Month: August 2022

No Rule 37 Violation Where The Documents Were Produced

This is a case where the plaintiff allegedly deleted some text messages from his phone that were relevant to this case. The Defendant moved for Rule 37(e) sanctions, but the motion was denied because the messages were obtained from other sources.

First, sanctions under Rule 37(e) are available “only where ESI has been `lost’ and `cannot be restored or replaced through additional discovery.'” Goldman v. Sol Goldman Invs. LLC, No. 20CV06727MKVSN, 2022 WL 2118199, at *3 (S.D.N.Y. June 11, 2022) (quoting Fed. R. Civ. P. 37(e)). Thus even if a party himself has deleted messages, there can be no sanctions if the messages are provided from another source, because they are not “lost.” Id. at *4 (holding sanctions are not available where Plaintiff deleted an email that was subsequently produced from another source: “The email was not lost because [the recipient] produced it at his deposition. Therefore, spoliation sanctions may not be awarded for Plaintiff’s failure to produce the May 28 email, and the Court need not inquire into Plaintiff’s state of mind.”); CBF Industria de Gusa S/A v. AMCI Holdings, Inc., No. 13CV2581PKCJLC, 2021 WL 4190628, at *11 (S.D.N.Y. Aug. 18, 2021) (noting that deleted messages that can be obtained from the other parties are not permanently lost or unrecoverable under Rule 37); Morgan Art Found. Ltd. v. McKenzie, No. 18CV4438ATBCM, 2020 WL 5836438, at *19 (S.D.N.Y. Sept. 30, 2020) (holding Rule 37 sanctions were not available because deleted messages which still exist in another account “are not permanently lost, and in fact they have already been produced”).

That is precisely the circumstance here; although Mr. Rosario deleted the text message chains from his own phone, they have been obtained from other participants: Plaintiff’s counsel and John Torres. Because Defendants have not and cannot establish that any relevant messages are “lost” and “cannot be restored or replaced through additional discovery,” their request for sanctions fails at the first step.[2] See Watkins v. New York City Transit Auth., No. 16 CIV. 4161 (LGS), 2018 WL 895624, at *10 (S.D.N.Y. Feb. 13, 2018) (Defendants have “the burden of establishing the elements of a spoliation claim by a preponderance of the evidence.”).

Source: Rosario v. City of New York, S.D. N.Y. 18 civ 4023, July 27, 2022.

Plaintiff Ordered To Revise Damage Disclosures

A plaintiff was ordered to revise her damage disclosures in response to a Rule 37 motion. She avoided more serious sanctions. The Court re-opened discovery to allow the defendants to complete discovery regarding the updated disclosure.

Meza-Perez’s Rule 26 damages disclosures are woefully insufficient because they do not provide any analysis, explanation, formula, or computation. See ECF No. 246-2 at 9-10 (Meza-Perez’s damages disclosures). Instead, they provide only lump-sum amounts for her claimed elements of damages.

Rule 37 sanctions precluding Meza-Perez from presenting evidence of damages at trial would functionally dismiss some, if not all, of her claims. These inadequate disclosures are Meza-Perez’s fault and are willful. She prepared the disclosures and had several opportunities to supplement them but did not. Meza-Perez argued in her opposition that I should allow her to clarify her damages calculation as a lesser sanction, but she failed to include any such clarification, which she should have done. Meza-Perez cannot shift her Rule 26 disclosure obligations onto the defendants by arguing that they should have identified inadequacies in her disclosures.

Lesser sanctions are available and should be effective. I will allow Meza-Perez to submit to the defendants a supplemental damages disclosure by July 8, 2022. The defendants may conduct discovery regarding Meza-Perez’s damages for 30 days following her supplemental disclosure. This should limit the prejudice to the defendants caused by Meza-Perez’s inadequate disclosure, and still keep this case on track toward the pending trial date.

The case is Meza-Perez v. Sbarro, LLC, D. Nevada 2022, Case No. 2:19-cv-00373-APG-EJY.