United States District Court, S.D. New York
STARK PLLC By: Corey Stark, Esq. Attorneys for Plaintiff
PROSKAUER ROSE LLP By: Andrew E. Rice, Esq. Lloyd B. Chinn,
Esq. Attorneys for Defendants
W. SWEET U.S.D.J.
SMBC Leasing and Finance, Inc. ("SMBCLF"), David
Ward ("Ward"), and Lisa Savinon
("Savinon") (collectively, the
"Defendants") have moved pursuant to Rule 37 of the
Federal Rules of Civil Procedure for sanctions to be imposed
upon plaintiff Maureen Ottoson ("Ottoson" or the
"Plaintiff") for spoliation of evidence,
specifically seeking an adverse inference instruction, and
fees and costs.
reasons set forth below, the motion of the Defendants for an
adverse inference is granted, and their application for fees
and costs is adjourned to the settlement of final judgment.
filed this action accusing Defendants of discrimination based
on a perception of disability arising from a report allegedly
in SMBCLF's possession on March 2, 2013. Plaintiff was
employed by SMBCLF as an Assistant Vice President performing
contract administration from April 30, 2012 through August 1,
2012. Plaintiff's Complaint ("Compl.")
¶¶ 25, 26.
9, 2012, Plaintiff's then-counsel Jesse Rose
("Rose") sent a demand letter to Defendants'
Human Resources Department threatening litigation and
requesting Plaintiff's personnel file. Declaration of
Andrew E. Rice [hereinafter, "Rice Decl."], Ex. X
(Rose Letter to Smith). Plaintiff alleges that on or around
August 31, 2012, she filed a Charge of Discrimination with
the U.S. Equal Employment Opportunity Commission
("EEOC"), and that she received a Notice of Right
to Sue dated January 31, 2013. Compl. ¶¶ 4-5.
Complaint alleges that subsequent to her hire, SMBCLF
performed a background check on Plaintiff, the results of
which included a "government/insurance report" (the
"Report") that contained "inaccurate and
defamatory information about Ottoson, her home, and her state
of mind." Compl. ¶¶ 20; 29. Plaintiff
testified during her deposition that she first learned of the
existence of this Report in the 1980s. Rice Decl., Ex. C
(Relevant Excerpts of Plaintiff's May 2014 and September
2015 Depositions) [hereinafter, "Tr."], at 538:7-9.
Plaintiff alleges that Defendants "formed the inaccurate
belief that Ottoson suffers from a mental impairment and
disability" based on the contents of the alleged Report.
Compl. ¶¶ 30, 48. Plaintiff further alleges that
she was terminated based on SMBCLF's misperception that
she was disabled, and in retaliation for complaining about
discrimination based on perceived disability. Id.
¶¶ 47, 49.
stated at her deposition that, as of November 2013, eight
months after she filed this lawsuit, she had no proof that
the Report existed. Tr. at 596:17-19. Despite issuing more
than a dozen subpoenas to past employers and others,
Plaintiff failed to receive the Report. Rice Decl. ¶ 23;
see Tr. 596:8-11 ("Q ... So as of November
2013, you had not obtained the report from any source,
correct? A. No, I didn't."). Defendants have
repeatedly denied having ever seen or received the Report,
and have stated under penalty of perjury that they did not,
and do not, possess the Report. See, e.g., ECF No.
33; Rice Decl., Ex. V (Excerpts of Deposition of Defendant
David Ward) at 82, 88-91; Rice Decl., Ex. W (Excerpts of
Deposition of Defendant Lisa Savinon) at 86-87, 107-09.
light of Plaintiff's allegations, on November 21, 2013,
Defendants propounded requests in their First Request for the
Production of Documents that either specifically or generally
called for the production of documents concerning the Report
and/or Plaintiff's communications concerning the Report,
"documents memorializing communications with any
individual, including but not limited to any current or
former employees of SMBCLF, concerning the Complaint or any
of [Plaintiff's] allegations in this action"
(Request No. 14);
"documents, including, but not limited to, emails,
instant messages, text messages or other messages on any
social media or networking website in [Plaintiff's]
possession, custody or control concerning SMBCLF or the
allegations in this Complaint" (Request No. 15);
"documents that contain [Plaintiff's] records,
notes, descriptions, conversations, discussion or thoughts
concerning the allegations in the Complaint" (Request
"documents concerning the 'Report' identified in
Paragraph 18 of the Complaint" (Request No. 19);
"documents concerning the allegation in Paragraph 18 of
the Complaint that Ma]fter Ms. Ottoson's employment
ended, JOHN D0E2 disclosed to Ms. Ottoson the existence of a
government/insurance report . . . given the JP Morgan's
Human Resource department containing a background check of
Ms. Ottoson along with a comprehensive employment summary
& many negative personal references" (Request No.
20); "documents written or prepared by, to, from,
concerning, or concerning any communications with any
potential witnesses in this action and/or any persons
mentioned in the Complaint" (Request No. 63);
"written or recorded statements, opinions, and reports,
the information for which has been obtained from any
individual or entity contacted or interviewed in connection
with this action (including drafts of such statements,
opinions, and/or reports) ..." (Request No. 64);
"statements, in whatever form, from third parties
concerning [Plaintiff's] allegations in this action"
(Request No. 71); and
"documents concerning, referring or relating to the
subject matter of this action, the allegations in the
Complaint, and/or the damages or other relief sought in the
Complaint, that have not been produced in response to the
above requests" (Request No. 73).
Rice Decl., Ex. A. These requests unquestionably encompassed
written communications Plaintiff may have had with witnesses
concerning the alleged Report.
produced documents concerning the Report in response to
Defendants' First Request for the Production of
Documents. In particular, on December 23, 2013, Plaintiff
produced signed statements from three former co-workers, not
from SMBCLF, who purported in such statements to have viewed
the Report years before her employment at SMBCLF: Ralph
Berger ("Mr. Berger"), Philip Weinstock ("Mr.
Weinstock"), and Francesca Aversa ("Ms.
Aversa"). Rice Decl., Ex. D (Berger Statement executed
January 9, 2013); Ex. E (Aversa Statement dated November 24,
2012); Ex. F (Weinstock Statement dated January 31, 2013). On
March 31, 2014, Plaintiff produced, via email from Rose,
"addenda" from Mr. Berger and Ms. Aversa. Rice
Decl., Ex. H (Rose Email to Rice); Ex. I (Addendum to Berger
Statement dated March 18, 2014); Ex. J (Addendum to Aversa
Statement dated March 11, 2014).
the three individuals, Mr. Berger, later directly provided
Defendants with numerous email communications that he had
with Plaintiff concerning the written statements that he
provided to her. Rice Decl. ¶ 8; Exs. K-S. In one email,
Plaintiff directs Mr. Berger to "JUST COPY & PASTE
& PLEASE TYPE THE WORK "ADDENDUM" ON TOP AS
FOLLOWS." Rice Decl., Ex. Q (Ottoson-Berger email dated
March 14, 2014). In another email to Mr. Berger, Plaintiff
tells him to "[p]lease write the following statement
below in the following format." Rice Decl., Ex. P
(Ottoson-Berger email dated March 10, 2014); see
also Rice Decl., Ex. 0 (Ottoson-Berger email dated
February 1, 2014) ("In case Jesse [Rose] speaks to him
again, please tell him Bonding Insurance because that is what
your notarized letter to him stated.").
after she was on notice that Defendants had received
documents from Mr. Berger, Plaintiff did not produce any
communications with the three witnesses or drafts of their
statements. Rice Decl. ¶¶ 6, 21; Exs. T-U. Further,
to the extent that Plaintiff was no longer in possession or
control of such documents, Plaintiff failed to provide any
explanation or information about such documents or the
circumstances of their loss, as required by Defendants'
instructions to their Request for Production. Rice Decl.
¶ 6; Ex. A.
informed the Court by letter dated April 24, 2015, ECF Nos.
34-35, about the serious questions concerning Plaintiff's
conduct in this matter, as was then relevant to
Plaintiff's motion to compel a Rule 30(b)(6) deposition.
Defendants also wrote to Plaintiff's counsel, on April
27, 2015, to demand supplemental responses to Defendants'
First Request for the Production of Documents concerning
Plaintiff s communications about the Report. Rice Decl., Ex.
T. Plaintiff did not formally respond to the April 27 letter
for several weeks, and the parties met and conferred by
telephone concerning a potential motion to compel by
Defendants on May 18, 2015. Rice Decl. ¶¶ 19-20.
During that call, Plaintiff's counsel agreed to produce
Plaintiff for further deposition. Id. ¶ 20.
Later that day, Plaintiff s counsel served a letter stating
that Plaintiff had "not identified any responsive
documents within her possession or control, " and that
Plaintiff's counsel was "not aware of evidence that
suggests that Plaintiff destroyed any documents whatsoever on
or after the date that she commenced this action." Rice
Decl., Ex. U.
September 10, 2015, the parties submitted a Stipulation and
Proposed Order that was so-ordered by the Court. ECF No. 38.
This Stipulation, inter alia, extended the end date
of discovery, extended other relevant deadlines, and provided
that Defendants reserve their rights to take further
discovery or engage in motion practice arising out of
Plaintiff's continued deposition. Id.
appeared for a continued deposition on September 29, 2015.
During her deposition, defense counsel asked Plaintiff about
her email practices and she admitted to having a
"habit" to "automatically" delete her
email. Tr. 632:18-22. The following exchange established
Plaintiff's ongoing deletion of her email:
Q. ... And so, with respect to e-mail, e-mails that you sent
to and from other people, perhaps Mr. Berger, Ms. Aversa, Mr.
Weinstock, and others, about your claims, did you make any
attempt to preserve, to keep those e-mails, prior to
commencing your lawsuit against SMBC?
A. I don't recall so.
Q. You don't recall doing so?
Q. And so, then it's possible that you had e-mail
exchanges prior to December of 2013 relating to your claims
that you deleted because you didn't think that there was
any necessity that you keep them for this lawsuit?
A. I don't recall that.
Q. Well, let me ask you this: Was it your practice to delete
A. It's a habit to do that if it's -- you know, I do
that automatically. I'm pretty particular about that.
Q. So prior to December of 2013, did you take any steps to
change your habits in that regard and keep e-mails that
related to your claims against SMBC?
A. Prior to December, I don't recall specifically.
Q. You don't recall making any effort to keep e-mails
prior to December of 2013?
MR. STARK: Objection to form. You can ...