United States District Court, S.D. New York
OPINION AND ORDER
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.
following reasons, Defendant's motion for reconsideration
is GRANTED and Defendant's motion for sanctions is
GRANTED in part and DENIED in part.
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.
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
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
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.
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.
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. 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. 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.
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.
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.
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.
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.
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.
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
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
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
Ash questioned Henry about his text messages with Homan-Grey.
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
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.
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
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.
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.
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.
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. ...