UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------- x MARCUS SENIOR by his Mother and Guardian, : Marcia Senior; MARCIA SENIOR, individually, : : Plaintiffs, : SHORT FORM : MEMORANDUM & ORDER -against- : : 15-CV-1009 (ENV) (PK) EIHAB HUMAN SERVICES, INC., : : Defendant. : -------------------------------------------------------------- x VITALIANO, D.J. In its short form Order filed April 19, 2023, Dkt. 117, the Court ruled upon a series of in limine motions filed by the parties. Familiarity of the parties with the rulings, background, and procedural history of the matter as set forth in that Order is presumed. After the final pre-trial conference and in advance of jury selection, now scheduled for May 8, 2023, both sides filed supplemental letters addressing a new in limine motion. The Court, having considered the submissions of the parties, resolves the motion in the manner and for the reasons as set forth below. I. Plaintiffs’ In Limine Motion Motion Ruling (A) Having unsuccessfully pursued a (A) Even in cases where a spoliation charge was spoliation charge regarding certain ultimately denied, courts in the Second Circuit have records once in defendant’s allowed parties to comment on the absence of lost or possession but no longer available, destroyed evidence in some circumstances. For collaterally, plaintiffs seek to example, in Martinez v. City of New York, the plaintiff introduce evidence that defendant was allowed to inform the jury that defendant had Eihab was not able to produce all of looked for, but had been unable to find, certain C.N.’s Antecedent, Behavior, documents, because that fact was undisputed. Martinez Consequence (“ABC”) Records, v. City of New York, No. 16-CV-79, 2022 WL except those for August 2011 to 17090267, at *9 (E.D.N.Y. Nov. 18, 2022). Parties

November 2011, in response to a have also been allowed to make arguments that the jury document demand for all of C.N.’s should draw adverse inferences about lost evidence, ABC Records. Plaintiffs also seek to even if the court declined to grant an adverse inference introduce evidence that defendant lost sanction. See, e.g., Stern v. Shammas, No. 12-CV- a recording of C.N.’s voice. 5210,

, at *14 (E.D.N.Y. July 27, 2015); Calpine Corp. v. AP&M Field Servs., Inc., No. 07-CIV-9911,

, at *5 (S.D.N.Y. Dec. 9, 2008). However, this is not a universal rule. At least one prior decision held that information about the unintentional destruction of electronic evidence should

not be conveyed to the jury, “because the only reason for telling the jury about the destruction of the videotape is to ask them to . . . draw an adverse inference against the defendants.” Rothman v. City of New York, No. 19-CV-225,

, at *3 (S.D.N.Y. Sept. 21, 2020).

Little is in dispute here on this point. The parties have stipulated that “after a search for [C.N.’s ABC] records encompassing the period from when C.N. first resided at Tiff Court in December of 2009 through April of 2013, defendant was unable to locate and produce any such records . . . other than those

pertaining to the period from August 2011 through November 2011.” Pls.’ Letter Ex. D, Dkt. 124-4. Regarding the lost ABC records, therefore, the motion in limine is granted to the extent that any party may reference the undisputed facts in the stipulation.1 See Martinez,

, at *9. Critically, though, plaintiffs may not argue that the jury may draw an adverse inference from any such missing evidence, as any such argument would be in derogation of the Court’s ruling on spoliation and its holding that such inference is unwarranted.2

As for the missing recording of C.N.’s voice, the parties do not appear to dispute that the MMS recording of

1 While plaintiffs argue that they originally requested a wider swath of C.N.’s behavioral records, that particular discovery dispute is not relevant at this stage. The eve of trial is not the time to resurrect discovery grievances. With no new facts in issue, the time for that is long gone. 2 Plaintiffs also redundantly argue that the loss of C.N.’s records amounts to spoliation, and therefore plaintiffs should be allowed to make comments to the jury about the absence of those records. Unsupported by any newly discovered facts or change in law, this naked attempt to relitigate the Court’s prior Order will not be entertained. C.N.’s voice was created by an Eihab employee and, at some point, unintentionally lost. At any rate, the recording itself has little relevance. See Rothman,

, at *3. Plainly, the MMS recording

is relevant as it is one of the bases upon which Bigelow can make a voice identification of C.N., and solely for that purpose. See April 19 Order, Dkt. 117, at 15–16. Therefore, while the parties may mention the recording for the purpose of laying a foundation for Bigelow’s voice identification, they may not mention it for any other purpose, nor argue that the jury may draw an adverse inference from the recording’s absence.

So Ordered.

Dated: Brooklyn, New York May 4, 2023 /s/ Eric N. Vitaliano ERIC N. VITALIANO United States District Judge