In her Complaint, plaintiff Whitney alleges that while on board a JetBlue flight from New York City to Tampa, Florida on May 23, 2005, the passenger in the seat behind her began to throw paper wrappers at her shortly after takeoff. (Compl.[1] ¶¶ 4, 12). According to plaintiff, a flight attendant noticed this activity and warned the passenger seated behind plaintiff to cease throwing the items. (Id. ¶ 14). Plaintiff further alleges that the passenger behind her proceeded to “violently and repeatedly” kick her seat back, and that although at least one flight attendant witnessed the kicking, no attendant came to plaintiff's aid or took any “step to protect plaintiff from the injuries she sustained” from the kicking. (Id. ¶¶ 15-17). Ms. Whitney asserts that she sustained injuries as a result of the kicking, and subsequently commenced this action against JetBlue, seeking damages for claims of negligent failure to protect and gross negligence. (Id. ¶¶ 34-36, 37-40).

It is undisputed that at some point after the events on board, flight attendant Vashti Saunders completed a handwritten “Inflight Irregularity Report” (“IIR”) documenting the incident. JetBlue asserts that the information in the handwritten IIR was “entered into JetBlue's Safety database for posterity.” (Def.'s Resp.[2] at 1). A version of the IIR from JetBlue's electronic database was produced to plaintiff in defendant's initial disclosures. (Id. at 2, 5; Pl.'s Mem.[3] at 3-4). In addition, another version of the electronic IIR, containing information not included in the electronic IIR provided in defendant's initial disclosures, was produced by defendant during the depositions of JetBlue's witnesses in September, 2007. (PL's Mem. at 5; Def.'s Resp. at 5).[4] At the same time, defendant produced another document entitled “Inflight Incident Report,” which was created over a year after the incident occurred (PL's Mem. at 3, Ex. H), and a “draft” IIR handwritten by Ms. Saunders, which is undated and differs from both versions of the electronic IIR. (Id. at 2, Ex. E).

At the January 11, 2008 hearing before this Court, defendant noted that Ms. Saunders' handwritten IIR had been destroyed in June, 2007 as part of a bulk storage destruction by JetBlue. Counsel for JetBlue acknowledged that all documents related to Ms. Whitney's case should have been retained under a litigation hold, but JetBlue asserts that once the information in the handwritten IIR was entered into the electronic database, the electronic IIR was considered the “original” by JetBlue. (Killoch Aff.[5] ¶ 8).

*2 Plaintiff Whitney moves for spoliation sanctions, asserting that JetBlue willfully and admittedly destroyed critical evidence-namely, the handwritten IIR-that was recorded relatively contemporaneously with the events on board and that would have been useful to plaintiff in her claims against defendant. (PL's Mem. at 2). Plaintiff argues that without this document, “there is no way to ascertain that the computer information present in Defendant's database even remotely reflects the information contained in the now destroyed paper-based original,” resulting in prejudice to plaintiff, especially in light of Ms. Saunders' inability to recall many of the details surrounding the incident. (Id. at 2, 6). Plaintiff contends that the printouts from defendant's electronic database cannot be trusted because computer data is “ephemeral by design” and can be easily altered, as evidenced in this case by the retitling of the IIR to “Inflight Incident Report” and the differing content of the two electronic versions of the IIR. (Id. at 5-6). It is Ms. Whitney's position that without the handwritten IIR, plaintiff will never know whether the electronic IIR accurately reflects the events observed by flight attendant Saunders and as reported to Ms. Saunders by plaintiff. (Id. at 6). Plaintiff further notes that defendant's employees have stated under oath that JetBlue both did and did not have a formal document retention policy. (PL's Reply[6] at 2 (citing Cook Tr.[7] at 29:9-14; Gurdoglanyan Aff. ¶ 9)). This inconsistency, plaintiff argues, is part of defendant's “pattern of obfuscation” that has revealed itself in the various versions of the report of the incident on board Ms. Whitney's flight. (Id. at 1-2).

In response, defendant argues that plaintiff's allegations about the alteration of the content of the IIR is “speculation, to the point of paranoia.” (Def.'s Resp. at 1). Defendant asserts that, contrary to plaintiff's claims, the information in the handwritten IIR was entered into the computer database for the purpose of preserving it, and plaintiff has not demonstrated that the data was manipulated in any way. (Id. at 1-2). JetBlue maintains that its records are consistent and demonstrate that the information in Ms. Saunders' handwritten IIR was accurately and completely entered into the database.[8] As such, defendant argues that the information sought by plaintiff is “cumulative and of minimal relevance” and that plaintiff would be in the same position with or without the handwritten IIR. (Def.'s Resp. at 5, 10).

As for sanctions, plaintiff requests that the Court grant judgment in her favor or that an adverse inference instruction be given to the jury together with the exclusion of defendant's evidence, and that plaintiff be granted reasonable attorney's fees and costs in connection with this motion. (Pl.'s Mem. at 1). JetBlue requests leave to apply for attorney's fees and costs in connection with its opposition to plaintiff's motion. (Def.'s Resp. at 11).

*3 Rule 37 of the Federal Rules of Civil Procedure authorizes a court to impose various sanctions when a party “fails to obey an order to provide or permit discovery.” Fed.R.Civ.P. 31(b)(2); see also Transatlantic Bulk Shipping Ltd. v. Saudi Chartering, S.A., 112 F.R.D. 185, 189 (S.D.N.Y.1986) (noting that Rule 37(b) “provides for sanctions where a party fails to honor its disclosure obligations, especially after court orders”). It is clear that sanctions may be imposed when a party spoliates evidence in violation of a court order. See, e.g., West v. Goodyear Tire & Rubber Co. 167 F.3d 776, 779 (2d Cir.1999) (citing John B. Hull. Inc. v. Waterburv Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir.1988)). Even where there has been no explicit discovery order issued, the court has the inherent power to preserve the integrity of proceedings by, among other things, imposing sanctions for the spoliation. See id.; Kronisch v. United States, 150 F.3d 122, 126-27 (2d Cir.1998); Barsoum v. N.Y.C. Hous. Auth., 202 F.R.D. 396, 399 (S.D.N.Y.2001).

The Second Circuit has defined spoliation as “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably forseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d at 779; accord Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir.2001). A party has the obligation to preserve evidence when the party is on notice “that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir.2001) (citing Kronisch v. United States, 150 F.3d at 126); Barsoum v. N.Y.C. Hous. Auth., 202 F.R.D. at 400 (holding that a party is under an obligation to retain documents and other evidence that it knows may be relevant to a pending or future litigation). This obligation to preserve relevant documents exists whether or not the documents have been specifically requested in a demand for discovery. Barsoum v. N.Y.C. Hous. Auth., 202 F.R.D. at 400.

Three elements must be established by the party seeking sanctions for spoliation of evidence:

Farella v. City of New York, No. 05 CV 5711, 2007 WL 193867, at *2 (S.D.N.Y. Jan.25, 2007); see also Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d at 108-09; Fujitsu Ltd. v. Federal Express Corp., 247 F.3d at 436;Zubulake v. UBS Warburg LLC. 220 F.R.D. 212, 220 (S.D.N.Y.2003). In analyzing the second prong of this test, it is unclear exactly what degree of culpability is required, with some courts in this Circuit requiring a showing of bad faith, some requiring proof of intentional destruction, and others drawing an inference based on gross negligence. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d at 107-08 (citing Reilly v. NatWest Mkts. Group Inc., 181 F.3d 253, 267 (2d Cir.1999), cert. denied, 528 U.S. 1119, 120 S.Ct. 940, 145 L.Ed.2d 818 (2000)). Thus, the Second Circuit has concluded that “a case by case approach is appropriate.” Id. at 108.

*4 Turning to the first element, although defendant argues that the handwritten IIRs were not considered “originals” and therefore were not covered by JetBlue's document retention policy, there is no question that Ms. Saunders' handwritten IIR should have been retained. Regardless of whether the documents were subject to JetBlue's retention policy, or indeed, regardless of whether such a policy even existed at JetBlue, plaintiff correctly points out that defendant was on notice of Ms. Whitney's claim less than 24 hours after the incident occurred, and certainly in June of 2007, when the handwritten IIR was destroyed. Defendant had a clear obligation, whatever its document retention policy was, to put a litigation hold on any and all documents relating to Ms. Whitney's claim and to maintain them. See, e.g., Fujitsu Ltd. v. Federal Express Corp., 247 F.3d at 436. Defendant also had complete control over the handwritten IIR; indeed, plaintiff notes in her Complaint that although she requested defendant's reports relating to the incident, she never received anything. (Compl.¶¶ 31-32).

Having determined that JetBlue had an obligation to maintain this document, Ms. Whitney still has the burden to show that the handwritten IIR was destroyed knowingly or negligently, and that it was relevant to her case. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d at 109. With respect to JetBlue's state of mind at the time of the destruction, the testimony is at odds, with one employee stating that JetBlue had a document retention policy in place (see Cook Tr.[9] at 29:9-14), and another employee stating that no such policy existed. (Gurdoglanyan Aff. ¶ 9). Most recently, defendant indicated at the hearing that the handwritten IIR was destroyed as part of a bulk destruction of documents by JetBlue. Although the Court is troubled by the contradictory and confusing information provided by defendant, regardless of whether JetBlue had a formal document retention policy in place, there is no indication that the handwritten IIR was destroyed in bad faith. The Court credits defendant's assertion that the handwritten IIR was included with numerous other similar documents and destroyed en masse.

Although the Court finds that Ms. Whitney has failed to establish that the destruction of these documents was done willfully or in bad faith, sanctions may still be imposed upon a finding of negligence. See Indemnity Ins. Co. of N. Am. v. Liebert Corp., No. 96 CV 6675, 1998 WL 363834, at *3 (S.D.N.Y. June 29, 1998) (holding that sanctions may be awarded for spoliation not just “where the evidence was destroyed willfully or in bad faith, since a party's negligent loss of evidence can be just as fatal to the other party's ability to present a defense”) (internal citation omitted); see also Great Northern Ins. Co. v. Power Cooling, Inc., No. 06 CV 874, 2007 WL 2687666, at *9 (E.D.N.Y. Sept. 10, 2007); Smith v. City of New York, 388 F.Supp.2d 179, 189 (S.D.N.Y.2005).

*5 Here, the document at issue was obviously relevant to plaintiff's case. Although JetBlue argues that the information in the handwritten IIR was entered completely into its electronic database, the handwritten IIR was nevertheless a more contemporaneous record of the events underlying plaintiff's claim, which plaintiff has the burden to prove. To allow the destruction of this record while the case was ongoing was at best negligent. Indeed, it could be argued that under all of the circumstances of this case, JetBlue was grossly negligent in its responsibility to supervise and ensure retention of this document. See Chan v. Triple 8 Palace, Inc., No. 03 CV 6048, 2005 WL 1925579, at *7 (S.D.N.Y. Aug. 11, 2005) (noting that the “utter failure to establish any form of litigation hold at the outset of litigation is grossly negligent”).

As for the relevance prong, JetBlue argues that plaintiff has failed to demonstrate that the destroyed evidence would have been favorable to her. (Def.'s Resp. at 8 (citing De Espana v. Am. Bureau of Shipping, No. 03 CV 3573, 2007 WL 1686327, at *6 (S.D.N.Y. June 6, 2007) (noting that “where the culpable party was negligent, there must be extrinsic evidence to demonstrate that the destroyed evidence was relevant and would have been unfavorable to the destroying party”) and Zubulake v. UBS Warburg LLC, 220 F.R.D. at 221 (same))). Indeed, defendant argues that plaintiff has not shown that the information in the electronic IIR is any different from the handwritten IIR or different in substance from Ms. Saunders' draft IIR. (Id.) As such, defendant contends, there is no evidence that the handwritten IIR would support Ms. Whitney's claims. (Id.)

In reply, plaintiff asserts that the handwritten IIR would have corroborated her account of the events on board, namely, that defendant's flight attendants failed to intervene after observing the behavior of the passenger seated behind Ms. Whitney. (PL's Reply at 6). Specifically, plaintiff argues that given that the complete version of the electronic IIR contains plaintiff's “first-person input,” it is likely that the handwritten IIR contained more of this type of information, in support of plaintiff's claims. (Id. at 7). Ms. Whitney also contends in the alternative that JetBlue's destruction of the document was in bad faith, and that this alone is sufficient to merit an inference that the handwritten IIR was favorable to her case. (Id. at 6).

The Court has reviewed the disputed documents and finds no substantive difference among them, and nothing to indicate that the handwritten IIR would have corroborated plaintiff's version of events. Both versions of the electronic IIR contain statements or phrases relating to what plaintiff told Ms. Saunders regarding her physical complaints and the fact that the passenger behind her had thrown things at her. (See Pl.'s Mem., Exs. G, M). Although all three versions of the IIR are slightly different in terms of wording and structure, all recite what plaintiff originally reported to Ms. Saunders and Ms. Saunders' conversation with the offending passenger after the events had already occurred. (See id., Exs. E, G, M). There is nothing in any of the reports to indicate that Ms. Saunders observed the passenger throwing things at Ms. Whitney or kicking her seat, and plaintiff has not demonstrated that the destroyed handwritten IIR would contain this information.[10]

*6 While there must be “ ‘some showing indicating that the destroyed evidence would have been relevant to the contested issue,’ ” Barsoum v. N.Y.C. Hous. Auth., 202 F.R.D. at 400 (quoting Kronisch v. United States, 150 F.3d at 127), the relevance factor is primarily concerned with whether there has been prejudice to the party seeking sanctions. Id.; see also Kronisch v. United States, 150 F.3d at 127; Sovulj v. United States, No 98 CV 5550, 2005 WL 2290495, at *5 (E.D.N.Y. Sept.20, 2005). Here, although there was a disturbing amount of carelessness on defendant's part in the retention and production of the IIRs, plaintiff has not demonstrated that the information in the handwritten IIR would be favorable to her case, or that she has been prejudiced by its absence. The Court credits defendant's assertion that under its procedures, the information in the destroyed handwritten IIR would have been entered word for word into the complete electronic IIR, which defendant has now shown was generated in full relatively soon after the incident on board. As such, the Court denies plaintiff's request for judgment and for an adverse inference and exclusion of evidence.

The Court finds, however, that plaintiff should be awarded attorney's fees and costs in connection with her motion. Defendant inexplicably destroyed a clearly relevant document in the course of this litigation, when it had been placed on notice of plaintiff s claim shortly after the incident. Furthermore, defendant failed on several instances-in its initial disclosures and in connection with depositions-to provide accurate information to plaintiff. Although plaintiff's claim of spoliation fails, defendant's careless and confusing course of conduct understandably gave plaintiff reason to believe that something improper had occurred.

In accordance with the foregoing, plaintiff's motion for spoliation sanctions is denied, but the Court awards plaintiff reasonable attorney's fees and costs incurred in connection with the motion. Plaintiff is directed to submit an affidavit and supporting time records on or before May 14, 2008 if she wishes to obtain reimbursement for fees. Defendant's request for fees is denied.

SO ORDERED.

Citations to “Compl.” refer to plaintiff's Complaint, filed April 3, 2007.

Citations to “Def.'s Resp.” refer to the Letter of Defendant JetBlue dated October 9, 2007.

Citations to “Pl.'s Mem.” refer to the Letter of Plaintiff Denise Whitney dated October 1, 2007.

The Court notes that this second electronic IIR and the “Inflight Incident Report” contain identical information. (See Affidavit of Nicole Gurdoglanyan, Manager of JetBlue's Legal Department, dated October 9, 2007 (“Gurdoglanyan Aff.”), Exs. C, E).

Citations to “Killoch Aff.” refer to the Affidavit of Donald James Killoch, Jr., Safety Analyst for JetBlue, dated October 9, 2007.

Citations to “Pl.'s Reply” refer to the Letter of Plaintiff Denise Whitney dated October 12, 2007.

Citations to “Cook Tr.” refer to the Deposition Transcript of DeWayne Cook, Manager of Inflight Standards for JetBlue, dated September 13, 2007.

Although defendant does not provide an explanation for why there are two versions of the electronic IIR, it has produced records demonstrating that a complete version was generated shortly after the incident on board. (Gurdoglanyan Aff., Ex. E). In addition, Nicole Gurdoglanyan, the author of the “Inflight Incident Report,” explains that she erroneously titled the document after extracting the information from the relevant electronic IIR. (Id. ¶ 7).

Citations to “Cook Tr.” refer to the Deposition Transcript of DeWayne Cook, Manager of Inflight Standards for JetBlue, dated September 13, 2007.

Plaintiff also takes issue with the fact that the IIRs indicate that no medical assistance was offered but that defendant's Station Incident Report, relating to the events taking place at the Tampa airport after plaintiff deplaned, document that plaintiff received medical attention. (Id. at 6, Ex. C). However, as defendant notes, this is because the IIRs relate only to events onboard, where no request for medical assistance was made in this case; plaintiff first requested aid at the airport gate. (Def.'s Resp. at 2-4; Gurdoglanyan Aff. ¶¶ 15-17).