently came about because CFI received a document
production from Mardkha that included an email from BSI employee Terri
Biancardi to Mardkha dated July 31, 2008, which had three attachments.
See Mancinelli-Weinstein Email Chain (annexed as Ex. 19 to Mancinelli
Decl. II) ("Mancinelli-Weinstein Email
Chain") at 7; Mar. 9, 2011 Letter from Mancinelli; Mar. 11, 2011
Letter from Clayton; Mar. 14, 2011 Letter from Weinstein. This July
31, 2008 email was not, however, included in the production received
from the Sofer Defendants. See Mancinelli-Weinstein Email Chain at 7.
CFI argues that because "the Sofer Defendants destroyed some relevant
emails" -- apparently referring to the single July 31, 2008 email --
"there is every reason to believe that they destroyed other equally
inculpatory emails." Pl. Mem. at 10 (emphasis in original). Little
evidence has been provided by either side as to the particular
circumstances under which the July 31, 2008 email was deleted. Lior
Sofer states only that one of the office assistants at his business
deleted the email despite instructions that had been issued to staff
to preserve any email relating to Mardkha or Jagsys. See Sofer Decl.
¶ ¶ 14-15.
We now consider the elements of a spoliation claim to determine if they have been met with ...