Marissa SAFER, Plaintiff, v. HUDSON HOTEL, Hudson Lease Co LLC, Morgans Hotel Group Co., Morgans Hotel Group Management LLC, Morgans Hotellimited Partnership and Henry Hudson Holdings LLC, Defendants.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Notices of Motion and Memorandum of Law 1
Order to Show Cause and Affidavits Annexed
Opposing Affidavits and Memorandum of Law 2
Replying Affidavits 3
On March 20, 2015, Plaintiff commenced this action in Supreme Court, New York County against Defendants Hudson Hotel, Hudson Lease Co. LLC, Morgans Hotel Group Co., Morgans Hotel Group Management LLC, Morgans Hotel Limited Partnership and Henry Hudson Holdings LLC.
Plaintiff alleges that, as a result of defendants' negligence, she stepped on broken glass in the hotel bar of the Hudson Hotel on May 13, 2012 hich caused “severe and serious personal injuries to [her] mind and body” (NYSCEF Doc. No. 1 [Compl. ¶147] ) such that she has been partially or totally disabled from that date through the present (NYSCEF Doc. No. 16 [Bill of Particulars ¶¶4-5, 13-14] ).
On or about June 24, 2015, defendants served plaintiff with a Notice for Discovery and Inspection of Social Media, seeking, inter alia, “color copies of Timeline Photos posted to Plaintiff's Facebook account from May 13, 2012 to present” (NYSCEF Doc. No. 6 [Notice for Discovery and Inspection of Social Media] ). On September 12, 2016, defendants moved to compel the production of this material (NYSCEF Doc. No. 35). By Decision and Order dated February 14, 2017 (the “In Camera Order”), the Supreme Court of the State of New York (Hon. Barbara Jaffe) ordered that:
As plaintiff alleges total and partial disability, and injuries of a permanent and lasting nature to her left foot, including loss of sensation, numbness, nerve damage, and loss of range of motion, the photographs of plaintiff in her Facebook profile are probative of the issue of the extent of her alleged injuries to the extent they relate to or show the condition of her left foot. Accordingly, plaintiff is directed to provide the following for an in camera review inspection within 30 days: all status reports, emails, photographs, and videos posted on plaintiff's Facebook page/profile from the date of the accident to the present (Richards v. Hertz Corp., 100 A.D.3d 728 [953 N.Y.S.2d 654] [2d Dept. 2012]). Defendant's motion to compel granted to the extent above, and plaintiff's cross-motion for a protective order [is] denied
(NYSECF Doc. No. 59 [In Camera Order] ).
Plaintiff provided this material to Justice Jaffe and, following an in camera review of same, the Court issued a supplemental Decision and Order, dated July 18, 2017 (the “Production Order”). (NYSCEF Doc. No. 61 [Production Order] ). The Production Order directed Plaintiff to produce to defendants a total of 135 Facebook posts. One hundred of these Facebook posts included attached photographs while eleven of the Facebook posts included attached videos (Id.).
On or about August 10, 2017, plaintiff provided defendants with black and white, low resolution screenshots of some of the Facebook posts listed in the Production Order (NYSCEF Doc. No. 96 [Plaintiff's August 10, 2017 Production] ). Unsatisfied with this production, defendants served plaintiff with a so-ordered subpoena, dated August 8, 2019 (the “So-Ordered Subpoena”), which ordered plaintiff to produce
full color copies, in digital format on DVD, CD or USB flash drive, of every one of plaintiff's Facebook posts, including full resolution, uncropped photographs and complete comment threads, identified in the [Production Order]
(NYSCEF Doc. No. 85 [So-Ordered Subpoena] [emphasis added] ).
Plaintiff responded to the So-Ordered Subpoena by producing approximately 111 high resolution Facebook posts (NYSCEF Doc. No. 99). It is undisputed, however, that plaintiff has not produced the following eight Facebook posts listed in the Production Order in any form:
Post dated September 5, 2012, at 7:34 a.m.: “Last day in the hamptons” (Production Order, ¶117)
Post dated July 15, 2013, at 12:04 p.m.: “doggy road trip” (Production Order, ¶71)
Post dated November 14, 2013, at 7:53 p.m.: “Fundraiser at MeltKraft for Typhoon Haiyan Victims” (Production Order ¶59)
Post dated March 29, 2015 at 4:41 p.m.: “Role Over — Rutgers MFA” (Production Order, ¶37)
Post dated June 7, 2015, at 5:14 p.m.: Photo, swimming at “Michaels friends house” (Production Order, ¶36)
Facebook post dated February 6, 2016, at 12:08 a.m.: “Vail” (Production Order, ¶23)
Two posts dated February 8, 2016, at 12:41 a.m. and 12:45 a.m.: “Vail” (Production Order, ¶21)
(NYSCEF Doc. No 61 [Production Order] ).
Defendants also note that plaintiff failed to comply with the So-Ordered Subpoena's directive to produce high-quality versions of the following thirteen Facebook posts listed in the Production Order:
Five posts by Jennifer Poltorak dated September 18, 2012 with Plaintiff tagged in each photo (Production Order, ¶112)
Post dated June 20, 2015, at 9:29 p.m.: “Rachel and blaze wedding” (Production Order, ¶35)
Post dated July 13, 2015, at 5:06 p.m.: Photo (Production Order, ¶34)
Post dated December 26, 2015, at 10:43 p.m.: “Christmas eve in NYC” (Production Order, ¶29)
Post dated January 25, 2016, at 9:12 p.m.: Photo, captioned “night skiing” (Production Order, ¶28)
Post dated February 4, 2016, at 1:07 p.m.: Photo, captioned “My hubby” (Production Order, ¶27)
Post dated February 6, 2016, at 12:08 a.m.: Photo, captioned “no filterneeded” (Production Order, ¶24)
Post dated February 8, 2016, at 12:41 a.m.: Photo, “Last day in vail” (Production Order, ¶22)
Post dated June 12, 2016, at 4:32 p.m.: Photo, roller skates with comment, “How did you do?” (Production Order, ¶19)
Plaintiff concedes, in her affidavit in opposition to the instant motion, that she cannot produce the eight outstanding Facebook posts or higher quality versions of the 13 Facebook posts mentioned above because:
[d]uring the course of the litigation, it was brought to my attention that a Judge had ordered production of a number of Facebook posts and videos from my account. I granted access to my attorneys to facilitate this disclosure. Subsequently, I was informed by my attorneys that they had produced the posts to the court. At that time on my Facebook account were photographs posted by other individuals, as well as photographs depicting my ex-fiancé. Thereafter, some photographs were deleted from my account when other individuals deleted posts they had made, and photographs they had posted on my account. In addition, I inadvertently deleted photos which were related to my ex- fiancé
(Safer Aff. in Opp. at ¶¶3-5).
Notably, neither party clarifies which of the deleted Facebook posts at issue above were originally posted by third parties (the “Third-Party Posts”) and which were posted by plaintiff (the “Safer Posts”).
On September 19, 2019, this matter was transferred to this Court pursuant to CPLR § 325(d) and Rule 202.13(a) of the Uniform Rule of the Supreme Court and County Court. Defendants now move: (i) pursuant to CPLR § 2308 for an order holding plaintiff in contempt for its failure to comply with the So-Ordered Subpoena and striking plaintiff's complaint; (ii) pursuant to CPLR § 3124 for an order compelling plaintiff to comply with the So-Ordered Subpoena or, in the event that plaintiff still refuses to comply, striking plaintiff's Complaint;1 or (iii) pursuant to CPLR § 3126 for an order directing the trial court to impose an adverse inference charge, as a sanction for plaintiff's spoliation of evidence with respect to the Facebook posts that she has not produced as directed in the So-Ordered Subpoena.2
The Court declines to hold plaintiff in contempt and strike her pleadings pursuant to CPLR § 2308 for failure to comply with the So-Ordered Subpoena. “[B]efore a court invokes the drastic remedy of striking a pleading there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious” (Dimoulas v. Roca, 120 A.D.3d 1293, 1295, 993 N.Y.S.2d 56 [2d Dept. 2014] see also Peters v. Peters, 146 A.D.3d 503, 504, 45 N.Y.S.3d 406 [1st Dept. 2017]; Peterson v. Rozansky, 171 A.D.3d 805, 808, 97 N.Y.S.3d 724 [2d Dept. 2019]). In light of the fact that most of the discovery ordered in the So-Ordered Subpoena has been produced to defendants, the Court determines that there has been no showing of willful or contumacious conduct by plaintiff.
The Court now turns to that branch of defendants' motion seeking the imposition of an appropriate sanction against plaintiff for her spoliation of relevant evidence. “Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them and after being placed on notice that such evidence might be needed for future litigation” (Verizon New York, Inc. v. Consol. Edison, Inc., 44 Misc. 3d 1206(A), 2014 WL 3030346 [Sup. Ct., N.Y. County 2014] [internal citations omitted] ).
“On a motion for spoliation sanctions, the moving party must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a “culpable state of mind”; and (3) the destroyed evidence was relevant to the moving party's claim or defense” (Duluc v. AC & L Food Corp., 119 A.D.3d 450, 451-52, 990 N.Y.S.2d 24 [1st Dept. 2014] citing VOOM HD Holdings LLC v. EchoStar Satellite, LLC, 93 A.D.3d 33, 45, 939 N.Y.S.2d 321 [1st Dept. 2012] and Ahroner v. Israel Discount Bank of NY, 79 A.D.3d 481, 913 N.Y.S.2d 181 [1st Dept. 2010]).
Obligation to Preserve
The Court finds that defendants have established that plaintiff exercised control over both the Safer Posts and Third-Party Posts and that her obligation to preserve them attached well before their destruction. While it is undisputed that plaintiff had control over the Safer Posts, plaintiff maintains that she had no authority to stop her Facebook friends from deleting the Third-Party Posts and therefore cannot be held responsible for their unavailability (Schirmer Affirm. in Opp. ¶20). The question, however, is not whether plaintiff had the power to prevent her Facebook friends from deleting the Third-Party Posts but whether she had the ability and obligation to preserve the Third-Party Posts and failed to do so. The Court answers this question in the affirmative.
Plaintiff produced the Safer Posts and Third-Party Posts for in camera review sometime after February 14, 2017 and before July 18, 2017. It follows that, since plaintiff had the ability to produce this material, she had the concomitant power to preserve same, regardless of who ultimately owned this material.
Moreover, plaintiff's obligation to preserve the Safer Posts and Third-Party Posts had already attached prior to February 14, 2017 (the first date that production for in camera review could have been made).“The obligation to preserve relevant evidence is trigged when a party ‘reasonably anticipates litigation’ ” at which point the party “must put in place a litigation hold to ensure the preservation of relevant documents” (VOOM HD Holdings LLC v. EchoStar Satellite, LLC, 93 A.D.3d 33, 36, 939 N.Y.S.2d 321 [1st Dept. 2012]). Accordingly, plaintiff should have reasonably anticipated that her Facebook posts would be relevant to this case and immediately preserved this material as of the commencement of this action on March 20, 2015. In any event, however, plaintiff was unquestionably on notice of her obligation to preserve this material upon receiving defendants' Notice for Discovery and Inspection of Social Media on June 24, 2015. Yet, it is undisputed that during the period in which plaintiff had the opportunity, ability, and obligation to preserve this material — February 14, 2017 and before July 18, 2017 — she failed to do so.3
Culpable State of Mind
“The requisite culpable state of mind [to establish spoliation] can be demonstrated through intentional or willful conduct, gross negligence or ordinary negligence” (Cohen v. 118 E. 60th Owners Inc., 64 Misc. 3d 1230(A), 2019 WL 4023630 [Sup. Ct., N.Y. County 2019] citing Voom HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 939 N.Y.S.2d 321] ). Plaintiff argues that she did not act with a “culpable state of mind” because the Safer Posts and Third-Party Posts were deleted only after she was told by her attorneys that all of her Facebook posts had been produced to the court(Safer Aff. In Opp. at ¶¶4-5). Even taking this claim as true, however, plaintiff's reliance on her attorneys' assurances only establishes that she did not intentionally or willfully deprive defendants of this material. As the deletion of the Safer Posts and Third-Party Posts occurred in the midst of the parties' on-going — and as of yet unresolved — discovery dispute, plaintiff could not reasonably have assumed that she could delete any evidence subject to the Production Order or that she was otherwise absolved of her continuing duty to preserve this evidence for trial. Accordingly, her deletion of the Safer Posts and her failure to preserve the Third-Party Posts constitute gross negligence (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 171 A.D.3d 680, 680-81, 100 N.Y.S.3d 218 [1st Dept. 2019] [“Even assuming that [defendants] did not intentionally destroy the WeChat messages, defendants' failure to preserve the discussions for more than a year and to take timely actions to recover the damaged phones and data constitutes gross negligence”]; Carey v. Shakhnazarian, 68 Misc. 3d 1221(A), 2020 WL 5491592 [Sup. Ct., N.Y. County 2020]) as does her failure to preserve the Third-Party Posts (See Amaris v. Sharp Elecs. Corp., 304 A.D.2d 457, 457-58, 758 N.Y.S.2d 637 [1st Dept. 2003] [“Although plaintiff was aware the television that allegedly caused the injury was a crucial piece of evidence, he negligently failed to take sufficient steps to assure its preservation. The spoliation was clearly the result of plaintiff's negligence notwithstanding the fact that the television set was owned by plaintiff's employer, a nonparty”] ).
Relevance of Material
As the Safer Posts and Third-Party Posts are unavailable due to plaintiff's gross negligence, they are presumed to be relevant to defendants' defenses in this action (VOOM HD Holdings LLC v. EchoStar Satellite LLC, 93 A.D.3d 33, 45, 939 N.Y.S.2d 321 [1st Dept. 2012] [internal citation omitted] ). Even if this were not the case, the Supreme Court already determined that the Safer Posts and Third-Party Posts are probative as to the extent of plaintiff's injury and disability resulting therefrom (See NYSCEF Doc. No. 59 [In Camera Order] ).
Appropriate Sanction for Spoliation — Adverse Inference Charge
In light of the foregoing, the Court finds that defendants have established plaintiff's spoliation of the Safer Posts and Third-Party Posts. Accordingly, the Court now turns to the determination of the appropriate sanction for plaintiff's spoliation of evidence. “In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness. The burden is on the party requesting sanctions to make the requisite showing” (Duluc v. AC & L Food Corp., 119 A.D.3d 450, 451-52, 990 N.Y.S.2d 24 [1st Dept. 2014] [internal citations omitted] ).
Defendants argue that they are prejudiced by the loss of the Safer Posts and the Third-Party Posts because their unavailability will hinder defendants' ability to show “the jury evidence of Plaintiff traveling the world, engaging in all manner of recreational activities unaffected by the alleged foot injury that Plaintiff claimed left her totally disabled ‘from May 13, 2012 up until the present’ ” (NYSECF Doc. No. 106 [Selvey Affirm. in Reply at ¶11] ). Plaintiff responds that defendants are not prejudiced because plaintiff substantially complied with the So-Ordered Subpoena by producing the vast majority of the Facebook posts set forth in the Production Order to defendants and that this production covers the same period of time as the deleted Safer Posts and Third-Party Posts, i.e., the period from 2012 through 2016.
Given the chronological overlap between those Facebook posts produced by plaintiff and the missing Safer Posts and Third-Party Posts, the Court finds that dismissal would be an inappropriate and disproportionate sanction, as the spoliated evidence is not “the sole means by which the defendant can establish its defense” and its absence does not fatally compromise defendants' defense (Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 140 A.D.3d 607, 609-10, 36 N.Y.S.3d 2 [1st Dept. 2016]). A lesser sanction for spoliation of the Safer Posts and Third-Party Posts is appropriate, however, since “[t]he missing evidence is from a crucial time period” which “is not entirely duplicative” of the Facebook posts produced by plaintiff and, as such, could potentially have further supported defendants' case by illustrating the degree and variety of plaintiff's post-injury activity (VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 47, 939 N.Y.S.2d 321 [1st Dept. 2012]).
In light of this prejudice to defendants, the imposition of an adverse inference against plaintiff — permitting the jury to find that the Safer Posts and Third-Party Posts would not have supported plaintiff's position and to draw an inference against plaintiff as to the degree that her alleged injury impacted her life thereafter — is a proportionate sanction for plaintiff's spoliation of evidence (See Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 140 A.D.3d 607, 609-10, 36 N.Y.S.3d 2 [1st Dept. 2016]).
Accordingly, it is hereby
ORDERED that defendants' motion is GRANTED with respect to that branch of their motion requesting a spoliation sanction such that an adverse inference charge (PJI § 1:77) shall be included as part of the trial court's jury charges with respect to the missing Facebook posts described in paragraphs 19, 21-24, 27-29, 34-37, 59, 71, 112 and 117 of the Decision and Order, dated July 18, 2017 (Hon. Barbara Jaffe, J.S.C.) (Production Order) and is otherwise DENIED; and it is further
ORDERED that the parties shall appear virtually for a pre-trial conference on November 16, 2020 at 12:30 p.m. The Clerk of Court shall schedule the pre-trial conference and provide counsel for the parties with the Microsoft Teams calendar appointment.
1. As plaintiff concedes that she deleted the Safer Posts and others deleted the Third-Party Posts, defendants appear to have abandoned that branch of their motion seeking to compel plaintiff to comply with the So-Ordered Subpoena under CPLR § 3124.
2. Defendants initially failed to request an adverse inference charge as part of the relief requested in the instant motion. However, both parties addressed the issue of whether this Court should or should not impose an appropriate sanction against the plaintiff for spoliation pursuant to CPLR § 3126. In addition, defendants included a general relief clause in their moving papers. Accordingly, this Court will consider the requested relief pursuant to CPLR § 3126 and issue a ruling herein (See Tirado v. Miller, 75 A.D.3d 153, 157-58, 901 N.Y.S.2d 358 [2d Dept. 2010]).
3. Notably, Plaintiff does not refer to any specific dates for when she was informed by counsel that all of the relevant Facebook posts had been produced or for when she deleted the Safer Posts or when the Third-Party Posts were deleted.
Judy H. Kim, J.