Dilworth v. Goldberg
Dilworth v. Goldberg
Opinion of the Court
Plaintiffs Anthony Dilworth and James Bowen have moved for sanctions against defendant Westchester County alleging spoliation.
The third claim raised in the plaintiffs’ original motion appears to be moot in light
Capital Project Plans
The plaintiffs argue that “Capital Project Plans” would show the existence of surveillance cameras that took video recordings of incidents involving both plaintiffs and that such plans have been destroyed. PI. Mem. at 11. The plaintiffs point to various pieces of circumstantial evidence that they contend support this assertion. For example, they point to certain statements made by Sergeant (now Captain) Christopher Smith, of the Department of Corrections Technical Services Unit, during his March 29, 2013 deposition. PI. Mem. at 4. The plaintiffs’ notice of deposition contained a request that he bring to his deposition any documents concerning the installation of surveillance video cameras in the jail, particularly in the housing area.
In response, the defendant states that it produced plans that indicate the locations of the surveillance cameras in the jail during Sgt. Smith’s June 6, 2013 deposition. Def. Mem. at 2, 9. The defendant also references its October 7, 2013 letter to the Court, submitted in response to the Court’s October 3 directive to defense counsel to determine whether any further plans exist that would show the location of
“[T]he spoliation doctrine is predicated on evidence actually existing and being destroyed.” Khaldei v. Kaspiev, 961 F.Supp.2d 564, 569 (S.D.N.Y. 2013) (quoting Orbit One Commc’ns v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.N.Y. 2010) (internal quotation marks omitted)). Thus, “for sanctions to be appropriate, it is a necessary, but insufficient, condition that the sought-after evidence actually existed ” Farella v. City of New York, 2007 WL 193867, at *2 (S.D.N.Y. Jan. 25, 2007) (emphasis in original). In this case, the plaintiffs have failed to show by competent evidence that “Capital Project Plans” showing the location of cameras ever existed. The only evidence proffered in support of this claim consists of ambiguous statements made by Sgt. Smith and the speculative expert opinion of Robert Sanderson. With respect to Mr. Sanderson’s opinion that it is customary for a system installer to provide an “as built” floor plan detailing camera placement, this assertion does not show that such plans in fact existed for the West-chester County Jail, and thus does nothing to fulfill the plaintiffs’ burden on this motion. In the end, this aspect of the plaintiffs’ motion for spoliation sanctions rests on pure speculation about the existence of these plans. Case law is clear, however, that “speculative assertions as to the existence of documents do not suffice to sustain a motion for spoliation of evidence.” Tri-County Motors, Inc. v. Am. Suzuki Motor Corp., 494 F.Supp.2d 161, 177 (E.D.N.Y. 2007) (citations omitted); see also Khaldei, 961 F.Supp.2d at 570 (“[Because plaintiffs argument that there has been any actual loss of evidence relevant to the claims or defenses in this case amounts to pure speculation, it is insufficient to sustain a motion for spoliation sanctions.”) (citation omitted).
Moreover, even if we could find that such plans existed, there is no evidence at all that the plans were destroyed with a culpable state of mind. Nor is there any evidence on the timing of such destruction, and thus there can be no finding that there was an obligation to preserve it at the time it was purportedly destroyed.
Video from Other Cameras in J2
The plaintiffs claim that the defendant has failed to preserve videos from one or more surveillance cameras in the J2 housing area that would have depicted Captain Patrick beating Bowen. PI. Mem. at 11. This assertion is premised on Bowen’s contention that there was an additional video camera at a location in the housing area, aside from the camera that captured video of the incident that the plaintiffs already have. In support of their contention that there must be another camera that captured the incident, the plaintiffs once again proffer the opinion of their expert. Sanderson asserts that “[c]onsid-ering the correctional setting and typical installation features of professional surveillance systems, numerous other cameras should have been strategically placed in the dormitory [by the facility] and would likely have captured the incident involving Mr. Bowen with greater substance and clarity.” Sanderson Decl. ¶8 (emphasis added). This statement is obviously spec
The plaintiffs have also proffered documents labeled “affidavits” from Dilworth and Bowen.
Finally, the plaintiffs’ brief describes a course of events that took place during Mr. Dilworth’s deposition that plaintiffs’ counsel believes provides proof that the sought-after video exists and has been wrongfully withheld or destroyed. According to the brief, plaintiffs’ counsel stepped out of Mr. Dilworth’s July 25, 2013 deposition to take a phone call during the defense’s questioning of Mr. Dilworth about the beating of Mr. Bowen. Mr. Dilworth then stepped outside a few moments later and informed his lawyer that after the lawyer left, one of the defendant’s lawyers turned to another of the defendant’s lawyers and said “Have you seen this” as he positioned a laptop for the second lawyer to view. Mr. Dilworth told his attorney that the second lawyer’s eyes then opened wide and a look of shock came over him. According to plaintiffs’ counsel, when the deposition continued, the second lawyer’s questions were much more pointed. See PL Mem. at 7. Plaintiffs’ counsel surmises that the defendant’s attorneys were viewing an undisclosed video of the Bowen incident during the break from Mr. Dilworth’s deposition. PI. Mem. at 8. This conclusion, however, requires an inferential leap that go so far beyond the reasonable as to border on the fanciful. It makes little sense that counsel would bring to a deposition a video that they were deliberately withholding — let alone play the video on a laptop in a room where the opposing party was present. Also, the reaction viewed by Mr. Dilworth was capable of a myriad of explanations having nothing to do with undisclosed video.
Conclusion
In sum, the plaintiffs’ motion for spoliation sanctions (Docket #399) is denied.
SO ORDERED.
. See Notice of Motion, filed Dec. 6, 2013 (Docket # 399); Declaration in Support of Plaintiffs' Joint Motion for Sanctions, filed Dec. 6, 2013 (Docket # 400) ("Deem Decl.”); Affidavit of Plaintiff Anthony G. Dilworth in Support of Motion for Sanctions, filed Dec. 7, 2013 (Docket # 401) ("Dilworth Aff.”); Affidavit of Plaintiff James Bowen in Support of Motion for Sanctions, filed Dec. 7, 2013 (Docket # 402) (“Bowen Aff.”); Declaration of Robert Sanderson, filed Dec. 7, 2013 (Docket #403) ("Sanderson Decl.”); Joint Memorandum of Law in Support of Plaintiffs’ Motion for Sanctions, filed Dec. 7, 2013 (Docket # 404) ("PL Mem.”); Defendants' Memorandum of Law in Opposition to Plaintiffs’ Motion for Sanctions, filed Dec. 31, 2013 (Docket # 426) ("Def. Mem.”); Declaration of Darius P. Chafizadeh in Opposition to Plaintiffs’ Motion Seeking Sanctions, filed Dec. 13, 2013 (Docket # 427) ("Chafizadeh Decl.”); Declaration of Adam Rodriguez in Opposition to Plaintiffs’ Motion for Sanctions, filed Dec. 31, 2013 (Docket #428) ("Rodriguez Decl.”); Declaration of Christopher Smith, filed Dec. 31, 2013 (Docket # 429) ("Smith Decl”).
After the plaintiffs filed their motion, the Court granted plaintiffs’ request to file supplemental papers. See Memorandum Endorsement, dated Feb. 18, 2014 (Docket #450). The plaintiffs filed a supplemental letter and a number of exhibits, in response to which the defendant elected to rest on the arguments contained in its original opposition papers. See Plaintiffs’ Supplemental Submission, filed Feb. 23, 2014 (Docket #451); Letter from Darius P. Chafizadeh, filed Feb. 28, 2014 (Docket # 456). The supplemental submission appears to raise some new spoliation claims. We do not consider such claims because they were not part of the original motion with respect to which permission to supplement was granted. In addition, the claims are asserted in a conclusory manner without any discussion of the applicable legal principles.
. The Court assumes the plaintiffs agree that the claim for spoliation sanctions as related to the A Block Log Book is now moot. If this is not the case, they may reinstate this portion of their motion by a letter within 7 days of the date of this decision.
. The Court notes that while Fed.R.Civ.P. 45(a)(1)(C) contemplates a document request being made to a non-party in conjunction with a subpoena for deposition testimony, it is Fed.R.Civ.P. 34 — not Rule 30 or Rule 45— that provides the procedure for document requests to parties.
. These "affidavits” are not notarized and do not comply with the requirements of 28 U.S.C. § 1746.
. This recounting of Sgt. Smith’s deposition testimony is based on a statement made by defendant in its opposition papers. While the defendant did not cite to the page of the deposition where this is stated, the Court assumes that the defendant’s recounting is accurate inasmuch as the plaintiffs did not reply to the defendant's submission.
.The Court recognizes that the plaintiffs have provided an unrebutted chronology of events that would seem inconsistent with the explanation provided to the court by defendant’s counsel of what they were viewing. See PI. Mem. at 9. Nonetheless, the plaintiffs' version of events remain entirely speculative.
. The plaintiffs’ motion papers also complain about the defendant's failure to provide video from the male visitor’s area in September 2009. PL Mem. at 14. The defendant has responded that it is producing the requested information and has also provided an explanation as to why they previously informed plaintiffs' counsel that such video did not exist. See Def. Mem. at 1 n. 2; Smith Decl. The plaintiffs' memorandum states that the defendant’s misrepresentation "violated Rule 37,” PI. Mem. at 14, but they do not explain what sanction they seek or even cite any case law regarding Fed.R.Civ.P. 37. The plaintiffs have elected not to reply to the defendant’s opposition papers in which the explanation for the failure to produce the video earlier was provided. Accordingly, the Court will not issue a sanction against the defendant for this alleged misrepresentation or for the failure to produce.
On an entirely separate point, the defendant seeks sanctions pursuant to Fed.R.Civ.P. 37(a)(5)(B). Def. Mem. at 16-17. This motion is denied as it fails to comply with Local Civil Rule 7.1. Moreover, it is not clear to the Court that the plaintiffs’ motion arose under Rule 37 — notwithstanding plaintiffs' assertions to the contrary in their motion papers. While a spoliation motion certainly arises under Rule 37 where there is a claim of the violation of a court order, in other situations a spoliation motion calls upon the inherent powers of a court. See generally Residential Funding Corp., 306 F.3d at 106-07 ("[I]n the absence of a discovery order, a court may impose sanctions on a party for misconduct in discovery under its inherent power to manage its own affairs.”). Accordingly, the Court will not award sanctions under Fed.R.Civ.P. 37(a)(5)(B).
Reference
- Full Case Name
- Anthony G. DILWORTH and Patricia Dilworth v. Randy GOLDBERG, M.D., Defendants James R. Bowen v. Capt. Robert Patrick
- Cited By
- 14 cases
- Status
- Published