Sweet, Robert W., United States District Judge
An employee of the city housing authority sued the Authority alleging breach of contract and other claims after she was not selected for a promotion for alleged discriminatory reasons. Defendant filed a motion to dismiss for spoliation based on plaintiff’s loss of a tape recording containing a meeting between plaintiff and the deputy general manager of the Housing Authority. The court found that dismissal was excessive; but that plaintiff’s spoliation warranted precluding evidence of notes from the meeting.
Defendant denied that plaintiff was never interviewed for a promotion; rather she was only involved in a meeting to discuss her career path. Defendant did not know that plaintiff secretly recorded the meeting and sought to have it produced when it learned of the recording. Although, the tape was last seen in an envelope on plaintiff’s desk, plaintiff was unable to produce it. Plaintiff alleged that the tape itself was stolen, but attempted to use notes regarding the recording during depositions. Defendant objected and moved for spoliation sanctions based on plaintiff’s loss of the tape.
The court held that plaintiff had a duty to preserve the tape recording, failed to do so, and that sanctions for spoliation were warranted. At the very least, the court held, plaintiff’s conduct in losing the tape was grossly negligent. More importantly, plaintiff’s failure to disclose both the tape itself and the notes amounted to bad faith. The court found that preclusion of the notes as evidence fit the circumstances of the case better than the more severe sanction of dismissal. The court also noted that if defendants wished to present evidence of the meeting in question, the jury must be informed of the missing tape and an adverse inference instruction would be appropriate.
v.
NYC HOUSING AUTHORITY, Office of Quality & Cost Control of the NYC Housing Authority, Mario Radoslovich, Michael Meyer, “John Does” and “Jane Does,” Defendants
Counsel
Harkins & Hunte, Mohegan Lake, NY, by Adrian C. Hunte, of counsel, for Plaintiff.New York City Housing Authority Law Department, New York City, by Lanny R. Alexander, of counsel, for Defendants.