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Henry v. Morgan's Hotel Group, Inc.

United States District Court, S.D. New York

January 22, 2018

PHILLIP HENRY, Plaintiff,
v.
MORGAN'S HOTEL GROUP, INC., Defendant.

          OPINION AND ORDER

          Ramos, D.J.

         On October 27, 2016, Defendant Morgan's Hotel Group, Inc. ("Morgan's Hotel" or "Defendant") filed a motion for sanctions against Plaintiff Phillip Henry ("Henry" or "Plaintiff) pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure. Doc. 91. In a conference on September 12, 2017, the Court granted in part and denied in part Defendant's motion. Doc. 103. On September 26, 2017, Defendant moved for reconsideration of the Court's decision not to sanction Plaintiff with respect to his failure to produce his mental health records. Doc. 107.

         For the following reasons, Defendant's motion for reconsideration is GRANTED and Defendant's motion for sanctions is GRANTED in part and DENIED in part.

         I. BACKGROUND

         Henry initiated this lawsuit by filing the Complaint on March 10, 2015. On October 28 of that year, Defendant served its first set of interrogatories and requests for production.

         Interrogatory Twelve asked Henry to:

Identify all health care providers from whom you have sought or obtained a diagnosis or treatment or whom you have consulted in any way in the past ten years and the date and reason for such treatment.

See Affirmation of Francis Cook in Support of Defendant's Motion for Sanctions ("Cook Aff") (Doc. 93), Ex. B at 9. Henry objected to this interrogatory and did not provide a response. Id. His response was signed by one of his attorneys, Chloe Liederman ("Liederman"). Defendant also requested that Henry produce:

15. All documents that refer or related in any way to any illnesses, disabilities or conditions (mental or physical) from which Plaintiff suffered or suffers at any time within the last ten years, including, but not limited to, all medical and psychiatric records concerning Plaintiff.
16. All documents that refer or relate to any medications taken by or prescribed to Plaintiff within the last five years.
17. All documents that refer to or relate in any manner to damages allegedly suffered by Plaintiff in this action.

See Id. Ex. C at 7. Henry similarly objected to these requests for production and stated that he would produce responsive documents "upon execution of a confidentiality agreement and stipulation governing the use and scope of such documents." Id. Henry's response was signed by Liederman. The parties signed a confidentiality agreement and protective order on February 29, 2016. Id. Ex. E. On March 11, 2016, Defendant's counsel, Francis Cook ("Cook"), wrote to Henry's counsel, Gail Auster ("Auster") to seek outstanding discovery responses. Referring to the outstanding requests for medical records and damages, Cook stated that "[n]ow that the confidentiality agreement has been entered, there is no reason why these documents remain outstanding. Please provide them immediately." Id. Ex. F.

         At a status conference held on July 20, 2016, Defendant's attorney Jonathan Ash ("Ash") raised the issue of the unproduced medical records. Doc. 79 (July 20, 2016 Conference Transcript) at 15:9-23. Auster responded that Plaintiff was seeking responsive documents and would produce them. Id. at 15:25-16:1. The Court asked specifically whether there were documents "reflecting medical treatment that [Henry] sought and received." Id. at 16:2-4. Auster indicated that there were and said that Plaintiff was "depending upon third parties" for the documents. Id. at 16:7-8. On Friday, July 29, 2016, in response to an email from Ash inquiring about the production of medical records, Leiderman explained that they had sent Henry's HIPAA authorization to his mental health provider, Dr. Richard Bennett, that day. Cook Aff. Ex. J.

         On August 2, 2016, Auster received a voice mail from Dr. Bennett confirming that Plaintiff had consulted him in December 2014. See Affirmation of Gail I. Auster in Opposition to Defendant's Motion for Sanctions ("Auster Aff.") (Doc. 94) ¶ 2.[1] Auster retained a copy of the voice mail on her cell phone. Id. On August 3, 2016, Auster called Dr. Bennett and asked him to locate his notes from his interaction with Henry. Id. ¶ 3. On August 17, 2016, Auster called Dr. Bennett again and learned that he still had not located any notes. See Third Affirmation of Gail I. Auster in Further Opposition to Defendant's Motion for Reconsideration ("Auster Third Recons. Aff.") (Doc. 132) ¶ 6. She asked him to send a letter or email stating that he could not locate the notes of the meeting. Id. Dr. Bennett sent Auster an email on September 7, 2016, explaining that he could not find any notes from his single session with Plaintiff due to a technical error at the time of treatment. Id. Ex. 2.[2] Dr. Bennett's email, contrary to the voice mail he left for Auster, states that he met with Henry in December 2015 as opposed to December 2014. Id. Ms. Auster did not pick up on this important discrepancy.

         Having heard nothing from Plaintiffs counsel in this time period, Cook emailed Auster about the medical records again on September 8, 2016. Cook Aff. Ex. K. That day, on a telephone call, Auster informed Cook that Plaintiffs medical records had been destroyed. Id. Ex. J.

         On October 27, 2016, Defendant moved for sanctions based on a variety of discovery issues, including Plaintiffs failure to timely request and produce medical records. See Doc. 91. On September 12, 2017, the Court held oral argument regarding Defendant's sanctions motion. There, Liederman affirmed, mistakenly, that the date of Henry's consultation with Dr. Bennett was December 4, 2015, and that the notes of that visit were destroyed contemporaneously. Doc. 103 (September 12, 2016 Conference Transcript) at 10:5-14. Liederman emphasized that this visit occurred after Defendant filed its first requests for production and set of interrogatories. Id. 17:4-8.

         The Court denied Defendant's motion for sanctions, finding, with respect to the medical records, that:

The determination of an appropriate sanction for spoliation is confined to the sound discretion of the court. Citing Metropolitan Opera Association, Inc. v. Local 100, reported at 212 F.R.D. 178. For the court to impose sanctions based on spoliation, the movant "must establish (1) that the party having control over the evidence had an obligation to [preserve] it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Citing Residential Funding Corp. v. DeGeorge Financial Corp., reported at 306 F.3d 99.
As to the medical records, the Court holds that the third prong of the spoliation analysis poses a hurdle for Defendant because it is not shown that the destroyed evidence was relevant. I note also that the second prong that the records were destroyed with a culpable state of mind also . . . presents an obstacle for the defense, because if I take the doctor at his word, obviously he did not intend purposely to destroy these documents. The term "relevant" in this context means something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence. Instead, to establish relevance, the party seeking sanctions must adduce sufficient evidence from which a reasonable trier of fact could infer [that] the destroyed evidence would have been "favorable to its case." The state of mind with which the evidence was destroyed affects what showing is required of the movant: Where the destruction was the result of mere negligence, a presumption of relevance never applies. Citing GenOn Mid-Atlantic, LLC v. Stone & Webster, Inc., reported at 282 F.R.D. 346.
Here, as it relates to the medical records, the current record before the Court suggests that Plaintiffs conduct in not informing the doctor to retain the records was not even negligent, as opposed to willful or grossly negligent. Therefore, a presumption of relevance is inappropriate. Thus, under the negligence standard for sanctions to be warranted, there must be extrinsic evidence to demonstrate that the destroyed evidence would have been unfavorable to the destroying party. Citing Great North Insurance Co. v. Power Cooling, Inc., reported at 2007 WL 2687666, at *11. Defendant fails to meet that standard and provides no evidence to suggest that the medical records would have been favorable to it.

Id. 17:12-19:5. The Court also ordered Plaintiff to produce documents relating to two separate discovery disputes, concerning an alleged emotional distress journal maintained by Henry and text messages between Henry and his co-workers about their employment. Id. 20:16-25.

         The Court gave Plaintiff a deadline of September 25, 2017 by which to comply with the Order. Id. On that date, Liederman contacted Defendant to request a two-day extension, which Defendant assented to. See Doc. 110; Doc. 124 (October 25, 2017 Conference Transcript) at 2:9-22. On September 27, 2017, Liederman sent Defendant Plaintiffs most recent responses to Defendant's request for admission, but did not provide any of the materials the Court discussed in the September 12, 2017 Order. Id. On October 10, 2017, Henry provided a sworn statement to Defendant explaining that he did not keep an emotional distress journal and could not find any responsive text messages with co-workers, but had discovered a few responsive text messages from his conversations with his former boyfriend, Michael Homan-Grey ("Homan-Grey"). Doc. 124 (October 25, 2017 Conference Transcript) at 3:1-19; see also Reply Affirmation of Francis V. Cook in Support of Defendant's Motion for Reconsideration ("Cook Reply Aff.") (Doc. 120) Ex A. In one text message chain, dated January 23, 2015, Henry said, "this week was hell, new therapist." Id. at HENRYO255. Homan-Grey responded, "Did you at least like the new therapist?." Id. Henry replied, "Meh, seems okay. I hadn't seen anyone for weeks because well I couldn't even afford that." Id. at HENRYO256. In another undated text message, Henry asked Homan-Grey if he could borrow $60 for a co-pay for a therapy session. Id. at HENRY0260.

         On September 26, 2017, before Plaintiff produced these text messages, Defendant moved for reconsideration of the Court's ruling on sanctions with respect to the medical records (Doc. 107). Despite the recently produced evidence suggesting that Henry visited a therapist in early 2015, Plaintiffs counsel filed an opposition to Defendant's motion for reconsideration on October 12, 2017, in which they reiterated that Henry's only mental health treatment was "a single, hour-long consultation" with Dr. Bennett on December 4, 2015. See Memorandum of Law in Opposition to Defendant's Motion for Reconsideration ("Recons. Opp. Mem.") (Doc. 113) at 1.

         Defendant raised this issue in its reply brief in support of reconsideration and again at a conference held on October 25, 2017. See Reply Memorandum of Law in Support of Defendant's Motion for Reconsideration ("Recons. Reply Mem.") (Doc. 119), at 6-7; Doc. 124 (October 25, 2017 Conference Transcript) at 3:20-4:4. At that October 25, 2017 conference, Auster was asked about Henry's mental health treatment. She informed this Court:

As to any issue of his having seen a therapist for a year before that, I don't know anything about that. I don't know where they would have even deemed that to be true from the text messages. In our communications with our client-I don't want to violate attorney-client privilege-we believe that there was one encounter with one therapist.

Doc. 124 (October 25, 2017 Conference Transcript) at 7:2-8. The Court ordered a supplemental round of briefing on Defendant's reconsideration motion to allow the parties to fully explain their positions. In further briefing, Plaintiffs counsel stated that they had "made no misstatement to the Court about the extent of [Plaintiffs] treatment." See Memorandum of Law in Further Opposition to Defendant's Motion for Reconsideration ("Further Opp. Mem.") (Doc. 130), at 3. Plaintiffs counsel argued that Henry's text messages, speaking of a "new therapist" to Homan-Grey in January 2015, were referencing Dr. Bennett, with whom Henry met once. Id. at 2. Plaintiffs counsel did not explain why, if they believed the mental health visit took place in December 2015, Henry was discussing a "new therapist" in January 2015.

         The dispute between the parties over the accuracy of Plaintiff s representations regarding his mental health treatment came to a head on November 30, 2017, at Henry's second deposition.

         There, Ash questioned Henry about his text messages with Homan-Grey. Henry responded:

Well, first, I'd like to correct my testimony earlier and say that Dr. Bennett is wrong in his e-mail. . . about the date that I saw him and that these text messages help me recall that, and that I saw him in 2014 and he is incorrect. So that I just want to correct. These text messages help me remember that.
I did not actually see a new therapist. What I was referring to here was the fact that having seen Dr. Bennett and not feeling comfortable with him, I wanted to see a new therapist, so I spoke to a new therapist on the phone for a short conversation in which I basically interviewed the therapist to see what kind of, like, style and person and what they did for requests.

         Affirmation of Jonathan Ash in Further Support of Defendant's Motion for Reconsideration ("Ash Aff") (Doc. 133) Ex. A ("Henry Dep.") at 331:16-332:7. Henry's sworn testimony thus revealed that he spoke with two therapists: Dr. Bennett, in December 2014, and another therapist in January 2015.

         The next day, Ash called Dr. Bennett's office for the purpose of confirming Plaintiffs treatment date. Ash Aff. ¶ 4. Ash spoke with Dr. Bennett's wife and business partner, Dr. Janice Bennett. Id.¶ 5. She informed Ash that Dr. Bennett passed away in April 2017. Id. Dr. Janice Bennett also confirmed that Dr. Bennett met Henry on December 4, 2014, and had recorded a provisional DSM diagnosis of adjustment disorder with mixed disturbance of emotions and conduct. Id. ¶¶ 7-8; see also Auster Third Recons. Aff. Ex. 5.

         On December 7, 2017, the parties came before the Court for a conference. At that conference, for the first time, Liederman confirmed to the Court that the text messages refer to a second mental health provider, although Henry "did not subsequently end up meeting with" that provider. Doc. 134 (December 7, 2017 Conference Transcript) at 3:13-21. Liederman also confirmed that the consultation with Dr. Bennett actually occurred in December 2014, but that she "had no advance warning" and learned about the date when Defendant did, at Plaintiffs deposition the previous week. Id. at 17:18-25. Auster clarified that when she spoke with Henry regarding his mental health treatment, he "was fuzzy on the dates, and he couldn't remember 2014, 2015." Id. at 36:18-21. However, Auster stated that when she received the email from Dr. Bennett listing the treatment year as 2015, she trusted that date because, in her opinion, "if the therapist tells me that this is the date, I would put more credibility into that than anybody else's recollection, because they have to keep records." Id. at 17:1-3.

         Speaking for Defendant, Ash argued that Plaintiffs counsel violated their duty to make reasonable inquiries in response to discovery demands by failing to correctly ascertain the date of the visit to Dr. Bennett, when they were putting together responses to Defendant's first set of interrogatories in December 2015. At that point, he argued, it should have been clear to Henry, had he been asked by counsel, that the visit to Dr. Bennett occurred one year prior, in December 2014, and not that same month. Id. at 4:20-6:3. He also emphasized that he was easily able to ascertain the date of Henry's visit to Dr. Bennett and his provisional diagnosis by simply calling Dr. Bennett's practice. Mat 9:7-19. Ash explained to the Court his understanding that Henry's provisional diagnosis was "consistent" with other emotional stressors in his life, and argued that Henry was contacting other physicians in January 2015 in order to "shop around for a potentially better diagnosis that might help in this case." Id. at 9:20-10:11. Ash also raised a separate issue regarding Plaintiffs production of text messages, because his understanding based on Henry's deposition was that "in October of 2015, when [Defendant] initially requested text messages, Plaintiff really conducted no kind of thorough search for those text messages at all." Id. at 30:2-6. Ash also argued that Plaintiffs failure to consult Defendant about forensic imaging of Henry's broken iPhones was "not really excusable." Id. at 34:9.

         Subsequently, Auster filed an additional affirmation further explaining Henry's mental health treatment. Auster stated that she "did not pick up the difference in the year of the encounter between the voice mail and the email" and that she did not realize she had retained Dr. Bennett's voice mail until December 10, 2017. Auster Third Recons. Aff. ¶ 9. Auster had also spoken with Dr. ...


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