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awarding costs, as well as permitting an adverse inference instruction
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Case No. 95 Civ. 470 (CSH)
March 31, 2003
MEMORANDUM AND ORDER
Plaintiff Joan Pastorello brings this action against certain hospital medical, administrative, and security staff associated with the Bronx Municipal Hospital Center ("Jacobi"), the New York City Health and Hospitals Corp. ("HHC"), and the City of New York (collectively "the defendants") for violations of her rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution. This case is currently before the Court on plaintiff's motion for sanctions for false and misleading disclosure. Pastorello argues that the spoliation, or destruction, of valuable evidence and the response given to her request for this evidence prejudiced her claim and are sanctionable pursuant to Rule 37(c) of the Federal Rules of Civil Procedure.
The terms "security officer" and "police officer" are used interchangeably to refer to hospital security staff throughout this Opinion, since both terms are used alternately by plaintiff's and defendants' submissions.
A complete list of defendants includes: The City of New York, New York City Health and Hospitals Corporation, Kathleen Hunzicker, M.D. (plastic surgeon), Shepard Greene, M.D., (psychiatrist), Janet Lannigan (hospital administrator), Carolyn Griffiths, R.N., (nurse-clinician), Dorothea Schuetz-Mueller, M.D. (psychiatrist), and three police officers (John Doe numbers 1, 2, and 3).
In considering the motion, it became clear to the Court that the initial record left unanswered key questions related to discovery of the allegedly spoliated materials. To address this, in an Order dated November 15, 2002, see Pastorello v. City of New York, 2002 WL 31557502 (S.D.N.Y. 2002), the Court ordered that the defendant City answer the following questions:
1. On what date did the responsible individual or individuals in the Risk Management Office of Jacobi Hospital (hereinafter "RMO") first receive from the office of the Corporation Counsel a copy of plaintiff's document requests dated August 5, 1995?
2. Did the RMO consider at that time whether plaintiff's Document Request 1(u) included the memo books kept by Hospital security officers? If not, why not?
3. On what date did the RMO receive from the Corporation Counsel a specific request to locate the memo books of the security officers who were involved in the events concerning plaintiff?
4. Describe in detail what the RMO did in response to that request, including:
(a) identifying the officers who were involved with Pastorello on February 27 and 28, 1993;
(b) obtaining security officers' memo books;
(c) examining the contents of those memo books;
(d) communicating further with the Corporation Counsel concerning the memo books.
That Order also recited the factual background of the underlying claim and the discovery background as it was then known. Since the Court's understanding of the discovery proceedings has been enhanced since the last Order, I find it useful to restate that background in full.
Discovery Background
Plaintiff alleges that after being brought to Jacobi following an assault and attempted rape, she was mistreated by hospital medical and security staff, sedated and held there for a period of time against her will between February 26, 1993 and March 2, 1993. Because of her distressed condition and the sedation, Pastorello has only a limited ability to prove the identity of the individual participants, and the nature and extent of their participation.
To substantiate and enhance her recollection, plaintiff submitted a first set of written interrogatories and document requests ("First Interrogatories"), dated August 5, 1995, which she drafted pro se. This included Document Request 1(u), which demanded that the defendants produce:
a clear copy of the logs and records maintained by the HHC hospital police (security guards) at Jacobi Hospital or elsewhere pertaining to the plaintiff's stay from the time the plaintiff was admitted to the Emergency Room at Jacobi Hospital on Friday, February 26, 1993, until she was released from Jacobi Hospital on Tuesday, March 2, 1993.
On its face, the request seemed designed, in part' to help provide documentation on the following incident, as alleged by plaintiff. From the afternoons of February 27 to February 28, Pastorello was debilitated from an allegedly forced injection and taken to a room in Unit 2 South, where she was unable to move (having been tied down with bed sheets), given nothing to eat or drink, prohibited from relieving herself, and administered more injections by Carolyn Griffiths, the nurse-clinician. On the afternoon of February 28, two security officers arrived while Nurse Griffiths waited with a syringe, and were questioned by a patient in the next bed who claimed she hadn't seen Pastorello do anything, since "[t]he minute she moves her head, you guys are back again and she gets a shot." Declaration of Joan Pastorello (April 16, 2001) ¶¶ 21-28 ("Plaintiff's Decl.").
Immediately after this conversation, the police officer asked this patient how to spell her name and appeared to write that along with other notes in a book he was carrying. The officers then refused to assist in the administration of further injections, called someone to check on the situation, and waited with Pastorello in her room. When Nurse Griffiths returned with a syringe, she threw it in the waste basket upon seeing the officers present in the room. Soon after, Pastorello was released from the sheets, reassured and transferred to a psychiatric floor where she remained until March 2. Plaintiff's Decl. ¶ 31-38. Document Request 1(ii) would capture any contemporaneous entries made by the police officers involved in this incident.
Initially these interrogatories and demands were served upon Amy K. Adelman ("Adelman"), who was at that time an Assistant Corporation Counsel. On September 13, 1995, they were received by Annmarie J. Schmitz, RN ("Schmitz"), who has been the Associate Director for Risk Management at Jacobi Medical Center since January 1, 1995. Prior to serving as the Associate Director for Risk Management, Schmitz was the Coordinating Manager in Risk Management from 1991 to 1995, where she was "primarily concerned with occurrence reports, nursing service coordination and some regulatory issues." Declaration of Annmarie J. Schmitz, RN, ¶ 1 (January 2003) ("Schmitz Decl."). In response to Document Request 1(ii), defendants stated ". . . there are no documents responsive to this request."
That answer is potentially problematic because it was discovered in a deposition of Romeo Vairo, a Jacobi security officer, taken on December 1, 2000 that pertinent logs and records existed at one time. A Hospital "tour log" produced in redacted form to plaintiff contains the following entry for 0930 hours (9:30 a.m.) on February 28, 1993: "P/O Grogan P/O Viaro meds pt. Joan Pastorello 52 yrs RN Griffiths." The parties appear to agree that the name "Viaro" in the tour log is a misspelling of "Vairo." Thus Romeo Vairo may be identified with some certainty as one of the Jacobi security officers who was present at the medication of plaintiff on February 28 while she was still in Unit 2 South. (The tour log identifies "P/O Mendez" as the security officer who, at 1425 hours (2:25 p.m.) on February 28, assisted a nurse in transferring plaintiff from Unit 2 South to Unit 9 West).
Upon deposition, Officer Vairo testified that the officers kept daily logbooks in which they "maintain daily activities from the time we come to work until the time we leave." He then testified that the logbooks are secured with the officers' personal property and kept for three years. Deposition of Romeo Vairo (December 2000), Tr. 40-41 ("Tr".). Thus as of December 2000, when the deposition was taken, Officer Vairo presumably had logbooks dating back to December 1997.
As noted in the November 15, 2002 Order, Vairo's unequivocal testimony establishes that if Jacobi Hospital security officers participating in the events involving Pastorello in February and March, 1993 followed HHC requirements, they made contemporaneous entries concerning those events in their logbooks, and the logbooks existed at the times of plaintiff's demand for documents in August 1995 and defendants' response in November 1995.
In response to the Court's second inquiry as to whether she considered that Document Request 1(u) included the memo books kept by Hospital security officers, Schmitz's response was
no; I did not consider at that time, that the chronological memo books kept by individual Hospital Security officers were included in plaintiff's Document Request No. 1(u). In fact, in 1995, I was not familiar with HHC policy concerning police memo books, and did not know about them, and also did not know that the Police Department kept daily logbooks until early 1996.
Schmitz Decl. ¶ 6.
Schmitz additionally stated that in 1995, when she first addressed the inquiries from the Corporation Counsel's office in this case, she "had no knowledge of the operations or record-keeping procedures of the Hospital Police Department." Schmitz Del. ¶ 1. Schmitz had at least two obvious options to uncover the existence of the police memo books, as well as the Sergeant's log books and General log books, at the time she received Document Request 1(u): She could either have (1) asked the appropriate Sergeant, and perhaps any staff police officer, what kinds of records the security staff was required to keep; or (2) looked at the HHC Operating Procedures, where "Logs and records" of the HHC Hospital Police are specifically defined under HHC procedures, and could include such records as Hospital Police Logs, (HHC Operating Procedure 220-13), Criminal Incident Reports, (HHC Operating Procedure 220-4) and Reports of Incidents and Unusual Occurrences, pursuant to HHC Operating Procedure 120-12. Defendant's Memorandum at 8. Instead of taking either of these steps, Schmitz states:
Defendant goes further to state that these documents articulated in the HHC Procures were produced to plaintiff. However, the Court refers to the HHC Operating Procedures not to dispute what was and what was not produced to the plaintiff, but to suggest that had Schmitz reviewed the Operating Procedures, she would have known that the police kept some records that might respond to plaintiff's document request.
Unfortunately, because of my inexperience with Hospital Police Procedure in 1995, I did not inquire further of the Department concerning `logs and records' in 1995. In fact, in addition to the Sergeant's log books and police memo books, which I learned about for the first time in early 1996, I learned for the first time in 2000, after another inquiry from the Corporation Counsel's office that year, that the Department also kept General log books.
Schmitz Decl. ¶ 8. According to Schmitz, it was because of her "inexperience" that the defendants stated "In response to Document Request No. 1(ii), defendants state that there are no documents responsive to this request."
While at the same time Schmitz, as the Associate Director in Risk Management, was responding to the document requests and interrogatories without first checking to see what kinds of record-keeping mechanisms were in place, Adelman, the Assistant Corporation Counsel assigned to the case at the time, gave the following reason for allowing the defendants to state that there were no responsive documents: "Because there was no request for police memo books in plaintiff's first discovery demands, I did not construe the key request at issue as seeking memo books rather than seeking log books." Adelman Decl. ¶ 9. She also stated,
It was not until plaintiff mentioned in her January 1996 letter to the Court that the police memo books might assist her in identifying the hospital officers who were called to aid the doctors with plaintiff on February 27, 1993, that I began to ask the Hospital to seek out the books of the officers most likely to have responded.
Adelman Decl. ¶ 9.
Again, as noted in the November 15, 2002 Order, it is difficult to take this apologia seriously. Within the context of the HHC requirements, "memo books" were "log books" and vice-versa, their purpose (whatever one calls them) being to record events as they occurred. Moreover, plaintiff's document request was not limited to "logs"; plaintiff demanded production of copies of "the logs and records maintained by the HHC hospital police (security guards) at Jacobi Hospital or elsewhere pertaining to the plaintiff's stay" at Jacobi (emphasis added). Even if one indulges in the semantic fantasy that the officers' "memo books" were not "log books," they were certainly "records" maintained by the officers within any fair reading of plaintiff's Document Request 1(ii).
I have recited the defendants' reasons why defendants stated that there were no documents responsive to Document Request 1(ii) in November 1995. The Court's final two questions posed to the defendants asked, first, when the RMO received a specific request to locate the memo books of the security officers who were involved in the events concerning the plaintiff, and second, how the RMO went about honoring that request.
Schmitz's answer to the question of when the RMO received the request to locate the memo books is the following:
In response to that question, first, in plaintiff's January 6, 1996 letter to the Court, she requested that police memo books be read, in order to try to identify the officers called to assist the doctor with plaintiff on February 27, 1993, not that the memo books be produced. Plaintiff's January 6, 1996 letter was faxed to me by the [Assistant Corporation Counsel] on January 12, 1996.
Schmitz Decl. ¶ 12. Thus Schmitz states that to the extent she first discovered the request for the memo books, it was on January 12, 1996. In relevant part, the January 6, 1996 letter from the plaintiff states:
In that [first] set of Interrogatories I requested, among other things, that HHC identify the three security guards who were present in Dr. Hunzicker's office when the incident described in my Complaint took place on February 27, 1993, that is to say, the three John Doe defendants. I also requested a copy of the logs and records maintained by the HHC hospital police which pertained to my stay at Jacobi Hospital from February 26 through March 2, 1993. Such logs would contain information about the incident which took place in Dr. Hunzicker's office as well as about my transfer from the medical floor to the psychiatric ward on Sunday, February 28, 1993.
Lifton Supp. Decl., Ex. R, Letter from January 6, 1996 ("January Letter") (emphasis added). This letter makes clear that the request for the logs and records from Pastorello's entire stay at Jacobi was being reiterated and further underscored with respect to those Jacobi employees involved in the events of February 28, 1993.
As stated supra, in addition to asking when the RMO received the specific request, the Court asked the RMO to describe in detail what she did in (1) identifying the officers who were involved with Pastorello on February 27 and 28, 1993; (2) obtaining security officers' memo books; (3) examining the contents of those memo books; and (4) communicating further with the Corporation Counsel concerning the memo books. Schmitz states that she did two things to uncover the identity of the officers involved. First, she
asked the Hospital Police in December 1995 to attempt to identify the names of the officers who might have responded to assist doctors with plaintiff on February 27 and 28, 1993. The inquiry by the police lieutenant was unnsuccessful, but . . . I was told in early 1996 that a review of the Sergeant's Log Book revealed that there was no entry for February 27 and two entries for February 28, involving officers Grogan and Vairo.
Schmitz Decl. ¶ 14 (emphasis added). She further states, without revealing who informed her, that she
Regarding the Sergeant's Log Book, Schmitz states:
I learned for the first time in January or February 1996 that the "Logs and records" of a Hospital security police force, kept in the normal course of business, included Sergeant's Log Books. The Sergeant's Logbooks are kept on a daily basis by the Police Department, (usually a Segreant or other officer he designates), and contain a chronological, concise documentation on one line of each page, of who, what, where and when unusual incidents involving the security police occurred.
Schmitz Decl. ¶ 9. She notes that she forwarded plaintiff's a copy in further compliance with discovery, but further compliance is not full compliance.
was informed that the first February 28, 1993 entry was made because there was physical contact between a patient, (plaintiff), and the doctor, after which the officers were called to assist the doctor; the second entry was made because an Officer was assigned to accompany plaintiff (who was assigned an alias, `Joan Carey', for her protection), to the Psychiatric Unit. I forwarded the February 28, 1993 log book page to the corporation counsel, and I understand that it was produced to plaintiff.
Schmitz Decl. ¶ 9. This response makes clear that the February 28 Sergeant's Log Book entry references the incident which lead to Pastorello's transfer from Unit 2 South to the Psychiatric Unit. Instead of reviewing the relevant officers' memo book entries, defendant simply produced the Sergeant's Log Book, in contravention of both the First Interrogatories, and the January Letter itself. The letter and Sergeant's Log Book reminded the defendants that these memo book entries existed, and in particular, that those from February 28, 1993 were important. Thus the response to the Court's query as to what was done to identify the officers involved with Pastorello on February 28, 1993 and obtain their memo books is that only the Sergeant's Log Book was produced — but not the individual memo books. As will be discussed infra, these memo book entries were not even reviewed internally. In common parlance, defendants "dropped the ball" in their duty to produce documents by not searching for the individual officers' memo books (in particular those of Officers Grogan, Vairo, and Mendez) of February 28.
The second process Schmitz undertook to uncover the identity of the relevant police officers did involve the actual police memo books. After receipt of the January Letter from Corporation Counsel, the possible existence of police memo books finally penetrated the consciousness of the responsible Jacobi administrators. Schmitz "inquired of the Hospital Police Director about whether such personal memo books are kept by her officers." Schmitz Decl. ¶ 15. On January 23, 1996, Lydia Perez, the former Hospital Police Director, sent a fax to the following officers to "provide this office with [their] memobook entries for 2/27/93 no later than 1/26/96": R. Vairo, A. Sanchez, S. Dial, W. Smith, and J. Valle. Schmitz Decl. Ex. M. of these officers, Officers Sanchez and Valle responded on February 21, 1996, and Officer Dial responded on March 20, 1996.
Having received this information, the Hospital sent to Adelman pages from the memo books of Officers Dial, Sanchez, and Valle. Adelman Decl. ¶ 11-13. Because these entries contained nothing regarding the plaintiff, and plaintiff's document request was limited to documents "pertaining to the plaintiff's stay" at Jacobi Hospital, defendants correctly contend that they were not required to produce them.
However, as noted supra, the question remains why the individual memo book entries for February 28, in particular for Officers Grogan, Vairo, and Mendez, were not located and produced. Schmitz states that Officer Grogan was no longer employed by Jacobi, but regarding Officers Vairo and Mendez, Schmitz states simply that Sergeant Steven Dial was unable to locate them. Schmitz Decl. ¶ 16-17. Moreover, it is clear in the Schmitz Declaration that she made no attempt to locate the February 28 memo book entries, or for that matter any of the memo book entries for the other dates in question beyond February 27.
Schmitz also states in her declaration that she contacted the Hospital Police to obtain color photographs of all Hospital Police Officers on duty on February 27 and 28, 1993, and that all Hospital Occurrence reports and police reports of unusual incidents for February 27 and February 28, 1993 were reviewed, which showed no references to the plaintiff. Schmitz Decl. ¶ 18, Ex. P. However, Schmitz's explanation underscores her failure to request the memo book entries for February 28, the exact date on which the Sergeant's Log Book recorded two incidents involving the plaintiff, in her conclusion:
Moreover, as explained above, based upon plaintiff's January 6, 1996 letter to the Court, it was my understanding that plaintiff was interested in the information contained in the memo book entries for February 27, 1993 to assist her in identifying the officers who were called to assist the doctor with plaintiff on February 27, 1993.
Schmitz Decl. ¶ 20. This conclusion ignores the initial document request lying at the heart of this motion, as well as the fact that both the January Letter and Schmitz's own review of the Sergeant's Log Book highlighted the importance of locating records related to February 28, 1993.
At the deposition of Officer Vairo on December 1, 2000, Ms. Lifton, the current Assistant Corporation Counsel, stated in response to the call for the personal logbooks of February 27, 1993, "I think you wouldn't want it. They just threw them out. What can I tell you." Tr. 63. The deposition then concluded and no further production has been made. This motion for sanctions followed.
While at the deposition, plaintiff called only for the production of the February 27, 1993 logbooks, this Court assumes that the February 28, 1993 logbooks were thrown out as well.
Pastorello contends principally that defendants have committed the legal sin of spoliation. She also argues that defendants' denial in their November 13, 1995 response of the existence of the documents specified in her Document Request 1(ii) was false and misleading, requiring the imposition of sanctions under Rule 37(b), Fed.R.Civ.P. Specifically, Pastorello asks that the Court strike defendant's answer, or in the alternative, give an adverse inference charge to the jury.
Discussion
Under the Federal Rules of Civil Procedure, a court can sanction any "party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(2)," and "[i]n addition to requiring the payment of reasonable expenses, including attorneys fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure." Fed.R.Civ.P. 37(c). The authorized sanctions under Rule 37(b) consist of: an order establishing facts related to the discovery abuse, prohibiting the disobedient party from supporting or opposing related claims and defenses, striking out pleadings or parts thereof, or entering a default judgment against the disobedient party.
Spoliation is "the destruction or significant alteration of evidence or the failure to preserve the property for another's use as evidence in pending or reasonably foreseeable litigation." West v. Goodyear Tire Rubber Co., 67 F.3d 776, 779 (2d Cir. 1998) (internal quotation marks and citations omitted). Some courts are reluctant to rely on Rule 37 in spoliation cases, see Capuelluo v. FMC Corp., 126 F.R.D. 545 (D. Minn. 1989), preferring to address the destruction of evidence by using their inherent supervisory power "to regulate litigation, preserve and protect the integrity of the proceedings before [them], and sanction parties for abusive practices." Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991); see also Chambers v. Nasco, Inc., 501 U.S. 32, 46 (1991) (rules of civil procedure "are not substitutes for the inherent power" to sanction litigants). Indeed, the imposition of sanctions for spoliation has deep historic roots: "It has long been the rule that spoliators should not benefit from their wrongdoing, as illustrated by that favorite maxim of law, omnia presumuntur contra spoliaterum." West, 67 F.3d 779 (internal quotation marks and citations omitted). It has been condemned in language evocative of Old Testament fury: "The law, in hatred of the spoiler, baffles the destroyer, and thwarts his iniquitous purpose, by indulging a presumption which supplies the lost proof, and thus defeats the wrongdoer by the very means he had so confidentially employed to perpetrate the wrong." Pomeroy v. Benton, 77 Mo. 64, 86 (1882) (quoted in Turner, 142 F.R.D. at 74).
Furthermore, Rule 37(c) sanctions are directly relevant to the case at bar because Pastorello brings not only a spoliation claim, but alleges that the defendants' response to her interrogatory was false and misleading. The abuses alleged by the plaintiff are sanctionable by this Court under both its inherent supervisory powers and the Federal Rules of Civil Procedure.
I. Determining Which Sanction is Appropriate.
The imposition of an appropriate sanction for spoliation and the failure to produce evidence "is confined to the sound discretion of the trial judge, and is assessed on a case-by-case basis," Fujitsu Limited v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) (citing West, 167 F.3d at 779). This "`case-by-case approach to the failure to produce relevant evidence seems to be working.'" Id. (quoting Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 267 (2d Cir. 1999)). The sanction imposed should: "(1) deter parties from engaging in spohation; (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 absent the wrongful destruction of evidence by the opposing party.'" West, 167 F.3d at 779 (quoting Kronisch, 150 F.3d 112, 126 (2d Cir. 1998)).
Pastorello requests the extreme sanction of striking the defendants' answer, the functional equivalent of a default judgment on liability. Gross negligence, willfulness, bad faith, or fault on the part of the sanctioned party may make dismissal appropriate, but "because dismissal is such a drastic remedy, it should be imposed only in extreme circumstances, usually after consideration of alternative, less dramatic sanctions." West, 167 F.3d at 779 (internal quotation marks and citations omitted) and McCarty v. Philippine National Bank, 1987 WL 33616, *6 (S.D.N.Y 1987) (citing Cine Forty-Second Street, 602 F.2d 1062, 1067-68 (2d Cir. 1979)); see also Miller v. Time-Warner Communications, Inc., 1999 WL 440781, *5 (S.D.N.Y. 1999). Thus this Court will first consider whether the lesser sanction of an adverse inference charge would fulfill the requirements of deterring future abuses, shifting risk onto the spohator, and remedying any prejudice imposed upon the wronged party.
II. Whether an Adverse Inference Charge is the Appropriate Remedy
An adverse inference charge as a spoliation sanction has two underlying rationales, the first being remedial, to restore the prejudiced party to its previous evidentiary position; and the second being punitive, to act as a deterrent. A recent Second Circuit decision reiterated the three-part test for an adverse inference charge:
[A] party seeking an adverse inference instruction based on the destruction of evidence 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.Residential Funding Corporation v. DeGeorge Financial Corporation., et al., 306 F.3d 99, 107 (2d Cir. 2002) (quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d Cir. 2001)).
A. Whether There Was an Obligation to Preserve the Memo Books.
An obligation to preserve evidence after the party possessing evidence receives notice of its relevance. Such notice is made manifest by the receipt of a discovery request, but may be given at an earlier time by the filing of a complaint, notice of claim, or even prior to such a filing "where a party is on notice that litigation is likely to be commenced." Turner, 142 F.R.D. at 72-73. The notice of claim in the present case was filed on April 29, 1993, just under two months after the events in question occurred. The complaint specifically referenced the maltreatment of Pastorello, some perpetrated by the HHC police staff and some rectified by the police staff, and so the duty to preserve the police memo books arose not later than April 29, 1993. Furthermore, the document request, filed on January 23, 1995, demanded "a clear copy of the logs and records maintained by the HHC hospital police (security guards)" during the time of Pastorello's stay at Jacobi. The deposition testimony of HHC police officer Vairo noted supra makes clear that if these memo books were kept for three years as required by HHC practices, they existed at the time of the complaint (in 1993), at the time they were requested (in 1995), and at the January Letter (in 1996).
Corporation Counsel Barbara Lifton's "off the cuff" response that "[tlhey just threw them out. What can I tell you," Bartlett Decl. at Ex. E, is insufficient to overcome the obligation to preserve evidence or defendants' breach of that obligation. The obligation to preserve evidence runs "first to counsel, who [has] a duty to advise [her] client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction." Turner, 142 F.R.D. at 73. That this duty to advise the client was neglected is evident in Schmitz's complete failure to either ask the police what kinds of records they maintained or look at the HHC Procedure Manual to uncover the existence of records.
Defendants' Memorandum states that Barbara Lifton's response was merely an "offhand gloss on Officer Vairo's deposition testimony, not a statement of fact concerning the actions of any other Hospital police officer or administrator regarding retention of their personal memo books." Defendants' Memorandum at p. 7 n. 1. As Counsel for the defendants, Lifton's clarification of Officer Vairo's testimony carries considerable weight. Whether or not it was intended to be a statement of fact, it was a statement that the memo books had been thrown out, and since they are not in evidence, it appears to this Court that Lifton's assertion was factual. Presumably the defendants note that Lifton's response was "off the cuff" to rebut the spoliation claim, though they never explicitly say so. However, I find that the evidence was in fact destroyed because: (1) the practice is to discard the memo books after three years; (2) relevant memo books have not been produced; (3) Lifton did say that the memo books were thrown out; (4) and no evidence has been provided to the contrary.
Defendants claim that they "opposed plaintiff's motion because plaintiff cannot demonstrate that defendants had notice before January 1996, that such personal memo books might be relevant to plaintiff's claims." Defendants' Suppl. Mem. at 1. To support this claim, defendants reiterate that the "Risk Management Officer, Nurse Annmarie J. Schmitz in fact, was not familiar with HHC or hospital police concerning police memo books, and did not know about them when she verified defendants' responses to plaintiffs First Interrogatories and Document Requests on November 14, 1995," id. at 6. However, not knowing such records exist does not excuse the obligation to preserve them, particularly when the defendants could easily have ascertained their existence. Furthermore, the supplemental affidavits and memoranda provided by the defendants pursuant to the November 15, 2002 Order make clear that relevance was not the issue — they were not aware that such records existed when they answered the First Interrogatories. Finally, once on notice in January 1996, their obligation to preserve the requested memo book entries from February 26, 1993 to March 2, 1993 was renewed.
B. Whether the Spoliator Had a Culpable State of Mind.
A party's failure to comply with the obligation to preserve evidence is insufficient by itself to support an adverse inference charge. The spoliator must also have acted "with a culpable state of mind." Residential Funding Corporation, 306 F.3d at 108.
In this Circuit, that element does not require a showing that the spoliator acted in bad faith. In Turner, 142 F.R.D. at 76, Magistrate Judge Francis held that "[t]he evidentiary imbalance caused by the spoliation does not depend on that party's intent; therefore, bad faith, while a significant consideration, should not be an absolute prerequisite to drawing an adverse inference." In Reilly, 181 F.3d at 267-68, the Second Circuit declined to read some of its earlier decisions "as an absolute prohibition against granting an adverse inference instruction where there is no bad faith but there is gross negligence," observed that failures to produce relevant evidence "occur along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality," and held that "a finding of bad faith or intentional misconduct is not a sine qua non to sanctioning a spoliator with an adverse inference instruction." (citations and internal quotation marks omitted). In Byrnie, 243 F.3d at 109, the Second Circuit noted that the "culpable state of mind" factor is satisfied by a showing that the evidence was destroyed "knowingly, even if without intent to [breach a duty to preserve it], or negligently (emphasis added). Most recently, in Residential Funding Corporation, 306 F.3d at 108, the Second Circuit cited Turner with approval and held that "[t]he sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence."
In an effort to avoid an adverse inference, defendants make a number of arguments. First, defendants observe that the "HHC Procedure requires that the officers note a synopsis of what the situation or occurrence was which pertained to their duties, when and where it took place, and who was present." Defendants' Memorandum at 6. The defendants thus imply that because the memo books are only required to contain such non-medical information, they could not show that the plaintiff was medicated without cause or "was not violent and did not present a danger to herself or others." Id. However, a non-medical recounting of the situation or occurrence could include information about whether or not the patient was violent and why the police were being asked to subdue her. It could also provide information such as who gave what orders, Pastorello's condition, the kind of force employed, etc., all of which could have been valuable corroborative evidence or provided insights into the defendants' mind.
Moreover, these memo books do not exist in an evidentiary vacuum. Pastorello asserts that when the patient in the next bed complained about Pastorello's mistreatment on February 28, 1993, a security officer noted that complaint in his book, after which the situation was finally rectified. In addition to the corroborative value of this entry, it could have provided probative data regarding the observation of a disinterested witness.
Second, the defendants assert "it is inconceivable that any hospital officer in his mind [sic], who wanted to preserve his job, and who was trained in how to restrain a sick patient" would record the forceful manner in which he subdued the plaintiff. Defendants' Memorandum at 6. Quite aside from the unpleasant implication that Jacobi discourages hospital staff from recording events truthfully, this observation is gratuitous. The question of whether or not the evidence would have supported Pastorello's claim is entirely different from the question of whether the evidence is relevant to her claim. Note that Document Request I(ii) asked for all logs and records pertaining to plaintiff, not validating plaintiff's claims.
Third, the defendants contend that the First Interrogatories did not specifically request the police memo books, and so they were never on notice to retain them. I cannot accept that a reasonable person could fail to understand that a request for "a clear copy of the logs and records maintained by the HHC hospital police (security guards) at Jacobi Hospital" included the police memo books. Furthermore, the supplemental memoranda and affidavits make clear that this is a semantic fabrication — in fact, when defendants received the First Interrogatories, they never took the appropriate steps to uncover what records actually existed.
Defendants' efforts to disavow culpability do not persuade because the record establishes that their failure to preserve the requested documents was grossly negligent. Upon receiving the First Interrogatories, Schmitz's response was that she was unfamiliar with record-keeping policy. Schmitz Decl. — 1, 6 8. As Associate Director of Risk Management, it was her duty to undertake with some degree of care the process of discovering the existence of such record-keeping procedures. In fact, the job description of the Associate Director of Risk Management indicates that if she was doing her job properly, she would have discovered the existence of such records. It is part of the Associate Director's job to: "Develop and maintain a close working and collaborative relationship with medical, nursing and ancillary departments within the institution." Prieto Decl., Ex. J, "Bronx Municipal Hospital Center Functional Job Description." This Court assumes that Hospital security is such an ancillary department, with which she should have had a sufficiently close relationship to inquire about their record-keeping procedures. Far from fulfilling the requisite degree of care, she neglected to inquire about their existence at all.
When Schmitz received the January Letter — at which time the memo book entries from February 26, 1993 to March 2, 1993 would still have been in existence as per the three-year retention policy — all potentially relevant memo book entries should have been internally reviewed in full. Obtaining only the February 27 entries from three of the five officers still employed at Jacobi was insufficient, particularly because (1) in and around December 1995 and January 1996, Schmitz discovered from the Sergeant's Log Book that at least three officers (Grogan, Vairo and Mendez) were involved in two separate incidents with Pastorello on February 28, 1993, and (2) the January Letter highlighted the importance of February 28 and reiterated Document Request 1(ii).
While defendants are correct in asserting that if the entries did not pertain to plaintiff they had no duty to preserve and produce them, no party now knows whether there were any pertinent entries from any of the relevant days except February 27 (and even that knowledge, because of the missing entries, is insufficient) because no attempt was made to locate them, much less review them. Simply complying, in part, with a letter request to identify the officers associated with the plaintiff on February 27, 1993 does not excuse defendants obligation to comply with the both the First Interrogatories and the entirety of the January Letter.
Defendants' ignorance of their own reporting and record-keeping procedures is not only insufficient to disavow culpability, it is in and of itself culpable. Defendants made no attempt to uncover the existence of pertinent records at the time the request was made, and once the existence of the records were discovered, no attempt was made to review them comprehensively. This is especially troubling since defendants had reason to believe certain requested memo book entries would reference the plaintiff and yet still left them unlocated and unreviewed. For the above mentioned reasons, I find the defendants failure to preserve the memo book entries from February 27, 1993 to March 2, 1993 grossly negligent.
C. Whether the Destroyed Evidence Was Relevant to the Party's Claim.
Determining whether there is any likelihood that the destroyed evidence would have been of the nature alleged by the wronged party, or whether a nexus exists between the proposed inference and such evidence, "is unavoidably imperfect, inasmuch as, in the absence of the destroyed evidence, we can only venture guesses with varying degrees of confidence as to what that missing evidence may have revealed." Kronisch, 150 F.3d at 127. "Indeed, holding the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed evidence would subvert the prophylactic and punitive purposes of the adverse inference, and would allow parties who have intentionally destroyed the evidence to profit from that destruction." Id. at 128. Kronisch went on to hold that some evidence was required to corroborate the relevancy and contents of the destroyed evidence, but that circumstantial evidence was sufficient. Id.
There is sufficient evidence in the record to conclude that the destroyed evidence would have been relevant and favorable to the plaintiff's case. First, the helpfulness of the contents of the memo books as defined by the HHC Procedure guidelines has been articulated; these memo books could have identified the relevant police officers, provided background information, and corroborated Pastorello's account of what occurred during her stay at Jacobi. Second, based upon Pastorello's recollection of the February 28, 1993 events, an officer did note something in a pad he was carrying, and this entry could have been pivotal in locating a potential witness (the co-patient) and validating Pastorello's recollection of the incidence. Third, the Sergeant's Log Book itself notes that officers were involved with Pastorello in some way unusual enough to merit recording — this alone suggests strongly that the memo book entries of these officers would reference the plaintiff.
While defendants provide copies of two officers' memo book entries as evidence of what the others would have looked like to support their claim that the destroyed evidence was irrelevant, Lifton Decl. at Ex. B C, two memo books are not all the memo books, and examples of some entries are poor evidence of the irrelevancy of the undisclosed memo books. As the Second Circuit has recently held,
a showing of gross negligence in the destruction or untimely production of evidence will in some circumstances suffice, standing alone, to support a finding that the evidence was unfavorable to the grossly negligent party. . . . [T]hat same evidence of the opponent's state of mind will frequently also be sufficient to permit a jury to conclude that the missing evidence is favorable to the party (satisfying the "relevance" factor).Residential Funding Corporation, 306 F.3d at 109 (internal citation omitted) (emphasis added). Because I conclude that the defendants were grossly negligent, I find that there is sufficient data to conclude that "the evidence was unfavorable to the grossly negligent party." Id.
The Second Circuit went on to say that intentional or grossly negligent acts that impeded discovery can support an inference that the destroyed evidence was harmful to the destroyer, "even if those acts are not ultimately responsible for the unavailability of the evidence. . . ." Residential Funding Corporation., 306 F.3d at 110 (emphasis in original).
The defendants argue finally that because the plaintiff's did not undertake in good faith to identify the police officers present during the alleged incident through other investigative means, there is no prejudice to plaintiff's case. This argument misses the point. The memo book entries, in particular the February 28, 1993 memo book entries, could have been essential in doing a number of things: identifying a potential witness, identifying the officers, affirming Pastorello's recollections, and indicating something about the conditions under which Pastorello was placed or the relationship between her and the relevant physicians and nurses.
III. Adverse Inference Charge
An adverse inference charge is thus warranted in the case at bar. However, to ensure a tighter nexus between the proposed inference and the spoliated evidence, the inference will be limited to the events of February 28, 1993. There is no circumstantial evidence on the record to suggest that any of the other memo book entries — perhaps even the missing February 27, 1993 entries — would have helped or been relevant to plaintiff's claim. Furthermore limiting the adverse inference charge to the events of February 28, 1993 suffices to fulfill the deterrent, risk-shifting, and remedial purposes of discovery sanctions. Because the prejudice to the plaintiff is limited to the events of, and proof related to, February 28, 1993, striking the answer or rendering a default judgment go beyond what is needed to remedy the situation at hand.
In Residential Funding Corporation, the Second Circuit upheld an adverse inference instruction, usually reserved for spoliation, in a case that involved the non-production of evidence sanctionable under Rule 37(b) of the Federal Rules of Civil Procedure. If negligent non-production merits an adverse inference charge, grossly negligent spoliation does so a fortiori.
IV. Attorneys' Fees
The Court additionally awards the plaintiff reasonable expenses relating to this motion, including attorneys' fees, pursuant to Rule 37(c) of the Federal Rules of Civil Procedure. "Like an adverse inference, an award of costs serves both punitive and remedial purposes: it deters spoliation and compensates the opposing party for the additional costs incurred." Turner, 142 F.R.D. at 78. An award of costs is merited in the case at bar. Defendants responded inaccurately to plaintiff's request for documents and did nothing to correct the problem once they discovered the false nature of their response. Furthermore, defendants allowed potentially relevant and requested evidence to be discarded after a duty to preserve such evidence arose. This sequence of events not only caused the expenditure of additional resources by misleading the plaintiff, but gave rise to the costs of this motion.
Conclusion
Plaintiff's motion for sanctions for false and misleading disclosure is hereby granted to cure the "evidentiary inadequacies" caused by the defendants' spoliation, to deter the party from discarding relevant evidence in the future, and to place the burden of the risk of erroneous judgment on the abusive party.
This Court grants Pastorello an adverse inference charge instruction which will permit, but not require, the jury to infer from the spoliation of the February 28, 1993 memo books that on that date, Pastorello was being forcibly medicated and restrained without apparent justification, and that when the Jacobi security staff became aware of the situation, she was properly transferred to the Psychiatric unit.
If plaintiff wishes to press the claim for costs including attorney's fees attributable to this motion, counsel mist file and serve supporting papers that comply with the requirements of New York Association for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983).
It is further ordered that a status conference will be held on May 1, 2003 at 10:30 in Courthouse 17C at 500 Pearl Street to facilitate the progress of this matter.
It is SO ORDERED.