UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X A.W.S., a minor, by and through his Parents, and individually, KAYLA LOOKING HORSE, and JONATHAN K. SMITH, REPORT AND Plaintiffs, RECOMMENDATION 19-CV-0889 (DRH) (ARL) -against-
SOUTHAMPTON UNION FREE SCHOOL DISTRICT,
Defendant. ---------------------------------------------------------------------X LINDSAY, Magistrate Judge:
Before the Court, on referral from District Judge Hurley, are several motions by A.W.S.,
a minor, by and through his Parents, and individually, Kayla Looking Horse, and Jonathan K.
Smith (“Plaintiffs”). Specifically, Plaintiffs have filed a motion to strike Defendant’s
Affirmative Defenses, ECF No. 77, and a renewed motion for an order pursuant to Rule
37(c)(1)(B) and (C) of the Federal Rules of Civil Procedure (“Rules”), striking the Answer of the
Defendant, or in the alternative for an adverse inference jury instruction be given that negligence
may be inferred from the Defendant’s spoliation of video evidence, and exclusion of Defendant’s
video evidence, ECF No. 78. Additionally, Plaintiffs have filed an April 15, 2021 Letter Motion
for leave to file Exhibits in Support of Plaintiffs’ renewed motion to strike or in the alternative
for an adverse inference, ECF No. 93. Defendant, Southampton Union Free School District
(“Defendant”) opposes each of the motions. ECF Nos.77, 81, 94. For the reasons set forth
below, Plaintiffs’ April 15, 2021 Motion for leave to file Exhibits in Support of Plaintiffs’
renewed motion to strike or in the alternative for an adverse inference is granted, and the
undersigned respectfully recommends that Plaintiffs’ motion to strike Defendant’s affirmative
defenses and Plaintiffs’ Motion to strike the answer for spoliation be denied.
BACKGROUND
The Court presumes familiarity with the facts and procedural history of this case and only
includes those facts that are necessary for resolution the instant motion.
According to Plaintiffs, this action arises out of an incident that occurred on January 31,
2018 when Plaintiffs allege that minor A.W.S. sustained a “grievous head injury…on playground
equipment during [his] First Grade recess period on January 31, 2018.” Compl. ¶ 1. Plaintiffs
assert twelve causes of action, including five negligence claims based upon New York common
law (Counts I-V); violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d,
complaining that Plaintiff AW was the victim of discrimination based on his origin as a Native
American (Count VI); violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
794(a) (Count VII); violation of the Individuals with Disabilities Education Act, 20 U.S.C. §
1400 et seq., (Count VIII); violation of the Americans with Disabilities Act of 1990, 42 U.S.C.S.
§ 12101 et seq., (Count IX); violation of New York's Dignity for All Students Act ("DASA"),
L.2010, ch. 482, § 2, New York Education Law § 10 et seq. (Count X); breach of the Native
American Tuition Agreement (Count XI), and violations the New York Freedom of Information
Law (Count XII).
By letter motion dated November 13, 2019, Plaintiffs objected to the video produced by
Defendants as part of its initial disclosures, arguing that if “the Defendant has no more camera
footage, it means Defendant failed to preserve all video evidence in violation of Plaintiffs’ hold
letter and its own video retention policy, and spoliation of critical evidence has occurred – In this
event, Plaintiffs would request Defendant’s Answer be stricken and/or a jury instruction be given
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that negligence may be inferred from the spoliation of video evidence.” ECF No. 29. Defendant
responded that this November 2019 letter was the first time Plaintiffs had objected to the video
produced and arguing that “Plaintiffs claim that the video footage disclosed by Defendant was
edited, but offers only conclusory statements by counsel rather than evidence. There are several
possible reasons that the time stamp does not match the run time of the footage.” ECF No. 30.
Defendant further argued that “Plaintiffs take issue that the disclosed video footage starts 27
minutes before 1st grade recess started on 1/31/2018 and ends 3 minutes after 1st grade recess
started on 1/31/2018. Although first grade recess on 1/31/2018 was held from 11:30am to
11:50am, the video footage still shows the snow covered playground for the first 3 minutes of the
subject recess period.” Id. The undersigned conducted a hearing on Plaintiffs’ motion on
January 14, 2020, inter alia, denying Plaintiffs’ motion for spoliation because Plaintiffs failed to
present evidence contradicting Defendant’s representation that that outside recess did not occur,
or that the video produced was all that existed. ECF No. 36.
On April 28, 2020, Judge Hurley issued an order overruling Plaintiffs’ objection that this
Court lack authority to rule on discovery motions and directing Defendants to “provide an
affidavit from someone with first-hand knowledge of the situation explaining in detail why the
video footage provided spans only three minutes and twenty-five seconds as distinct from the
thirty minutes of the video’s represented run time and why it does not fully encompass the recess
period from 11:30 am to 11:50 am.” Judge Hurley did not rule on Plaintiffs’ motion to strike the
Defendant’s answer and/or give an adverse inference jury instruction.
In response to the Order, the Defendant provided an affidavit to Plaintiffs by Mark J.
Hannan, Director of Security for Defendant, dated May 27, 2020. ECF No. 80-2. Mr. Hannan
stated that he “was familiar with the video surveillance system at Southampton Elementary
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School playground on January 31, 2018” and that “[o]n or about March 14, 2018, I was informed
of an alleged accident that happened at the Southampton Elementary School playground on
January 31, 2018 from 11:10am to 11:30am.” Id. at ¶¶ 2,3. He added that “[w]hen I viewed the
video footage, I saw that there was no outdoor recess and that the playground was covered with
snow. I preserved the video footage for January 31, 2018 from 11:03 to 11:33 am. I recorded the
video footage as it existed on the video surveillance system. I did not make any edits or alter it in
any manner. It is unknown to me how the video recording system could be manipulated or edited
as the recording takes place.” Id. at ¶ 6. Mr. Hannan explains “I was not asked to review or
preserve video footage for January 31, 2018 from 11:33 am to 11:50 am.” Id. at ¶ 7. Mr. Hannan
further explains that the reason for the difference between the video footage and video run time
is because “[i]t is my experience and understanding that any such discrepancy is because the
recording function on the surveillance system was not constant, but instead was motion
activated.” Id. at ¶ 8.
On October 22, 2020, Defendant filed a letter requesting permission to move, pursuant to
Fed. R. Civ. P. Rule 56, for summary judgment dismissing Plaintiff’s Complaint in its entirety.
ECF No. 58. Plaintiffs opposed that request. On October 23, 2020, Plaintiffs filed a letter
motion requesting permission to make a renewed motion to strike the answer of the Defendant,
or in the alternative, for a jury instruction that negligence may be inferred from the spoliation of
video evidence. ECF No. 61. Additionally, Plaintiffs requested permission to file a motion to
strike Defendant’s affirmative defenses. ECF No. 60. Defendant opposed both requests. On
November 2, 2020, Plaintiffs filed a letter request seeking permission to file an anticipated Rule
56 motion for partial summary judgment as to liability on Counts I, II, and IV. ECF No. 66.
Defendant opposed that request. On November 11, 2020, Judge Hurley ruled that “[i]n the
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interests of judicial efficiency, the Court refers the Plaintiffs' letter requests for pre-motion
conferences on anticipated motions to strike, 60 and 61, to Magistrate Judge Lindsay for a
decision on Plaintiffs' requests and, if granted, for a decision on the motion(s). The Court will
hold in abeyance its decision on the parties' request for pre-motion conferences on anticipated
Rule 56 summary judgment motions, 58 and 66 , until Magistrate Judge Lindsay issues her
decision(s) on the referred matter.”
By Order dated December 29, 2020, this Court waived the requirement of a pre-motion
conference and set a briefing schedule on Plaintiffs’ motions. Both motions were filed on March
17, 2021. ECF Nos. 77, 78.
DISCUSSION
A. Motion to Strike Affirmative Defenses
Plaintiffs move the strike each of the affirmative defenses asserted by Defendant pursuant
to Rule 12(f) of the Federal Rules of Civil Procedure. ECF No. 77. Rule 12(f), provides, that a
“court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter. . . on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days after being served with the pleading.”
Fed. R. Civ. P. 12(f). "Although courts are given discretion to resolve Rule 12(f) motions, as a
general rule motions to strike affirmative defenses are ‘disfavored and should not be granted
unless there are strong reasons for doing so.’” Perez v. De Domenico Pizza & Rest. Inc., 14-cv-
7236 (LDW) (ARL), 2016 U.S. Dist. LEXIS 72922, 2016 WL 3774389, at *1 (E.D.N.Y. May
31, 2016). “In order for a court to strike a defense as insufficient: ‘(1) there must be no question
of fact that might allow the defense to succeed; (2) there must be no substantial question of law
that might allow the defense to succeed; and (3) the plaintiff must be prejudiced by the inclusion
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of the defense.’” Id.; see also Arch Ins. Co. v. Sky Materials Corp., No. 17-cv-2829, 2019 U.S.
Dist. LEXIS 49373, at *4, 2019 WL 1316950, at *2 (E.D.N.Y. Mar. 22, 2019). Accordingly,
even if the defense is factually insufficient, the court must still determine whether its inclusion
would prejudice the plaintiffs. Id. “Absent a showing of prejudice, an affirmative defense need
not be stricken.” Resolution Trust Corp. v. Gregor, No. 94 CV 2578, 1995 U.S. Dist. LEXIS
22032, 1995 WL 931093, *3 (E.D.N.Y. Sept. 29, 1995). Plaintiff bears the burden of
establishing each of these three elements. S.E.C. v. PacketPort.com, No. 05 CV 1747, 2006 U.S.
Dist. LEXIS 73638, at *8, 2006 WL 2798804 (D. Conn. Sept. 27, 2006) (citing SEC v.
McCaskey, 56 F.Supp.2d 323, 326 (S.D.N.Y. 1999)).
Here, as an initial matter, Plaintiffs’ motion is untimely. Defendant’s answer was filed
on April 1, 2019. ECF No. 13. Plaintiffs’ motion to strike was not filed until March 17, 2021,
ECF No. 77, which is well beyond the 21-day time limit imposed by Rule 12. See, e.g., Graham
v State Univ. of NY at Albany, Civ. No. 1:17-CV-1092 (TJM/DJS), 2020 US Dist LEXIS 39061,
2020 WL 1074114 (N.D.N.Y. Mar. 6, 2020); D.W.M. by Moore v. St. Mary Sch., 2:18-cv-3099
(DRH)(GRB), 2019 U.S. Dist. LEXIS 145583, 2019 WL 4038410, at *4 n.2 (E.D.N.Y. Aug. 27,
2019); Friedman v. Geico Gen. Ins. Co., 14-cv-00537(AMD)(MDG), 2017 U.S. Dist. LEXIS
6317, 2017 WL 10109879, at *3 (E.D.N.Y. Jan. 13, 2017); Feitshans v. Kahn, 06 Civ. 2125
(SAS), 2007 U.S. Dist. LEXIS 24693, 2007 WL 998400, at *2 (S.D.N.Y. Apr. 2, 2007) (all
denying motions to strike as untimely). Plaintiffs’ response is that “[t]he 21 day limitation raised
by Defendant is not hard and fast.” Pl. Mem. at 1. However, in the single case cited by Plaintiffs
to support this assertion, the motion was filed within 25-days of the filing of the answer, and, this
issue of timeliness was not addressed by the Court. Here, Plaintiffs’ motion was filed 716 days
after the filing of the answer, and Plaintiffs have offered no explanation for the delay.
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Nevertheless, Plaintiffs’ motion should be denied. Plaintiffs' motion is overly broad in
that it seeks to strike all of the affirmative defenses raised in the Answer without the slightest
discussion of any burden faced by Plaintiffs because of the inclusion of the affirmative defense.
Even a cursory review of the answer demonstrates that certain of the asserted defenses would
easily withstand scrutiny un Rule 12(f). Defendant, for example, asserts defenses that the
Complaint fails to state a claim, that Plaintiffs have failed to state a claim for punitive damages
and that Plaintiffs have failed to state a state law claim. ECF No. 13 at ¶¶ 55, 52 & 54. Plaintiffs
seek to strike each of these affirmative defenses. However, "it is well settled that the failure-to-
state-a-claim defense is a perfectly appropriate affirmative defense to include in the answer."
McCaffery v. McCaffery, No. 11-CV-703, 2012 U.S. Dist. LEXIS 111651, 2012 WL 3260299, at
*6 (E.D.N.Y. Aug. 8, 2012) (internal quotation marks omitted); Erickson Beamon Ltd. v. CMG
Worldwide, Inc., No. 12-CV-5105, 2014 U.S. Dist. LEXIS 112437, 2014 WL 3950897, *4
(S.D.N.Y. Aug.13, 2014) (same). “Several courts have found that ‘a failure-to-state-a-claim
defense is not vulnerable to motions to strike because the defense is analogous to a general denial
and its inclusion, although likely redundant, does not prejudice plaintiffs.’” Graham v State
Univ. of NY at Albany, Civ. No. 1:17-CV-1092 (TJM/DJS), 2020 US Dist LEXIS 39061 (quoting
Coach, Inc. v. Kmart Corps., 756 F. Supp. 2d 421, 432 (S.D.N.Y. 2010) (citing cases)).
“Absent a compelling explanation of why there is no question of fact or law that might allow
these defenses to succeed, coupled with an explanation of why the plaintiff will be prejudiced by
their inclusion, the plaintiff has failed to meet his burden under Rule 12(f).” Perdum v. Forest
City Ratner Cos., No. CV 11-315 (PKC) (VVP), 2014 U.S. Dist. LEXIS 204173, (E.D.N.Y.
May 30, 2014). Here, Plaintiffs have stated only that “Defendant seems to confuse denials, more
appropriately belong in response paragraphs in accordance with Rule 8(b)(2) . . .with affirmative
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defenses under Rule 8(c)(1)” Pl. Mem. at 8, ECF No. 77. This is not enough to meet Plaintiffs’
burden. Accordingly, the undersigned respectfully recommends Plaintiffs’ motion to strike
Defendant’s affirmative defenses be denied.
B. Plaintiffs’ Motion To Strike for Spoliation
Plaintiffs have also moved pursuant to Rule 37(c)(1)(B) and (C) for an order striking the
answer of Defendant, or in the alternative for an adverse inference jury instruction be given that
negligence may be inferred from the Defendant’s spoliation of video evidence, and exclusion of
Defendant’s video evidence, as well as court costs and reasonable attorney fees. ECF No. 79.
According to Plaintiffs, Defendant failed to preserve the full and complete playground video for
the recess period for A.W.S at the Southampton Elementary School playground on January 31,
2018 for the time period 11:30 am to 11:50 am, and Defendant has failed to credibly explain the
missing video footage as directed by the Court in its Order of April 28, 2020.
Plaintiffs contend that pursuant to Fed. R. Civ. P. 37(b) and the court’s inherent powers, a federal
court may impose sanctions when a party spoliates evidence. See Residential Funding Corp. v. DeGeorge
Fin. Corp., 306 F.3d 99, 106-07 (2d Cir. 2002); West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779
(2d Cir. 1999). “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,
167 F.3d at 779. The court has broad discretion in crafting an appropriate sanction for spoliation. Id.
(citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). Plaintiffs contend that the Court may
issue sanctions for spoliation of this video evidence based on the court’s inherent authority to impose
sanctions, instead of under Rule 37. Pl. Mem. at 3; Pl. Reply Mem. at 7. However, “[t]he 2015
Amendment to Rule 37(e) ‘forecloses reliance on inherent authority or state law to determine when
certain measures should be used.’ Advisory Comm. Notes, 2015 Amendment. Rather, the sanctions
authorized by Rule 37(e)(2) are only available when a court finds that the threshold requirements have
been met.” Resnik v. Coulson, No. 17-CV-676 (PKC) (SMG), 2019 U.S. Dist. LEXIS 55199, 2019 WL
8
1434051, at *7 (E.D.N.Y. Mar. 30, 2019).
"[A]s the law currently exists in the Second Circuit, there are separate legal analyses
governing the spoliation of tangible evidence versus electronic evidence." Best Payphones, Inc.
v. City of New York, No. 01-CV-3924, 2016 U.S. Dist. LEXIS 25655, 2016 WL 792396, at *3
(E.D.N.Y. Feb. 26, 2016), aff'd as modified sub nom. Best Payphones, Inc. v. Dobrin, 409 F.
Supp. 3d 130 (E.D.N.Y. 2018). Pursuant to Rule 37(e), which was significantly amended in
2015:
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e); Ungar v. City of New York, 329 F.R.D. 8 (E.D.N.Y. 2018) (applying Rule
37(e) to a motion for sanctions involving electronically stored video surveillance footage). This
rule "rejects cases such as Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99
(2d Cir. 2002), that authorize the giving of adverse-inference instructions on a finding of
negligence or gross negligence." McIntosh v. United States, No. 14-CV-7889, 2016 U.S. Dist.
LEXIS 44290, 2016 WL 1274585, at *31 (S.D.N.Y. Mar. 31, 2016) (internal quotation omitted).
"The amended Rule 37(e) makes it more difficult for a moving party to obtain sanctions for
spoliation of ESI requiring, at minimum, that the court find prejudice, and, in order to impose
more extreme sanctions, that it find an intent to deprive." Lokai Holdings, LLC v. Twin Tiger
9
USA LLC, No. 15-CV-9363, 2018 U.S. Dist. LEXIS 46578, 2018 WL 1512055, at *8 (S.D.N.Y.
Mar. 12, 2018).
“As amended, therefore, Rule 37(e) requires ‘a three-part inquiry’:
The first is to decide if the rule applies at all — that is, if a party failed to take "reasonable steps" to preserve electronically stored information "that should have been preserved in the anticipation or conduct of litigation." Fed. R. Civ. P. 37(e). If so, then the second step is to decide if there has been "prejudice to another party from loss of the
cure the prejudice." Fed. R. Civ. P. 37(e)(1). Lastly, the third step to consider — regardless of prejudice to any other party — is whether the destroying party "acted with the intent to deprive another party of the information's use in the litigation," in which event a court may consider whether to impose the most severe of measures such as mandatory presumptions or instructions that the lost information was unfavorable or the entry of default judgment.
Karsch v. Blink Health Ltd., No. 17 Civ. 3880 (VM) (BCM), 2019 U.S. Dist. LEXIS 106971,
2019 WL 2708125, at *27 (S.D.N.Y. June 20, 2019) (quoting Coan v. Dunne, 602 B.R. 429 (D.
Conn. 2019). “As the party seeking spoliation sanctions, Plaintiffs have ‘the burden of
establishing the elements of a spoliation claim by a preponderance of the evidence.’” CBF
Industria De Gusa S/A v. AMCI Holdings, Inc., No. 13-CV-2581 (PKC) (JLC), 2021 U.S. Dist.
LEXIS 174989, 2021 WL 4190628 (S.D.N.Y. Aug. 18, 2021) (quoting Doubleline Capital LP v.
Odebrecht Fin., Ltd., No. 17-CV-4576 (GHW) (BCM), 2021 U.S. Dist. LEXIS 60959, 2021 WL
1191527, at *5 (S.D.N.Y. Mar. 30, 2021)). 1
1. Duty to Preserve
“The duty to preserve electronically stored information imposed by Rule 37(e) is based
on the common law duty ‘to preserve relevant information when litigation is reasonably
1 In their reply Memorandum, Plaintiffs mistakenly contend that the burden with respect to Plaintiffs’ claim of spoliation rests on Defendant as a result of Judge Hurley’s April 2020 Order. Judge Hurley’s Order did not address the burden of proof on Plaintiffs’ motion, the Order requires Defendant to explain why there was only three minutes of video on a 30-minute segment from 11:03 a.m. -11:30 a.m. and to explain the destruction of the video for the period 11:30 a.m. -11:50 a.m., which it has.
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foreseeable.’” Resnik v. Coulson, 17-CV-676 (PKC)(SMG), 2019 U.S. Dist. LEXIS 92159,
2019 WL 2256762, at *6 (E.D.N.Y. Jan. 4, 2019) (quoting Fed. R. Civ. P. 37(e) advisory
committee's note to 2015 amendment); see also Zubulake v. UBS Warburg LLC, 220 F.R.D. 212,
216 (S.D.N.Y. 2003) (“the obligation to preserve evidence arises when [a] party has notice that
the evidence is relevant to litigation or when a party should have known that the evidence may
be relevant to future litigation”). "Pursuant to this obligation, 'anyone who anticipates being a
party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to
an adversary.'" Estate of Jackson v. County of Suffolk, No. 12-1455 (JFB)(AKT), 2014 U.S. Dist.
LEXIS 46521, 2014 WL 1342957, at *9 (E.D.N.Y. Mar. 31, 2014) (quoting Zubulake, 220
F.R.D. at 217). In this context, "'relevance' means relevance for purposes of discovery, which is
'an extremely broad concept.'" Orbit One Commc'ns v. Numerex Corp., 271 F.R.D. 429, 436-37
(S.D.N.Y. 2010) (collecting cases). A litigant thus "is under a duty to preserve what it knows, or
reasonably should know, is relevant in the action, is reasonably calculated to lead to the
discovery of admissible evidence, [or] is reasonably likely to be requested during discovery."
Zubulake, 220 F.R.D. at 217 (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72
(S.D.N.Y. 1991)).
Defendant’s duty to preserve in this action arose, at the very latest on March 5, 2018,
when Defendant received counsel’s letter regarding the potential filing of the complaint arising
from the alleged accident on the playground on January 31, 2018. The letter, however, identified
the relevant period as 11:10 a.m. – 11:30 a.m. ECF No. 85. Indeed, the director of security was
made aware of Plaintiffs’ request and took steps to preserve a portion of the video from that
period. ECF 89-3.
Plaintiffs now claim that Defendant had a duty to preserve the “video for the full and
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complete recess period for AWS on January 31, 2018, which, known by the Defendant, was
from 11:30 am to 11:50 am.” Pl. Mem. at 3. Plaintiffs offer no support for this conclusion.
Defendant argues that because Defendant was unaware of an accident on the playground until
Plaintiffs’ letter of March 5, 2018 which referred specifically to the time period of 11:10 until
11:30 it had no duty to preserve video beyond the time period requested. Defendant notes that
according to (1) Plaintiffs’ Litigation Hold Letter dated March 5, 2018, the “recess time period
of the injury was approximately between 11:10-11:30am,” (2) Plaintiffs’ Claim Letter dated
March 27, 2018, the “recess time period of the injury was approximately between 11:10-
11:30am,” and (3) Plaintiffs’ Complaint dated February 14, 2019, the accident took place at
“approximately 11:10-11:30am.” Additionally, Defendant argues that in Plaintiffs’ First
Request for Admissions dated June 10, 2019, Plaintiffs request multiple admissions related to
11:10-11:30am. Defendant contends that Plaintiffs have failed to establish when Defendants’
obligation to preserve the video for the period 11:30-11:50 arose, and thus, Plaintiffs have failed
to show that Defendant became aware that the 11:30-11:50 time period was relevant to this
litigation before the video evidence for that time period became unavailable. The Court agrees.
In general, “there is no doubt that a video depicting the time before, during, and after an
incident is relevant to determine what actually happened at the moment the injury occurred."
Essenter, 2011 U.S. Dist. LEXIS 3905, 2011 WL 124505, at *7. Here, however, in light of
Plaintiffs’ repeated representations regarding the relevant period, the Court is reluctant to
penalize Defendant for failing to preserve video before and after the time period requested. 2
2 Plaintiffs claim that Defendant has failed to provide an adequate explanation for the three minutes of video captured for the period 11:03 through 11:30 also must fail. According to Plaintiffs “Mr. Hannon does not credibly explain or respond to the Court’s Order because his explanation that video footage was missing because the school video was “motion activated” flatly contradicts both the Defendant’s official video policy and Superintendent Dyno’s reassuring email to parents about the District’s use of “live stream” video.” However, Defendant offers testimony that “[t]he surveillance cameras at Southampton Elementary School had live video-streaming capabilities. The terms “live video streaming” or “live feeds” does not mean that video footage is being constantly viewed or
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2. Prejudice from the Loss of the Evidence
The Court must next consider whether Plaintiffs have been prejudiced by the spoliation,
in which case the Court "may order measures no greater than necessary to cure the prejudice."
Fed. R. Civ. P. 37(e)(1). The moving party "bears the burden of showing that there is a
'likelihood that the destroyed evidence would have been of the nature alleged.'" Hamilton v.
Mount Sinai Hosp., 528 F. Supp. 2d 431, 444 (S.D.N.Y. 2007) (quoting Kronisch, 150 F.3d at
127).
Here, Plaintiffs do not assert any specific prejudice suffered because of the destruction of
the video for the period of 11:30- 11:50. The closet Plaintiffs come to a description of potential
prejudice is Plaintiffs’ claim that sanctions are necessary “to shift the risk of an erroneous
judgment on the Defendant, and restore Plaintiffs’ position in litigation.” Pl. Reply at 7.
“Where evidence is destroyed in bad faith, the spoliator's intentional destruction of the evidence
supports an inference that the evidence was relevant.” Gutierrez-Bonilla v. Target Corp., No. 08-
CV-3985 (JS) (AKT), 2009 U.S. Dist. LEXIS 116958, 2009 WL 5062116, at *4 (E.D.N.Y. Dec.
16, 2009) (citing Port Auth. Police Asian Jade Soc'y, 601 F. Supp. 2d at 570 (citing Residential
Funding, 306 F.3d at 109)). However, “[w]here the spoliation is done with negligence, whether
sanctions are warranted depends upon the circumstances of the case.” Id. (citing Residential
Funding, 306 F.3d at 108; Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253, 267 (2d Cir. 1999)).
If the spoliator's state of mind is insufficient to show that the missing evidence was favorable to
the moving party, the moving party may submit other proof tending to demonstrate that the
missing evidence would have been favorable to it. See In re WRT, 246 F.R.D. at 198.
monitored or acted upon.” ECF No. 89, Hannan Aff. ¶¶5-7. Plaintiffs have offered no evidence in contradiction to Mr. Hannon’s affidavit.
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Plaintiffs have failed to provide evidence that that Defendant acted with an intent to
deceive, which is discussed in greater detail below, and therefore Plaintiffs are required to submit
some proof that the missing evidence is favorable to Plaintiffs. Plaintiffs have failed to do so.
Defendant, on the other hand, has provided testimony from Howard Altschule, Certified
Consulting Meteorologist, with regard to the weather conditions that existed on January 31, 2018
between 11:30am to 11:50am. in further support of its position that outdoor recess did not take
place on January 31, 2018. ECF Nos. 83, 84.
Here, to establish a prima facie case, Plaintiffs must prove that A.W.S. was injured on the
playground outside on January 31, 2018. Defendant has taken the position that there was no
outdoor resource on that date. Thus, Plaintiffs now seek video footage showing the playground
during the recess period of A.W.S. It is undisputed that if Defendant’s video surveillance from
January 31, 2018 showed Plaintiff's accident, such footage would be relevant (and indeed, very
important) to Plaintiff's case. It would be equally important to Defendant’s case if Defendant
were able to show that no children were on the playground between 11:30 a.m. and 11:50 a.m.
However, as discussed above, in the face of sworn testimony, unrefuted by Plaintiffs, that there
was no outdoor recess on January 31, 2018, coupled with the video for the first three minutes of
the time period and the unrefuted testimony of Defendant’s metrological expert the Court cannot
conclude that Plaintiffs have demonstrated that they are prejudiced by the missing footage.
3. Culpable State of Mind
Finally, in order to for this Court to recommend the sanctions sought by Plaintiffs, i.e.,
the striking of Defendant’s answer or the instruction of an adverse inference, Plaintiffs must also
show that Defendant destroyed the video with a culpable state of mind. "Even where the
preservation obligation has been breached, sanctions will only be warranted if the party
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responsible for the loss had a sufficiently culpable state of mind." In re WRT, 246 F.R.D. at 195
(citations omitted). "Now, under Rule 37(e) (and as applied to electronic evidence only), a court
may not issue an adverse inference instruction, or any harsher remedy, unless the Court finds
'that the party acted with the intent to deprive another party of the information's use in the
litigation.'" Best Payphones, 2016 U.S. Dist. LEXIS 25655, 2016 WL 792396, at *4 (quoting
Fed. R. Civ. P. 37(e)(2)). 3 Additionally, Rule 37(e) only permits a Court to order curative
measures or sanctions if information is "lost" because a party "failed to take reasonable steps to
preserve it, and it cannot be restored or replaced through additional discovery." Id. (quoting Fed.
R. Civ. P. 37(e)). "It is the movant's burden to demonstrate that the spoliating party acted with
the intent to deprive." Karsch, 2019 U.S. Dist. LEXIS 106971, 2019 WL 2708125, at *21
(quoting Rhoda v. Rhoda, No. 14-CV-6740 (CM), 2017 U.S. Dist. LEXIS 165493, 2017 WL
4712419, at *2 (S.D.N.Y. Oct. 3, 2017)); see also Doubleline Cap. LP v. Odebrecht Fin., Ltd.,
No. 17 Civ. 4576 (GHW) (BCM), 2021 U.S. Dist. LEXIS 60959, 2021 WL 1191527, at *9
(S.D.N.Y. Mar. 30, 2021).
An intent to deprive can be found either from a conscious act of destruction or a
"conscious dereliction of a known duty to preserve electronic data." Ungar, 329 F.R.D. at 13.
“The intent standard is both stringent and specific: ‘[T]he intent contemplated by Rule 37 is not
merely the intent to perform an act that destroys ESI but rather the intent to actually deprive
another party of evidence.’” Mule v. 3-D Bldg. & Constr. Mgmt. Corp., No. CV 18-1997 (JS)
(AKT), 2021 U.S. Dist. LEXIS 124711, 2021 WL 2788432, at *6 (E.D.N.Y. July 2, 2021)
(quoting Charlestown Capital Advisors, LLC v. Acero Junction, Inc., 337 F.R.D. 47, 2020 WL
5849096, at *2 (S.D.N.Y. 2020) (citing Leidig, 2017 U.S. Dist. LEXIS 208756, 2017 WL
3 Slovin v. Target Corp., Inc., 2013 WL 840865 (S.D.N.Y. Mar. 7, 2013), relied upon by Plaintiffs, was decided before the rules changes in 2015 and thus is inapplicable to the ESI at issue here.
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6512353, at *11 (holding that although plaintiff intended to "disable his websites" and delete
certain email files, he did not do so for the purpose of depriving defendants of the use of the ESI
in litigation and therefore could not be sanctioned under subsection (e)(2))).
In Stanbro v. Westchester Cty. Health Care Corp., No. 19-CIV-10857 KMK JCM, 2021
U.S. Dist. LEXIS 163849, 2021 WL 3863396, at *6 (S.D.N.Y. Aug. 27, 2021), the Court
determined that “upon an independent review of the record, that there is no direct or
circumstantial evidence that [defendants] had the requisite intent to warrant an adverse-inference
instruction under Rule 37(e)(2). While [defendants] inability to explain what happened to the
Video is troubling, the Court cannot conclude on the instant record that the Video's absence is
the result of an intent to deprive. Such a finding would be mere surmise and conjecture.” Id.
Similarly, here, Plaintiffs have not presented any evidence suggesting that the video was
intentionally destroyed, despite having the burden to do so. Rather, Plaintiffs maintain that
Judge Hurley’s Order of April 2020 placed the burden on Defendant to provide answers. Indeed,
Judge Hurley’s Order required Defendant to “provide an affidavit from someone with first-hand
knowledge of the situation explaining in detail why the video footage provided spans only three
minutes and twenty-five seconds as distinct from the thirty minutes of the video’s represented
run time and why it does not fully encompass the recess period from 11:30 am to 11:50 am.”
Defendant complied with Judge Hurley’s order by providing an affidavit of Mark J. Hannan,
Director of Security for Defendant, dated May 27, 2020. ECF No. 80-2. Judge Hurley’s Order,
however, did not shift the burden of demonstrating an intent to destroy the video to Defendant.
In his affidavit, Mr. Hannan states that he “was familiar with the video surveillance
system at Southampton Elementary School playground on January 31, 2018” and that “[o]n or
about March 14, 2018, I was informed of an alleged accident that happened at the Southampton
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Elementary School playground on January 31, 2018 from 11:10am to 11:30am.” Id. at ¶¶ 2,3.
He added that “[w]hen I viewed the video footage, I saw that there was no outdoor recess and
that the playground was covered with snow. I preserved the video footage for January 31, 2018
from 11:03 to 11:33 am. I recorded the video footage as it existed on the video surveillance
system. I did not make any edits or alter it in any manner. It is unknown to me how the video
recording system could be manipulated or edited as the recording takes place.” Id. at ¶ 6. Mr.
Hannan explains “I was not asked to review or preserve video footage for January 31, 2018 from
11:33 am to 11:50 am.” Id. at ¶ 7. Mr. Hannan further explains that the reason for the difference
between the video footage and video run time is because “[i]t is my experience and
understanding that any such discrepancy is because the recording function on the surveillance
system was not constant, but instead was motion activated.” Id. at ¶ 8. In a later affidavit,
submitted in opposition to Plaintiffs’ motion for sanctions, Mr. Hannan testifies that “[t]he video
footage that would have showed the playground equipment at Southampton Elementary School
on January 31, 2018 from 11 :30-11 :50am was maintained in accordance with District policies.
This video footage was not intentionally destroyed and was not destroyed with the intent to
deprive any person's access to the footage. This video footage was not available due to the
regular course of retention protocols set by the District.” ECF No. 89, Affidavit of Mark
Hannan, dated March 1, 2021, ¶ 20. He further testified that “[a]s of March 14, 2018, there was
no need to review the video footage from other times on January 31, 2018 when I preserved the
video footage from 11:03- 11 :33am because there was visible snow covering the area of the
playground equipment. Based on my experiences, if there was snow covering the playground
area between 11:10-11 :30am, the same conditions would exist between 11 :30-11 :50am.
Further, as of March 14, 2018, the only time period of interest identified by Plaintiffs was 11
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:10-11 :30am.” Id. at ¶ 21.
In a belated effort to provide evidence of intent to destroy on the part of Defendant,
Plaintiffs have sought “leave to file and add the following proposed additional exhibits, 10 and
11 containing newly disclosed email evidence, germane to the above motion. (attached as
proposed exhibits and redacted by Plaintiffs). ECF No. 93. According to Plaintiffs, two emails
from Eileen Noonan, Secretary to Asst. Superintendent for Business District Treasurer,
indicating that Mr. Hannan had been asked to preserve video for January 31, 2018, support
Plaintiffs’ claim that Defendant intentionally destroyed video from January 31, 2018. Defendant
“objects to the arguments proffered by Plaintiffs in connection with the proposed exhibits . . .
because Plaintiffs should not be permitted to speculate about the meaning or subtext of Ms.
Noonan’s emails. Further, despite Plaintiffs’ arguments, there is simply no evidence that the
emails mean what Plaintiffs claim they do. Moreover, Defendant objects to the submission of the
proposed additional exhibits based on principals of hearsay and lack of authentication. Lastly, on
their face, there is nothing inconsistent between Ms. Noonan’s emails and Mr. Hannan’s
affidavits.” ECF No. 94. Defendant requested, that in the event the Court were to grant the
motion, “that the Court set a briefing schedule for the submission of memorandum of law and
supplemental affirmations with supporting evidence” in opposition to these newly added
exhibits. The Court grants Plaintiffs motion to submit these two exhibits and rejects Defendant’s
request for additional briefing. These two additional exhibits do not provide circumstantial
evidence of intent and do nothing more than bolster Defendant’s position that the video as
requested by Plaintiffs was preserved.
Accordingly, in light of Plaintiffs’ failure to satisfy any of the three elements necessary to
support the sanctions for spoliation. The undersigned respectfully recommends that Plaintiffs’
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motion to strike the Answer of the Defendant, or in the alternative for an adverse inference jury
instruction be given that negligence may be inferred from the Defendant’s spoliation of video
evidence be denied.
OBJECTIONS
A copy of this Report and Recommendation is being electronically served by the Court
on the parties. Any objections to this Report and Recommendation must be filed with the Clerk
of the Court with a courtesy copy to the undersigned within 14 days. Failure to file objections
within this period waives the right to appeal the District Court’s Order. See 28 U.S.C. §
636(b)(1); Fed R. Civ. P 72; Mejia v. Roma Cleaning, Inc., No. 17-3446, 2018 U.S. App. LEXIS
28235, 2018 WL 4847199, at *1 (2d Cir. Oct. 5, 2018) ("Plaintiff has waived any objections to
the Magistrate's finding" by failing to timely object); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); Beverly v.
Walker, 118 F.3d 900, 902 (2d Cir. 1997).
Dated: Central Islip, New York February 28, 2022 ________/s/________________ ARLENE R. LINDSAY United States Magistrate Judge
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