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Re Deleted Audio Recording, Court Unpersuaded FRCP 37(e) Applied-Intentional Spoliation Found and Sanctions Ordered Instead

Posted on April 26th, 2017

deletion of audio recordingIn Hsueh v. New York State Dept. of Financial Services et. al., Case No. 15-03401 (S.D. N.Y., Mar. 31, 2017), Plaintiff sued her former employer, a New York State government department (“Department”), and a Department former co-worker.  Plaintiff alleged that the co-worker, Abraham Guevara, sexually harassed her and that the Department did not take her complaints about Guevara’s harassment seriously. Her attorney submitted a letter to Defendants which notified them that he had been retained by Plaintiff, which letter was accompanied by a draft complaint. The letter further advised Defendants to preserve documents and surveillance footage.

After receiving a Right to Sue letter from the EEOC, Plaintiff filed suit against Defendants Department and Guevara for sexual harassment and sex discrimination, seeking damages for mental, emotional and physical injury. During discovery, Plaintiff testified that she was not sure she had recorded her conversations with the Department’s human resources employee, Allison Clavery. She further testified that as to one meeting in late 2015 or early 2016, she recalled deleting a recording because the recording quality was unclear.

Defendants filed a spoliation motion for the intentional deletion of an audio recording.  In response, Plaintiff produced the recording, which she said she had recovered with her husband’s help. The court reopened discovery for 90 days to permit depositions of Plaintiff and her husband. The husband testified that he had recovered the recording from a backup drive.

Plaintiff argued that FRCP 37(e) applied, because the recording was electronically stored information, and Rule 37(e) has a more lenient spoliation standard. Defendants contended that it was arguably not applicable. The Court held that the recording was ESI, following other cases that have held that digital audio recordings are ESI. However, the court did agree that Rule 37(e) only applied to a case where the party failed to preserve evidence and not to cases where evidence was intentionally destroyed. Therefore, ultimately, the court did not follow Rule 37(e) as requested by Plaintiff.

With regard to sanctions, Plaintiff argued that because she had been able to restore the file, that sanctions were not warranted.  Unpersuaded by this argument, the Court found that the restored recording was incomplete. Plaintiff also reiterated her argument that she had deleted the recording because she could barely hear it.  The Court, again unpersuaded by Plaintiff’s argument, pointed to Plaintiff’s deposition testimony that she could hear the recording when it was replayed. The Court also noted that the recording did not evidence any failure by Defendant Department re Plaintiff’s allegations that Defendant did not take  Plaintiff’s harassment complaints seriously.  Based upon these findings, the Court ordered an adverse inference instruction against Plaintiff with regard to the deleted recording.  Further order was made for Plaintiff to pay Defendant’s sanction motion fees and costs.

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