Despite the favorable result on his motion for sanctions, plaintiff sought reconsideration of Judge Gorenstein's order because, in his view, it did not go far enough. Judge Gorenstein denied the motion in a one-page order. (See
January 24 Order.)
Plaintiff timely filed objections to the January 24 Order. His principal objection is that Judge Gorenstein declined to impose the additional sanction of requiring Toys R Us to retain a “computer forensic expert” to examine the surveillance equipment to determine whether the deleted images are recoverable. In the proceedings before Judge Gorenstein, the Court considered the issue of recoverability and required Toys R Us to “bring a witness who can testify on personal knowledge as to whether there is any means by which its computer system can recover the deleted images.” (See
November 14, 2006 Order.) Toys R Us eventually produced the affidavit of Harold Todt, the individual who personally installed the surveillance system and who is employed as a Service Manager for the company that installs, maintains and repairs the equipment in question. Mr. Todt's affidavit states that he inspected Toys R Us's surveillance data system and that the images are not recoverable. Judge Gorenstein accepted Mr. Todt's affidavit on the issue of recoverability.
Plaintiff objects to Judge Gorenstein's reliance on Mr. Todt's affidavit. Plaintiff takes issue with the portion of the January 24 Order in which Judge Gorenstein “note[d] that the standard articulated in Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 582 (1993), and codified in Fed.R.Evid. 702, does not govern the standards for affidavits offered with respect to an application for sanctions, but rather governs evidence presented to a ‘trier of fact .” ’ Plaintiff asks this Court to “remand to the Magistrate Judge for a Daubert
Pre-Trial Hearing with respect to defendant Toys “R” Us['s] expert witness....” Plaintiff also complains that the Court failed to consider the affidavit of plaintiff's purported expert, Raymond Jeffries, which was provided to Judge Gorenstein for the first time with the motion for reconsideration, and not with the underlying motion for sanctions.
*2 Plaintiff additionally objects to the January 24 Order because it states that the evidence at issue is of tangential relevance to the substantive issues in the case. Plaintiff asks this Court to “reverse the Magistrate Judge's ruling” in this regard. Plaintiff also requests any other relief this Court deems just and proper.
I have considered the parties' submissions and reviewed the record in this case, including audio recordings of conferences held before Judge Gorenstein in this matter on December 7, 2006 and January 3, 2007. For the reasons stated herein, plaintiff's objections are denied.
Section 636(b)(1)(A) of title 28, United States Code, establishes that a magistrate judge may “hear and determine any pretrial matter pending before the court,” although certain categories of dispositive motions are exempted from this general provision. Federal Rule of Civil Procedure 72(a) states that when a nondispotive pretrial matter is decided by a magistrate judge, any party may file objections with the district judge assigned to the case within ten days of being served with the magistrate judge's ruling. Judge Gorenstein's ruling on the motion for reconsideration, as well as the underlying ruling on sanctions, is a nondispositive pretrial matter. See
Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525-26 (2d Cir.1990). When objections are timely filed, “[t]he district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a). “An order is ‘clearly erroneous' when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed, while an order is ‘contrary to law’ when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” Standard Inv. Chartered, Inc. v. National Ass'n of Securities Dealers, Inc., 07 Civ. 22014(SWK), 2007 WL 1121734, at *2 (S.D.N.Y. Apr. 11, 2007) (quoting Collens v. City of New York, 222 F.R.D. 249, 251 (S.D.N.Y.2004)).
The standard governing motions for reconsideration is strict. “[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v.. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995) (citations omitted); see
Local Civ. R. 6.3. Local Civil Rule 6.3 states that on a motion for reconsideration, “[n]o affidavits shall be filed by any party unless directed by the court.” Motions for reconsideration “should not be granted where the moving party seeks solely to relitigate an issue already decided.” Shrader, 70 F.3d at 257.
The January 24 Order was neither clearly erroneous nor contrary to law. Plaintiff alleges that the Magistrate Judge “overlooked” the affidavit of Mr. Jefferies; however, the affidavit was not before Judge Gorenstein when he decided the underlying motion on January 3, 2007. The submission of the affidavit was, therefore, improper under Local Civil Rule 6.3. Regardless, and contrary to plaintiff's accusation, Judge Gorenstein explicitly did consider Mr. Jefferies's affidavit, and deemed it to be of little value because its assertions regarding the recoverability of data “speak[ ] only about computers in general” and not the specific system used by Toys R Us to maintain its surveillance images. (See
January 24 Order.) This determination was not clearly erroneous; Judge Gorenstein did not overlook any data that might reasonably have been expected to alter the result.
*3 Judge Gorenstein's statement in the January 24 Order that the evidence at issue was of tangential relevance was also not clearly erroneous or contrary to law. The January 24 Order explicitly is without prejudice to “any preclusion-related or instruction-related sanction that may be appropriate in the event there is a trial.” I read the quoted language as leaving open for reevaluation on the basis of a more complete record at trial the relevance of any evidence destroyed by Toys R Us. At the January 3, 2007 conference, Judge Gorenstein also reserved for the trial judge any decision on relevance or admissibility of evidence relating to the July 10, 2006 incident. On the basis of the record before Judge Gorenstein, the Court's conclusion that the events of July 10, 2006, which occurred two years after the events at issue in this litigation, and involved a Toys R Us customer other than plaintiff, are of marginal relevance is not clearly erroneous or contrary to law.
Lastly, Judge Gorenstein's reliance on Mr. Todt's affidavit was not clearly erroneous or contrary to law. Courts have “wide discretion in sanctioning a party for discovery abuses.” Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 267 (2d Cir.1999). In order to facilitate the proper exercise of this discretion, in an order dated November 14, 2006, Judge Gorenstein instructed Toys R Us to “bring a witness who can testify on personal knowledge as to whether there is any means by which its computer system can recover the deleted images.” At a conference on December 7, 2006, Toys R Us produced Richard Fernandez, a Loss Prevention Manager for Toys R Us, to testify to whether the images could be recovered. At the conference, however, Mr. Fernandez testified that he did not have personal knowledge as to the recoverability of the images, and so Judge Gorenstein adjourned the proceedings to give Toys R Us another opportunity to provide the information he sought, and the Court invited Toys R Us to do so by affidavit. Toys R Us then submitted the affidavit of Mr. Todt, who installed the system and works for the company that maintains the system at the Toys R Us store in question. The affidavit explains that the surveillance system creates a digital folder each day, and that each folder is automatically overwritten after 30 days unless it is manually saved on the hard drive. Once overwritten, according to the affidavit, the images cannot be recovered. Mr. Todt stated that he “personally inspected and reviewed all active folders as well as all archived material and determined that the images from July 10, 2006 cannot be retrieved.” (Todt Aff. 4.) Judge Gorenstein was therefore satisfied that the images were not recoverable.
Plaintiff has pointed to no principle of law which requires a court, in the exercise of its broad discretion to craft appropriate sanctions for violations of a discovery order, to enlist the services of an expert within the meaning of Rule 702, Fed.R.Evid. Judge Gorenstein inquired whether the images could be retrieved. He invited Toys R Us to submit evidence from a witness with personal knowledge of the surveillance system in question. These were proper exercises of discretion, and were not clearly erroneous or contrary to law. Judge Gorenstein did not overlook controlling law in charting that course.
*4 In this context, it is unnecessary to decide whether, had Judge Gorenstein sought an affidavit from an expert in computer forensics, such an expert would have to be so-qualified under Rule 702, Fed.R.Evid. Judge Gorenstein explicitly declined to seek expert testimony on the issue of recoverability. He explained at the December 7, 2006 conference that he wanted an affidavit from someone with personal knowledge of the surveillance system in order to assist him in deciding whether it would be worthwhile to require an expert witness on recoverability. After reviewing the affidavit of Mr. Todt, Judge Gorenstein concluded that an expert would not be a worthwhile endeavor. While I note that under Rule 1101, Fed.R.Evid., the rules of evidence-including Rule 702-generally apply in all civil actions or proceedings, the standards governing expert witnesses were irrelevant to the Court's decision on the motion for sanctions and reconsideration.
The Magistrate Judge devoted considerable time and attention to this matter, holding several conferences and issuing several orders, and considered a range of possible sanctions, including the appointment of an expert at Toys R Us's attorneys' expense. The result reached was reasonable and fair, and I would not alter or modify the result even were I to review the matter de novo.
I note that subsequent to plaintiff's filing of his reply brief, the Court received a letter from plaintiff regarding “newly discovered evidence concerning spoliation of evidence.” The letter asserts that statements made by the deposed security guard, Rocky Etienne, makes further discovery appropriate. Nothing contained in plaintiff's letter alters the outcome of the instant objections.
I have considered plaintiff's other arguments and conclude that they lack merit. For the foregoing reasons, the objections are denied. No portion of the Magistrate Judge's Order of January 24, 2007 is modified or set aside.