E.D.
Ned KLEZMER, an I=
nfant Under the Age of 14, by his Mother and Natural
Guardian, Yana DESYATNIK and
v
Brian BUYNAK, d/b=
/a
No. CV-02-5184(JM=
A).
Jan. 21, 2005.
<=
span
style=3D'font-size:9.5pt;font-family:Verdana;color:black'>
MEMORANDUM AND ORDER
AZRACK, United States Magistrate Judge.
By motion of
December 16, 2004, plaintiffs in the above captioned action applied for
sanctions against defendant under Rule 37(c) of the Federal Ru=
les
of Civil Procedure. Plaintiffs allege that defendant
failed to preserve pre-accident maintenance and user records prepared and k=
ept
for the All Terrain Vehicle the infant plaintiff was riding at the time of =
his
accident. Plaintiffs' motion is hereby denied, for the reasons below.
I have determined
that defendant has spoliated evidence, but I do=
not
think that sanctions are warranted. Plaintiffs ask, as a remedy for the spo=
liation,
that the jury be instructed to presume that the brakes on the All Terrain
Vehicle were defective, and that defendant not be able
to offer evidence to the contrary. Plaintiffs' proposed remedies are too
severe. Rather, plaintiffs will be permitted to argue to the jury that it m=
ay
draw an adverse inference from the fact that certain documents are missing.=
[FN1] Defendant will be permitted to off=
er
evidence of the condition of the All Terrain Vehicle on the day
of the accident.
FN1. The parties have consented to me for all purposes under 28 U.S.C. § 636(c).
FN2. All Terrain Vehicles are called "quads" because they
have four wheels.
I. BACKGROUND
Infant plaintiff=
NED
KLEZMER ("Ned") was injured August 14, 2002, while riding an All
Terrain Vehicle ("quad") [FN2] at defendant BRIAN BUYNAK d/b/a CA=
MP
CAYUGA (the "camp"). Plaintiff and his mother, YANA DESYATNIK,
brought this suit alleging that the camp was negligent in maintaining the t=
rack
and quads provided for the campers' use, that the campers were inadequately
supervised, and that the quad Ned was riding ("Quad 3") was in a =
dangerously
defective condition at the time of the accident.
The complaint was
filed by plaintiffs on August 22, 2002, eight days after the accident. On
October 2, 2002, plaintiffs demanded maintenance logs and records pertainin=
g to
Quad 3. See Exhibit 10 to Plaintiffs' Reply Memorandum in Further
Support of the Spoliation Motion (Plaintiffs' Memo in Further Support). In =
the same discovery demand of October 2, 2002, plaintiffs al=
so
requested the disclosure of any experts retained by defendant.
Defendant provid=
ed
samples of the following quad records: i) a &qu=
ot;Quad
Vehicle Log", which has space to fill in serial number, color, and yea=
r of
a quad (Exhibit 4 to Plaintiffs' Spoliation Motion); ii) a "Quad
Maintenance Log", described as "Out of
Service", but indicating, in bold uppercase letters across the top:
"MAINTENANCE AND SAFETY CHECK--TO BE COMPLETED DAILY BY QUAD
INSTRUCTOR", and with spaces to record various maintenance tasks, e.g.,
oil level, brakes, and steering (Exhibit 5 to Plaintiffs' Spoliation Motion=
);
and iii) another "Quad Maintenance Log", with the same maintenance
and safety check admonition written across the top of its predecessor form
(Exhibit 6 to Plaintiffs' Spoliation Motion). The camp bulletin describing =
the
quad program, under the heading "Safety Regulations", requires qu=
ad
instructors to "report daily in the Quad Maintenance Log [ ] any/all
repairs, adjustments or maintenance per Quad." See Exhibit 8 to
Plaintiffs' Spoliation Motion. This camp bulletin reminds instructors of how
seriously the camp takes safety and urges instructors to safely administer =
the
quad program.
On November 17, =
2003
defendant produced an expert report on the condition of Quad 3 at the time =
of
the accident. See Exhibits 13 and 14 to Plaintiffs' Memo in Further
Support. The expert report indicates that the expert inspected Quad 3 on
October 29, 2002, two days prior to defendant's representation that no expe=
rt
had been retained.
Ned Klezmer, the injured plaintiff, testified that he tes=
ted
Quad 3 before his ride and found the quad brakes to =
be
"not too fine." N Dep. Tr.=
[FN3] at 24, see Exhibit 1 to
Plaintiffs' Spoliation Motion. He alerted Clint Steves=
,
the quad instructor, of this observation, and told Ste=
ves
that while the hand brake was operable, the foot brake was not. N Dep. Tr. at 24, 32. Steves told
Ned that Quad 3 was usable, that it was "all right." Id. <=
span
class=3DSpellE>Steves did not personally inspect or test the quad be=
fore
concluding that it was "okay", he "just looked" at it. =
FN3. N Dep. Tr. refers to the transcript of Ned Klezmer's April 29, 2003 deposition.
Stephen A. Beals is defendant's summer camp director and year ro=
und
caretaker. B Dep. Tr. [FN4] at 5-6, see Exhibit 1 to
Defendant's Affidavit in Opposition to Plaintiffs' Spoliation Motion. Accor=
ding
to Beals, a roster is filled out each day campe=
rs use
the quads. B Dep. Tr. at 39. Campers sign in on the rosters, which are
maintained on a daily basis with the instructor.
FN4. B Dep. Tr. refers to the transcript of Steven A. Beals' May 29, 2003 deposition.
It's a folder an=
d it
is just used when checking the [ ]quads. It has
different items such as, you know, tires in good condition, things like tha=
t,
are there any, you know, broken parts on the [ ]quads, things like that, I
believe on there they check them off as they check them each day.
FN5. Somewhat inconsistently, Beals al= so testified at one point that he did not know whether the instructors generate any safety or maintenance records after performing the checks. B Dep. Tr. at 27.
Plaintiffs' and
defendant's conduct during this litigation raise the following spoliation
issues: i) whether maintenance logs and other r=
ecords
about Quad 3 existed; ii) if so, whether defendant destroyed or failed to t=
urn
those records over to plaintiffs; and iii) if defendant has destroyed or fa=
iled
to turn over records, how to appropriately sanction defendant, given the fa=
cts
and circumstances of this case.
Plaintiffs argue
that the records obtained in discovery and the deposition testimony
establish that both a Quad 3 daily maintenance record and Quad 3 ros=
ter
of users were made on the day of the accident. Plaintiffs say that the best evidence of the condition of Quad 3 on the day of =
the
accident is the Quad 3 daily maintenance log and roster from that day.
Plaintiffs suggest that the daily maintenance log would have a notation that
Quad 3's brakes were loose, and the roster would have the names of any camp=
ers
using Quad 3 earlier in the day. Plaintiffs contend that since no such reco=
rds
were turned over by defendant, the court should find spoliation, as they ha=
ve
been denied the evidence as a result of defendant's loss or destruction of =
the
records. And they contend that their argument is bolstered by the fact that=
defendant
never provided follow up information on Clint Steves,
the quad instructor, and therefore plaintiff could not obtain Steves' deposition. Without Stev=
es'
deposition, plaintiffs have no i) corroboration=
of
Ned's story that he had informed the camp of faulty brakes before taking Qu=
ad 3
out for a ride; ii) direct testimony as to a quad instructor's compliance w=
ith
camp guidelines and responsibility for keeping records and for maintenance =
and
safety of the quads; and iii) information on campers riding Quad 3 before N=
ed.
Plaintiffs prese=
nt,
as proof of defendant's culpable state of mind in failing to turn over the
records, the fact that defense counsel represented, two days after his expe=
rt
had inspected Quad 3, that defendant had not yet retained an expert for tri=
al.
Moreover, plaintiffs note that it took more than a year after the inspection
occurred for defendant to provide plaintiff with defendant's expert disclos=
ure
and report. Given these considerations, it is reques=
ted by
plaintiffs that the court instruct the jury to presume that Quad 3's brakes
were defective and preclude defendant from offering any evidence to the
contrary *48 of the condition of the brakes on the day of the accident.
Defendant conten=
ds
that it is in dispute whether a Quad 3 daily maintenance record or roster w=
as
completed for the day of the accident. A dispute as to the existence of such
records would affect the determination of whether the records were withheld=
or
destroyed. Defendant also points out that plaintiffs
never tried to inspect Quad 3, and have not tried to depose defendant's exp=
ert
who did. Defendant considers the spoliation argument undermined by this
omission on the part of plaintiffs. Plaintiffs respond that not conducting
their own inspection of Quad 3 is excused, given that they did not know if =
the
machine had been repaired in the months following the accident. Defendant
lastly complains that plaintiffs' proposed remedy is drastic considering th=
at
they had and presumably still have the opportunity to inspect the machine.<=
/span>
I address these
arguments in a discussion of spoliation.<=
br>
II. DISCUSSION
Plaintiffs conte=
nd
that defendant destroyed or lost records that would show that the camp knew
that the brakes on Quad 3 were defective on the day of the accident. They s=
eek
an instruction that an adverse inference be drawn based on the destruction =
or
non-production of the records. [FN6] They also seek to prevent defendant
from presenting contrary evidence of Quad 3's non-defective condition
on the day of the accident.
FN6. Plaintiffs want the court to instruct the jury that because t= he records are missing the jury is to presume that Quad 3's brakes were defect= ive. This is really an application for a stronger strain of a common adverse inference instruction. If plaintiffs are entitled to a presumption that the brakes were faulty, they are logically also entitled to the less severe adv= erse inference instruction. I will thus analyze their application as one for an adverse inference instruction.
A. Spoliation=
<=
/span>[1][2] Spoliation is the destruction or
significant alteration of evidence, or the failure to preserve property for
another's use as evidence in pending or reasonably foreseeable litigation. =
<=
i>Wes=
t v.
Goodyear Tire and Rubber Co., 167 F.3d 776, 779 (2d Cir.1=
999).<=
/span> It is well settled that spoliators
should not benefit from their wrongdoing. Id.<=
span
style=3D'mso-bookmark:StarPage'> (citations omitted). Under Rule 37(b) of the Federal Ru=
les
of Civil Procedure, a district court may impose sanct=
ions
for spoliation in violation of court-ordered discovery. =
Fed.R.Civ.P. 37(b). But "[e]ven in the absence of a discovery order, a court may impose
sanctions on a party for misconduct in discovery under its inherent power to
manage its own affairs." Residential Funding Corp. v. DeGeorge
Financial Corp., 306 F.3d 99, 106-107 (2d Cir.2002)
1. The Obligation to Preserve
Evidence
2. The Existence of a Culpable S=
tate
of Mind
Plaintiffs' inability to depose Cli=
nt Steves, however, is not evidence of defendant's state=
=
*50
3. The Destroyed or Lost Evidence
was Relevant to Plaintiffs' Claims
![3D"Link](3D"klezmer-destruction-spoilation-no-hn_files/image001.gif" "3D\"Link")
[T]he party seeking an adverse
inference must adduce sufficient evidence from which a reasonable trier of fact could infer that "the destroyed [or
unavailable] evidence would have been of the nature alleged by the party
affected by its destruction." Kronisch
Residential Funding,
306 F.3d at 109. If a court finds bad faith or gross negligence, the b=
ad
faith (always) and the gross negligence (usually) can support a finding that
the destroyed or lost evidence was relevant to the claims of the party seek=
ing
it. Id.
B. No Sanctio=
ns
Are Warranted
=
[13] Plaintiffs contend that the appropriate sanction for defendant=
's
spoliation is that the court instruct the jury that it is to presume the br=
akes
on Quad 3 were faulty. Plaintiffs also want to bar defendant from presenting
contrary evidence about the condition of Quad 3 on the day of the accident.
Defendant argues that plaintiffs' proposed sanctions are too drastic, given=
that plaintiffs could have obtained evidence of the con=
dition
of Quad 3's brakes by inspecting the machine themselves. I will not impose
sanctions against defendant.
=
[14] [15] [16] [17] [18] A district court has wide discretion in sanctioning a party for
discovery abuses. <=
i>Rei=
lly v.
Natwest Markets Group Inc., 18=
1 F.3d
253, 267 (2d Cir.1999). Sanctions should be designed "to serve the prophylactic,
punitive, and remedial rationales underlying the spoliation doctrine."=
West, 167 F.3d at 779. [FN8] "The sanction should be desig=
ned
to: (1) deter parties from engaging in spoliation; (2) place the risk of an
erroneous judgment on the party who wrongfully created the risk; and (3)
restore 'the prejudiced party to the same position he would have been in ab=
sent
the wrongful destruction of evidence by the opposing party.' "
Id., quoting =
Kro=
nisch, 15=
0 F.3d
at 126. The court must determine the appro=
priate
sanction based on the relative fault of the party against whom sanctions are
sought and the prejudice suffered by the party seeking sanctions. =
Tow=
nes v. Cove Haven, No. 00 Civ. 5603, =
2003
WL 22861921, *3-4, 2003 U.S. Dist. LEXIS 21640, *10 (S.D.N.Y. Dec. 2, 2003)=
. Courts in the Second Circuit determine sanctions case by cas=
e. Reilly v. Natwest Markets Group Inc., 181 F.3d at 267. "Trial judges should have the leeway to tailor sanctions=
to
insure that spoliators do not benefit from their wrongdoing--a remedial pur=
pose
that is best adjusted according to the facts and evidentiary posture
of each case." Id.<=
span
style=3D'mso-bookmark:StarPage'>
FN8. In = Kro= nisch, the Second Circuit explained these rationales for the spoliat= ion doctrine, and another, "evidentiary" rationale:
The evidentiary rationale derives fr= om the common sense notion that a party's destruction of evidence which it has reason to believe may be used against it in litigation suggests that the evidence was harmful to the party responsible for its destruction. The prophylactic and punitive rationales are based on the equally commonsensical proposition that the drawing of an adverse inference against parties who destroy evidence will deter such destruction, and will properly "place= the risk of an erroneous judgment on the party that wrongfully created the risk." Finally, courts have recognized a remedial rationale for the adverse inference-namely, that an adverse inference should serve the functi= on, insofar as possible, of restoring the prejudiced party to the same position= he would have been in absent the wrongful destruction of evidence by the oppos= ing party.
= Kronisch v. United States, 15= 0 F.3d 112, 126 (2d Cir.1998) (citations omitted).
If plaintiffs'
requested remedy is granted, the only evidence presented to the jury on
defective quad brakes will be what plaintiffs offer, and the jury will be told to presume that the brakes were defective. Havi=
ng
considered the facts and circumstances of this *52 case, I am convinced that these or any sanctions are too sever=
e. I
will allow plaintiffs to argue to the jury that it should draw an adverse
inference from the fact of the missing records. An adverse inference
instruction from the court, however, is not warranted on the facts of this
case. An instruction directs the jury's attention to the inference the court
instructs on and can give the impression that the court thinks the jury oug=
ht
to draw the inference. The suggestive force of the adverse inference
instruction is precisely the reason for a court's careful analysis before
ordering it.
I have considered
the relative fault of defendant, and my decision reflects the conduct of bo=
th
parties to the dispute. There is defendant's fault in not providing the Qua=
d 3
maintenance log and roster from the day of the accident and for representin=
g to
plaintiffs that it had not retained an expert when it apparently had. But
plaintiffs bear fault here too, for failing to ever request an inspection of
the quad or a deposition of defendant's expert. See Fujitsu Ltd. v. Federal
Express Corp., 24=
7 F.3d
423, 436 (2d Cir.2001)<=
/span> (where corporation never requested=
to
inspect evidence prior to its destruction, district court provided no
spoliation sanction); =
Tow=
nes v. Cove Haven, 2003 WL 22861921, at *3-4, 2003 U.S. Dist. LEX=
IS
21640, at *10-*12 (where plaintiff never inspected
swimming pool in the two years after the accident and
before it was altered, district court provided no spoliation sanction); Indemnity Ins. Co. Of =
N,
Am. v. Liebert Corp., No. 96 Civ. 6675, =
1998
WL 363834, *6-7, 1998 U.S. Dist. LEXIS 9475, *17-*18 (S.D.N.Y. June 29, 199=
8) (no dismissal or adverse inference charge warranted where par=
ty
never requested an inspection); Thiele v. Oddy's Auto and Marine, Inc., 906 F.Supp. 158, 160 (W.D.N.Y.1995) (no sanction wh=
ere
party never requested an inspection). I note that the expert disclosure =
and
report, while admittedly provided to plaintiffs more than a year after the
inspection was conducted, was provided to them more than a year ago.=
Sanction rationa=
les
are not served by punishing defendant in this case. I have concluded that
defendant acted negligently. See e.g., =
Pas=
torello, 20=
03 WL
1740606, at *13, 2003 U.S. Dist. LEXIS 5231, at *39-*40 (granting plaintiff limited adverse inference instruction aft=
er a
finding of defendant's gross negligence). On the other hand, it is also
plaintiffs' own actions or omissions that leave them without evidence that
might have been helpful at trial. The risk of a wrong judgment should there=
fore
be left to the arguments of counsel. Plaintiffs will be where they would ha=
ve
been if they had the missing evidence. See, e.g., West, 167 F.3d at 780 (reversing district court order dismissing case where the only
evidence was destroyed by plaintiffs, and giving examples of lesser sanctio=
ns
the Second Circuit would find appropriate); =
Hou=
lihan v. Marriott Int'l, Inc., No. 00 Civ. 7439, =
2003 WL 22271206, *2-3, 2003 U.S.
Dist. LEXIS 17382, *6-*8 (S.D.N.Y. Sept. 30, 2003) (finding no evidence of intentional destruction of evidence,
noting that the plaintiff had other evidentiary options, denying adverse
inference charge and preclusion of evidence by adversary, and providing only
costs as a sanction). It is fairly possible that the Quad 3 maintenance log
contained relevant evidence; I am not as convinced about the rider roster.
Presenting both records at trial could bolster plaintiffs' claims if they w=
ere
additional to expert testimony, based on an inspection of Quad 3, that the
brakes were faulty. Plaintiffs never complained that Quad 3 was destroyed or
lost, or that they were denied access to it. Despite what they say about the
maintenance records being the best evidence of the quad's faulty brakes, I
think there is no escaping the conclusion that an inspection of the quad it=
self
in the aftermath of the accident would have provided the best evidence. I w=
ill
thus permit defendant to present evidence from its expert's inspection of Q=
uad
3. [FN9]
FN9. I make no findings in this order with respect to the expert's qualifications to testify about quad brakes.
III. CONCLUSION<=
/span>
For the above st=
ated
reasons, plaintiffs' motion for sanctions is DENIED. Plaintiffs
*53 will be permitted to argue to the j=
ury
that it may draw an adverse inference from the missing evidence. Defendant =
will
be permitted to present evidence of the quad's condition on the day of the
accident.
SO ORDERED.
E.D.N.Y.,2005.
Klezmer ex rel. Desyatnik v.
Buynak=
227 F.R.D. 43
Motions, Pleading= s and Filings (Back to top)
• 1:02cv05184 (Docket) (Sep. 25, 2002=
)
END OF DOCUMENT