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John v. Roosevelt Union Free School District

August 10, 2012

JOHN J. CURCIO, PH.D., PLAINTIFF,
v.
ROOSEVELT UNION FREE SCHOOL DISTRICT, THE BOARD OF EDUCATION OF THE ROOSEVELT UNION FREE SCHOOL DISTRICT AND WILHELMINA FUNDERBURKE, INDIVIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCATION OF THE ROOSEVELT UNION FREE SCHOOL DISTRICT, DEFENDANTS.



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

MEMORANDUM AND ORDER

I. PRELIMINARY STATEMENT

John J. Curcio ("Plaintiff" or "Dr. Curcio") is a former Assistant Superintendent of Human Resources for the Roosevelt Union Free School District (the "District). In this civil rights/employment litigation, Dr. Curcio asserts that he has been the victim of racial discrimination and retaliation by the Defendants based on the fact that he is Caucasian. Presently before the Court are two motions by Dr. Curcio seeking evidentiary and monetary sanctions against the District, the Board of Education of the Roosevelt Union Free School District (the "Board") and Board member Wilhelmina Funderburke ("Funderburke") for the spoliation and non-production of evidence purportedly reflecting racially motivated and retaliatory actions taken against Dr. Curcio by the Defendants during his employment with the District. In particular, Dr. Curcio requests that an adverse inference instruction be given at trial and that Defendants be ordered to pay Plaintiff reasonable attorneys' fees and costs associated with his efforts to both obtain Defendants' compliance with their discovery obligations and to uncover Defendants' destruction of key evidence. He also seeks the fees and costs incurred in making the present motions.

Plaintiff's first motion seeks spoliation sanctions solely against Wilhelmina Funderburke for her alleged failure to preserve relevant notes she took during the period at issue in this lawsuit. Plaintiff's second motion, brought against the District and the Board (hereafter, "the Roosevelt Defendants"), seeks sanctions based on their alleged failure to preserve and produce relevant documents, audiotapes and videotapes. For the reasons set forth below, Plaintiff's motion against Defendant Funderburke is GRANTED in part, and DENIED in part, and Plaintiff's motion against the Roosevelt Defendants is DENIED.

II. BACKGROUND

Dr. Curcio commenced this action by filing a Complaint on December 3, 2010. DE 1. He subsequently filed an Amended Complaint on July 15, 2011. DE 27. The Plaintiff brings this action against the Defendants for violations of Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e, et seq., as well as other rights secured by 42 U.S.C. §§ 1983, 1985, 1986 and Article 15 of the New York State Executive Law § 296. Dr. Curcio was hired by the Defendants as an Assistant Superintendent of Human Resources in July 2008. Am. Compl. ¶ 11. The Plaintiff alleges that Defendant Funderburke, an African-American woman who is a member of the Board, engaged in a course of hostile conduct toward him, repeatedly making negative and adverse comments about his being Caucasian and of white color at both Board meetings and in the workplace. Id. ¶¶ 18-19. It is the Plaintiff's contention that such racially motivated comments and outbursts were made by Funderburke at various times from September 2008 through January 21, 2010. Id. ¶ 20. As for the Defendant Board, the Plaintiff alleges that it also exhibited racially motivated and retaliatory actions against him by (1) refusing to make his compensation comparable to African-American administrators employed in the District, (2) providing a derogatory and untrue employee evaluation, and (3) denying him tenure. Id.

¶¶ 50-54. For these and other reasons, the Plaintiff maintains that he was discriminated against by the Defendants on the basis of his race and color, was subjected to a hostile work environment and was retaliated against for commencing litigation to address the discrimination.

On March 29, 2011, Judge Feuerstein referred all discovery to the undersigned. DE 18. In response to Judge Feuerstein's Order, this Court scheduled a conference for May 27, 2011 in order to implement a discovery plan. After meeting with the parties on May 27, 2011, the Court entered a Case Management and Scheduling Order ("CMSO") which set various deadlines, including a September 2, 2011 deadline for the completion of discovery.*fn1 See DE 22. Plaintiff served his first set of document requests on the Defendants on July 14, 2011.*fn2 See Maurizio Savoiardo Decl. in Opp. to Pl.'s Mot. for Sanctions ("Savoiardo Decl."), Ex. A. Responses were provided by the Roosevelt Defendants on August 8, 2011.*fn3 Id., Ex. G. Supplemental responses to Plaintiff's first set of document requests were served by the Roosevelt Defendants on August 30, 2011. Id.

In the meantime, the parties began to depose witnesses on August 23, 2011. Thereafter, by letter dated August 28, 2011, Plaintiff's counsel served what appears to be an informal second set of document requests on the Defendants, apparently as a "follow up" to the depositions of Superintendent Robert-Wayne Harris ("Harris") and Assistant Superintendent for Curriculum and Instruction Roxanne Garcia France ("Garcia-France"). Id., Ex. A. The August 28 letter enumerated 17 categories of "documents and items that have not yet been produced that need to be produced." Plaintiff's counsel also sent a deficiency letter to all Defendants on August 31, 2011, setting forth issues Plaintiff had with the August 8, 2011 responses provided by the Roosevelt Defendants and indicating that he did not believe that Defendant Funderburke had sent any responses to his July 14 discovery demands. Id., Ex. A.

Funderburke's counsel responded to Plaintiff's letters on September 8, 2011, indicating that her client did not have any of the documents requested within her possession or control. See Louis D. Stober, Jr. Decl. in Supp. of Mot. ("Stober Funderburke Decl."), Ex. B. The Roosevelt Defendants provided formal responses to the August 28 requests on October 18, 2011. Savoiardo Decl., Ex. B. The Roosevelt Defendants also provided certain documents in an attachment to a September 13, 2011 e-mail directed to Plaintiff's counsel. Id., Ex. D. Subsequently, attached to a letter dated January 27, 2012, the Roosevelt Defendants provided Plaintiff's counsel with additional documents in response to his "continuing discovery demands." Id., Ex. E.

III. LEGAL STANDARD

"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). A court may impose sanctions against a party who spoliates evidence pursuant to Rule 37(b) of the Federal Rules of Civil Procedure as well as through the Court's inherent powers to control the judicial process and the litigation before it. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106-07 (2d Cir. 2002); West, 167 F.3d at 779. A party seeking spoliation sanctions in the form of an adverse inference instruction has the burden of establishing "(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a 'culpable state of mind'; and (3) that 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." Residential Funding Corp., 306 F.3d at 107 (citing Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d Cir. 2001)); accord Zubulake v. UBS Warburg LLC ("Zubulake V"), 229 F.R.D. 422, 430 (S.D.N.Y. 2004).

With regard to the non-production of evidence, "[a] failure to disclose under Rule 37 encompasses both the destruction of evidence, or spoliation, and untimely production of documents and information required to be produced." In re Sept. 11th Liab. Ins. Coverage Cases, 243 F.R.D. 114, 125 (S.D.N.Y. 2007). Therefore, in applying a test closely analogous to that for spoliated evidence, Residential Funding established that a party seeking an adverse inference instruction based on the non-production of evidence bears the burden of showing "(1) that the party having control over the evidence had an obligation to timely produce it; (2) that the party that failed to timely produce the evidence had 'a culpable state of mind'; and (3) that the missing evidence is '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." 306 F.3d at 107.

In situations where sanctions are warranted, district courts have broad discretion in "crafting an appropriate sanction for spoliation." West, 167 F.3d at 779; see also Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) ("The determination of an appropriate sanction for spoliation, if any, is confined to the sound discretion of the trial judge."); Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999) ("Whether exercising its inherent power, or acting pursuant to Rule 37, a district court has wide discretion in sanctioning a party for discovery abuses."). The applicable sanction "should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine." West, 167 F.3d at 779. Stated another way, the selected sanction 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." Id. (internal quotation marks omitted). For instance, the spoliation of evidence "can support an inference that the evidence would have been unfavorable to the party responsible for its destruction." Zubulake V, 229 F.R.D. 422, 430 (S.D.N.Y. 2004) (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)). Courts are quick to note, however, that a sanction in the form of an adverse inference instruction "is an extreme sanction and should not be imposed lightly." Treppel v. Biovail Corp., 249 F.R.D. 111, 120 (S.D.N.Y. 2008); see also Zubulake v. UBS Warburg LLC ("Zubulake IV"), 220 F.R.D. 212, 219 (S.D.N.Y. 2003) ("In practice, an adverse inference instruction often ends litigation-it is too difficult a hurdle for the spoliator to overcome."). With these principles in mind, the Court now turns to a discussion of the underlying circumstances giving rise to Plaintiff's claims of spoliation.

IV. DISCUSSION

As indicated above, Dr. Curcio seeks spoliation sanctions against Wilhelmina Funderburke and the Roosevelt Defendants. Since the evidence purportedly destroyed or missing and the grounds for such sanctions differ between these Defendants, the Court will address each motion separately.

A. Defendant Funderburke

Dr. Curcio argues that during Funderburke's September 30, 2011 deposition, she admitted that she carried a notebook with her and kept notes of her visits to the District from 2008 through 2011. It is the Plaintiff's contention that Funderburke failed to preserve her notebooks as well as other notes she took during Board meetings and took no steps whatsoever to preserve these notes until sometime in 2011, when she was served with Plaintiff's document demands. To prevail on his claim of spoliation, Dr. Curcio must prove that Funderburke "had an obligation to preserve evidence, acted culpably in destroying it, and that the evidence would have been relevant to the aggrieved party's case. Ramirez v. Pride Dev. & Constr., 244 F.R.D. 162, 164 (E.D.N.Y. 2007).

1. Duty to Preserve

The first element a party must show when seeking sanctions for the destruction of evidence is "that the party having control over the evidence had an obligation to preserve it at the time it was destroyed." Residential Funding Corp., 306 F.3d at 107. The Second Circuit has determined that "[t]he obligation 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." Fujitsu, 247 F.3d at 436 (citing Kronisch, 150 F.3d at 126).Pursuant to this obligation, "anyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary." Zubulake IV, 220 F.R.D. at 217. "In this respect, 'relevance' means relevance for purposes of discovery, which is 'an extremely broad concept.'" Orbit One Commc'ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 436 (S.D.N.Y. 2010) (quoting Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y. 2004)). Therefore, "[w]hile a litigant is under no duty to keep or retain every document in its possession . . . it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request." Zubulake IV, 220 F.R.D. at 217.

The Plaintiff argues that Funderburke should have anticipated litigation as early as September 2008, the point in time when Funderburke allegedly made her first racist verbal attack towards him. As such, it is the Plaintiff's claim that Funderburke's duty to preserve all relevant evidence attached in September 2008. Alternatively, Dr. Curcio argues that Funderburke's duty to preserve arose, at the latest, in July 2009, when the EEOC charge was filed. Funderburke, on the other hand, maintains that she was not aware of Plaintiff's charge of discrimination until some time after July 31, 2009 when the District Human Resources Department received the EEOC charge and subsequently mailed it to her. Funderburke maintains that there are no facts that would show she should have anticipated litigation prior to receipt of the EEOC charge.

While it is true that under certain circumstances a duty to preserve evidence in an employment discrimination case can arise prior to the filing of a complaint or EEOC charge, the record in this case does not support such a determination. Even assuming Funderburke made racially motivated comments to Plaintiff in September 2008, the Court sees no basis to conclude that Funderburke should have known the moment the statement was made that litigation was going to follow. This Court has had occasion to address a similar argument by a plaintiff seeking an adverse inference instruction for the spoliation of evidence in a case brought under the Americans with Disabilities Act. See Scalera v. Electrograph Sys., Inc.,262 F.R.D. 162 (E.D.N.Y. 2009). In Scalera, the plaintiff argued that since defendants had a duty to accommodate the plaintiff's known disability, which included the installation of a handrail at the side entrance to the building where Plaintiff worked, the defendants should have known that they were potentially liable for failing to accommodate the plaintiff when she fell at that location. 262 F.R.D.at 166. As such, the plaintiff claimed that the defendant's obligation to preserve information arose immediately following plaintiff's fall. Id. Finding plaintiff's argument unpersuasive, this Court held:

Plaintiff's argument that (1) because Defendants knew of Plaintiff's "disability" (the exact contours of which have not been defined), they knew or should have known that she needed the specific accommodation of a handrail at the side door, and (2) because they knew that her injury was caused by a lack of that handrail should have led Defendants to conclude that Plaintiff would bring a disability discrimination lawsuit against them, pushes the logic of such argument, in the Court's view, beyond the boundary of reasonableness.

Id. at 172.

The reasoning in Scalera applies equally here. Even assuming the statements were made, just because Funderburke was aware or should have known that her statements were racially biased, it does not mean that she should have anticipated Plaintiff's filing an employment discrimination action against her that very instant. See Centrifugal Force, Inc. v. Softnet Commc'n, Inc., 783 F. Supp. 2d 736, 746 (S.D.N.Y. 2011) (denying plaintiff's argument that defendant's duty to preserve arose the minute defendants allegedly started making copies of plaintiff's materials in a copyright infringement case ). The Plaintiff has not cited any case where the duty to preserve as argued here was adopted by a court. In fact, the circumstances in this case vary significantly from those cases which found that a party had a duty to preserve evidence prior to any form of litigation. See Siani v. State Univ. of N.Y. at Farmingdale, No. CV 09-407, 2010 WL 3170664, at *5-6 (E.D.N.Y. Aug. 10, 2010) (finding duty to preserve arose prior to defendants' receipt of the EEOC charge in March 2008 in light of the fact that (1) plaintiff had raised concerns he was a victim of ongoing discrimination at a meeting with defendants in January 2008 and (2) plaintiff sent a letter to defendants noting his belief that a prima facie case of discrimination existed and that he intended to pursue several paths of investigation in March 2008); Zubalake IV, 220 F.R.D. at 217 (finding duty to preserve arose prior to the August 2001 EEOC charge where plaintiff's immediate supervisor admitted at his deposition that he feared litigation in April 2001 and various e-mails indicated "almost everyone associated with Zubulake recognized the possibility that she might sue.").

While the Court finds no basis to conclude that Funderburke's duty to preserve evidence arose in September 2008, there is support, both legally and factually, for concluding that Funderburke's duty arose no later than the time Funderburke received Plaintiff's EEOC charge See Scalera, 262 F.R.D. at 171 (finding that "the duty to preserve relevant emails arose as of the time Defendants received Plaintiff's EEOC Charge."). Funderburke states in a January 13, 2012, affidavit that she was not made aware of Plaintiff's EEOC charge of employment discrimination against the District until she received a copy of the charge as part of a packet supplied to her for a Board meeting. See Funderburke Aff. ¶ 6. This statement is buttressed by Funderburke's deposition testimony in which she stated that the EEOC charge was part of a packet that she received in the mail from the school Board. Jeltje DeJong Decl. in Opp. ("DeJong Decl."), Ex. A ("Funderburke Dep.") at 7-8. Although Funderburke indicates that she does not recall when she received the EEOC charge from the school board, Funderburke Aff. ¶ 6, (and her deposition testimony likewise sheds no light on the date of receipt, Funderburke Dep. at 7-8), the record shows that she could not have received the document earlier than July 31, 2009, the date the District received Plaintiff's EEOC charge. See DeJong Decl., Ex. B. Therefore, the Court finds that Funderburke's duty to preserve relevant evidence arose, at the earliest, in August 2009.

With the timing of the duty to preserve settled, the Court turns to the question of whether Funderburke failed to preserve evidence, notwithstanding such a duty. Dr. Curcio argues that Funderburke failed to preserve her notes which were contained in notebooks as well as on documents handed out during board meetings. As for keeping notes during board meetings, Funderburke stated that she did not keep such notes in her notebooks, but, instead, would take notes directly on the board sheets or agendas provided at the meeting. Funderburke Dep. at 16; Funderburke Aff. ¶ 5. Funderburke acknowledged that she kept the board sheets or agendas on which she made notes. Funderburke Dep. at 16-17. As for the notebooks, Funderburke confirmed during her deposition that she kept a notebook during the years 2008, 2009, 2010 and 2011. Id. at 15. According to Funderburke, she kept such notes regarding "[e]vents that happen when I go visit the school district." Id. at 11. In response to a question during her examination concerning whether there is a "notebook that has notes of events between you and Dr. Curcio," Funderburke stated that "[i]t's someplace, but I wasn't able to find it. I have been looking and looking, but I had a fire in my house." Id. at 11.Funderburke later clarified that on January 19, 2009, her house caught fire and all of her personal documents, including her notes and notebooks were destroyed. Funderburke Aff. ¶¶ 7-8. This fire, which apparently wiped out all of her notes as of January 19, 2009, occurred at a time which pre-dated Funderburke's obligation to preserve evidence (i.e., August 2009). However, the event of the fire does not answer the question whether Funderburke breached her duty to preserve any notes taken after January 19, 2009.

Funderburke stated that right after the fire, she moved into a "very small trailer which was placed on her property" for three years. Funderburke Aff. ¶ 7. According to Funderburke, "[a]fter moving into the trailer, I did not take or keep any notes, since there was no room to store any paperwork." Id. ¶ 8. The Court finds this statement in Funderburke's sworn affidavit to be at odds with her deposition testimony. For instance, Funderburke acknowledged that she kept a notebook for the years 2009, 2010 and 2011. Funderburke Dep. at 15. In fact, at her deposition, Funderburke brought her most recent notebook with her. Id. at 11-13, 15. When asked where the notebooks for the other years were, Funderburke replied that "I really don't know." Id. at 15. This is not the only discrepancy in Funderburke's statements. During her September 2011 deposition, Funderburke acknowledged that she kept her marked up board meeting materials/sheets. She also indicated it was probable that she would have in her possession board sheets of meetings in which any interaction between her and Dr. Curcio was written down. Funderburke Dep. 16-17. When Funderburke was questioned about the notes on the board agenda sheets again, she explained: "to tell you the truth, I got so much paper from the three years I been on that it would be hard for me to go back and find these papers." Id. at 116. However, some four months after her deposition, when she provided her January 2012 affidavit in opposition to the current motion, Funderburke asserts that "[a]t some point after January 19, 2009, I stopped keeping notes, simply because I had no room to keep or store them." Funderburke Aff. ¶ 5. This open ended statement of when Funderburke purportedly stopped taking notes falls far short of establishing that Funderburke did not breach her duty to preserve her notes. Funderburke's acknowledgement that "I have looked through my belongings to see if there are any notes anywhere, and I have not found any notes," is quite telling. Funderburke Aff.

¶ 8. Based on all of this information, the Court finds that Funderburke had a duty to preserve her notes since they were, at the very least, relevant to the subject matter involved in this action. See Zubulake IV, 220 F.R.D. at 218 (finding that the duty to preserve extends to any documents or tangible things that are considered relevant under Rule 26 of the Federal Rules of Civil Procedure). Accordingly, Funderburke failed to preserve her notes which existed in or after August 2009, the time the duty to preserve attached.*fn4

2. Culpable State of Mind

"Even where the preservation obligation has been breached, sanctions will only be warranted if the party responsible for the loss had a sufficiently culpable state of mind." In re WRT Energy Sec. Litig., 246 F.R.D. 185, 195 (S.D.N.Y. 2007). Failures to preserve and produce relevant evidence occur "along a continuum of fault-ranging from innocence through the degrees of negligence to intentionally." Reilly, 181 F.3d at 267 (quoting Welsh v. United States, 844 F.2d 1239, 1246 (6th Cir. 1988)). In this Circuit, "the culpable state of mind' factor is satisfied by a showing that the evidence was destroyed 'knowingly, even if without intent to [breach a duty to preserve it], or negligently.'" Residential Funding Corp., 306 F.3d at 108 (quoting Byrnie, 243 F.3d at109). A party is negligent even if the failure "results from a pure heart and an empty head." Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 464 (S.D.N.Y. 2010).

Dr. Curcio argues that Funderburke took no steps whatsoever to preserve documents and that her actions were, at a minimum, grossly negligent. This argument is premised on Funderburke's purported failure to put a litigation hold in place at the outset of litigation. Courts have concluded that "[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents." Zubulake IV, 220 F.R.D. at 218. It is important to note, however, that the present circumstances, as they relate to Funderburke, are dissimilar to Zubulake IV and most other cases addressing litigation holds and document retention policies in the context of a spoliation motion because the alleged spoliator here is not a corporation or a municipality. The context here is a much simpler one than the court addressed in Zubulake IV -- Funderburke is an individual and the spoliation claim relates solely to her handwritten notes. See Neverson-Young v. Blackrock, Inc., No. 09 Civ. 6716, 2011 WL 3585961, at *3 (S.D.N.Y. Aug. 11, 2011) (finding plaintiff who donated her laptop "merely negligent" based on the fact that "[i]n contrast to corporate actors . . . [plaintiff] is unsophisticated and unaccustomed to the preservation requirements of litigation."). While the Court has found that Funderburke's duty to preserve attached when she became aware of the EEOC charge, there is nothing in the materials submitted to suggest Funderburke had any legal representation of her own until after the instant federal Complaint was filed in December 2010. Therefore, Dr. Curcio's suggestion that Funderburke had the requisite culpable state of mind because she did not come forward with proof that a written legal notice was given to her to cease destruction of any evidence in August 2009 must fail for lack of a reasonable foundation.

Some courts have categorically held that "the failure to implement a litigation hold at the outset of litigation amounts to gross negligence." Toussie v. Cnty. of Suffolk, No. CV 01-6716, 2007 WL 4565160, at *8 (E.D.N.Y. Dec. 21, 2007) (citing Chan v. Triple 8 Palace, No. 03 CIV 6048, 2005 WL 1925579, at *7 (S.D.N.Y. Aug. 11, 2005)). In the context of a motion brought solely against Funderburke (an individual, not a municipality as in Toussie) for destruction of her handwritten notes, such a blanket conclusion of gross negligence elevates form over substance. See Orbit One Comm'ns, Inc., 271 F.R.D. at 441 ("Indeed, under some circumstances, a formal litigation hold may not be necessary at all."); see also Byrnie, 243 F.3d at 108 (concluding that "a case by case approach was appropriate" when determining a party's culpability). In fact, while this Court has had the pending motions under review, the Second Circuit "reject[ed] the notion that a failure to institute a 'litigation hold' constitutes gross negligence per se." Chin v. Port Auth. of N.Y. & N.J., --- F.3d ----, 2012 WL 2760776, at *21 (2d Cir. July 10, 2012). As such, the Court sees no basis to hold that Funderburke was grossly negligent in failing to preserve her notes due to the lack of a litigation hold.*fn5

There is a basis, however, to conclude that Funderburke acted with the requisite culpable state of mind. As previously discussed, the fire which engulfed Funderburke's residence in January 2009 does not excuse the production of notes that were created subsequent to the fire.

When questioned about the location of her notebook which contained notations of events between her and Dr. Curcio, Funderburke explained that "[i]t's someplace, but I wasn't able to find it." Funderburke Dep. at 11. Some indication of what happened to the notes can be found in Funderburke's deposition testimony where she admitted that once she filled a notebook, she would obtain a replacement book and throw away the previously completed book. Id. at 15-16. Significantly, Funderburke offers no explanation as to what happened to the notes she took on the board agenda sheets which she testified were in her possession in September 2011. Id. at 16. Therefore, Funderburke's contention that she "played no role in the destruction of the notes" and that the loss of evidence was "attributable to an event outside [her] control" is lacking in merit. While there is ...


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