United States District Court, S.D. New York
OPINION AND ORDER
GABRIEL W. GORENSTEIN, Magistrate Judge.
Plaintiffs Tapinder Singh and Harvinder Kaur bring this motion seeking sanctions for spoliation of evidence against defendant Penske Truck Leasing Co., L.P. ("Penske"). For the reasons stated below, this motion is denied.
I. FACTUAL BACKGROUND
Tapinder Singh and his wife, Harvinder Kaur, assert claims for personal injuries and derivative liability stemming from Singh's fall from the hydraulic lift gate of a Penske truck on January 11, 2012. See Third Amended Complaint, filed July 22, 2013 (Docket # 23) ("Compl."), ¶¶ 16, 23-26. In October 2004, Penske had entered into a Vehicle Lease Service Agreement with the restaurant Papa John's. See Vehicle Lease Service Agreement, dated Oct. 6, 2004 (annexed as Ex. B to Rubin Decl.). Under this agreement, Penske leased vehicles to Papa John's, and Penske was required "to keep the [Leased] Vehicles in good repair and operating condition." Id. ¶ 1. On the date of the accident, Singh was employed by Papa John's as a delivery driver. See Deposition of Tapinder Singh, dated Nov. 8, 2013 (annexed in part as Ex. A to Rubin Decl.), at 12-14. Singh was operating one of the Penske vehicles, identified as unit number 491646 ("Vehicle 491646"), when he was injured. See Penske Incident Report, dated Jan. 11, 2012 (annexed as Ex. E to Rubin Decl.). Plaintiffs allege that on January 11, 2012, Singh was "preparing to make a delivery" in the Bronx when "he observed what he believed to be a dangerous leak of hydraulic fluid from the liftgate area of [Vehicle 491646]." Compl. ¶ 13. Penske came to repair the lift gate that same day. Id. ¶ 14. "Upon being advised that the truck was repaired and was safe to operate, " Singh proceeded to the next delivery location. Id. ¶ 15. Plaintiffs allege that when Singh operated the lift gate, "the liftgate failed and [Singh] was caused to fall from the liftgate to the ground where he sustained serious personal injuries." Id. ¶ 16.
Penske has a "preventative maintenance program, " under which the leased trucks are inspected approximately every 90 to 100 days (the "PM Inspection"). See Deposition of Dominick D'Ambrosio, dated Feb. 7, 2014 (annexed in part as Ex. D to Rubin Decl.), at 15-16. These PM Inspections are conducted using a pre-printed checklist (the "PM Checklist"). See Deposition of Patrick Dorta, dated Feb. 7, 2014 (annexed as Ex. G to Dunn Aff.) ("Dorta Dep."), at 69-74.
On January 3, 2012, eight days before Singh's accident, Vehicle 491646 underwent a scheduled PM Inspection. This is reflected in a "Repair Order" issued the same day, which notes that "PM" inspections occurred as to the "reefer trailer, " lift gate, and trailer. See Penske Truck Leasing Co. L.P. Repair Order 7434-155812, dated Jan. 3, 2012 (annexed as Ex. B to Rubin Decl.) ("Jan. 3 Repair Order"). The individual who conducted the inspection, Patrick Dorta, testified at a deposition that he would not have conducted the January 3, 2012 PM Inspection without also completing a PM Checklist. See Dorta Dep. at 74.
The Jan. 3 Repair Order also lists various "complaints, " such as "reefer doors don't close" and "adj belts." See id. at 1-3. For each complaint, there is a box that is filled in for "cause, " "correction, " and "notes." Id. Job No. 4 of the Repair Order lists one complaint as "liftgate inop." Id. at 2. It indicates that the "cause" is "wiring, " and that the "correction" is "repair lift gate wiring." Id. The "notes" state: "repair lift gate wiring as needed; secure wiring and verify proper operation." Id. On January 5, 2012, a repair was made to the "interior light wiring cargo box." Penske Truck Leasing Co. L.P. Repair Order 7434-157200, dated Jan. 5, 2012 (annexed as Ex. E Part 1 to Dunn Aff. at 10). Following Singh's injury, Vehicle 491646 underwent further repairs as reflected in a Repair Order dated January 19, 2012. See Penske Truck Leasing Co. L.P. Repair Order 7434-157430, dated Jan. 19, 2012 (annexed as Ex. B to Rubin Decl.). This Repair Order indicates that the "pump box" needed to be replaced because it was "rotted away and falling off." Id. Under "correction, " the form states: "replace reservoir assembly - hydraulic system/lift gate." Id. These repairs were also reflected in a "Customer Audit Report." See Penske Truck Leasing Co. Customer Audit Report by Unit, dated Oct. 25, 2012 (annexed as Ex. C to Dunn Aff.) ("Customer Audit Report"), at 10.
On September 18, 2012, and October 18, 2012, plaintiffs sent letters to Penske informing it of the impending litigation and requesting documents related to Vehicle 491646. See Rubin Decl. ¶ 16; Letter from Michael F. Rubin, Esq., dated Oct. 18, 2012 (annexed as Ex. A to Dunn. Aff.); Letter from Michael F. Rubin, Esq., dated Sept. 18, 2012 (annexed as Ex. A to Dunn Aff.). Penske says that it received both letters on October 25, 2012. See Affidavit of Merit in Opposition to Plaintiff's Motion for Sanctions Based Upon Spoliation of Evidence, dated Nov. 24, 2014 (annexed as Ex. B to Dunn Aff.) ("Hansen Aff."), ¶ 3. Upon receipt of plaintiffs' letters, Penske Litigation Claims Examiner Kresten Hansen "opened a litigation claim" and "conducted a search for the pertinent documents related to the subject trailer." Id. ¶ 4. Specifically, Hansen "saved electronic copies of the Penske ServiceNet records for [Vehicle 491646], including a Customer Audit Report, as well as copies of all of the electronic Repair Orders, and outside vendor service records." Id. ¶ 6. Hansen also requested the "Unit Jacket File, " which is "the physical file maintained by Penske for [Vehicle 491646] where nonelectronic records regarding its maintenance are located, including Driver Vehicle Incident Reports and [PM] Checklists." Id. ¶ 5. However, "[t]he Preventative Maintenance Form completed by service technician Mr. Patrick Dorta for the Preventative Maintenance performed on the subject trailer on January 3, 2012, " - that is, the PM Checklist - "was not contained in the Unit Jacket File when [Hansen] requested it on October 25, 2012." Id. ¶ 12. Hansen explains that the Unit Jacket File is the only location where such a record would be kept and he does not know why the PM Checklist for the January 3, 2012 PM Inspection was not in that file. Id. ¶ 13. The contents of the Unit Jacket File were provided to plaintiffs. Id. ¶ 9.
Plaintiffs now seek sanctions based on Penske's failure to produce the PM Checklist of January 3, 2012 (the "January 3 PM Checklist"). Specifically, they seek either entry of default against Penske or an adverse inference instruction to the jury. Pl. Mem. at 1.
II. LAW GOVERNING MOTIONS 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.'" 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)). A party seeking spoliation sanctions has the burden of establishing the elements of a spoliation claim. Id. at 109; accord Centrifugal Force, Inc. v. Softnet Commc'n, Inc., 783 F.Supp.2d 736, 740-41 (S.D.N.Y. 2011) (citation omitted). 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 (alteration in original) (citations and internal quotation marks omitted); accord Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012). 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 (citations and internal quotation marks omitted); accord Chin, 685 F.3d at 162. Additionally, "[i]t is well accepted that a court should always impose the least harsh sanction that can provide an adequate remedy. The choices include - from least harsh to most harsh - further discovery, cost-shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal." Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F.Supp.2d 456, 469 (S.D.N.Y. 2010) (internal citations omitted), abrogated on other grounds by Chin, 685 F.3d 135.
A. Obligation to Preserve
To meet the first element, plaintiffs must show that Penske "had an obligation to preserve [the evidence] at the time it was destroyed." Byrnie, 243 F.3d at 107 (citation and internal quotation marks omitted). In the usual situation, "[t]he obligation to preserve evidence arises when [a] 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 Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001) (citation omitted); accord R.F.M.A.S., Inc. v. So, 271 F.R.D. 13, 23 (S.D.N.Y. 2010); Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 171 (E.D.N.Y. 2009); Treppel v. Biovail Corp., 249 F.R.D. 111, 118 (S.D.N.Y. 2008). Thus, this obligation to preserve evidence arises "most commonly when suit has already been filed, providing the party responsible for the destruction with express ...