Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Khaldei v. Kaspiev

United States District Court, Second Circuit

August 8, 2013

ANNA EFIMOVNA KHALDEI, Plaintiff,
v.
KALMAN KASPIEV, Defendant.

OPINION & ORDER

GABRIEL W. GORENSTEIN, 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.

I. BACKGROUND

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. Id.[1]

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 included the following request to inspect the materials:

1. Plaintiff hereby requests permission (i) to inspect the photographic materials that Defendant received as agent for Evgeny Khaldei, Plaintiff, or Leonid Khaldei and that are in Defendant's possession, custody, and control, and (ii) for the purpose of such inspection, to enter the location where Defendant keeps the materials....
3. The inspection shall include verification of the existence of the photographic materials, examination of their condition, and examination of the conditions in which they are stored (e.g., temperature and humidity).

See Notice of Inspection at 2-3.

Following the parties' failed attempt to agree on a preservation order, the Honorable John F. Keenan ordered the materials impounded. See Order, dated Mar. 29, 2011 (Docket #18) ("Impoundment Order"). On April 8, 2011, Kaspiev, his counsel, plaintiff's counsel, and two United States Marshals went to Manhattan Mini Storage to impound the materials. Rothstein Decl. ¶ 4; Declaration of Jennifer L. Jones, dated June 27, 2013 (Docket #102) ("Jones Decl."), ¶ 10; Kaspiev Decl. ¶ 8. 254 prints and 3001 negatives were taken. Opp. Mem. at 7; Pl. Mem. at 7; Kaspiev Decl. ¶ 9. Following this impoundment, Khaldei's counsel withdrew the first set of interrogatories and the Notice of Inspection in an email exchange with Kaspiev's counsel on March 31, 2011, in which he agreed that the interrogatories and notice of inspection were "moot." See Email Exchange between Daniel Rothstein and Jennifer L. Jones, dated Mar. 31, 2011 (annexed as Ex. 18 to Rothstein Decl.).

Notwithstanding this withdrawal, there remained a document request for "[a]ll documents concerning storage of photographic materials that Defendant has received in connection with his agency for Evgeny Khaldei." See Plaintiff's First Request for Production of Documents, dated Mar. 11, 2011 (annexed as Ex. 11 to Rothstein Decl.), ¶ 19. Kaspiev originally objected to this request but ultimately agreed to look for such documents while maintaining a relevance objection. Pl. Mem. at 6; Email from Jennifer L. Jones to Daniel Rothstein (May 25, 2013, 7:59 P.M.) (annexed as Ex. 22 to Rothstein Decl.). In an email exchange between the parties' counsel on May 25 and 26, 2011, plaintiff's counsel asserted that documents responsive to this request were relevant as "further evidence of Defendant's whereabouts when notice of termination was sent and process was served." See Email Exchange between Daniel Rothstein and Jennifer L. Jones, dated May 25-26, 2011 (annexed as Ex. 2 to Jones Decl.); Jones ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.