Opinion
11 Civ. 6885 (DAB)(HBP)
06-09-2015
NADINE THOMPSON, Plaintiff, v. WORKMEN'S CIRCLE MULTICARE CENTER, Defendant.
OPINION AND ORDER
:
I. Introduction
I write to resolve three pending discovery disputes: (1) plaintiff's application to conduct a forensic examination of defendant's computers, (2) defendant's motion to strike the errata sheets to plaintiff's deposition, and (3) plaintiff's motion for sanctions.
For the reasons set forth below, (1) plaintiff's application for forensic examination is granted in part and denied in part, (2) defendant's motion to strike plaintiff's errata sheets is granted in part and denied in part, and (3) plaintiff's motion for sanctions is denied.
II. Facts
Plaintiff Nadine Thompson commenced this action pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12111-17, alleging discrimination by defendant Workmen's Circle Multicare Center ("Workmen's Circle") on the basis of disability (Complaint, dated September 27, 2011 (Docket Item 2) ("Compl.") at 1), and that she was constructively terminated (see Compl. at 8; Nadine Thompson's Letter to the Undersigned dated October 6, 2012 at 4). Plaintiff is proceeding pro se.
Because plaintiff's Complaint is not serially paginated, I use the page numbers assigned by the Court's ECF system.
This letter has not been filed on the Court's ECF system. It will be filed simultaneously with this Order.
Plaintiff was employed as a dietary aide at Workmen's Circle (Compl. at 5). She was injured on the job in April 2010 (Compl. at 5) and alleges that, on July 19, 2010, defendant failed to accommodate her resulting disability (see Compl. at 2-3). Specifically, she alleges that although she was able to return to work in a limited capacity, Workmen's Circle failed to accommodate her disability by requiring that she be fully recovered before returning to work (Compl. at 5). In addition, plaintiff contends that Workmen's Circle failed to engage in an interactive process to determine whether it reasonably could have accommodated her disability (Compl. at 5). It is not clear whether plaintiff contends that she was terminated on July 19, 2010 (see Compl. at 3 ("It is my best recollection that the alleged discriminatory acts occurred on: 7/19/2010."); Compl. at 6 (attached Equal Employment Opportunity Commission ("EEOC") letter finding that plaintiff submitted doctor's notes to defendant in March 2011)). Plaintiff does not clearly state when she was terminated.
III. The Remaining Discovery Disputes
A. Plaintiff's Application for Forensic Examination
Plaintiff requests forensic examination of defendant's computers and other electronic equipment in order to obtain (1) verification of the authenticity of an email that was produced in paper form and (2) information regarding the chronology of edits made to her work assignments.
Plaintiff includes in her letters in support of her application the text of her discovery Requests 1, 2 and 3 that she submitted to defendant after a September 2012 conference in this matter. Nevertheless, it appears that plaintiff's motion is seeking only forensic examination and that these Requests are part of her application for forensic examination. They appear to list various equipment that plaintiff would like defendant to turn over for examination by a forensic technician.
1. Forensic Examination Regarding the Email
Plaintiff contests the authenticity of an email produced during discovery. The email purports to have been forwarded by Arthur Cooperberg, Chief Financial Officer of Workmen's Circle, to Elena Zaretsky, Workmen Circle's Director of Human Resources, on April 14, 2011, re-transmitting an email he sent her on July 19, 2010. In the email, Mr. Cooperberg states that he met with plaintiff on July 19, 2010, and that plaintiff had produced a doctor's note stating that she could return to work in a limited capacity. Mr. Cooperberg states in the email that he told plaintiff that the note was inconsistent with earlier notes from her doctor, which stated that she was able to return to work without any limitations. He also wrote that the most recent note did not "specify any restrictions or conditions she [sic] can resume her work" (Email, annexed to Ravindra K. Shaw's Letter to the Undersigned dated October 15, 2012). According to the email, Mr. Cooperberg sent plaintiff home and did not permit her to return to work that day.
This letter has not been filed on the Court's ECF system. It will be filed simultaneously with this Order.
Plaintiff contends that the hardcopy version of the email is "an attempt by the Defendant and its counsel to defraud the court" (Nadine Thompson's Letter to the Undersigned dated October 6, 2012 at 1) because she never met with Mr. Cooperberg on July 19, 2010. She requests access to defendant's computers in order to verify whether the email was in fact sent by Mr. Cooperberg on July 19, 2010.
I held two conferences in which this issue was discussed, one on September 10, 2012 and one on October 2, 2012. At both conferences I explained that before I could determine whether to grant plaintiff access to defendant's computers, she would need to obtain an expert forensic technician and submit a specific proposal identifying the expert, describing his credentials, and setting forth the precise nature of the inspection he intended to conduct. I reiterated that I was expressing no opinion as to whether I would grant her such access.
In a letter dated October 6, 2012, plaintiff partially responded to my requests for additional information. Plaintiff attached a resume of David S. Capelli, a digital forensic examiner, to her letter, but plaintiff did not include any information regarding what tests Mr. Capelli would perform. In addition, plaintiff explicitly stated in her cover letter that she had not yet decided which expert, if any, she would use for a forensic examination.
Plaintiff further contends that any such decision would be confidential and subject to the work-product privilege. This is not a correct statement of the law. Disclosure of the identity of expert witnesses is required under the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 26(a)(2).
Defendant, in its letter dated October 15, 2012, argued that plaintiff should not be granted access to defendant's computers because she did not identify the forensic examiner with certainty and did not describe the nature of the examination that would be performed. Defendant also argued that a forensic examination of its computers is not warranted because there is no reason to believe the email at issue is not authentic. Defendant also noted that plaintiff questioned Mr. Cooperberg about the events discussed in the email at his deposition and could have cross-examined Ms. Zaretsky, had she chosen to do so. Defendant argued that forensic examination of defendant's computers would place an undue burden on defendant's privacy and confidentiality rights, and the electronic version of the email was deleted from both Mr. Cooperberg's and Ms. Zaretsky's mailboxes, meaning that it is no longer easily accessible.
Defendant states that after the email was printed but before plaintiff filed her complaint, Mr. Cooperberg and Ms. Zaretsky deleted all electronic correspondence between them because of a personal matter and inadvertently deleted this email in the process.
I deny plaintiff's application for forensic examination with respect to Mr. Cooperberg's email. Despite ample opportunity, plaintiff has not complied with the requirements that I set forth at both conferences concerning this issue. Although plaintiff submitted another letter to me concerning this issue in 2015, it remains unclear whether plaintiff has selected an expert forensic technician, and plaintiff has not provided a statement of what tests the expert would perform in the event that her application is granted. As I stated previously, without this threshold information, it is inappropriate to grant plaintiff access to defendant's computers. See Loving v. N'Namdi, 05 Civ. 7966 (JGK)(MHD), 2006 WL 3456311 at *1 (S.D.N.Y. Nov. 29, 2006) (Dolinger, M.J.) ("We are not inclined in any event to approve testing without a specification of purpose, methodology and time-frame.").
Even without the electronic information that she seeks, plaintiff remains free to testify to her version of the facts and to argue that she did not meet with Mr. Cooperberg on July 19, 2010. While plaintiff did not question Mr. Cooperberg about the email at his deposition on August 30, 2012, plaintiff did question Mr. Cooperberg about the events that were documented in the email. She was also asked about those events at her deposition. Whether the meeting with Mr. Cooperberg occurred is a factual matter that is properly resolved by a jury, if the case goes on to trial. I note further that plaintiff does not appear to dispute that an employee of Workmen's Circle did meet with her on July 19, 2010 and, at Mr. Cooperberg's direction, sent her home because her doctor's note stated that she could only perform light duty (Transcript of Plaintiff's Deposition, annexed to Ravindra K. Shaw's Letter to the Undersigned dated February 17, 2015, at 124; Plaintiff's Errata Sheets, annexed to Ravindra K. Shaw's Letter to the Undersigned dated February 17, 2015). Whether it was Mr. Cooperberg or another individual from Workmen's Circle who met with plaintiff on July 19, 2010 does not appear to be a critical question of fact in this case. As agents of Workmen's Circle, the action and statement of either Mr. Cooperberg or another employee are attributable to defendant.
This letter has not previously been filed on the Court's ECF system. It will be filed simultaneously with this Order.
Accordingly, I deny plaintiff's application for forensic examination with respect to Mr. Cooperberg's email.
2. Chronology of Edits to Plaintiff's Job Description
Plaintiff also seeks forensic examination of defendant's computers in order to obtain information about modifica- tions to the dietary aide's job description. In discovery, defendant produced printouts of documents that contain descriptions of a dietary aide's job duties. Plaintiff argues that these descriptions demonstrate that, at some point, the job duties of the dietary aide position changed. Plaintiff contends that defendant altered the job duties with the intention of rendering her unable to perform the job because of her injury. Plaintiff seeks forensic examination of the electronic versions of the documents in order to determine the dates on which these changes were made. She argues that the dates of these changes would show that the revisions to the dietary aide job assignments occurred after she requested "reasonable accommodation on July 19, 2010," although it is not clear whether she also seeks documentation of any revisions after her injury on April 27, 2010 (Nadine Thompson's Letter to the Undersigned dated October 6, 2012 at 4-5). Plaintiff believes that the timing of the changes will show Workmen Circle's discriminatory intent. Plaintiff does not describe the nature of the changes in job duties and offers no specifics showing that the requirements of her job became more rigorous such that she was unable to perform them.
As discussed above, plaintiff has not met the threshold requirements for forensic examination of defendant's computers or other equipment because it is not clear that she has selected an expert, and she has not specified what tests her expert would perform.
Nevertheless, the information plaintiff is seeking -- dates on which changes were made to her work assignments -- might be available without resorting to forensic testing. Defendant contends that it produced sixteen written job assignments in paper format during discovery. Based on defendant's submissions, it appears that defendant used Microsoft Word during the relevant time period, and my understanding is that if the "Track Changes" setting is engaged in that application, edits and the dates on which they are made are saved. If the electronic files of the documents produced that describe plaintiff's duties will disclose any edits to the job description and the dates on which they were made, from April 27, 2010 to the commencement of this lawsuit, defendant is to produce those electronic files within fourteen days of the date of this Order. If the electronic files do not contain such information, defendant is to produce the job descriptions in paper format, indicating the dates on which changes were made, from April 27, 2010 to the commencement of this lawsuit, if known, within fourteen days of the date of this Order. While the relevance of these dates that plaintiff seeks is thin -- whether discriminatory intent can be inferred from the timing of the changes to plaintiff's job description alone is problematic -- the burden of producing the documents is de minimis. See Fed.R.Civ.P. 26(b)(2)(C).
B. Errata Sheets
Defendant has moved to strike the errata sheets plaintiff submitted concerning her deposition.
On September 10, 2012, plaintiff filed a motion seeking to exclude her deposition testimony, claiming that her deposition was improperly conducted. Among other things, she argued that defendant's counsel intimidated her and ridiculed her. On September 10, 2012, I held a conference in which this issue was discussed. Plaintiff had not requested a copy of her deposition transcript prior to the conclusion of her deposition, as required by Fed.R.Civ.P. 30(e) as a prerequisite to making changes to deposition testimony. I nevertheless directed defendant to provide plaintiff with a copy of her deposition and directed plaintiff to make her changes within fifteen days thereafter.
Defendant contends that it received plaintiff's errata sheets one week after they were due. Plaintiff made over two hundred changes and objections to her deposition testimony on her errata sheets. By letter dated November 2, 2012, defendant argues that these objections are waived and that the errata sheets should be excluded because the changes plaintiff made are untimely and substantively improper. By letter dated November 20, 2012, plaintiff explained that she did not include weekends in her calculation of the fifteen days and asks that her changes and objections not be stricken.
As a preliminary matter, I find that plaintiff's failure to comply with the fifteen-day deadline that I set does not result in waiver of the objections or preclusion of the changes in her errata sheets. While plaintiff's errata sheets were late, they were only one week late. Plaintiff is proceeding pro se, and her lateness has not resulted in any prejudice to defendant.
1. Objections
Defendant next argues that plaintiff waived the objections in her errata sheets because they were raised after conclusion of her deposition. Defendant also contends that these objections were not authorized by my order of September 10, 2012.
Most of plaintiff's supplemental objections read as follows:
Objection - Defendant attempting to submit into evidence a document regarding activities that are outside of the scope of the July 19, 2010 ADA discrimination case involving a constructive termination of the plaintiff from her employment with the Defendant. Document being submitted is not admissible evidence calculated to lead to discovery relating to the July 19, 2010 ADA(Plaintiff's Errata Sheets, annexed to Ravindra K. Shaw's Letter to the Undersigned, dated February 17, 2015). Similarly, plaintiff also objects at points because she claims defendant was asking about items that were not "in evidence," asking questions that were not supported by any items "submitted into evidence," and asking about a document that was "not available" at the time plaintiff claims defendant discriminated against her.
discrimination case involving a constructive termination. Activities following July 19, 2010 termination are outside the timeframe of discrimination which occurred on July 19, 2010. This objection should be noted and subsequent lines should be edited accordingly. August 29, 2011 is outside the timeframe for case at hand.
* * *
Objection - Defendant attempting to ask questions to the plaintiff witness regarding activities that are outside the scope of the July 19, 2010 ADA case . . . .
* * *
Objection - This question is related to Page 200 - Line 14 to 25 and Page 202 - Line 4 which was responded to with an objection. This objection should be noted and subsequent lines should be edited accordingly.
Under Federal Rule of Civil Procedure 30, "[t]he examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615." Fed.R.Civ.P. 30(c). Plaintiff's supplemental objections are not cognizable objections under the Federal Rules of Evidence. To the extent that plaintiff's objections are objections to the admissibility or relevancy of testimony, these issues are not ripe for decision. The relevancy and admissibility of deposition testimony will be determined by Judge Batts if the case goes to trial and if the testimony in issue is offered; plaintiff can assert her objections to admissibility at that time.
Plaintiff's remaining objections are that defense counsel badgered her, that certain questions were broad and unclear, and that certain questions defendant posed had previously been asked and answered. The latter objection is not cognizable under the Federal Rules of Evidence either. In any event, it is too late now to remedy any impropriety in the form of defendant's questions. See Fed.R.Civ.P. 32(d)(3)(B).
Accordingly, I grant defendant's motion to strike plaintiff's objections in her errata sheets without prejudice to plaintiff's right to object to any portions of her deposition that may be offered in connection with a summary judgment motion or offered at trial.
2. Changes in Plaintiff's Testimony
Defendant next argues that plaintiff's changes to her deposition testimony are substantively improper and that they should be stricken. Defendant argues that plaintiff's changes to her deposition testimony should not be permitted because plaintiff used the errata sheets to create a factual issue that was not present in her deposition testimony. Specifically, defendant contends that while plaintiff initially stated at her deposition that she met with Arthur Cooperberg on July 19, 2010, in her changes to her deposition testimony she stated that she did not meet with him on that date.
Plaintiff's deposition testimony is ambiguous on this point. Plaintiff did identify Mr. Cooperberg as having discriminated against her because he told her not to return to work until she was fully recovered (Transcript of Plaintiff's Deposition, annexed to Ravindra K. Shaw's Letter to the Undersigned dated February 17, 2015, at 84). However, she also testified that she never saw Mr. Cooperberg (Transcript of Plaintiff's Deposition, annexed to Ravindra K. Shaw's Letter to the Undersigned dated February 17, 2015, at 130).
I do not find this change to be a basis to exclude plaintiff's errata sheets. Rule 30(e) of the Federal Rules of Civil Procedure permits a deponent to make changes to the form or substance of her deposition testimony. See Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997); In re Weatherford Int'l Sec. Litig., 11 Civ. 1646 (LAK)(JCF), 2013 WL 4505259 at *4 (S.D.N.Y. Aug. 23, 2013) (Francis, M.J.) ("'Courts in the Second Circuit construe Rule 30(e) broadly, permitting any changes to the deposition to be considered as part of the record, even where they contradict the original answers.'"), quoting Samad Bros., Inc. v. Bokara Rug Co., 09 Civ. 5843, 2012 WL 43613 at *8 (S.D.N.Y. Jan. 9, 2012) (Keenan, D.J.).
I further note that the changes plaintiff made on her errata sheets will not have the effect of replacing or deleting any of her deposition testimony. As the Second Circuit has stated:
[W]hen a party amends h[er] testimony under Rule 30(e), "[t]he original answer to the deposition questions will remain part of the record and can be read at the trial." Id. (citing, inter alia, Usiak v. New York Tank Barge Co., 299 F.2d 808 (2d Cir. 1962)). "Nothing in the language of Rule 30(e) requires or implies that the original answers are to be stricken when changes are made." Id. at 641-642. This Court has recognized that because "[a]ny out-of-court statement by a party is an admission," a deponent's "original answer should [be] admitted [into evidence]" even when he amends his deposition testimony -- with the deponent "[o]f course . . . free to introduce the amended answer and explain the reasons for the change." Usiak, 299 F.2d at 810.Podell v. Citicorp Diners Club, Inc., supra, 112 F.3d at 103 (first and second alteration added); see Toland v. Forest Labs., Inc., 00 Civ. 4179 (LAK), 2001 WL 30617 at *1 (S.D.N.Y. Jan. 11, 2001) (Kaplan, D.J.) ("Both the original and corrected answers remain part of the record."); see also Holland v. Cedar Creek Mining, Inc., 198 F.R.D. 651, 653 (S.D. W. Va. 2001); Metayer v. PFL Life Ins. Co., No. CIV. 98-177-P-C, 1999 WL 33117063 at *3 (D. Me. July 15, 1999); Innovative Mktg. & Tech. v. Norm Thompson Outfitters, Inc., 171 F.R.D. 203, 205 (W.D. Tex. 1997). Thus, defendant remains free to submit plaintiff's original deposition testimony into evidence; however, whether the deposition transcript or the errata sheets are controlling will be an issue for the fact finder and is not a basis for striking plaintiff's errata sheets.
Defendant also contends that plaintiff's changes should not be permitted because the reasons she provides for changing her testimony are not valid. Specifically, defendant finds the following language to be inadequate: "Reason for change - I did not get a chance to provide clarification during deposition" (see Plaintiff's Errata Sheets, annexed to Ravindra K. Shaw's Letter to the Undersigned, dated February 17, 2015).
While Rule 30(e) requires an explanation for changes to deposition testimony, it does not require or contemplate judicial scrutiny of the reasonableness of that explanation.
A deponent invoking this [Rule 30(e)] privilege must "sign a statement reciting [any] changes and the reasons given . . . for making them," id., but "[t]he language of the Rule places no limitations on the type of changes that may be made[,] . . . nor does the RulePodell v. Citicorp Diners Club, Inc., supra, 112 F.3d at 103 (first and second alterations added). Therefore, plaintiff's changes may not be excluded based on defendant's dissatisfaction with the reasons she provided for her changes.
require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes" -- even if those reasons "are unconvincing." Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D. Ill. 1981) (citations omitted).
Accordingly, I deny defendant's motion to strike the changes plaintiff made to her deposition testimony.
C. Plaintiff's Motion for Sanctions
By letter dated March 10, 2015, plaintiff seeks sanctions against defendant for failing to retain a surveillance video. Plaintiff contends that defendant was under an obligation to retain a surveillance tape made on July 19, 2010, the day that Mr. Cooperberg claims he met with plaintiff. She believes that the video will show that she did not meet with Mr. Cooperberg on that day.
"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." West v. Goodyear Tire & Rubber, Co., 167 F.3d 776, 779 (2d Cir. 1999). A party who seeks sanctions based on the spoliation of evidence must show: "(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 such that a reasonable trier of fact could find that it would support that claim or defense." Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004) (Scheindlin, D.J.) (internal quotation marks omitted); see also Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012).
"A litigant has the 'duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.'" Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp. 2d 378, 409 (S.D.N.Y. 2010) (Leisure, D.J.), quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991) (Francis, M.J.). The "'[o]bligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation . . . for example when a party should have known that the evidence may be relevant to future litigation.'" Cedar Petrochemicals, Inc. v. Dongbu Hannong Chem. Co., 769 F. Supp. 2d 269, 289 (S.D.N.Y. 2011) (Francis, M.J.) (second alteration in original), quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998), overruled on other grounds, Rotella v. Wood, 528 U.S. 549 (2000). "The duty to preserve arises, not when litigation is certain, but rather when it is 'reasonably foreseeable.'" Alter v. Rocky Point Sch. Dist., 13-1100 (JS)(AKT), 2014 WL 4966119 at *8 (E.D.N.Y. Sept. 30, 2014), quoting Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001).
Production of the surveillance tape was discussed in a conference I held on October 2, 2012. Defendant stated, as it had in its interrogatory responses, that it no longer had the surveillance tape because its system automatically overwrites recordings after four months. Plaintiff contended that Mr. Cooperberg, at his deposition, testified to the contrary, stating that the surveillance video was backed up on disks. At that time I told plaintiff that I needed to review the deposition testimony before rendering a decision on this issue.
Plaintiff submitted the transcript of her deposition of Mr. Coopenberg with her March 2015 letter. At his deposition, Mr. Cooperberg stated that the surveillance video no longer existed because the cameras overwrite the tape after three months. Plaintiff asked him what would happen if a person injured themselves in front of one of the cameras. Mr. Cooperberg stated that in that situation, defendant would put the video onto a disk and store the disk.
Here, while defendant may have been on notice that litigation was reasonably foreseeable when plaintiff filed a claim with the EEOC, and while it appears that the surveillance tape was still available at that time, thus triggering its duty to retain potential evidence for litigation, the connection between the surveillance video and plaintiff's claim is simply too attenuated to permit a finding that defendant had a duty to preserve the tape.
Neither side's letters identify the date that plaintiff submitted a claim to the EEOC or the date that the EEOC notified defendant that plaintiff had submitted a claim. Plaintiff contends that defendant had notice of her EEOC complaint between September 2010 and December 2010, and her Complaint states that she filed a charge with the EEOC on October 22, 2010 (Compl. at 3).
"'[A] litigant is under no duty to keep or retain every document in its possession.'" Zubulake v. UBS Warburg LLC, supra, 220 F.R.D. at 217, quoting Turner v. Hudson Transit Lines, Inc., supra, 142 F.R.D. at 72. Plaintiff appears to seek a surveillance tape of the area of the building where Mr. Cooperberg claims he met with her on July 19, 2010 in order to prove that she was not in that location on that date. Plaintiff's allegations in this case are based on defendant's failure to accommodate her disability by offering her a position that she was physically capable of performing. She has provided no explanation why such allegations would put defendant on notice that it should retain a surveillance tape of the day plaintiff claims she was told that there were no light duty jobs at Workmen's Circle for which she was qualified. Plaintiff has not alleged that she was involved in an altercation, an accident or similar occurrence on that date. Plaintiff also does not appear to contend that she was terminated on that date.
Workmen's Circle simply could not have foreseen that such surveillance tape was "'reasonably likely to be requested during discovery.'" Passlogix, Inc. v. 2FA Tech., LLC, supra, 708 F. Supp. 2d at 409, quoting Turner v. Hudson Transit Lines, Inc., supra, 142 F.R.D. at 72. Given that plaintiff's discrimination claim, as stated in her EEOC charge, appears to rest largely on various doctor's notes, conversations with staff at Workmen's Circle, and available job positions, there is nothing that would have led defendant to believe it was important to retain the surveillance tape that plaintiff seeks. Again, whether plaintiff met with Mr. Cooperberg on July 19, 2010 does not appear to be a critical issue in this case.
I also note that plaintiff did not commence this lawsuit until September 27, 2011, and, therefore, defendant could not have been put on notice to retain the surveillance video pursuant to a specific discovery request for the tape.
Further, contrary to plaintiff's contention, Mr. Cooperberg's deposition testimony does not suggest that the surveillance tape that plaintiff seeks was retained on a disk. Plaintiff does not seek video of her injury. Plaintiff appears to seek a surveillance tape that essentially shows an empty hallway or conference room.
Plaintiff also contends that defendant lied because Mr. Cooperberg stated that the video was retained for three months while defendant's counsel stated that the video was retained for four months. This one month difference is immaterial. --------
Accordingly, I deny plaintiff's motion for sanctions.
IV. Conclusion
Accordingly, for all the foregoing reasons, I grant in part and deny in part plaintiff's motion for forensic examination. If the electronic files of the dietary aide job descriptions show changes made from April 27, 2010 to the date of the filing of this lawsuit, and the dates on which those changes were made, defendant is to produce those electronic files within fourteen days of the date of this Order. If the electronic files of the dietary aide job descriptions do not show such changes and dates, defendant is to produce the dietary aide work assignments in paper format within fourteen days of the date of this Order, and indicate the dates that the various versions were applicable, if known.
I also grant defendant's motion to strike plaintiff's errata sheets with respect to her objections, without prejudice to plaintiff's right to object to any portions of her deposition that may be offered in connection with a summary judgment motion or offered at trial, and I deny defendant's motion to strike plaintiff's errata sheets with respect to her changes.
Lastly, I deny plaintiff's motion for sanctions. Dated: New York, New York
June 9, 2015
SO ORDERED
/s/_________
HENRY PITMAN
United States Magistrate Judge
Copies mailed to: Ms. Nadine Thompson
137 Beechwood Avenue
Mount Vernon, New York 10553
Eric P. Simon, Esq.
Ravindra K. Shaw, Esq.
Jackson Lewis LLP
666 Third Avenue, 29th Floor
New York, New York 10017
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