The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER INTRODUCTION
The trial of this action is scheduled to commence on May 29, 2012. Presently before the Court are the parties' motions in limine.
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. See Luce v. U.S., 469 U.S. 38, 40 n. 2 (1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) ("[t]he purpose of an in limine motion is 'to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial'".) "A motion in limine to preclude evidence asks the court to make a preliminary determination on the admissibility of the evidence under Rule 104 of the Federal Rules of Evidence." Blazina v. Port Auth. of New York and New Jersey, 2008 WL 4539484, at *1 (S.D.N.Y. 2008). As the disputes regarding the admissibility of evidence are made outside the context of the trial, the Court's rulings on the motions in limine are, "subject to change when the case unfolds, particularly if the actual testimony differs from what was expected". Levitant v. City of New York Human Res. Admin., 2011 WL 795050, at *1 (E.D.N.Y. 2011) (quoting Luce, 469 U.S. at 41 ("[o]wing to its preliminary nature, an in limine ruling, 'is subject to change when the case unfolds'".)
The Court addresses the parties' multiple requests for relief seriatim.
I. Plaintiff's Motion to Preclude Evidence of Underlying Charges
Plaintiff moves to preclude defendants from introducing evidence of the charges or offenses that plaintiff was accused of when he was arrested on December 28, 2008. Defendants concede that the specific charges need not be enumerated. Arrests that did not result in convictions are not admissible as specific instances of conduct under Rule 608(b). "Arrest without more does not . . . impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness." Kelly v. Fisher, 1987 WL 16593, at *2 (S.D.N.Y. 1987) (citing Michelson v. U.S., 335 U.S. 469, 482 (1948)); see also United States v. Leonardi, 623 F.2d 746, 757 (2d Cir. 1980). As a result, the court will preclude any evidence regarding the charges or offenses plaintiff was accused of when he was arrested. See Picciano v. McLoughlin, 2010 WL 4366999, at *2 (N.D.N.Y. 2010).
II. Plaintiff's Motion to Preclude Subsequent Arrest
Plaintiff seeks to preclude any evidence relating to his subsequent arrest in September 2011. Plaintiff admits that he was arrested in September 2011 for "a petty offense, which resulted in a plea to two violations". Defendants argue that evidence will prove that plaintiff "actively resisted arrest" in September 2011 and that such evidence is admissible to contradict his claim of physical damages.
"[S]ubsequent arrests are probative of plaintiff's claim for emotional damages". Picciano v. McLoughlin, 2010 WL 4366999, at *2 (citing Ramos v. County of Suffolk, 707 F.Supp.2d 421, 424 (E.D.N.Y. 2010) (permitting the defendant to question the plaintiff about whether she had ever been arrested prior to and after the incident that was the subject of the litigation because the fact of the arrest "affected the plaintiff's claim for emotional distress damages," but precluding the defendant from "go[ing] into what the reason for the arrest is")).
Here, defendants allege that evidence will contradict plaintiff's claims regarding his physical injuries. Without having any information regarding the nature of the plaintiff's subsequent arrest, the circumstances surrounding the arrest or any events that transpired, the Court cannot adequately assess either the potential prejudice or the probative value of the evidence. Because this is a bench trial, there is no prejudice to plaintiff in deferring the ruling on this issue. Malinowski v. Wall St. Source, Inc., 2011 WL 6019245, at *1 (S.D.N.Y. 2011).Plaintiff's motion is denied with leave to renew.
III. Plaintiff's Motion for Spoliation Sanctions
"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) (the sanction should "serve the prophylactic, punitive and remedial rationales underlying the doctrine"). The district court is vested with wide discretion in determining the appropriate sanction. Reilly v. Nat-West Markets Group, Inc., 181 F.3d 253, 267 (2d Cir. 1999). "The right to impose sanctions for spoliation arises from a court's inherent power to control the judicial process and litigation, but the power is limited to that necessary to redress conduct which abuses the judicial process". Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2000).
To secure spoliation sanctions based on the destruction or delayed production of evidence, a moving party must prove that: (1) the party having control over the evidence had an obligation to preserve or timely produce it; (2) the party that destroyed or failed to produce the evidence in a timely manner had a "culpable state of mind"; and (3) the missing evidence is "relevant" to the moving party's claim or defense, "such that a reasonable trier of fact could find that it would support that claim or defense." Id. If a party has an obligation to preserve evidence, the degree of the party's culpability and the amount of prejudice caused by its actions will determine the severity of the sanctions to be imposed. Henkel Corp. v. Polyglass USA, Inc., 194 F.R.D. 454, 456 (E.D.N.Y. 2000) (citations omitted). "Nonetheless, a court should never impose spoliation sanctions of any sort unless there has been a showing-inferential or otherwise-that the movant has suffered prejudice." GenOn Mid-Atlantic, LLC v. Stone & Webster, Inc., 2012 WL 1414070, at *7 (S.D.N.Y. 2012) (citing Orbit One Commc'ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.N.Y. 2010) ("It is difficult to see why even a party who destroys information purposefully or is grossly negligent should be sanctioned where there has been no showing that the information was at least minimally relevant.")).
Here, plaintiff argues that defendants failed to preserve: (1) an email from Captain Brisson to Sergeant Barksdale; (2) five minutes of video of the actual struggle and injury to plaintiff; and (3) a booking video from December 28, 2010. Defendants contend that plaintiff "deliberately confuses two types of videos - the video made by hand-held camera during a move by the SERT and video recorded by an overhead camera in the booking area of the Justice Center". Further, defendants claim they had no obligation to preserve the evidence because plaintiff did not file his Petition to file a late Notice of Claim until September 2009. Plaintiff seeks to preclude defendants from testifying as to what took place during the use of force against plaintiff. In the alternative, plaintiff seek an adverse inference, attorneys' fees and costs.
A. Obligation to preserve
A party has a duty to preserve evidence when it has "notice that the evidence is relevant to litigation, or should have known that the evidence might be relevant to future litigation". Fujitsi v. Fed. Exp. Corp., 247 F.3d 423, 426 (2d Cir. 2001). The duty also arises when a substantial number of key personnel anticipate litigation. Crown Castle USA Inc. v. Fred A. Nudd Corp., 2010 WL , at *9 (W.D.N.Y. 2010). In cases involving municipalities, a "municipal-wide duty is not imposed simply because one or two employees contemplate the possibility of litigation". Toussie v. County of Suffolk, (E.D.N.Y. 2007) (a handful of county employees anticipating suit is not a substantial number). Once the duty arises, parties should "suspend routine document and retention/destruction ...