ANNE RESNIK, SAMUEL HERSCHKOWITZ, M.D., DAVID RESNIK, ELIZABETH RESNIK, and MARY PALINKSI, Plaintiffs, v. CROCKER COULSON, Defendant 17-CV-676 (PKC) (SMG) United States District Court, E.D. New York Filed January 04, 2019 Gold, Steven M., United States Magistrate Judge REPORT & RECOMMENDATION INTRODUCTION *1 Plaintiffs Anne Resnik, Samuel Herschkowitz, M.D., Elizabeth Resnik, and Mary Palinski bring this action against defendant Crocker Coulson asserting claims under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, and Electronic Communications Privacy Act (“Wiretap Act”), 18 U.S.C. § 2510 et seq., as well as various state statutory and common law causes of action. See Verified Compl. with Jury Demand (“Compl.”), Dkt. 1.[1] Presently before the Court is plaintiffs’ motion for spoliation sanctions against defendant. Plaintiffs allege that defendant destroyed electronically stored information (ESI) with a state of mind sufficient to merit case-terminating sanctions under Rule 37(e) of the Federal Rules of Civil Procedure. Mem. of Law of Pls. in Supp. of Mot. Seeking Spoliation Sanctions (“Pls.’ Mem.”), Dkt. 25. For the reasons and to the extent described herein, I respectfully recommend that plaintiffs’ motion be granted. FACTUAL BACKGROUND A. Coulson’s Electronic Devices Are Seized in the Divorce Action Coulson and Anne Resnik are parties to an ongoing divorce proceeding in Kings County Supreme Court. Compl. ¶¶ 1, 16. At a January 15, 2015 proceeding in the divorce action, Justice Jeffrey S. Sunshine issued a general order requiring each party, inter alia, to preserve all their ESI. SeeDecl. of Daniel Hurteau (“Hurteau Decl.”) Ex. A (“State Preliminary Order”) at G.1.(b), Dkt. 23 (“For the relevant periods relating to the issues in this litigation, each party shall maintain and preserve all electronic files, other data generated by and/or stored on the party’s computer system(s) and storage media ... or other electronic data.”).[2] During the course of the divorce proceeding, Anne Resnik’s attorneys became suspicious that Coulson may have secretly installed software on her electronic devices, so they subpoenaed his financial records in April 2015. Hurteau Decl. ¶¶ 4–6. Purchases appearing in those records led Anne Resnik’s attorneys to question Coulson about spyware, including programs known as “mSpy” and “OwnSpy,” when he was deposed in connection with the divorce proceeding. Id. ¶¶ 4–8. Coulson repeatedly asserted his Fifth Amendment right against self-incrimination in response to questions about purchasing spyware and installing it on Anne Resnik’s phone. Hurteau Decl. ¶ 8; see also Decl. of Brian King, Esq. (“King Decl.”) Ex. B (“State mSpy Order”) at 15–16, Dkt. 26-2 (“[Coulson] does not dispute that he repeatedly asserted his Fifth Amendment privilege during his deposition in response to questions involving his purchase of spyware and whether he used that spyware to monitor [Anne Resnik’s] confidential communications.”).[3] *2 Anne Resnik’s attorneys in the divorce case then moved ex parte for an order preventing Coulson from tampering or destroying any evidence relating to the alleged installation of spyware on Anne Resnik’s phone. State mSpy Order at 6. In support of this motion, Anne Resnik presented an expert report concluding that her phone was “jail broken”—a necessary prerequisite to installing software that the device’s manufacturer has not approved—on October 6, 2014. Id. at 5.[4] The expert further concluded that mSpy was installed on her phone fourteen minutes later. Id. mSpy is a program capable of capturing and recording keystrokes, passwords, and other data from the device upon which it is installed. Compl. ¶¶ 55–60. The software can intercept emails and text messages and can even track the device’s GPS location data. Id. ¶¶ 56–57. All this is accomplished in secret; no notifications appear that would alert the user of the surveilled device to mSpy’s shadowy work. Id. ¶ 64. A later analysis of Anne Resnik’s phone further revealed that OwnSpy was likely installed on her phone on October 10, 2014. Id. ¶ 68. OwnSpy’s furtive potential is vast; in addition to much of what mSpy can accomplish, OwnSpy can listen to calls and activate a device’s microphone, so that the installer may remotely—and secretly—listen in on anything audible in the phone’s vicinity. Id. ¶¶ 69–70. After reviewing the evidence and hearing oral argument from Anne Resnik’s attorneys, the state court issued an order on May 15, 2015 requiring Coulson to preserve evidence relating to several software programs. SeeHurteau Decl. Ex. B (“State Show Cause Order”), Dkt. 23. Specifically, the order provided that Coulson is “restrained and enjoined from destroying, tampering with or disposing of the originals and/or copies of any and all records, in any form, related to purchase and/or use of services from mSpy, Pangu, IPVANISH, and/or any other related or similar entity or affiliate or related software or program ....” Id. at 9. Moreover, the same order directed Coulson, upon receipt of the order, to “immediately turn over to the Sheriff of the City of New York ... any and all computing devices, including without limitation, any personal or business computer, external hard-drives, iPad, cellular telephone and/or devices having networking/internet capability in his possession ....” Id. at 8. Anne Resnik obtained the State Show Cause Order late on a Friday afternoon. State mSpy Order at 9. To avoid depriving Coulson of his electronic devices over the weekend, and to minimize the length of his deprivation before having a chance to be heard, the order directed the Sherriff to serve Coulson no sooner than the following Monday at 1:00 p.m. Id. The Sherriff in fact served Coulson on the following Tuesday morning, and took possession of his electronic devices at that time. Id. at 9–10. Coulson, though, had advance notice that the sheriff would be serving him with the State Show Cause Order, and he himself has acknowledged as much. See id. at 21 (“[Anne Resnik] contends that [Coulson] knew he was going to be served ... on May 18, 2015 because he was monitoring her communications using the spyware he allegedly installed on her iPhone.... [Coulson] contends that he had advance notice that he was going to be served by the Sheriff of the City of New York because the sheriff ‘accidentally’ called his cell phone to ‘check’ if he would be home.”). *3 Thereafter, on November 5, 2015, the state court chose the referee who would oversee expert analysis of Coulson’s seized devices. See Justice Sunshine’s Order dated Sep. 19, 2016 (“State OwnSpy Order”) at 3, Dkt. 1-2. The appointment was made with the consent of both Coulson and Anne Resnik. The referee was charged with determining whether and to what extent Coulson used spyware on Resnik’s phone, and whether any information intercepted constituted privileged communications between her and her attorneys. Id.; see also Hurteau Decl. ¶ 14. B. The Referee and Experts Determine That Coulson’s Devices Were Wiped on the Eve of Seizure Coulson and Anne Resnik, after several conferences with their experts, attorneys, and the referee, agreed to procedures and protocols under which Coulson’s seized devices would be examined. State OwnSpy Order at 3. Thereafter, the parties’ experts examined Coulson’s devices and issued a series of joint reports on their findings. Having reviewed those reports, the referee rendered an interim and a final report. i. Experts’ First and Second Reports and Referee’s Interim Report On October 31, 2016, the experts retained by Anne Resnik and Coulson produced a joint report to the referee that outlined their initial findings from examining Coulson’s devices. See Experts’ First Report. In it, the experts reported that they were ultimately able to successfully examine eleven out of fourteen of Coulson’s devices, but the remaining three were inaccessible due to password protection. ¶¶ 12–22. When asked by his own retained expert to provide the passwords, Coulson asserted that he could not recall them because, he claimed, he had not used the devices for nearly a year, and some for even longer. Id. ¶¶ 18–19. Those devices included two iPhones and an iPad, and because they were not successfully examined by the experts, the conclusions reached in their report do not account for whatever data those devices might contain. Id. ¶ 31(a). The experts’ investigation uncovered a large number of emails between Coulson and mSpy, OwnSpy.com, and others, located on what were designated “Plaintiff Computing Devices 010 and 013.”[5] Id. ¶ 37. In addition, the experts were able to determine that Device 010 was used to access websites associated with mSpy, OwnSpy, and other similar services. Id. ¶ 38. The experts concluded that the emails “evidence[d] the use of spyware programs from these devices.” Id. ¶ 37. More pertinent to the present motion, the experts further concluded that software was used to permanently delete information on Device 010. Their first report concludes that “the forensic evidence recovered from ... Device 010 clearly shows that the wiping utilities Free File Shredder, Disk Scrubber and MariusSoft Disk Scrubber were installed on this device on May 16, 2015 and each of them was executed at least once on that date.” Id. ¶ 58. In their next joint report, the same experts described the results of their investigation of Anne Resnik’s phone. See King Decl. Ex. D (“Experts’ Second Report”), Dkt. 26-4. In the report, the experts concluded that both mSpy and OwnSpy were installed on Resnik’s phone in October of 2014. Id.¶ 25. The only evidence recovered pertaining to mSpy tended to show that it had been installed. Id. OwnSpy, however, left behind files containing detailed logs of the program’s activities during the time period from October 25, 2014 to October 31, 2014. Id.[6] *4 Information contained in the log files enabled the experts to determine that Coulson purchased and controlled the OwnSpy software installed on Anne Resnik’s phone, and revealed that OwnSpy’s live microphone feature was activated nearly two hundred times during the seven-day period covered by the log. Id. ¶¶ 27–29. In addition, more than one dozen phone calls were intercepted during this period. Id. ¶ 28. The data gathered during the one-week period covered by the OwnSpy logs on Anne Resnik’s phone exceeded 7,000 pages. Id. ¶ 25. Despite the large amount of data suggested by these logs, no recordings were found on any of Coulson’s devices when they were examined in connection with the Experts’ First Report. Id. ¶ 30. The referee’s interim report notes that the forensic experts “adhered to the process outlined in the parties[’] ... So-Ordered Stipulation” in the divorce case. Hurteau Decl. Ex. C (“Referee’s Interim Report”) at 3, Dkt. 23. The referee adopted the experts’ findings, concluding that “[Coulson] did in fact use spyware from his computing devices and ... intercept[ed Anne Resnik]’s confidential communications,” and that Coulson installed and executed three data-wiping applications on his personal computer on May 16, 2015, one day after the State Show Cause Order was issued. Id. at 3–4. The referee also pointed out, however, that the experts found “no forensic evidence that [Coulson] disseminated that content or knowledge to any third party” or that “[Coulson] intercepted or disseminated any privileged communications of [Resnik].” Id. at 3. ii. Experts’ Third Report and Referee’s Final Report Finally, the Experts’ Third Report included updated findings made after the forensic investigators were able to unlock two of the remaining three locked devices with the help of an outside firm. See King Decl. Ex. E (“Experts’ Third Report”), Dkt. 26-5. The experts’ joint examination of those devices did not change the conclusions they reached in their earlier reports. Id. ¶¶ 11–14. In his final report, the referee “concur[red] with the experts’ findings and ... continue[d] to report that [Coulson] did in fact use spyware from his computing devices and that he did intercept [Anne Resnik’s] confidential communications,” but that “[t]here continues to remain no forensic evidence that he disseminated” that content or that he “intercepted or disseminated any privileged communications of [Anne Resnik].” King Decl. Ex. C (“Referee’s Final Report”) at 3, Dkt. 26-3. The referee’s final report also noted, however, that the experts had uncovered evidence that Coulson activated a feature of the OwnSpy program that records conversations taking place wherever the surveilled cell phone is located, regardless of whether the phone is in use or not, at a time when Anne Resnik’s phone was in or near the office of the attorneys representing her in the divorce action. Id. at 2–3. C. Justice Sunshine’s Spoliation Order Relying heavily on the experts’ and referee’s reports, Justice Sunshine issued a decision on February 5, 2018, finding that Coulson: (a) “knowingly and purposefully violated [Anne Resnik’s] attorney-client privilege through an ongoing course of conduct of intercepting hundreds of her attorney-client communications and ‘listening in’ on her attorney-client privileged consultations” and (b) “engaged in spoliation of evidence when he installed multiple data ‘wiping’ applications and used them to destroy much of the spyware data on his computing devices.” State Spoliation Order at 50.[7]Justice Sunshine further found that Coulson’s spoliation was “intentional and in bad faith,” id. at 53, and that Coulson destroyed relevant evidence because he calculated that the harm he would suffer if that evidence became available to Anne Resnik made it worth taking the risk that his destruction of it might be discovered, id. at 55–56.[8] D. Present Litigation *5 This federal action was commenced on February 6, 2017, approximately six weeks after the experts submitted their second joint report in the divorce case. Joining Anne Resnik as plaintiffs in the federal action are Dr. Samuel Herschkowitz (her psychiatrist), Elizabeth Resnik (her mother), and Mary Palinski (her sister). Compl. ¶¶ 20, 26, 29.[9] Plaintiffs assert various claims. Collectively, they assert violations of the Wiretap Act for defendant’s alleged use of spyware on Anne Resnik’s iPhone to intercept communications between Anne Resnik and each of the other plaintiffs. Compl. ¶¶ 125–139. Anne Resnik on her sole behalf alleges several additional claims: (a) that defendant violated the Computer Fraud and Abuse Act through his installation and use of spyware on her iPhone, id. ¶¶ 105–124; (b) that defendant committed trespass to chattels under New York law, id. ¶¶ 140–144; and (c) that defendant committed civil conversion under New York law, id. ¶¶ 145–151. On her sole behalf, Elizabeth Resnik, an Arizona resident, alleges that defendant violated Arizona’s Invasion of Privacy Act. Id. ¶¶ 27, 169–174. As for Mary Palinski, a North Carolina resident, she alleges that defendant violated the North Carolina Electronic Surveillance Act and that he is also liable for intrusion on privacy under North Carolina common law. Id. ¶¶ 30, 175–186. Plaintiffs move under Rule 37(e) of the Federal Rules of Civil Procedure, seeking severe sanctions under subdivision (2) of that Rule, namely that “an adverse inference ... be drawn against defendant that he is liable for all acts alleged in the Complaint,” that plaintiffs be permitted “to extrapolate their damages from the remaining data,” and that defendant be “preclude[d] ... from presenting any evidence or theory of damages contrary to those presented by plaintiffs.” Pls.’ Mem. at 1. After plaintiffs’ motion was fully briefed, plaintiffs deposed Coulson, who invoked his right to remain silent in response to all or most of the questions he was asked that bear upon the pending motion. In addition, as noted above, Justice Sunshine issued the State Spoliation Order, finding that Coulson had intentionally destroyed evidence of his spying on Anne Resnik. After Coulson had been deposed, plaintiffs submitted a letter in further support of their motion, Letter dated Jan. 16, 2018, Dkt. 34, together with, among other things, the transcript of Coulson’s deposition testimony, Dep. of Crocker Coulson dated Dec. 14, 2017 (“Coulson Dep.”), Dkt. 34-4. The parties then provided supplemental memoranda in further support of their respective positions in light of Coulson’s deposition testimony and the State Spoliation Order. Def. Crocker Coulson’s Mem. of Law in Supp. of His Am. Opp’n to the Pls.’ Mot. Seeking Spoliation Sanctions (“Def.’s Am. Opp’n), Dkt. 41; Pls.’ Reply Mem. of Law to Am. Opp’n to Mot. Seeking Spoliation Sanctions (“Pls.’ Reply to Am. Opp’n”), Dkt. 46. For the reasons and to the extent set forth herein, I recommend that plaintiffs’ requested relief be granted. I recommend, rather than grant, plaintiffs’ requested relief because the motion seeks relief beyond the authority of this Court to order. See 28 U.S.C. § 636(b)(1). DISCUSSION I. Liability A. Legal Standards i. Spoliation Plaintiffs seek sanctions for defendant’s spoliation of critical evidence. “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). Plaintiffs move pursuant to Rule 37(e) of the Federal Rules of Civil Procedure, which provides: If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: *6 (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. This version of Rule 37(e) was enacted in a 2015 amendment and applies exclusively to electronically stored information. See Fed. R. Civ. P. 37(e)advisory committee’s note to 2015 amendment. Although plaintiffs state that they move pursuant to both Rule 37(e) and the Court’s inherent powers, Pls.’ Mot., they make arguments in their moving papers based entirely on the Rule 37(e) standard. Furthermore, the Advisory Committee notes that because new Rule 37(e) “authorizes and specifies measures a court may employ if [electronically stored] information that should have been preserved is lost, and specifies the findings necessary to justify these measures[, i]t ... forecloses reliance on inherent authority ... to determine when certain measures should be used.” Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment. Accordingly, I assess plaintiffs’ spoliation claims according to the text of Rule 37(e), rather than according to the slightly different standard applicable when a court acts pursuant to its inherent powers.[10] ii. Standard of Proof “Courts appear to be divided with respect to the appropriate standard of proof to apply to a claim of spoliation.” CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 498 (S.D.N.Y. 2016). Some require movants to show a preponderance of evidence, others require clear and convincing evidence of spoliation, while still others find it unnecessary to consider which to apply where the movants have supplied clear and convincing evidence. Id. at 498–99.[11] The latter course is appropriate here because, as discussed below, plaintiffs have provided clear and convincing evidence that defendant is liable for the elements of spoliation under Rule 37(e). Accordingly, I assess plaintiffs’ claims under the clear and convincing evidence standard, without considering whether that or preponderance of the evidence is the most appropriate standard to apply. B. Analysis i. Collateral Estoppel I begin by addressing a question that arose after plaintiffs’ motion was fully briefed—whether Justice Sunshine’s issuance of the State Spoliation Order collaterally estops defendant from challenging plaintiffs’ contention that defendant wiped his personal computer on May 16, 2015 with intent to prevent another party from using the information stored on the computer in litigation. “To determine the effect of a state court judgment, federal courts ... are required to apply the preclusion law of the rendering state.” Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 87 (2d Cir. 2000) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)). Under New York law, “collateral estoppel ... may be invoked to preclude a party from raising an issue (1) identical to an issue already decided (2) in a previous proceeding in which that party had a full and fair opportunity to litigate.” Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (citation omitted). “Additionally, the issue that was raised previously must be decisive of the present action,”id. (citation omitted), and must have been “necessary to support a valid and final judgment on the merits” in the previous proceeding, Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17 (2015) (citations omitted). *7 Defendant contests whether the question at issue in the present motion is identical to the one decided by Justice Sunshine in the State Spoliation Order, arguing that Justice Sunshine rendered his decision pursuant to New York common law, which recognizes a court’s inherent power to impose spoliation sanctions. Def.’s Am. Opp’n at 5–6 (citing State Spoliation Order at 45). Under this standard, “a party seeking sanctions for spoliation of evidence must show: (1) that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, (2) that the evidence was destroyed with a ‘culpable state of mind,’ which would include negligence, and (3) that the destroyed evidence was relevant to, or would have supported, the seeking party’s claim or defense.” State Spoliation Order at 40–41 (citing Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543, 547 (2015)). In Pegasus Aviation I, the Court of Appeals cited with approval decisions of the Appellate Division finding that a trial court has discretion to give an adverse inference instruction even upon a finding of ordinary negligence. 26 N.Y.3d at 554. To obtain the relief they seek under Rule 37(e), though, plaintiffs must show that defendant acted “with the intent to deprive” them of use of the information in litigation. Fed. R. Civ. P. 37(e)(2). Although the standards for imposing sanctions under New York common law may differ slightly from those of Rule 37(e), the findings made by Justice Sunshine are clearly adequate to satisfy the requirements of Rule 37(e)(2). As noted above, Justice Sunshine found that defendant destroyed evidence intentionally and in bad faith, and after deciding that the harm he would suffer in litigation if Anne Resnik discovered his spying made it worth taking the risk he might get caught destroying the evidence of his spying. Justice Sunshine’s decision clearly finds that defendant destroyed evidence “with the intent to deprive” Anne Resnik of its use. Defendant also argues that collateral estoppel should not apply because Justice Sunshine’s decision was not a final judgment. Def.’s Am. Opp’n at 5. The proper test for preclusive effect, however, is not whether a decision “ends the litigation and leaves nothing for the court to do but execute the judgment,” but whether the decision resolves an issue that has been “fully litigated.” Weiss v. Nat’l Westminster Bank PLC, 278 F. Supp. 3d 636, 649 (E.D.N.Y. 2017) (quoting Metromedia Co. v. Fugazy, 983 F.2d 350, 366 (2d Cir. 1992), abrogated on other grounds as noted in Yung v. Lee, 432 F.3d 142, 147 (2d Cir. 2005)). See also id. (“ ‘Finality’ ... may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again (quoting Lummus Co. v. Commonwealth Oil Ref. Co., 297 F.2d 80, 89 (2d Cir. 1961))). Here, the question of whether defendant intentionally destroyed evidence of his having installed spyware on Anne Resnik’s cell phone was fully litigated and finally resolved in the State Spoliation Order. Moreover, Justice Sunshine took dispositive action—striking defendant’s pleadings in the divorce proceeding insofar as they sought any financial relief other than child support—based upon his findings. State Spoliation Order at 66. The Order thus determines the outcome of defendant’s attempt to receive an award of financial relief in the divorce case and will therefore be, or already has been, “necessary to support a valid and final judgment on the merits,” Conason, 25 N.Y.3d at 17 (citations omitted), in the previous proceeding. Finally, defendant argues that issue preclusion should not apply because he was proceeding pro se in the divorce action and therefore did not have a full and fair opportunity to litigate the spoliation issue. Def.’s Am. Opp’n at 7. Defendant was, however, represented by two attorneys during the course of the divorce litigation—paid in part by Anne Resnik—but discharged them both. State Spoliation Order at 3. Moreover, Justice Sunshine has already determined that defendant earns in excess of $100,000 per year and therefore does not qualify for assigned counsel in the divorce proceeding. Id. at 74. Under these circumstances, where defendant has in essence elected to proceed pro se, it would be illogical and unfair to allow him to avoid the preclusive impact of Justice Sunshine’s decision on the grounds that he did not have counsel. *8 Accordingly, I respectfully recommend that defendant be collaterally estopped from challenging Justice Sunshine’s finding of fact—namely, that he engaged in the kind of intentional spoliation of electronically stored information that triggers the severe sanctions authorized by Rule 37(e)(2) of the Federal Rules of Civil Procedure.[12] This Court need not, however, rely on Justice Sunshine’s findings to determine that severe sanctions are warranted here. For the reasons set forth below, I independently conclude that plaintiffs have established the elements necessary to obtain much of the relief they seek under Rule 37(e)(2). ii. The Effect of Defendant’s Invocations of the Fifth Amendment The parties raise another preliminary issue in their briefing—the effect of defendant’s many invocations of the Fifth Amendment on the adjudication of this motion for sanctions. See, e.g., Def.’s Mem. at 19 n.4 (“The defense respectfully submits that the Plaintiffs cannot rely on Mr. Coulson’s invocation of his Fifth Amendment rights to fill in the gaping holes in their proof.”); Pls.’ Reply at 1 (“The Fifth Amendment is no excuse for Coulson’s abject failure to contradict evidence that he actually used wiping software to delete data.”). The Supreme Court has said that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them ....” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Subsequent case law in this circuit has questioned the full breadth of this rule. See Nu-Chem Labs., Inc. v. Dynamic Labs., Inc., 2001 WL 35981560, at *19 (E.D.N.Y. Mar. 30, 2001) (“However, a defendant’s silence is ‘only one of a number of factors to be considered by the finder of fact in assessing a penalty, and [is to be] given no more probative value than the facts of the case warrant[ ].” (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 808 n.5 (1977))). Defendant’s answer to plaintiffs’ complaint is comprised largely of assertions of his right not to incriminate himself. Answer, Dkt. 14. Moreover, after plaintiffs’ sanctions motion was fully briefed, plaintiffs submitted a letter, with leave of Court, supplementing their motion papers. Letter dated Jan. 16, 2018.[13] Plaintiffs annexed as exhibits to their letter defendant’s responses to their interrogatories and document demands, as well as the transcript of their deposition of defendant. These submissions reveal multiple occasions of defendant invoking the Fifth Amendment in response to questions regarding his familiarity with and use of data-wiping software. See Resps. And Objs. To Pls.’ First Demand for Interrogs. (“Resps. To First Interrogs.”) at 2–9, Dkt. 34-2 (asserting defendant’s Fifth Amendment rights in whole or in part as a response to interrogatories inquiring into: (a) defendant’s having purchased or obtained spyware or data-wiping software, (b) defendant’s purposes for having done so, (c) defendant’s passwords or other means of accessing any data-wiping software, (d) the identities of any individual or entity from whom defendant purchased or obtained any data-wiping software, (e) the identities of any individual or entity whom defendant informed of his having purchased or obtained data-wiping software, (f) names and contact information for associates of certain data-wiping application companies, and (g) the timeframe within which defendant used any data-wiping software); Resps. and Objs. to Pls.’ Doc. Demands (“Resps. to Doc. Demands”) at 6–8, Dkt. 34-3 (asserting defendant’s Fifth Amendment rights in whole or in part as a response to demands for documents related to various data-wiping applications or to the purchase, use, or removal thereof); id. at 12–13 (asserting defendant’s Fifth Amendment rights in whole or in part as a response to a demand for emails or correspondence with data-wiping software producers); Coulson Dep. at 29:5–16 (asserting defendant’s Fifth Amendment rights with respect to how defendant obtained certain knowledge about data-wiping software and whether defendant had personally used data-wiping software prior to June 7, 2008); id. at 40:12–20 (same with respect to whether defendant had used Free File Shredder at any time or specifically during the period of defendant’s marriage to Anne Resnik, from June 7, 2008 to May 19, 2015); id. at 41:4–17, 42:3–6 (same with respect to Disk Scrubber); id. at 42:7–24 (same with respect to Marius Soft Scrubber); id. at 42:25–43:20 (same with respect to Hard Disk Scrubber); id. at 46:8–47:5 (asserting the defendant’s Fifth Amendment rights with respect to having used any data-wiping software at any time or specifically during defendant’s marriage to Anne Resnik); id. at 50:13–16, 50:25–51:7 (expressing defendant’s intention to assert his Fifth Amendment rights to any future deposition question or interrogatory related to defendant’s use of data-wiping software). *9 These assertions by defendant of his Fifth Amendment rights support an adverse inference that defendant both purchased or obtained and used multiple data-wiping applications sometime between June 7, 2008 to May 19, 2015. Defendant made it clear, moreover, that he would have responded to additional questions inquiring about the same general subject matter, including questions incorporating more specific time frames, by asserting his Fifth Amendment right not to incriminate himself. The preclusive effect of Justice Sunshine’s Spoliation Order and the adverse inferences that are properly drawn from defendant’s invocations of his Fifth Amendment rights are adequate to support the relief plaintiffs seek. I nevertheless consider below the date on which defendant’s duty to preserve evidence was triggered, whether the evidence supports the conclusion that Coulson destroyed evidence on or after that date, and whether the specific evidence Coulson did destroy on or after that date, if any, was relevant to this litigation. iii. Defendant Had a Duty to Preserve the Subject ESI The duty to preserve electronically stored information imposed by Rule 37(e) is based on the common law duty “to preserve relevant information when litigation is reasonably foreseeable.” Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment; see also In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 148 (2d Cir. 2008) (“The obligation to preserve evidence arises when the 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.” (citation omitted)). To decide whether a defendant destroyed evidence at a time when he had a duty to preserve it, a court must first determine when the defendant’s duty to preserve the evidence arose. In making this determination, “[c]ourts should consider the extent to which a party was on notice that litigation was likely and that the information would be relevant.” Fed. R. Civ. P. 37(e)advisory committee’s note to 2015 amendment. The Advisory Committee makes clear that an independent duty to preserve may arise from a court order in another case, but it directs courts to be “sensitive ... to the fact that such independent preservation requirements may be addressed to a wide variety of concerns unrelated to the current litigation.” Id. Plaintiffs point to the State Preliminary Order and State Show Cause Order as establishing an independent duty to preserve. Defendant’s chief counterargument is that the twenty-one months that transpired between the date of the alleged spoliation—May 16, 2015—and the filing of the present litigation cuts strongly against plaintiffs’ assertion that he had an obligation to preserve evidence for this litigation. Def.’s Mem. at 23. Plaintiffs respond that because “Coulson was engaged in illegal surveillance against the Plaintiffs, he should have reasonably anticipated that additional litigation was likely.” Pls.’ Reply at 10. I conclude that the State Preliminary Order was sufficient to place Coulson on notice that he was under a duty to preserve evidence of his use of spyware for litigation. Plaintiffs argue that files, data, and information related to software used by a party to a divorce proceeding to spy on the communications and whereabouts of the other party to the divorce is uncontestably relevant to a divorce proceeding. Pls.’ Reply at 9. Although Coulson’s use of spyware was not known to anyone other than Coulson at that time, it strains credulity to argue, as defendant does, that the State Preliminary Order, concerned as it was with custody, division of finances, occupancy of the marital residence, counsel fees, and “any other just and proper relief as per this Court,” did not also concern the illegal use of surveillance software by Coulson against his wife. See Def.’s Mem. at 4. *10 Even assuming, arguendo, that the State Preliminary Order was too general to have put defendant on notice that he was to preserve evidence of his use of spyware, that notice was without question provided no later than May 15, 2015. The State Show Cause Order was extremely specific in its detail, yet broad in its scope; it directed Coulson to turn over “all of his computing devices,” including cell phones. State Show Cause Order at 2. As noted above, the experts retained by plaintiff and defendant in their matrimonial litigation jointly concluded that defendant installed and executed wiping software on May 16, 2015, the day after the State Show Cause Order was entered. Defendant argues that plaintiffs have not presented evidence that he was made aware of the State Show Cause Order prior to the alleged spoliation on May 16, 2015. Def.’s Mem. at 23–24. However, Coulson himself acknowledged before the state court “that he had advance notice that he was going to be served by the Sheriff ... because the sheriff ‘accidentally’ called his cell phone to ‘check’ if he would be home” before seizing his electronic devices. State mSpy Order at 21. Coulson made this concession on the record. State Spoliation Order at 10. The likelihood that defendant just happened to wipe his computer clean of data one day after he was ordered to produce it is too remote to be taken seriously. Defendant’s execution of three different data-wiping utilities one day after issuance of an order directing him to produce his electronic devices, combined with his admission that he received advance notice of the order’s execution from the sheriff, is clear and convincing circumstantial evidence that defendant knew of the State Show Cause Order when he destroyed ESI from his personal computer. I further find the twenty-one-month gap between the alleged spoliation and the commencement of this federal lawsuit to be irrelevant. Defendant has not provided, nor has the Court’s research revealed, any precedent suggesting that the salient inquiry is the amount of time that passes between the alleged spoliation and the filing of a lawsuit in which spoliation sanctions are sought. To the contrary, in DeMeo v. Kean, one defendant conceded that a state court preservation order dated December 22, 2006 triggered its obligation to preserve a video recording for purposes of a related federal action that was filed almost twelve months later, on December 7, 2007. 754 F. Supp. 2d 435, 448 (N.D.N.Y. 2010). The court inferred also that a second defendant, who asked to view the subject video shortly after issuance of the preservation order, “was aware that this particular video would be relevant to any future claims arising from the incident,” despite the fact he was not even a party to the state court action. Id. (emphasis added) (citing Kronisch, 150 F.3d at 126). The alleged spoliation took place around February 2007, some ten months before the federal action was commenced. Id. at 441. Similarly, in Stinson v. City of New York, the court held that the City’s duty to preserve evidence related to an alleged summons quota was triggered by the filing of the complaint in an earlier, unrelated action against the City. 2016 WL 54684, at *4 (S.D.N.Y. Jan. 2, 2016). The Stinson court reasoned that because the quota issue was “hotly contested” in the earlier case, id.(quoting Floyd v. City of New York, 283 F.R.D. 153, 164 (S.D.N.Y. 2012)), and because Floyd was still active when the Stinson action was commenced, “the City ha[d] been on notice that evidence relating to an alleged summons quota [was] relevant to litigation since at least January 31, 2008,” the date on which the Floyd complaint was filed, id. The Stinsonaction was not commenced until nearly sixteen months later, on May 25, 2010. Stinson v. City of New York, 282 F.R.D. 360, 364 (S.D.N.Y. 2012). As in DeMeo, the duty to preserve evidence in this case was established by a preservation order entered in a state proceeding, and the alleged spoliation occurred many months before this subsequent federal action was even filed. Likewise, as in Stinson, it was undoubtedly foreseeable to defendant that his illegal use of spyware to surveil his wife leading up to and during their divorce proceedings might subject him to other litigation related to that activity. Indeed, defendant’s assertions of his Fifth Amendment rights are presumably based on his apprehensions about possible criminal liability—that is, litigation that is foreseeable but has not yet been commenced. I conclude therefore that defendant’s duty to preserve evidence relevant to his use of spyware to surveil Anne Resnik was triggered on January 15, 2015 at the earliest and on May 15, 2015 at the latest, and that defendant’s duty to preserve was still in effect when the alleged spoliation occurred on May 16, 2015. iv. The Evidence Destroyed by Defendant Was Relevant *11 With respect to relevance, plaintiffs submit that “secret recordings made [by defendant] of his wife’s conversations during their marriage over two years would be” relevant to the divorce proceedings. Pls.’ Mem. at 6. Defendant’s counterargument is that plaintiffs have not shown what particular data was wiped nor whether the wiped data was relevant. Def.’s Mem. at 12. Defendant cites the experts’ statement that “[d]ue to the nature of these wiping utilities and the nature of what they are de[s]igned to accomplish, it is impossible to determine specifically what data, if any, may have been rendered unrecoverable by this process.” Id. at 12 (citing Experts’ First Report ¶ 58). In reply, plaintiffs rely on Zubulake v. UBS Warburg LLC. Pls.’ Reply at 10. There, the court noted that “[w]hen evidence is destroyed in bad faith (i.e., intentionally or willfully), that fact alone is sufficient to demonstrate relevance.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003) (citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 109 (2d Cir. 2002)). Residential Funding Corp. and Zubulake were both decided under the court’s inherent powers, prior to the 2015 amendments to Rule 37. Nonetheless, I do not read Rule 37(e), as amended, or the Advisory Committee’s notes on the 2015 amendment, to preclude reliance on these cases for the proposition that bad faith is sufficient to demonstrate relevance. The Advisory Committee explicitly tethers the Rule 37(e) duty to preserve evidence to the common law duty. See Fed. R. Civ. P. 37(e)advisory committee’s note to 2015 amendment (“Many court decisions hold that potential litigants have a duty to preserve relevant information when litigation is reasonably foreseeable. Rule 37(e) is based on this common-law duty; it does not attempt to create a new duty to preserve.”). Accordingly, reliance on case law in this circuit that defines the contours of the duty to preserve is consistent with the Rule. Although the Advisory Committee rejects Residential Funding Corp. to the extent it authorizes “the giving of adverse-inference instructions on a finding of negligence or gross negligence,” Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment, there is no indication that a broader rejection of the holding in that case was intended. Because I find that Coulson acted in bad faith, I deem the relevance of the destroyed data to be established. In any event, Coulson’s destruction of the evidence just as it was about to be seized by the Sheriff, combined with his assertions of his right to silence with respect to questions about his use of spyware and data-wiping software, are strong circumstantial evidence of the relevance of the data he destroyed. v. Defendant Failed to Take Reasonable Steps to Preserve the Subject ESI Plaintiffs have also submitted clear and convincing evidence that defendant failed to take reasonable steps to preserve the subject ESI. To the contrary, the evidence is overwhelming that defendant deliberately destroyed the evidence just as it was about to be discovered. Plaintiffs direct the Court’s attention primarily to the joint reports of Anne Resnik’s and Coulson’s experts, produced in the state court action and filed in this action by defendant to support his opposition. The evidence of spoliation derives from their first report, made after analyzing Coulson’s devices, which concluded that “the wiping utilities Free File Shredder, Disk Scrubber and MariusSoft Disk Scrubber were installed on [Device 010] on May 16, 2015 and each of them was executed at least once on that date.” Experts’ First Report ¶ 58. The experts based this conclusion on forensic evidence that these three programs were installed and executed on Coulson’s primary personal computer between approximately 9:05 p.m. and 9:36 p.m. on May 16, 2015. Id. ¶ 53. Plaintiffs also offer a sworn affidavit of Yalkin Demirkaya, in which he confirms the first report’s finding that the three above-named wiping utilities were installed and executed on May 16, 2015 by defendant. Demirkaya Decl. ¶ 18. Demirkaya also states that “installation and execution of these utilities are performed by the user and ... are not part of any automated system process.” Id. ¶ 19. He further concludes that Device 010 “contains irrefutable forensic evidence that a thorough effort was made to delete some unknown content beyond recovery.” Id. ¶ 21. *12 Defendant’s use of software designed to permanently delete electronic data, in violation of two court orders requiring preservation, was plainly deliberate and unreasonable, and amply demonstrates that defendant “acted with the intent to deprive another party of the information’s use.” Fed. R. Civ. P. 37(e)(2). Defendant, moreover, has failed to submit any evidence that might provide a less culpable explanation of his conduct and has instead invoked his right to remain silent when asked about his use of data-wiping software. The only counterargument defendant musters is that plaintiffs have not shown what particular data was wiped. Def. Mem. at 12. As discussed above, though, defendant’s intentional destruction of the evidence is sufficient to demonstrate its materiality. Moreover, three cases defendant contends support his argument, id. at 16, are easily distinguished, because each involves only a speculative claim that the subject evidence ever existed. See Tri-County Motors, Inc. v. American Suzuki Motor Corp., 494 F. Supp. 2d 161, 177 (E.D.N.Y. 2007) (noting (a) that plaintiff’s evidence of the existence of allegedly spoliated emails was speculation based on defendant’s allegedly “clear pattern of creating lies about [plaintiff’s] application and [of] withholding prejudicial documents” and (b) that plaintiffs provided no evidence of defendant’s failure to preserve evidence after it was on notice of a duty to preserve, of any culpable state of mind, or of the allegedly lost emails’ relevance to the litigation); Dilworth v. Goldberg, 3 F. Supp. 3d 198, 202 (S.D.N.Y. 2014) (finding the claimed existence of the allegedly lost or destroyed evidence to be based on “ambiguous statements” by a prison sergeant and a “speculative expert opinion ... that it is customary for a system installer to provide an ‘as built’ floor plan detailing camera placement”); Alaimo v. TWA, Inc., 2005 WL 267558, at *3 (S.D.N.Y. Feb. 3, 2005) (holding that it would be unreasonable to infer “that relevant maintenance evidence regarding [a] door was destroyed simply because defendant does not retain its maintenance records for more than a two year period,” and that, because “[i]f the door was in proper working order, no [maintenance] records would have been generated ... plaintiff has not establish[ed] that the records and documents she sought ever existed”). Here, in contrast, defendant’s own retained expert contributed to a joint forensic report concluding that defendant used spyware to monitor plaintiff’s cell phone, and defendant has failed to offer any contrary evidence and invoked his right to remain silent when questioned on the subject. Plaintiffs cite three cases involving evidence of trace digital fingerprints like those found by the experts in the divorce action when they examined defendant’s electronic devices. Pls.’ Reply at 7–9. The most analogous is Feist v. Paxfire, Inc., in which a Wiretap Act plaintiff used software that cleared her internet cache and browsing history up to and after commencement of the action, admittedly “as part of her computer maintenance.” 2016 WL 4540830, at *2 (S.D.N.Y. Aug. 29, 2016) (internal quotation marks omitted). Presumably as a result of plaintiff’s admitted use of a cleaner program even after filing her complaint, the defendant’s expert “found no records of internet history items, or [plaintiff’s] search habits with dates prior to [when plaintiff’s computer crashed].” Id. Defendant’s expert did, however, discover “[f]iles indicating the installation of a cleaner program.” Id. Despite the lack of specific information about the data lost, the court found plaintiff’s mere execution of the cleaner program sufficient to support a finding of unreasonableness. Id. at *4. So, too, plaintiffs’ unrefuted evidence here that defendant used data-wiping software on May 16, 2015 is sufficient to show his failure to take reasonable steps to preserve the evidence stored on his electronic devices. vi. The Destroyed ESI Cannot Be Restored or Replaced Through Additional Discovery *13 Rule 37(e) provides for sanctions only when “electronically stored information that should have been preserved ... cannot be restored or replaced through additional discovery.” Here, the experts’ first report discusses the recoverability of wiped files. It notes that while “[d]eleting a file merely designates the space occupied by that file as free,” wiping is a process by which, “among other things, all deleted files ... are overwritten with new data to ensure that any previously deleted files or data ... cannot be recovered.” Experts’ First Report ¶¶ 48–49. Defendant has not argued or presented any evidence that the data deleted on May 16, 2015 is recoverable, or that it may be restored or replaced from another source. Furthermore, as plaintiffs note, defendant’s invocation of the Fifth Amendment in response to plaintiffs’ discovery requests make it highly unlikely that additional discovery would serve to replace the destroyed data. Plaintiffs have thus established that the subject ESI was lost and cannot be restored or replaced through additional discovery. vii. There Is Clear and Convincing Evidence That Defendant Acted with Intent to Deprive Plaintiffs of the Information’s Use in Litigation Rule 37(e)(2) reserves its harshest sanctions for instances in which “the party [failing to take reasonable steps to preserve ESI] acted with the intent to deprive another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e)(2). “Subdivision (e)(2) does not include a requirement that the court find prejudice to the party deprived of the information ... because the finding of intent required by the subdivision can support not only an inference that the lost information was unfavorable to the party that intentionally destroyed it, but also an inference that the opposing party was prejudiced by the loss of information that would have favored its position.”Fed. R. Civ. P. 37(e)(2) advisory committee’s note to 2015 amendment. The evidence set forth above clearly demonstrates defendant’s intent to deprive plaintiffs of the information on his personal computer. Defendant was aware prior to May 16, 2015 that Anne Resnik suspected he had employed spyware. See State mSpy Order at 14–15 (noting that Coulson repeatedly invoked the Fifth Amendment when asked about his use of mSpy at his May 8, 2015 deposition in the divorce case). Furthermore, as noted above, defendant conceded before the state court that he was given advance notice that the sheriff would be coming to seize his devices. State mSpy Order at 21. These facts support a strong inference that defendant acted intentionally, and with urgency, when he employed data-wiping software just one day after the seizure of his devices was ordered. Defendant, of course, offers no evidence indicating that any wiping of data that occurred was innocent or merely negligent or grossly negligent. Not surprisingly, plaintiffs have not provided direct evidence of defendant’s state of mind on May 16, 2015. Facing a similar evidentiary record, though, the court in CAT3 noted that “circumstantial evidence may be accorded equal weight with direct evidence,” 164 F. Supp. 3d at 500 (citing Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1184 (2d Cir. 1992)), and “standing alone may be sufficient to support even a determination that requires proof beyond a reasonable doubt, id. (citing United States v. Newman, 773 F.3d 438, 451 (2d Cir. 2014), cert. denied, 136 S. Ct. 242 (2015)). Here, plaintiffs have offered clear and convincing circumstantial evidence, not credibly refuted or contested by defendant, that defendant destroyed the subject ESI with the intent to deprive plaintiffs of its use in litigation. II. Remedy A. Legal Standards Because I find that defendant destroyed evidence with the intent to deprive plaintiffs of its use in litigation, it is within the Court’s discretion under Rule 37(e)(2) to impose any or all of the remedies the rule provides. These include presuming “that the lost information was unfavorable” to Coulson, giving an instruction “that [the jury] may or must [so] presume,” or “enter[ing] a default judgment.” Fed. R. Civ. P. 37(e)(2). Courts, however, “should exercise caution ... in using the measures specified in [Rule 37](e)(2).” Fed. R. Civ. P. 37(e)(2) advisory committee’s note to 2015 amendment. A finding of intent “does not require a court to adopt any” of these measures, and even if one of these measures is chosen, “[t]he remedy should fit the wrong, and the severe measures authorized by [Rule 37(e)(2)] should not be used when the information lost was relatively unimportant or lesser measures such as those specified in subdivision (e)(1) would be sufficient to redress the loss.” Id. Courts acting prior and subsequent to the 2015 amendment have tended to agree that caution is particularly appropriate when case-terminating sanctions are sought. See, e.g., Lokai Holdings LLC, 2018 WL 1512055, at *8 (S.D.N.Y. Mar. 12, 2018) (“An adverse-inference instruction that missing evidence may or should be presumed to be unfavorable to the party who destroyed the evidence has long been considered an ‘extreme’ sanction that ‘should not be given lightly.’ ” (quoting Zubulake, 220 F.R.D. at 219–20)); id. (“Dismissal and the entry of a default judgment are even more ‘drastic remed[ies],’ most typically considered in the context of ‘extreme circumstances’ warranting sanctions under Rule 37(b), where the non-moving party has fail[ed] to comply with the court’s discovery orders willfully, in bad faith, or through fault.’ ” (alterations in original) (quoting John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988))). B. Analysis *14 Plaintiffs seek, pursuant to Rule 37(e)(2), (1) “an adverse inference to be drawn against defendant that he is liable for all the acts alleged in this complaint,” and (2) “an order permitting plaintiffs to extrapolate their damages from the remaining data and precluding defendant from presenting any evidence or theory of damages contrary to those presented by plaintiffs.” Pls.’ Mem. at 1. The request, though framed as one for an adverse inference, is essentially a request for a default judgment, insofar as it asks that liability be established with only damages to be determined upon a showing made by plaintiffs. With respect to the calculation of damages, plaintiffs argue that “since damages will turn on demonstrating the number of times that spyware was used, and Coulson has destroyed the primary source of evidence concerning that calculation, plaintiffs should be permitted to present a theory of damages by extrapolating what data exists, along with [their] own phone records, without challenge from Coulson.” Id.at 12.[14] Defendant argues that the “drastic remedies [sought by plaintiffs] are inappropriate in this case ... because those measures would violate Mr. Coulson’s due process rights.” Def.’s Mem. at 31. In his original memorandum of law, defendant submits various possible ways he might attack the underlying claims in the complaint, if only given the opportunity for further discovery. See id. at 31–33 (arguing that case-terminating sanctions would prevent defendant from asserting various statute of limitations defenses, as well as from challenging plaintiffs’ proof of (1) damages necessary for Anne Resnik’s claim under the Computer Fraud and Abuse Act, (2) alteration of and exclusion from access to data necessary to support Anne Resnik’s conversion claim, and (3) interference with Anne Resnik’s use and enjoyment of her phone, as required for her trespass to chattels claim). However, while defendant argued in his original motion papers that document discovery had not been completed and no depositions had taken place, that is no longer the case. At a conference held on September 28, 2018, the Court ruled on various discovery disputes and addressed each of defendant’s contentions with respect to document production. Counsel reported that defendant had been deposed, as had plaintiffs’ expert, and the Court encouraged defendant to proceed forthwith over the following few months with any remaining depositions he intended to conduct. See Min. Entry dated Sep. 28, 2018, Dkt. 61.[15] Neither side has raised a discovery dispute since that conference was held, and the Court therefore presumes that discovery is now complete. i. Plaintiffs’ Request That Liability Be Established As discussed above, plaintiffs have carried their burden to establish that defendant engaged in egregious, intentional spoliation. Although the Advisory Committee and case law caution courts to be wary of imposing the harsh sanctions allowed by Rule 37(e)(2), even presuming the deleted data to be unfavorable to defendant would not suffice to remedy the plaintiffs’ loss here. The Wiretap Act imposes criminal liability on anyone who, inter alia: (a) intentionally intercepts, [or] endeavors to intercept ... any wire, oral, or electronic communication; ... (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; [or] (d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection. *15 18 U.S.C. § 2511(1). Civil liability is authorized by § 2520, entitling “any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter” to the recovery of damages. Id. § 2520(a). Anne Resnik’s Computer Fraud and Abuse Act claim similarly alleges that defendant intentionally accessed her cell phone without authorization and obtained information from it in violation of 18 U.S.C. § 1030(a)(2) and 1030(g). Defendant is the only one who knows the extent of his spying on Anne Resnik by monitoring her cell phone and the degree to which he intruded on plaintiffs’ privacy. As a result of his spoliation, it is highly likely that the information only he knows has been permanently wiped clean from his electronic devices. There is no other means to access that information. It is, therefore, impossible to fully understand the extent of the prejudice caused by defendant’s spoliation of evidence, and broad, severe sanctions are accordingly warranted. Nevertheless, bearing in mind the Advisory Committee’s instruction that the remedy, even for intentional spoliation, should fit the wrong, what relief is appropriate is a more nuanced question than plaintiffs acknowledge, and one that is difficult to answer in the abstract, absent a particular showing by defendant of the evidence or argument he might present in opposition to summary judgment or at trial. On the one hand, defendant should be precluded from denying that he “jail broke” Anne Resnik’s telephone and installed mSpy on it on or about October 6, 2014, that he installed OwnSpy on it on or about October 10, 2014, and that he made extensive use of these applications to, among other things, monitor Anne Resnik’s whereabouts, intercept her text messages and emails, and listen in on her telephonic and live conversations until on or about October 31, 2014.[16] On the other hand, there may be elements of the claims asserted by plaintiffs that require proof of facts other than defendant’s installation and use of spyware on Anne Resnik’s cell phone. For example, Anne Resnik specifically claims that defendant gained access to information about medical treatment she was receiving in violation of 18 U.S.C. § 1030(c)(4)(A)(i)(II). Compl. ¶ 119.[17] To prove this allegation, Anne Resnik should at least be required to offer evidence that she met with a medical professional during the time when defendant was monitoring her telephone. Similarly, plaintiffs Elizabeth Resnik and Mary Palinski allege that defendant eavesdropped on telephone conversations they had with Anne Resnik. Compl. ¶¶ 170, 176. These plaintiffs should be required to establish, at a minimum, that they called or received calls from Anne Resnik’s cell phone during the relevant time. In short, while defendant should be deemed to have installed and used spyware on Anne Resnik’s telephone from October 6, 2014 until October 31, 2014, plaintiffs should be required to make a prima facie showing of the other elements of their claims. To the extent it is reasonable to believe that the data wiped from defendant’s electronic devices might have corroborated any prima facie showing plaintiffs make, defendant should be precluded from challenging that showing. ii. Plaintiffs Should be Permitted to Present a Theory of Damages That Extrapolates From What Data Remains *16 A similar result should obtain with respect to damages. Plaintiffs ask that they be permitted to present a theory of damages to the Court that extrapolates from what data remains, without challenge from defendant. Plaintiffs’ proposal is appropriate, at least to the extent the extrapolations they make are reasonable, and to the extent plaintiffs are referring to their claims for statutory damages. It appears, though, that plaintiffs also seek to recover compensatory damages. See Compl., Prayer for Relief. The evidence defendant wiped from his personal computer is not likely to have included evidence of actual damages sustained by plaintiffs. While plaintiffs should not be required to prove defendant’s installation and use of spyware on Anne Resnik’s cell phone, and should be permitted to determine the frequency with which defendant intercepted phone calls, emails, text messages, and live conversations by extrapolating from the data available, plaintiffs should be required to prove any emotional distress or other injury they claim to have suffered and for which they seek to recover compensatory damages. CONCLUSION For the reasons stated above, I find that defendant has engaged in the spoliation of electronically stored information in violation of Rule 37(e) of the Federal Rules of Civil Procedure. I further find that defendant engaged in this spoliation with the intent to deprive an opposing party of use of the electronically stored information in litigation, in violation of Rule 37(e)(2). In accordance with the remedies made available under Rule 37(e)(2), and because no lesser remedy would suffice to remedy plaintiffs’ loss of the information in this litigation, I respectfully recommend that defendant be deemed to have installed and used spyware on Anne Resnik’s telephone from on or about October 6, 2014 to on or about October 31, 2014. However, I respectfully recommend that plaintiffs be required to make a prima facie showing of the other elements necessary for the claims they assert. I further respectfully recommend that an order be issued permitting plaintiffs to present a theory of their statutory damages under the Wiretap Act based on extrapolation from what data remains, to the extent this extrapolation is reasonable, and that defendant be precluded from challenging that theory of damages. Finally, I respectfully recommend that plaintiffs be required to prove any compensatory damages they seek, as the data defendant wiped is not likely to have had any bearing on the emotional distress and other actual damages plaintiffs may have sustained. Any objections to the recommendations made in this Report must be made within fourteen days after the filing of this Report and Recommendation and, in any event, on or before January 18, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may waive the right to appeal the District Court’s order. See Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (discussing waiver under the former ten-day limit). [1] David Resnik was originally a plaintiff to this action, joining the other plaintiffs in their claims under the Wiretap Act, id. ¶¶ 125–139, and asserting his own common law and statutory invasion of privacy claims, id. ¶¶ 152–168. However, he has since withdrawn his claims. See Stipulation of Dismissal, Dkt. 60; Order dated Sep. 27, 2018 (so ordering dismissal of David Resnik’s claims). [2] Although the date stamp on the order is February 13, 2015, the order itself indicates that the parties appeared before Justice Sunshine on January 15. [3] The State mSpy Order appears twice on the docket for this action: plaintiffs attached the order as an exhibit to their complaint (Dkt. 1-1), and defendant attached a copy as an exhibit in opposition to the present motion (Dkt. 26-2). The two versions are inconsistently paginated. References to the State mSpy Order in this Report are to the order as filed at Dkt. 26-2. [4] There is some discrepancy in the evidence as to the dates of Coulson’s alleged spyware use. Justice Sunshine’s most recent decision in the divorce case confirms that Coulson’s spyware use commenced in early October 2014. Decision & Order of Justice Sunshine (“State Spoliation Order”) at 46. However, a joint report by Anne Resnik’s and Coulson’s experts in the divorce case revealed that one of Coulson’s computing devices contained three documents—two created January 27, 2014 and one created March 25, 2014—with call histories, contacts, incoming emails, and text messages of Anne Resnik’s. King Decl. Ex. A (“Experts’ First Report”) ¶¶ 39–42, Dkt. 26-1. Yet, plaintiffs’ expert—the same expert who co-created the Experts’ First Report in the divorce case—submitted a declaration in this case indicating that he and defendant’s expert found forensic evidence of Coulson’s use of spyware during a period stretching from June 29, 2012 to October 31, 2014. Decl. of Yalkin Demirkaya (“Demirkaya Decl.”) ¶ 22, Dkt. 24. [5] Because the posture of Coulson and Anne Resnik in the divorce action is the inverse of their relationship here, references to plaintiff in documents originally filed in the divorce action refer to Coulson. [6] This concluding date is consistent with the declaration of plaintiffs’ expert, in which he states that Coulson’s spyware use ceased on October 31, 2014. Demirkaya Decl. ¶ 22. [7] Justice Sunshine directed that his Order be filed without an index number and bearing a caption that identifies only the initials of the parties’ surnames. Accordingly, the document was filed in this action under seal. [8] Although the wording of Justice Sunshine’s decision is somewhat unclear, its meaning is plain. [9] As already noted, David Resnik (Anne Resnik’s brother) was an original plaintiff who has since withdrawn his claims. See supranote 1. [10] A party moving a court to act pursuant to its inherent powers “must show by a preponderance of the evidence: (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.” Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., 880 F.3d 620, 628 (2d Cir. 2018) (internal quotation marks and citation omitted). [11] For a discussion of factors courts have considered in determining which standard of proof to apply, see CAT3, 164 F. Supp. 3d at 499. [12] To the extent any party objects to this recommendation, such party should either consent to the unsealing of the State Spoliation Order or show cause why it should remain sealed. [13] During a telephone conference on December 8, 2017, I ruled that the parties could submit a proposed scheduling order for certain filings. Min. Entry dated Dec. 8, 2017, Dkt. 32. The parties jointly submitted a proposed scheduling order one week later providing in pertinent part that plaintiffs would amend and serve their motion for sanctions by January 16, 2018 “to reflect their position with respect to Defendant’s reliance on the Fifth Amendment.” [Proposed] Order Establishing Discovery Schedule ¶ 3, Dkt. 33-1. I subsequently entered the proposed scheduling order as an order of the Court. Order dated Dec. 26, 2017. [14] Damages turn in part on the number of instances when defendant used spyware because the Wiretap Act provides for “statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.” 18 U.S.C. § 2520(c)(2)(B). [15] The conference held on September 28, 2018 was recorded, but no party has obtained a transcript. [16] Although there are discrepancies in the evidence of what dates Coulson used spyware on Anne Resnik’s telephone, see supranote 4 and accompanying text, the complaint alleges that mSpy was installed on October 6, 2014 and that OwnSpy was installed on October 10, 2014, Compl. ¶¶ 3–5, allegations to which Coulson pleads his Fifth Amendment right in response, Answer ¶¶ 3–5. The complaint alleges that OwnSpy remained active on Anne Resnik’s telephone no later than on or about October 31, 2014. Compl. ¶ 75. Although the complaint does not allege a date on which mSpy ceased to be active on Anne Resnik’s telephone, plaintiffs’ expert declares that Coulson used “various spyware programs” to intercept Anne Resnik’s communications until October 31, 2014. Demirkaya Decl. ¶ 22. However, nothing in this Report is intended to suggest plaintiffs should be precluded from offering evidence that defendant monitored Anne Resnik’s cell phone over a longer period of time. [17] The Complaint, apparently as a result of a typographical error, cites § 1830(c)(4)(A)(i)(II).