Opinion
No. 96 Civ. 5716 (LLS)
February 2, 2000
MEMORANDUM AND ORDER
Defendants, claiming spoliation of evidence by plaintiff, move for dismissal of this lawsuit, or preclusion of IRI from offering evidence at trial in support of its claim that Nielsen's discounting practices were unlawful. Defendants also seek payment of their attorneys' fees and expenses incurred in the spoliation investigation, and an order prohibiting "further destruction of evidence by IRI." (Defts' Aug. 2, 1999 br. pp. 25-8; quotation from fn. 10, p. 25).
While the February 9, 1996 message from Sellers to Smith (referring to "a directive for us to clean up' our files not too long ago") is highly suggestive of the removal of possibly embarrassing material from files, the evidence falls far short of supporting a conclusion that there was any such action in fact, or that the idea ever went beyond mere talk.
Sellers denies there was any such directive, and disavows his message's apparent meaning. Although they are interested witnesses, a chorus of IRI deponents deny any spoliation. While defendants argue that document destruction can be inferred from the production of single, rather than multiple, copies of memoranda and communications, the present record is too slender and speculative to support granting the requested relief.
The motion is denied. Each party will bear its own motion costs.
So ordered.