Archive: December 19, 2005

1
Loss of Audiotapes Did Not Warrant Exclusion of All Evidence Regarding Taped Conversations
2
Consistent Refusal to Produce Materials Deemed Sufficiently Culpable to Warrant Adverse Inference Instruction
3
Without Some Evidence That Missing Documents Would Have Been Favorable to Case, Sanctions Not Appropriate
4
Discrepancies in Data Did Not Warrant Additional Discovery, or Sanctions

Loss of Audiotapes Did Not Warrant Exclusion of All Evidence Regarding Taped Conversations

Crigger v. Fahnestock & Co., Inc., 2005 WL 783355 (S.D.N.Y. Apr. 6, 2005)

Plaintiffs sought an in limine order precluding the submission of any evidence concerning the loss of audiotapes of conversations that had been mailed to plaintiffs’ counsel but subsequently lost. One of the plaintiffs had made notes of the conversations, which were produced. The court ruled that, since it had no idea what kind of evidence defendants would present concerning the loss of the tapes, it would make evidentiary determinations as objections arose. The court denied the defendants’ related motion in limine which sought to prevent plaintiffs from introducing any evidence whatsoever regarding the tape recordings, including the plaintiff’s notes and all testimony pertaining to the tapes. The court ruled that, absent bad faith in the destruction or loss of the audiotapes, the plaintiff could testify as to his best recollection of the conversations. The court further ruled that the plaintiff’s notes could be provided in order to refresh his recollection, but that the notes themselves would not be admissible.

Consistent Refusal to Produce Materials Deemed Sufficiently Culpable to Warrant Adverse Inference Instruction

Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., 2005 WL 1026461 (S.D.N.Y. May 2, 2005)

In the course of hearing the parties’ discovery disputes, the magistrate judge ordered defendant to “‘make all Board minutes and related Board documents available in hard copy, and electronic database, for review by plaintiff’s counsel.'” Defendant subsequently informed the magistrate that it would be unable to comply with the order on the grounds that Venezuelan law prohibited it from granting access to the materials. In response, the magistrate ordered an adverse inference, finding that the material was relevant and that defendant’s refusal to allow access to the material was sufficiently culpable. The magistrate noted that defendant continued to argue that the material was irrelevant, despite the prior rulings establishing relevancy, and that there was no proof that the Ministry was properly informed of the court’s rulings on the subject. Citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2nd Cir. 2002), the district court affirmed the magistrate’s order. The court observed that the defendant had consistently refused to produce the Board materials despite repeated orders to do so, and that the adverse inference “restore[d] the evidentiary balance.”

Without Some Evidence That Missing Documents Would Have Been Favorable to Case, Sanctions Not Appropriate

Hamre v. Mizra, 2005 WL 1083978 (S.D.N.Y. May 9, 2005)

In this medical malpractice case, defendants failed to maintain certain documents in the plaintiff’s chart, including a vital signs flow chart memorializing, inter alia, the plaintiff’s temperature over several days. Plaintiff moved for sanctions, seeking an order striking defendants’ answer or precluding defendants from offering testimony on the issue of liability. The magistrate denied the motion, finding that no showing of willful destruction or bad faith had been made, so the extreme sanction requested by plaintiff was not appropriate. The magistrate also concluded that the lesser sanction of an adverse inference instruction was inappropriate. The district court judge upheld the magistrate’s order, citing Zubulake v. UBS Warburg LLC, 2003 WL 22410619 (S.D.N.Y. Oct. 22, 2003) and Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2nd Cir. 2002). The court observed that, in order for the sanction of an adverse inference to be imposed, the moving party must present some evidence corroborating its assumption that the missing evidence would have been favorable to its case. Since the plaintiff had failed to put forth any evidence regarding the contents of the destroyed evidence, an adverse inference instruction was not warranted.

Discrepancies in Data Did Not Warrant Additional Discovery, or Sanctions

White v. Lenox Hill Hosp., 2005 WL 1081443 (S.D.N.Y. May 10, 2005)

The district court affirmed a magistrate’s order denying plaintiff’s application for additional discovery concerning discrepancies between patient data on defendant’s “Invision” computer system, and the “Mediware” system maintained by an independent contractor for the defendant. Plaintiff contended that there were approximately 1,500 Mediware files that did not have corresponding Invision files. However, plaintiff failed to show that the missing files were necessary for her expert’s study to be statistically meaningful, or that the discrepancies resulted from a deliberate effort to skew the data. Further, the defendant had presented testimony explaining that there was no guarantee that the patient data on the two systems would be “totally ‘in synch'” because the data on the Mediware system was entered manually. The court also rejected plaintiff’s request for sanctions based on defendant’s failure to produce the missing Invision files, finding the request to be untimely and unsupported by any evidence that defendant had destroyed any computer files with a culpable state of mind.

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