In Best Payphones, Inc. v. City of New York, et. al., Consolidated Case Nos. 1-3924, 1-8506, 3-0192 (E.D. N.Y., Feb. 26. 2016), Plaintiff sued Defendants alleging violation of Plaintiff’s constitutional rights by instituting a regulatory framework requiring franchises and permits to operate payphones and by discriminating against and retaliating against Plaintiff. Defendants filed a spoliation motion, arguing that because Plaintiff originally commenced suit against Defendants on July 11, 2000, Plaintiff’s duty to preserve arose at that time. Defendants argued, among other things, that Plaintiff failed to institute a litigation hold and that, although Plaintiff’s principal, Chaite, claimed not to have engaged in email communications with Defendants or anyone else, emails from him to other entities were produced.
The court found that the amended FRCP 37(e) explicitly rejects the giving of an adverse inference instruction with regard to lost or destroyed ESI if such loss or destruction was negligent. The new FRCP 37(e) requires intent to deprive the other party of the evidence before the court can issue an adverse inference instruction. Here, the court did not find evidence supporting willfulness on the part of the Plaintiff, nor did it find gross negligence; rather, the Plaintiff was merely negligent. With respect to the emails Plaintiff alleged never occurred, the court held that Defendants had failed to demonstrate how they were prejudiced by the lack of emails produced. The court noted that Defendants did not subpoena any non-parties for deposition or documents, which it could have done if the emails had been so important.
Ultimately, the court found that Plaintiff did have a duty to preserve and negligently breached that duty, but that Defendants were not prejudiced by the breach. Therefore, the court held that Plaintiff had to pay Defendants’ costs and fees, but did not order an adverse inference instruction or other spoliation sanctions.