United States District Court, S.D. New York
JOSE MARIA ALVES DECASTRO and DJJ-MINING & SERVICES (PRIVATE) LIMITED, Plaintiffs,
DEEPAK KAVADIA and NICE GEMS, INC., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
ANALISA TORRES, District Judge.
On January 29, 2015, Plaintiffs, Jose Maria Alves DeCastro and DJJ-Mining & Services (Private) Limited, moved for sanctions pursuant to Federal Rule of Civil Procedure 37 against Defendants, Deepak Kavadia and Nice Gems, Inc. Specifically, Plaintiffs claimed that Defendants failed to comply with the Honorable Debra Freeman's December 2, 2014 discovery order. In a Report and Recommendation dated May 13, 2015 (the "R & R"), ECF No. 184, Judge Freeman proposed that: (1) the jury receive an adverse inference instruction; and (2) Defendants and Counsel, Andrew Lavoott Bluestone, Esq., reimburse the attorney's fees and costs Plaintiffs incurred in moving for sanctions. Defendants and Counsel timely objected to the R & R. For the reasons stated below, the Court ADOPTS the R & R in its entirety.
I. Standard of Review
District courts may reverse a magistrate judge's order on a non-dispositive pre-trial matter only if the order is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); see Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). "An order is clearly erroneous' only when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Weiss v. La Suisse, 161 F.Supp.2d 305, 321 (S.D.N.Y. 2001) (internal quotation marks omitted). "An order is contrary to law' when it fails to apply or misapplies relevant statutes, case law or rules of procedure." Id.
Discovery matters are generally considered non-dispositive of the litigation. See Thomas E. Hoar, 900 F.2d at 525. And, in particular, sanctions for discovery violations are deemed non-dispositive unless the sanction employed disposes of a claim. See id. "It is well-settled that a magistrate judge's resolution of a non-dispositive matter should be afforded substantial deference and may be overturned only if found to have been an abuse of discretion." Leviton Mfg. Co. v. Greenberg Traurig LLP, No. 09 Civ. 08083, 2011 WL 2946380, at *1 (S.D.N.Y. July 14, 2011) (citation omitted). Because Judge Freeman's order concerns non-dispositive matters, this deferential standard of review applies.
Having carefully reviewed the R & R, the parties' submissions, and the record evidence, the Court affirms the R & R based on the pertinent findings, reasoning, and controlling authority upon which it is grounded. Defendants and Counsel raise three objections. See Def. Obj., ECF No. 185. For the reasons that follow, none is persuasive.
A. Kavadia's Deletion of Emails
First, Defendants and Counsel object to Judge Freeman's finding that Kavadia intentionally deleted relevant emails from his computer to avoid their disclosure. Def. Obj. 2-4; see R & R 13-14. Specifically, Judge Freeman determined that Kavadia, in violation of his discovery obligations, installed and used an "Eraser" program "to target and delete specific, relevant files that were stored on his laptop computer." R & R 13. Defendants and Counsel now argue that Judge Freeman's "logic is flawed" because her "inconclusive reasoning and blatant disregard for [Kavadia's] testimony should not be enough to justify the sanctions recommended." Def. Obj. 4.
The Court disagrees. In an order dated December 2, 2014, Judge Freeman noted the "vague and shifting nature" of Kavadia's explanations for his failure to produce responsive emails. December 2, 2014 Order 7, ECF No. 119. In addition, Kavadia failed to comply with the directives relating to the responsive emails set out in the December 2, 2014 order. R & R 8-10. Moreover, a forensic examiner's report filed by Kavadia on February 13, 2015 revealed that, contrary to Kavadia's claims, there was no file corruption or third party access on Kavadia's computer. Id. at 11-13. Instead, the report showed that an "Eraser" program, which was "designed to enable users to delete all traces of specific files, " had been installed on Kavadia's computer just one day after Judge Freeman first granted Plaintiffs permission to move to compel further production of Kavadia's emails and other documents. Id. at 11, 13. After conducting a thorough evidentiary hearing, Judge Freeman found that Kavadia's explanations for the installation of the program and deletion of the emails were "implausible, " "wholly unsupported, " and "wholly incredible." Id. at 12-14. And, despite Judge Freeman's invitation, Kavadia failed to marshal evidence in support of his bareboned testimony. Id. at 12-13.
On this record, the Court affirms Judge Freeman's determination that "Kavadia intentionally and willfully took steps to destroy [the] emails." Id. at 14.
B. Kavadia's Control Over the Pratik Diamonds Documents
Second, Defendants and Counsel object to Judge Freeman's finding that Kavadia had control over Pratik Diamonds' business records and bank transactions. Def. Obj. 1, 4-6. In the December 2, 2014 order, Judge Freeman concluded "that Plaintiffs ha[d] adequately demonstrated, by competent evidence, that Kavadia is the majority shareholder and a director of Pratik Diamonds, such that the company's banking records are under Kavadia's control, ' within the meaning of Rule (34)(a)(1) of the Federal Rules of ...