United States District Court, S.D. New York
For Anna Efimovna Khaldei, Plaintiff: Daniel Joseph Rothstein, Law Office of Daniel J. Rothstein, P.C., New York, NY; Joshua Hale Abramson, Porzio, Bromberg & Newman, P.C., (NYC), New York, NY; Kenneth R. Meyer, Porzio, Bromberg & Newman, P.C., (NJ), Morristown, NJ.
For Kalman Kaspiev, Defendant: Jennifer Lindsay Jones, Margaret Antinori Dale, LEAD ATTORNEYS, Proskauer Rose LLP (NY), New York, NY; Michael Philip Richter, LEAD ATTORNEY, Proskauer Rose LLP, New York, NY.
For Kalman Kaspiev, Counter Claimant: Jennifer Lindsay Jones, Margaret Antinori Dale, LEAD ATTORNEYS, Proskauer Rose LLP (NY), New York, NY.
For Anna Efimovna Khaldei, Counter Defendant: Daniel Joseph Rothstein, Law Office of Daniel J. Rothstein, P.C., New York, NY; Joshua Hale Abramson, Porzio, Bromberg & Newman, P.C., (NYC), New York, NY; Kenneth R. Meyer, Porzio, Bromberg & Newman, P.C., (NJ), Morristown, NJ.
OPINION & ORDER
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Anna Efimovna Khaldei brings this motion seeking sanctions for spoliation of evidence against defendant Kalman Kaspiev. Khaldei also seeks to reinstate Point II of her summary judgment motion. For the reasons stated below, these motions are denied.
A. The Nature of the Action and the Spoliation Allegations
This lawsuit concerns ownership of certain photographs, consisting of both prints and negatives, taken by Khaldei's father, Evgeny Khaldei. See Complaint, filed
Nov. 4, 2010 (Docket # 1), ¶ ¶ 1-2, 23. Kaspiev had an agency relationship to promote and sell the photographs. Id. ¶ ¶ 1, 5. Khaldei terminated the parties' agency relationship in 1999 and alleges that Kaspiev has unlawfully withheld the photographs since then. Id. ¶ ¶ 2, 6, 15, 20, 23. Khaldei obtained a judgment of replevin for the photographs from the Superior Court of New Jersey on June 21, 2001, which has never been executed and whose validity is being contested in this suit. Id. ¶ ¶ 7-10, 14, 19, 20; Kalman Kaspiev's Memorandum of Law in Support of His Cross-Motion for Partial Summary Judgment and in Opposition to Plaintiff's Motion for Partial Summary Judgment, filed Mar. 20, 2012 (Docket # 75) (" Def. SJ Motion" ), at 9-22. On November 4, 2010, Khaldei, appearing through pro bono counsel, filed this action seeking enforcement of the New Jersey judgment, damages for breach of contract, unlawful possession of property, and conversion, and a declaratory judgment enjoining Kaspiev from holding himself out as Evgeny Khaldei's agent. Id. ¶ ¶ 18-36.
Several weeks after the lawsuit was filed, Kaspiev obtained pro bono counsel, who filed a notice of appearance on January 20, 2011. On February 10, 2011, Khaldei's counsel sent an email to Kaspiev's counsel asking if Kaspiev would agree to an inspection of the photographs. Email Exchange between Jennifer L. Jones and Daniel Rothstein, dated Feb. 10, 2011 (annexed as Ex. 6 to Affirmation of Counsel for Plaintiff, filed June 6, 2013 (Docket # 97) (" Rothstein Decl." )) (" Feb. 10 Email Exchange" ). The email referred to a prior discussion between counsel about a proposed interrogatory " regarding the location, condition, insurance status, etc. of the materials described in the complaint." Id. Kaspiev's counsel responded that she was still in the process of " fact-gathering," that discovery was premature, and that she would contact plaintiff's counsel in several days.
On March 2, 2011, Khaldei's counsel emailed Kaspiev's counsel to inquire about the location of the materials. Email Exchange between Jennifer L. Jones and Daniel Rothstein, dated Mar. 8-9, 2011 (annexed as Ex. 9 to Rothstein Decl.). In response, Kaspiev's counsel declined to disclose the location of the photographs.
See id. at 2. On March 7, 2011, Kaspiev made initial disclosures pursuant to Fed.R.Civ.P. 26(a) that did not include the location of the photographs. Defendant Kaspiev's Initial Disclosures, dated Mar. 7, 2010 [sic] (annexed as Ex. 7 to Rothstein Decl.). On March 8, 2011, Kaspiev placed the photographs in a storage locker at Manhattan Mini Storage LLC, and signed a storage contract. Declaration of Kalman Kaspiev, dated June 24, 2013 (Docket # 100) (" Kaspiev Decl." ), ¶ ¶ 4-5; Self-Service Storage Facility Occupancy Agreement,
dated Mar. 8, 2011 (annexed as Ex. 8 to Rothstein Decl.).
On March 9, 2011, Khaldei served her first set of interrogatories and a Notice of Inspection. See Plaintiff's First Set of Interrogatories and Notice of Inspection, dated Mar. 9, 2011 (annexed as Ex. 10 to Rothstein Decl.) (" Notice of Inspection" ). This ...