Commercial Litigation and Arbitration

While Negligence May Support an Adverse Inference for Spoliation in the Second Circuit, It Is within the District Court’s Discretion to Deny that Sanction

Twitty v. Salius, 2012 U.S. App. LEXIS 1115, 2-5 (2d Cir. Jan. 19, 2012):

We first consider plaintiff's argument that the district court erred when it failed to give an adverse inference instruction in response to the erasure of the original intake videotape, which plaintiff characterizes as the "spoliation of the original intake video." Pl.'s Br. at 6. "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 seeking an adverse inference instruction based on the destruction of evidence must establish "(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." Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal quotation marks omitted). "We review a district court's decision on a motion for discovery sanctions for abuse of discretion." Id. A district court "would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Id. (internal citation omitted).

In this case, the district court denied plaintiff's motion for an adverse inference because, inter alia, "the tape was damaged as a result of negligence [—] an error caused by improper use of the equipment at the prison resulted in the damage to the original tape; and . . . there are satisfactory copies available [because] . . . the actual differences between the copies are limited to nuances [in t]racking, color, and audio quality." Twitty v. Ashcroft, No. 3:04CV410(DFM), 2011 U.S. Dist. LEXIS 1301, 2011 WL 59303, at *6 (D. Conn. Jan. 6, 2011) (internal quotation marks omitted). The district court did not abuse its discretion in reaching these conclusions. There was ample evidence in the record to support the district court's determination that the tape was erased as a result of ordinary negligence on the part of Officer Sokolowski, a correctional officer at Northern. Sokolowski testified that on March 31, 2010, in anticipation of the original tape being taken from the Northern facility, he attempted to make a copy of the original tape. Sokolowsi further testified that he had never before used Northern's equipment to make a copy of a VHS tape, and that he erased the tape when he incorrectly pushed both the "copy" and the "record" buttons at the same time. J.A. 247.

The district court did not clearly err in characterizing this mistake as negligent rather than grossly negligent or an act of bad faith. Although "[t]he sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence," Residential Funding Corp., 306 F.3d at 108 (emphasis added), a sanction is by no means mandatory, and the district court did not abuse its discretion in concluding that such a remedy was inappropriate in this case. As the district court found, quality copies of the tape existed, one of which was played during the trial. Plaintiff's counsel viewed the original tape before it was destroyed, and was unable to articulate, either before the district court or on appeal, any material difference between the original videotape and the DVD that was available for trial. As the district court found, any difference between the two tapes was limited to nuances in tracking, color, and audio quality. Accordingly, the erasure of the tape, while regrettable, did not materially prejudice the plaintiff's case. Under these circumstances, the district court did not abuse its discretion in concluding that an adverse inference instruction was inappropriate.

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