Evelyn ROSA, Plaintiff, v. GENOVESE DRUG STORES, INC., doing business as Rite Aid Pharmacy, Defendant 16 CV 5105 (NGG)(LB) United States District Court, E.D. New York Signed April 24, 2017 Counsel Jared C. Glugeth, Raphaelson and Levine Law Firm, P.C., New York, NY, for Plaintiff. Bella Pevzner, Sobel Law Group, LLC, Terry Ann Holmes, Sobel Pevzner LLC, New York, NY, Joseph S. Fritzson, Bruno Gerbine & Soriano LLP, Melville, NY, for Defendant. Bloom, Lois, United States Magistrate Judge ORDER *1 The Court held a telephone conference in this matter on April 19, 2017 to address the parties' ongoing dispute concerning discovery issues. (ECF Nos. 22, 24.) Plaintiff seeks spoliation sanctions based on defendant's failure to locate and produce requested video surveillance taken on the date of plaintiff's trip and fall accident in defendant's store. (ECF No. 24.) The Court previously afforded defendant until March 20, 2017 to produce the outstanding video. See Order dated March 15, 2017. Plaintiff also seeks sanctions against defendant for intentionally withholding crucial evidence during discovery, namely failing to disclose accident scene photographs until after the parties had been deposed. (Id.) In addition, defendant seeks an extension of time to complete expert discovery in light of a settlement meeting the parties have scheduled for May 17, 2017. (ECF No. 22.) As discussed on the record, and set forth further below, the Court grants the parties' motions in part and denies them in part. DISCUSSION The Court may impose sanctions under Rule 37(b) for a party's failure to comply with discovery orders. Fed. R. Civ. P. 37(b). However, “[e]ven in the absence of a discovery order, a court may impose sanctions on a party for misconduct in discovery under its inherent power to manage its own affairs.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106 (2d Cir. 2002) (citing DLC Mgt. Corp. v. Town of Hyde Park, 163 F.3d 124, 135-36 (2d Cir. 1998)). “Whether exercising its inherent power, or acting pursuant to Rule 37, a district court has wide discretion in sanctioning a party for discovery abuses... and for the spoliation of evidence.” Reilly v. Natwest Mkts Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999). Prior to 2015, the law uniformly required that “[a] party seeking an adverse inference instruction based on the destruction of evidence must establish (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 or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Residential Funding Corp., 306 F.3d at 107 (internal quotation marks and citation omitted), superseded in part by Fed. R. Civ. P. 37(e) (2015). “As of December 1, 2015, the new Fed. R. Civ. P. 37(e) governs a party's failure to preserve electronically stored information.” Best Payphones, Inc. v. City of N.Y., No. 01-cv-3924 (JG)(VMS), 2016 WL 792396, at *3 (E.D.N. Y Feb. 26, 2016)(court may issue an adverse inference instruction with regard to tangible evidence on a finding of negligence, but may not issue an adverse inference with regard to electronic evidence without finding intent to deprive); see also Mazzei v. The Money Store, 656 Fed. Appx. 558 (2d Cir. 2016)(summary order). Thus, under Rule 37(e), upon a finding that a party acted with intent to deprive another party of the use of electronic information in litigation, the Court may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Fed. R. Civ. P. 37(e)(2). *2 In this case, it is undisputed that defendant's store was equipped with a Hawkeye Surveillance System on the date of the incident. However, defendant has failed to produce any video from the store on this date, despite defendant's own incident report which states that there is video and that it must be preserved. (ECF No. 14, Exh A.) On April 6, 2016, just five days after the incident, plaintiff's counsel emailed, and mailed, a letter to defendant stating that “[w]e hereby demand that you preserve any and all surveillance footage for the entire day of 4/01/2016”. (ECF No. 14, Exh. C.) This Court has given defendant notice and an opportunity to respond regarding their failure to produce the video. By Order dated March 15, 2017, defendant was directed to produce a sworn affidavit from a person with knowledge regarding the surveillance system and “ordered to produce to plaintiff, by March 20, 2017, the affidavit and all video taken in the store on the date of the incident.” The affidavit of Salim Thomas (ECF No. 25), which was produced by defendant in response to the March 15 Order was dated March 20, 2017, but notarized March 27, 2017 (one week after the Court had ordered the affidavit to be produced). Moreover, defendant has failed to produce any video from the date in question, despite plaintiff's preservation demand and the Court's Order. Defendant's counsel contends that “no video footage of plaintiff's accident has ever existed” because the store's camera in the area of the accident was a dummy camera. (ECF No. 15.) However, defendant has repeatedly failed to account for all other video taken at the store on the day of the incident. I find that plaintiff has established that defendant had control over the video, as well as an obligation to preserve it, and failed to produce it pursuant to this Court's Order. The Court concludes that the defendant acted with intent to deprive plaintiff of use of the video in litigation. Accordingly, the Court holds that, should this matter proceed to trial, an adverse inference instruction should be given to the jury regarding the defendant's failure to preserve the video from the date of the incident.[1] Plaintiff also seeks sanctions against defendant for intentionally withholding crucial evidence during discovery, namely failing to disclose accident scene photographs until after the parties had been deposed. Defendant recently produced two additional photographs that depict a different accident scene than their previously produced photograph. The photograph of the scene that was originally produced, prior to depositions, is a single color photograph that shows a fully stacked pallet inside the store. (ECF No. 24-3, Exh. A.) On March 9, 2017, plaintiff was deposed under the impression there was no video from the date of the accident and that all photographs depicting the accident scene were produced. (ECF No. 24.) Defendant's employee, Ivette Sepulveda, the individual who completed the incident report, was also deposed. During the deposition, Ms. Sepulveda testified that she took a number of color photographs of the accident scene on the day in question and transmitted the photographs to defendant, her employer. (Id.) These newly produced photographs reflect a completely empty display pallet, (ECF No. 24-5), whereas the previously produced photograph showed a fully stocked display pallet. This is unacceptable and sanctionable conduct by defendant. As discussed on the record, in light of these facts, this Court finds that plaintiff is entitled to redepose Ms. Sepulveda, within two weeks of the April 19, 2017 conference, at defendant's expense. Plaintiff is granted a one hour deposition, for which defendant shall pay all attorneys' fees and costs. *3 Finally, in light of a settlement meeting the parties have scheduled for May 17, 2017, defendant seeks an extension of time to complete expert discovery. (ECF No. 22.) Pursuant to this request, defendant is granted until June 9, 2017 to produce its expert report. All expert discovery shall be completed by June 19, 2017. CONCLUSION Accordingly, plaintiff's motion for spoliation sanctions is granted. Should the case proceed to trial, an adverse inference should be given to the jury regarding the defendant's failure to preserve the store's video from the date of plaintiff's trip and fall. Plaintiff's request for sanctions with regard to two recently produced photographs is also granted as set forth above. The parties shall complete expert discovery by June 19, 2017. SO ORDERED. Footnotes [1] “The precise contours of the inference are best reserved for determination by the Court in crafting the jury charge for trial.” Chan v. Triple 8 Palace, Inc., No. 03 Civ. 6048(JCF), 2005 WL 1925579, at *10 (S.D.N.Y. Aug. 11, 2005). Plaintiff's request for the harsher sanction, that defendant's answer be stricken, is denied. See generally, Welch v. Alexis, No. 03-CV-2528(CLP), 2004 WL 1920810, at *2 (E.D.N.Y. May 26, 2004) (striking an answer is among the “harshest sanctions that can be imposed”).