Opinion
01 Civ. 2760 (JGK) (GWG).
November 1, 2007
OPINION AND ORDER ON MOTION FOR RECONSIDERATION
On September 13, 2007, the Court issued an Opinion and Order addressing a number of outstanding motions and applications (Docket # 184) ("Opinion"). On October 1, 2007, plaintiff filed a motion to reconsider portions of that order, see Plaintiff's Combined Notice of Motion and Memorandum of Law Pursuant to Rule 59 of the Federal Rules of Civil Procedure, filed Oct. 1, 2007 (Docket # 187) ("Motion"), to which defendants filed opposition papers and plaintiff filed reply papers.
I. Legal Standards
II. Discussion
Lent v. Fashion Mall Partners, L.P.243 F.R.D. 9798Davey v. Dolan 496 F. Supp.2d 387389In re Health Mgmt. Sys., Inc. Sec. Litig. 113 F. Supp. 2d 613614Henderson v. Metro. Bank Trust Co. 502 F. Supp.2d 372376Id. Notes on Conversations with Evaluators
Plaintiff states that in his original motion he sought sanctions "because Judge Lebovits and Mr. Reimer failed to preserve the underlying notes and records of interviews of confidential evaluators Judge Lebovits conducted." Motion at 1. In its Opinion and Order, the Court discussed at length notes taken by Judge Lebovits with respect to his conversation in 1997 with plaintiff, see Opinion at 8-11, which had been argued in detail in plaintiff's submission. See Notice of Motion, filed June 19, 2007 (Docket # 157) ("Original Motion"), at 6-8. Plaintiff's argument with respect to other notes was relatively insubstantial. Accordingly, the Court ruled summarily that "[t]o the extent plaintiff's argument seeks spoliation sanctions with respect to any other notes, he has made no factual showing at all with respect to other notes and thus any request for sanctions must be denied." Opinion at 11 n. 8.
The Court doubts that plaintiff is entitled to seek "reconsideration" of this ruling inasmuch as the Court considered all the arguments in plaintiff's original papers and nothing was "overlooked." It is not necessary to reach this question, however, as the request for sanctions is denied on the merits. For essentially the same reasons given previously as to the notes of the 1997 conversation with Mitchell, see Opinion at 8-11, a sanction is not appropriate with respect to the notes Judge Lebovits took of his conversations with evaluators.
The factual record presented to the Court is that Judge Lebovits took notes of his conversations with evaluators but has no recollection of what happened to those notes. He also testified that he incorporated his notes into his letters of January 1998. See Deposition of Gerald Lebovits, dated May 22, 2007 (attached as Ex. D to Motion), at 33 ("[e]verything that I wrote in the notes, I incorporated into my letters to the subcommittee"). Considering the standards discussed in cases such as Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir.),cert. denied, 534 U.S. 891 (2001); and Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998), no spoliation sanction is warranted. Plaintiff has not shown that Judge Lebovits should have assumed that the notes of his conversations with evaluators needed to be preserved when it was Judge Lebovits's intention to produce a report based on those notes, and the potential for litigation was inchoate at that time. In any event, apart from speculation and supposition, plaintiff has also not shown that the lost notes would have supported his case. Kronisch, 150 F.3d at 127 (aggrieved party bears the burden of showing that there is a "likelihood that the destroyed evidence would have been of the nature alleged"); accord Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 108 (2d Cir. 2001) (party has the burden of producing "`some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files'") (quoting Kronisch, 150 F.3d at 128). While the destruction of evidence in bad faith or through gross negligence might permit a jury to conclude that missing evidence is favorable, the only evidence on this point is that Judge Lebovits's notes were merely lost. Other than plaintiff's surmise, there is no evidence that the notes contained material unfavorable to defendants. Indeed, the only the testimony on this point is Judge Lebovits's statement that the lost notes matched what was contained in the January 1998 letters. In the absence of any "extrinsic evidence whatever tending to show that the destroyed evidence would have been unfavorable to the spoliator, no adverse inference is appropriate." Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 77 (S.D.N.Y. 1991); see also Cortes v. Peter Pan Bus Lines, Inc., 455 F. Supp. 2d 100, 103 (D. Conn. 2006) ("mere negligence" in not being able to locate relevant documents does not lead to an inference that the documents would have been favorable).
B. Materials Relating to Recertification Process
In his original notice of motion, plaintiff sought to preclude defendants from using certain materials regarding the recertification process "because the defendants failed to preserve the chain of custody regarding the materials furnished and an independent record of the history of the criteria and policies and procedures pertinent for this case." Original Motion at 1. In his supporting papers, plaintiff repeated this statement verbatim. Id. at 9. On this point, the Court ruled that
plaintiff provides no factual explanation at all for this request beyond this conclusory statement. Accordingly, the request is denied. This ruling of course is without prejudice to any future motion in limine, if warranted, with respect to the question of the admissibility under the Federal Rules of Evidence of any materials defendants might offer on their policies and procedures
Opinion at 11 n. 8.
Plaintiff's motion for reconsideration now seeks to preclude these materials not on the basis of a lack of "chain of custody" but rather "because the defendants failed to turn these materials over in a timely manner and delayed production, needlessly, for two years." Notice of Motion (attached to Motion), at 1. This argument is completely new. While his supporting materials now supply arguments relating to the delay, see Motion at 9-11, none of these facts or arguments were raised in the original motion. The reason for the failure to raise these facts or arguments is explained, if at all, only by plaintiff's vague assertion that unnamed transcripts were "not available during the original briefing of the motion." Motion at 1. This is insufficient to justify the failure to raise this point earlier inasmuch as no indication is given of what transcripts were involved, what efforts were made to obtain the transcripts, and why these particular transcripts were necessary for the presentation of the facts underlying the motion. Accordingly, the motion for reconsideration is denied first because the particular arguments at issue were never presented during the briefing of the original motion.
Second, the request is denied on the merits. Plaintiff has not given a sufficient explanation of why the late production prejudiced him. Indeed, it appears uncontested, see Motion at 10-11, that the materials were supplied prior to the depositions of the relevant witnesses and, indeed, that plaintiff questioned witnesses about these materials. Accordingly, the extreme sanction of preclusion is unwarranted.
Obviously, this ruling does not affect plaintiff's ability to make arguments in the future regarding the admissibility of these documents at the time of trial or in the course of summary judgment briefing.
Conclusion
The motion to reconsider (Docket # 187) is denied.
SO ORDERED.