Ashkenazi opposes the motion. Neither defendant Lincoln National Life Insurance Company (“Lincoln”) nor third-party defendant Congregation Mesamche Lev (“Mesamche”) has opposed the motion.

This case arises from a dispute involving competing claims to the death benefit proceeds of a life insurance policy issued by Lincoln to the Reisl Goldberger Insurance Trust (the “Trust”). The Trust was created on or about May 29, 2007, and named Reisl Goldberger's grandson, Herman Goldberger, as trustee and beneficiary (“Original Trust”). As set forth in Lincoln's pleading, on or about August 28, 2007, it issued a “Flexible Premium Adjustable Life Insurance Certificate bearing ... a death benefit face amount of $13,000,000.00 on the life of Reisl Goldberger (the ‘Insured’) [the “Policy”].” The Policy was the Trust's only asset.

According to the plaintiffs. Herman Goldberger served as trustee of the Trust until July 17, 2011, when he resigned and was succeeded as trustee by Yehudis Minster. The plaintiffs contend that the Trust was specifically amended to confirm this. In or about December 2012, the Trust transferred ownership of the Policy to an entity named LXNBRG GN II, LLC (“LXNBRG”). On November 12, 2013, LXNBRG sold the Policy to Mayer Rosen Equities. (It is alleged that Mayer Rosen Equities paid LXNBRG $410,000.00 for the Policy.) Lincoln was informed of the change in ownership on or about December 5, 2013. Thereafter, in or about April 2014, Mayer Rosen Equities filed a beneficiary change form with Lincoln designating Mayer Rosen Equities as beneficiary of 84.616% of the Policy's proceeds and Family Security, an entity affiliated with Reisl Goldberger's relatives, as beneficiary of 15.384% of the Policy's proceeds.

*2 Reisl Goldberger died on October 14, 2014. The plaintiffs contend that they notified Lincoln of this event and that Lincoln confirmed that, according to its records, plaintiffs were the beneficiaries of the Policy.

During his deposition in connection with this case, conducted on September 3, 2015, Herman Goldberger testified that, in late 2006 or early 2007, he approached Ashkenazi and inquired about Ashkenazi's interest in investing in an insurance policy on the life of his grandmother, Reisl Goldberger. Thereafter, Ashkenazi introduced Herman Goldberger to Abraham Leifer (“Leifer”), a Lincoln agent with whom Ashkenazi had done business previously, to facilitate acquisition of a policy. According to Herman Goldberger, it was agreed, between him and Ashkenalzi, that Ashkenazi and Leifer would “take care of the policy” and “make the payments”; on the death of Reisl Goldberger, Ashkenazi would get $10 million and Herman Goldberger would get $3 million. When asked whether any document existed that memorialized the agreement between him and Ashkenazi, Herman Goldberger stated: “Not that I have.” When asked whether “this was all done just on a handshake,” Herman Goldberger stated: “It was verbally, yes.”

According to Ashkenazi, the agreement between him and Herman Goldberger was memorialized in writing, through two documents: (1) the “Resignation of Trustee and Appointment of New Trustee” (hereinafter. “Trustee Resignation”), dated September 25, 2007, according to which Herman Goldberger resigned as trustee of the Trust and appointed Ashkenazi in his place; and (2) the “Trust Agreement (Amended)” (hereinafter “Amended Trust”), also dated September 25, 2007, according to which Reisl Goldberger amended the Trust, with Herman Goldberger's consent, to name Mesamche and Herman Goldberger as beneficiaries with interests of 90% and 10%, respectively.[1]

Ashkenazi contends that between 2007 and 2011, Mesamche paid more than $1.2 million in premiums due on the Policy. Accordingly, Ashkenazi contends, following Reisl Goldberger's death on October 14,2014, he submitted a claim to Lincoln for the Policy's death benefits. In addition, on October 16, 2014, Ashkenazi's counsel wrote to Lincoln requesting that it not distribute any proceeds until proper ownership of the Policy was confirmed. Thereafter, on October 30, 2014, Ashkenazi's counsel wrote to Lincoln enclosing a copy of the Amended Trust and stating, in relevant part:

*3 According to Ashkenazi, although the plaintiffs have contended that the Amended Trust and appointment of Ashkenazi as trustee never happened, they have acknowledged that Mesamche paid premiums due on the Policy for four years, consistent with the terms of the Amended Trust.

The plaintiffs commenced this action on December 23, 2014, asserting a cause of action for breach of contract against Lincoln. On February 12, 2015, Lincoln served its Answer and a Counterclaim for Interpleader and, on February 25, 2015, served an Interpleader Complaint interpleading Ashkenazi as a third-party defendant. On April 14, 2015, Ashkenazi filed, inter alia, an Answer to Lincoln's Interpleader Complaint and a Counterclaim asserting breach of contract and seeking damages in the amount of $13 million.

Thereafter, the plaintiffs Filed the instant motion alleging that Ashkenazi destroyed the paper copies of the Amended Trust and Trustee Resignation intentionally and seeking spoliation sanctions. In support of their motion, the plaintiffs submitted the declaration of their counsel, Gayle Pollack, Esq., with accompanying exhibits, the declaration of Peter V. Tytell (“Tytell”), a forensic document examiner, and a memorandum of law, as well as reply papers. Ashkenazi submitted a declaration in opposition to the motion, as well as the declaration of his counsel, Robert B. Bodziri, Esq., with accompanying exhibits, and a memorandum of law.

The plaintiffs contend that: (1) Ashkenazi's claim that he is entitled to the Policy's proceeds depends on his ability to establish the authenticity of the Amended Trust and the Trustee Resignation; (2) evidence exists that the Amended Trust and Trustee Resignation were forged, including: (a) Herman Goldberger's affirmation under oath that he did not sign either the Amended Trust or the Trustee Resignation; and (b) Herman Goldberger's testimony during his September 3, 2015 deposition[2]; (3) Ashkenazi, knowing that the Amended Trust and Trustee Resignation were forged and that a forensic examination of the paper (or physical) copies of these documents likely would have revealed that they were forgeries, destroyed the paper (or physical) copies thereby hindering the plaintiffs' efforts to prove that the documents were inauthentic; (4) Ashkenazi destroyed the documents sometime after his deposition on July 8.2015, as evidenced by statements he made during his deposition3; and (5) Ashkenazi's counsel “stonewalled” the plaintiffs on the issue of whether Ashkenazi still possessed the paper (or physical) copies of the documents, and did not reveal that the paper (or physical) copies had been destroyed until the September 17, 2015 conference with the Court.

*4 The plaintiffs have requested access to the computer on which Ashkenazi saved the images of the documents and other devices and information. The plaintiffs believe that a forensic examination of the devices may support further their claim that the documents are not authentic.

In the declaration he submitted in support of the plaintiffs' motion, forensic document examiner Tylell states: “When an original document with ink writing or signatures is photocopied, the best copy for examination would be a first-generation copy made directly from the original (i.e., the actual piece of paper that came out of the copier), especially as modem copiers can provide a fairly high-resolution image with continuous tone grayscale or color images.” Tytell notes that “details of signatures, handwriting, or other physical attributes of potential forensic significance ... will inevitably be degraded or even distorted in subsequent copying....” Tytell states further that “[e]xamination of an original copy can be particularly important if a questioned document is known to exist only in the form of a copy because, in addition to the loss of detail from copying, the forensic document examiner must consider whether there ever was a corresponding original document and the related issues of fabrication, alteration, and manipulation, including by computer or copier.”

Tytell explains that at “the very outset of my involvement with this matter” he requested access to the original documents. He was informed that the originals were not available, but that Ashkenazi had found copies in a desk drawer, and these copies of the documents were the best material available for examination. Ultimately, however, counsel “informed me that these were not available, and that scans made by the Defendant would be the best material available for examination.” Thereafter, in a report prepared for the plaintiffs' counsel dated October 16, 2015, Tytell states that he conducted a forensic examination of the documents (that is, the “PDF files of scanned images of paper copies”) and concluded that “[a]lthough the examination was limited by the quality of the [documents], based on the results of the analysis, comparison, and evaluation it is certainly more likely than not that the Questioned Signatures were not signed by either the Reisl Goldberger or the Herman Goldberger of the [Known Signatures], but rather are simulations that were created by tracing the signatures of the Indenture of Trust dated May 29, 2007.”

As set forth in his declaration in opposition to the instant motion, Ashkenazi contends that: (1) he “received copies of the Trustee Resignation and the Amended Trust after they were signed in 2007”; (2) in connection with this action, he “caused the copies of the Trustee Resignation and the Amended Trust to be electronically scanned and e-mailed to my counsel, Robert B. Bodzin”; (3) after the documents were e-mailed to his counsel, he “did not retain physical copies of the Trustee Resignation and the Amended Trust, believing that there was no difference between those copies and the electronic copies that [he] retained”; (4) at the time the Trustee Resignation and the Amended Trust were scanned and e-mailed to his counsel, “no one had asserted or suggested that the signatures contained in those documents were irregular or otherwise not authentic”; (5) contrary to the plaintiffs' allegation, “at the time of my deposition, I was not certain whether I had physical copies of the Amended Trust and the Trustee Resignation in addition to the electronically scanned copies of those documents”; (6) after he was deposed, he “searched for physical copies of the Amended Trust and the Trustee Resignation and could not find any.”

*5 Ashkenazi contends further that the evidence shows that the Amended Trust and Trustee Resignation changed the Original Trust in such a way as to reflect accurately the intent of the parties involved in creating the Trust and purchasing the Policy. Thus, although Herman Goldberger was named trustee in the documents submitted to Lincoln, he performed none of the duties of a trustee.[4] Rather, as Herman Goldberger acknowledged in his deposition, all the duties of a trustee were performed by Ashkenazi; moreover, this was reflected in the reduction of Herman Goldberger's interest in the Policy's proceeds to 10%. Ashkenazi contends further that the plaintiffs' allegations of forgery are based on Herman Goldberger's deposition testimony; however, he contends, Herman Goldberger's testimony “[f]ar from offering definite proof of anything ... merely questions whether he signed the Amended Trust because he claims he and Ashkenazi agreed to split the Policy proceeds 77/23, not 90/10 as set forth in the Amended Trust.” According to Ashkenazi, “[b]ased on that discrepancy, Herman [Goldberger] concludes that his signatures are too similar, which causes him to believe that he did not sign the documents.” Hence, Ashkenazi argues, Herman Goldberger's testimony merely raises a question of fact for trial.

Ashkenazi denies that his counsel “stonewalled” the plaintiffs on the issue of whether he still possessed physical copies of the documents. Rather, Ashkenazi asserts: (a) his counsel's email message to the plaintiffs of August 25, 2015, makes clear that the only copies of the documents in Ashkenazi's possession were electronic copies; (b) his counsel's e-mail message of September 9, 2015, states that Ashkenazi had been unable to locate any copies of the documents other than the copies sent by pdf; and (c) his counsel's letter of September 17, 2015, states, in part: “I have repeatedly advised you that Mr. Ashkenazi has no copies of the documents you have requested other than the copies that were sent by email to my office as pdf.”

Ashkenazi also contends that, if the plaintiffs' expert report is accepted, it is equally likely that the physical copies of the Amended Trust and Trustee Resignation would have yielded evidence that they were printed in 2007, and thus likely contain genuine signatures.

In reply, the plaintiffs contend that: (a) the forged documents do not reflect adequately the agreement between Herman Goldberger and Ashkenazi; (b) Ashkenazi did not preserve identical copies of the documents he destroyed, as he claims; (c) since Ashkenazi admitted that he destroyed the documents in question intentionally, he acted with a culpable mind; and (d) because Ashkenazi destroyed the documents willfully, it may be presumed that the documents were relevant to the plaintiffs' claims.

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999). “A party seeking sanctions for spoliation of evidence must establish the following three elements: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim ... such that a reasonable trier of fact could find that it would support that claim.” Taylor v. City of New York, 293 F.R.D. 601, 609 (S.D.N.Y.2013) (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002)) (internal quotation marks omitted). “Absent a discovery order violation, a court may impose sanctions for the spoliation of evidence pursuant to its inherent power to manage its own affairs.” Id. (citation omitted).

“The obligation to preserve evidence arises when [a] party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Id. (quoting Fujitsu Ltd. v. Fed. Ex. Corp., 247 F.3d 423, 436 (2d Cir.2001)). “Though a party is required to retain all relevant documents in existence at the time the duty to preserve attaches and any relevant documents created thereafter, it is not required to preserve ‘multiple identical copies.’ ” In re Pfizer Inc. Sec. Litig., 288 F.R.D. 297, 313 (S.D.N.Y.2013) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y.2003)).

*6 “A party is found to have acted with a sufficiently culpable state of mind when evidence was destroyed knowingly, even without intent to breach a duty to preserve it, or negligently.” Taylor, 293 F.R.D. at 612 (quoting Residential Funding, 306 F.3d at 108) (internal quotation marks omitted) (emphasis in original). “[T]he moving party must demonstrate not only that the spoliator destroyed ‘relevant’ evidence as that term is ordinarily understood, but also that the evidence it destroyed would have been of some ‘assistive relevance’ and favorable to the moving party's claims or defenses.” Id. at 613 (citation omitted).

In this case, it is undisputed that Ashkenazi possessed paper copies (not originals) of the documents at issue here, that is, the Amended Trust and the Trustee Resignation, in 2007. It is also undisputed that, at some point in time, he scanned the paper copies into a computer, thereby creating “scans” or electronic copies of the documents. While it is not clear when the electronic copies of the documents were made, the evidence shows that an electronic copy of the Amended Trust was sent via an e-mail message to Ashkenazi's counsel on October 30, 2014, and a copy of the Trustee Resignation was sent via an e-mail message to his counsel on April 22, 2015. Ashkenazi acknowledges that, after he made electronic copies of the documents, he “did not retain” the paper copies. According to Ashkenazi, after he was deposed in connection with this action, on July 8, 2015, he searched for the paper copies of the documents but was unable to find any.

As noted, spoliation means “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence, in pending or reasonably foreseeable litigation.” In this case, the evidence that is alleged to have been destroyed consists of the Amended Trust and Trustee Resignation. More precisely, it is alleged that the paper copies of these documents were destroyed. Neither party contends that the absent paper copies of these documents resulted in the loss of the documents' contents. On the contrary, the contents of the documents, that is, the information contained in them, was preserved and continues to be available to all the parties to the litigation.

Typically, in a case involving a charge of spoliation, when a document or other form of evidence is destroyed, the significance of the destructive act is that relevant information is lost, which is presumed to have been unfavorable to the party responsible for the loss, resulting in prejudice to the adversary party. See, e.g., Dorchester Fin. Holdings Corp. v. Banco BRJ S.A., 304 F.R.D. 178, 181–82 (S.D.N.Y.2014) (spoliation sanctions warranted where as a result of destruction of computer hard drive, all metadata and documents not printed previously were lost entirely); Residential Funding Corp., 306 F.3d at 109 (“Where a party destroys evidence in bad faith, that bad faith alone is sufficient circumstantial evidence from which a reasonable fact finder could conclude that the missing evidence was unfavorable to that party.”).

In this case, as the plaintiffs acknowledge, the contents of the documents at issue, so far from being unfavorable to Ashkenazi, are essential to his claim: in the absence of evidence that he succeeded Herman Goldberger as trustee of the Trust and that Mesamche was a 90% beneficiary of the Policy, he cannot establish that he is entitled to at least a portion of the Policy's proceeds. Thus, Ashkenazi clearly would have been disadvantaged by the destruction of the documents if this had resulted in the loss of the documents' contents. Cf. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 148 (2d Cir.2008) (“We can conclude with confidence that the recordings were not intentionally destroyed based on the fact that the government was itself disadvantaged by the destruction of the tapes.”).

*7 However, Ashkenazi would have been advantaged by the loss of the paper documents if that loss prevented the forensic document examiner, Tytell, from performing his analysis and determining whether an act of forgery had occurred. Hence, the question arises whether Ashkenazi's failure to preserve the paper copies of the documents constitutes spoliation in this sense, that is, did Ashkenazi, by scanning the documents, “alter” them, or the signatures on them, such that the plaintiffs, or their expert, were prevented from determining whether the documents were a fabrication.

A review of the submissions made by Tytell, including the report prepared in connection with this motion, reveals that the loss of the paper copies of the documents was not decisive. Tytell does not say unequivocally that the loss of the paper copies in this case prevented him from determining whether the subject documents were forged. Rather, he refers to the type of document copy that would be the best for examination, in the absence of the original document, and acknowledges that any determination respecting the documents in this case “is now dependent on the quality of the available scanned images.” Moreover, as noted above, in his October 16, 2015 report prepared in connection with this motion, Tytell concludes that, notwithstanding the limitations imposed by the quality of the scanned documents available to him, “it is certainly more likely than not” that the signatures of Reisl Goldberger and Herman Goldberger were “simulations that were created by tracing the signatures” appearing on the original trust documents. Since the plaintiffs' expert was able to analyze the scanned documents and arrive at a determination regarding the authenticity of the documents, no basis exists for the plaintiffs' claim that they were prejudiced by the loss of the paper copies.

Since the relevant evidence the plaintiffs wish to use: the Amended Trust and Trustee Resignation has been preserved—albeit in an electronic form—and has not been destroyed, they have not met their burden of establishing the elements necessary to obtain spoliation sanctions, to wit, that Ashkenazi had an obligation to preserve the evidence and destroyed it with a culpable state of mind. Therefore, the relief the plaintiffs seek is not warranted.

For the reasons set forth above, the plaintiffs' motion for spoliation sanctions, Docket Entry No. 99, is denied.

SO ORDERED:

The document referred to as the Amended Trust contains two sets of signatures: on an unnumbered page titled “Amendment to Reisl Goldberger Insurance Trust” appear the signatures of Reisl Goldberger as Settlor, Herman Goldberger as Beneficiary and Ashkenazi as Trustee: page 17 of the Amended Trust contains the signatures of Reisl Goldberger as Settlor and Ashkenazi as Trustee.

Q: Now, first. I'm going to ask you: Are you certain that you did not sign this document [referring to the Trustee Resignation]?

According to Ashkenazi, the reason he was not listed as the trustee on the documents submitted to Lincoln, as explained by Leifer, was to avoid scrutiny by Lincoln of an investor owned policy. Thereafter, in order to protect the interest of the investors, the Original Trust was amended to reflect the parties' true arrangement using documents that would not be sent to Lincoln.