; Resnik v. Coulson, No. 17-CV-676, 2019 WL 1434051, at *6 (E.D.N.Y. Mar. 30, 2019) (“[T]he opportunity for a litigant to make strategic choices, such as invoking Fifth Amendment privileges, is part and parcel of a full and fair opportunity to litigate.”)
Rule 37(e) incorporates the “longstanding common law duty” to preserve evidence “when [a] party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Resnik v. Coulson, No. 17-CV-676 (PKC) (SMG), 2019 WL 1434051, at *7 (E.D.N.Y. Mar. 30, 2019) (quoting Rabenstein v. Sealift, Inc., 18 F.Supp. 3D 343, 360 (E.D.N.Y. 2014))
Fed. R. Civ. Pro 37(e) incorporates the “longstanding common law duty” to preserve evidence “when [a] party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Resnik v. Coulson, No. 17-CV-676 (PKC) (SMG), 2019 WL 1434051, at *7 (E.D.N.Y. Mar. 30, 2019) (quoting Rabenstein v. Sealift, Inc., 18 F.Supp.3d 343, 360 (E.D.N.Y. 2014)) (alteration in original); see also Fed. R. Civ. Pro 37(e) advisory committee's note to 2015 amendment (“Many court decisions hold that potential litigants have a duty to preserve relevant information when litigation is reasonably foreseeable.
FRCP 37(e) Advisory Committee's note to 2015 Amendment; Charlestown Cap. Advisors, 337 F.R.D. at 61 (“The duty to preserve ESI imposed by Rule 37(e) incorporates th[e] longstanding common law duty.” (quoting Resnik v. Coulson, No. 17 Civ. 676 (PKC) (SMG), 2019 WL 1434051, at *7 (E.D.N.Y. Mar. 30, 2019)); CBF Industria de Gusa S/A, 2021 WL 4190628, at *15; see also United States v. Stein, 488 F.Supp.2d 350, 361 (S.D.N.Y. 2007) (“There is no hint in the history of [the FRCP] that the meaning of the phrase [possession, custody, or control] differs depending upon which rule is in question.”).
"The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation." Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001); accord Resnik v. Coulson, 2019 WL 1434051, at *7 (E.D.N.Y. Mar. 30, 2019) (quoting Rabenstein v. Sealift, Inc., 18 F.Supp.3d 343, 360 (E.D.N.Y. 2014)). Here, plaintiff claims that she "sent a 'package' to Shamin Chaitram the week of October 21, 2019 to memorialize their conversation with a written Cease & Desist Letter demanding that the store stop defaming plaintiff to third parties and informing the store that plaintiff was going to file a lawsuit[.]" Sept. 23 Letter-Mtn. at ECF p. 5.
Rather, the sanctions authorized by Rule 37(e)(2) are only available when a court finds that the threshold requirements have been met.” Resnik v. Coulson, No. 17-CV-676 (PKC) (SMG), 2019 U.S. Dist. LEXIS 55199, 2019 WL 1434051, at *7 (E.D.N.Y. Mar. 30, 2019). "[A]s the law currently exists in the Second Circuit, there are separate legal analyses governing the spoliation of tangible evidence versus electronic evidence."
Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001); see also Resnik v. Coulson, No. 17-CV-0676, 2019 WL 1434051, at *7 (E.D.N.Y. Mar. 30, 2019) (quoting Rabenstein v. Sealift, Inc., 18 F.Supp.3d 343, 360 (E.D.N.Y. 2014)). “The duty to preserve ESI imposed by Rule 37(e) incorporates this longstanding common law duty.” Resnik, 2019 WL 1434051, at *7
“Rule 37(e) does not redefine the duty to preserve; rather it incorporates the common-law duty to preserve relevant information when litigation is reasonably foreseeable.” Bistrian v. Levi, 448 F.Supp.3d 454, 467-68 (E.D. Pa. 2020) (quotation omitted); see also Charlestown Capital Advisors, LLC v. Acero Junction, Inc., 337 F.R.D. 47, 61 (S.D.N.Y. 2020) (“The duty to preserve [electronically stored information] imposed by Rule 37(e) incorporates the longstanding common law duty.”); Resnik v. Coulson, No. 17-cv-676(PKC)(SMG), 2019 WL 1434051, at *7 (E.D.N.Y. Mar. 30, 2019) (same). As part of their common law discovery obligations, “putative litigants have a duty to preserve documents that may be relevant to pending or imminent litigation.”
"The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation." Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001); accord Resnik v. Coulson, 2019 WL 1434051, at *7 (E.D.N.Y. Mar. 30, 2019) (quoting Rabenstein v. Sealift, Inc., 18 F. Supp. 3d 343, 360 (E.D.N.Y. 2014)). "Although the obligation to preserve evidence commonly arises when the suit has already been filed, it can arise earlier 'when a party should have known that the evidence may be relevant to future litigation.'"
"[C]ourts are divided with respect to the appropriate standard of proof to apply to a claim of spoliation." Resnik v. Coulson, No. 17-CV-676, 2019 WL 1434051, at *7 (E.D.N.Y. Mar. 30, 2019). However, in determining whether Fashion Exchange intended to deprive defendants of use of the allegedly spoliated evidence, Magistrate Judge Wang employed a standard widely used by courts in this Circuit.