No. 02 Civ. 8123PKCMHD
United States District Court, S.D. New York
November 19, 2004
MEMORANDUM & ORDER
*1 Defendant Hartford Casualty Insurance Company has moved for sanctions based upon its contention that plaintiff Streamline Capital LLC and its two principals are responsible for the destruction of highly relevant documentation in the form of e-mails that were sent both before and during the pendency of this lawsuit. The deleted communications are said to have been principally between Steven Maass, a principal of plaintiff, and various non-party witnesses. For relief, defendant seeks an order (1) precluding plaintiff from presenting certain evidence and calling certain witnesses at trial and (2) requiring Maass and Keith Chutjian, the other principal of Streamline, to execute consents authorizing Yahoo, Inc. and Microsoft Corporation to release to defendant all e-mails sent from or to Maass or Chutjian since June 30, 2000; all e-mails sent between Maass and Chutjian at any time (including as “cc's”); and all e-mails between Maass or Chutjian any of eight specified e-mail addresses.
From the deposition testimony submitted in support of and in opposition to the motion, it appears that Maass and Chutjian have in fact systematically deleted e-mails both before and during the pendency of this litigation, and that the deletions encompass at least some communications of potentially key relevance to the claims and defenses in this case. That conclusion then triggers the question of what relief should be granted to defendant.
Before embarking on that question, it would be desirable to determine, to the extent possible, the degree of prejudice that defendant has suffered by virtue of the deletions. To assist in that endeavor it is entirely appropriate to require Messrs. Maass and Chutjian to consent to the production of pertinent e-mails that are still available through the e-mail service companies that they have utilized. This conclusion follows from the facts that they are principals of plaintiff Streamline and are obviously central witnesses to the events at issue and that they are plainly responsible for the deletion of apparently relevant e-mails for which plaintiff has proffered no meaningful justification.
As for the appropriate procedures, as a matter of ordinary caution, the e-mails should be provided in the first instance to plaintiff's attorney, Jeremy J. Flanagan, Esq., so that he can review them for possible privileges. In view of the fact that plaintiff is responsible for destruction of apparently relevant e-mails, we are likely to be unsympathetic to standard-form objections at this time on the basis of relevance, but will address such arguments if they are made and clearly documented.
As for the scope and timing of the production, the consent is to encompass the categories requested by defendant with the exception that the time frame for all e-mails sent to and from Messrs. Maass and Chutjian (categories 1 and 2 on defendant's proposed consent form) is to run from January 1, 2001 to the present. The consent forms are to be executed and provided to Yahoo and Microsoft by November 23, 2004, with copies to defendant's counsel.
Once the e-mails are received by plaintiff's attorney, he is to notify the court and defendant's counsel forthwith, and is to provide copies to the defendant within 72 hours thereafter. As for any withheld e-mails, he is to provide a log to defendant at the same time.
*2 If plaintiff withholds any e-mails and defendant objects in writing, the parties are to advise the court promptly, and we will set a schedule for plaintiff to justify its withholding.
Before sending out the consent forms, plaintiff's attorney is to provide the forms in draft to defendant's attorney for review.
End of Document.