MPM SILICONES, LLC, Plaintiff, v. UNION CARBIDE CORPORATION, Defendant 11-CV-1542 (BKS/ATB) United States District Court, N.D. New York Signed October 13, 2015 Sannes, Brenda K., United States District Judge MEMORANDUM-DECISION AND ORDER *1 Defendant Union Carbide Corporation (“UCC”) moves for sanctions against Plaintiff MPM Silicones, LLC (“MPM”), for MPM’s alleged spoliation of evidence: the destruction of a former employee’s hard drive. (Dkt. No. 83). UCC seeks an adverse inference[1] against MPM, monetary sanctions in the form of a fine, and an award of reasonable attorneys' fees and costs. (Id., p. 1). For the reasons below, UCC’s spoliation motion is denied. I. BACKGROUND A. Facts The Court assumes the parties' familiarity with the background of this case and recounts only the facts necessary to the disposition of the spoliation motion. This case stems from MPM’s attempts to hold UCC liable for the clean-up of polychlorinated biphenyls (“PCBs”) located on MPM’s property. The property at issue is in Sistersville, Kentucky (“the Site”) and was owned by UCC from 1955 to 1993. (Dkt. No. 89-1, pp. 3, 6). During its ownership of the Site, UCC stored PCBs in the form of aroclors at the Site, apparently ending in the early 1970s. (Dkt. No. 90-3, p. 2). UCC sold the Site to OSi Specialties, Inc. (“OSi”) in 1993. (Id., p. 3). Witco Corporation purchased OSi in 1995, and later became Crompton Corporation. (Id., p. 4). In 2003, MPM’s predecessor in interest[2] purchased the property from Crompton. (Id.). MPM has alleged causes of action under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601, et. seq., and state law. (Dkt. No. 1). As is relevant here, MPM has alleged that UCC failed to disclose the presence of PCBs to the United States Environmental Protection Agency and to the West Virginia regulators and that UCC “deliberately concealed the disposal and release of PCBs” at the Site “from subsequent owners, including MPM.” (Dkt. No. 1, ¶¶ 13, 34). UCC has filed a counterclaim against MPM seeking contribution from MPM if UCC is held liable. (Dkt. No. 37, pp. 13-14). MPM has asserted affirmative defenses to the counterclaim under CERCLA, alleging MPM was an innocent landowner and a bona fide prospective purchaser under 42 U.S.C. §§ 9607(r), 9607(b)(3) and 9601(35). (Dkt. No. 37, pp. 13-14; Dkt. No. 42, p. 3). Whether MPM knew or had reason to know of the presence of PCBs at the Site at the time it acquired the Site is relevant to the claims, counterclaims, and affirmative defenses at issue in this case. (See, e.g., Dkt. No. 115, pp. 22-23). *2 Dennis Heintzman was first employed by UCC, then Crompton, and finally MPM. (See Dkt. Nos. 83, p. 1; 89-1, p. 5). MPM identified Heintzman in its initial disclosures as an individual “likely to have discoverable information that MPM may use to support its claims or defenses.” (Dkt. No. 83-6, p. 4). UCC asserts that Heintzman “was involved in and clearly knowledgeable about environmental matters and related disclosures at the plant that have been raised by MPM, including the various due diligence efforts undertaken at the Sistersville plant.” (Dkt. No. 83, p. 2). MPM filed this case on December 30, 2011. (Dkt. No. 1). Heintzman left MPM in November 2012. (Dkt. No. 83-3, p. 3). UCC deposed Heintzman on February 12, 2015. (Dkt. No. 83, p. 2). Heintzman testified that he prepared indices reflecting the documents that were collected in a data room in connection with the environmental due diligence for both the 1993 and 2003 sale transactions. (Dkt. No. 83-2, pp. 9, 14). He testified that he had retained a hard copy of the 1993 index, which he left in his desk drawer when he left MPM. (Id., pp. 9-10). Heintzman could not recall whether he had a hard copy of the 2003 index, but stated that he had an electronic copy of it. (Id., pp. 14-15). He could not recall, however, whether that electronic copy still existed on his computer when he left MPM. (Id., p. 15). Heintzman testified that he received a litigation hold notice relating to this action, and that at some point in time he worked with another MPM employee, Steven Klarman, to locate documents relating to PCB use at the Site. (Id., pp. 20-23).[3] He identified a document MPM had produced, which is titled “Disclosure Schedule XVI,” as the index he prepared for the 1993 transaction. (Id., p. 24). During the deposition Heintzman was not asked whether any of the documents that MPM had already produced in connection with the 2003 transaction, including two disclosure schedules and a “permit binder index,” (see Dkt. Nos. 102-3, p. 2; 102-10; 102-11), were the 2003 index to which he referred. UCC’s counsel wrote to counsel for MPM on March 17, 2015 regarding various discovery issues, and stated: Dennis Heintzman, who worked at MPM until November 2012 (almost a year after this action was filed), testified that MPM never asked him for documents in connection with this case, even though he was involved in and clearly knowledgeable about key matters including the various due-diligence efforts undertaken at the Sistersville site (“Site”). As it turns out, Mr. Heintzman kept hard and electronic copies of the indexes he created of documents disclosed in the “data room” for the 1993 and 2003 sales of the Site, which still existed (at least in hard-copy form) when his employment at MPM ended in November 2012. MPM has never produced these indexes, and should at a minimum search Mr. Heintzman’s hard-copy and electronic files for them. *3 (Dkt. No. 83-3, p. 3) (internal citations omitted). Counsel for MPM responded with a letter dated March 30, 2015, in which he responded to UCC’s allegations regarding Heintzman as follows: MPM believes that you have mischaracterized Mr. Heintzman’s testimony by representing that he stated with certainty that he had not been contacted in connection with the collection or location of documents or that he did not assist in the location of documents. MPM maintains that it made a diligent and good faith effort to locate documents. To the extent that MPM was able to locate the indexes you describe, they would have been previously produced to you. (Dkt. No. 83-4, p. 3). Counsel for UCC wrote an email to MPM’s counsel on April 11, 2015 in which he requested an update on MPM’s “efforts to search Dennis Heintzman’s individual files.” (Dkt. No. 83-5, p. 4). After responding on April 13, (Id.), MPM’s counsel again wrote to UCC’s counsel on April 16, explaining: With regard to files maintained by Mr. Heintzman, MPM long-ago collected, reviewed, and produced to UCC documents that were maintained by Mr. Heintzman as part of its diligent effort to locate relevant and responsive documents. In connection with your recent request, MPM undertook another effort to diligently search for additional responsive documents that may have been maintained by Mr. Heintzman. MPM has not identified any responsive and relevant documents that have not been previously produced in this case. (Id., p. 3). On April 18, UCC’s counsel responded: Given that MPM’s further efforts apparently did not uncover the indexes Dennis Heintzman created of documents disclosed in the “data room” for the 1993 and 2003 sales of the Sistersville Site (to which I referred in my March 17, 2015 letter), we are concerned about the thoroughness of MPM’s search. (If MPM’s search did uncover Mr. Heintzman’s copies of those indexes, that is not clear from your email.) Mr. Heintzman testified that he left hard copies of those indexes in a desk drawer in his office at the Site when he left the employ of MPM in 2012 (after MPM filed this action). Did MPM search the contents of Mr. Heintzman’s former desk? If not, we ask that MPM do so, including any such contents that may have been moved to another location after Mr. Heintzman’s departure. Mr. Heintzman also testified that he was not sure whether his electronic copy of the index of the 2003 transaction still existed at the time he left MPM. In prior testimony, MPM’s Rule 30(b)(6) designee Kristen Smith stated that the only MPM personnel whose hard drives had been searched were Mark Leskowicz and Steven Klarman.[4] Has MPM since gone back and searched Mr. Heintzman’s former hard drive? Given his substantial knowledge of matters relevant to this case, MPM should have done so, and if it has not we ask that you do so now. If his hard drive (or the contents thereof) is no longer available or retrievable, please explain why, particularly in light of the fact that Mr. Heintzman was still employed by MPM at the time it filed this action. (Id., pp. 2-3) (internal citations omitted). On April 21, MPM’s counsel wrote back: It’s been three years since Mr. Heintzman left MPM and many more since he had direct environmental responsibility for matters at the site. His hard-drive was wiped clean consistent with MPM’s practice at the facility and someone else sits in his office. Nonetheless, at your request after our April 7th call, we conducted an additional search at his office and did not find the indices you mention. Although we have cooperated with you on this matter, the purpose of your focus on this index is puzzling given that Mr. Heintzman testified that the index he believed was in his office was the same as the index that has been produced in this case and that he was shown during his deposition. MPM believes it has done a diligent search, including with respect to Mr. Heintzman’s documents. *4 (Id., p. 2). UCC alleges that this email was the first time MPM notified UCC that Heintzman’s hard drive had been “wiped clean.”[5] (Dkt. No. 83, p. 2). MPM has submitted a declaration from its Engineering Project Manager, Mark Leskowicz, regarding Heintzman’s computer and hard drive. (Dkt. No. 102-1, ¶ 15.). Leskowicz spoke to Heintzman on May 8, 2015, and Heintzman said that he left his laptop for human resources to pick up when he left MPM in November 2012. (Id. at Dkt. No. 102-1, Leskowicz explained that “[i]n accordance with MPM’s practice at the Site, the hard drives on computers of departing employees are wiped clean so they may be reused or disposed of. It appears that this practice was following in connection with Mr. Heintzman’s computer when he retired.” Id. B. UCC’s Request for Sanctions UCC wrote a letter to the Court, dated May 27, 2015, requesting a pre-motion conference in order to address MPM’s alleged destruction of evidence. (Dkt. No. 83). In that letter, UCC sought “permission, pursuant to Fed. R. Civ. P. 37, to file a motion seeking sanctions against MPM.” (Id., p. 1). MPM wrote a letter on May 28, 2015, asking that the Court “direct UCC to raise this matter with Magistrate Judge Baxter after reply briefs on Summary Judgment have been filed.” (Dkt. No. 84, p. 1). UCC responded with a letter dated March 29, 2015 in which it asked that the Court deny “MPM’s request to delay the resolution of this important issue” and reasserted its request for a pre-motion conference “at the earliest convenient time.” (Dkt. No. 85, p. 3). The Court issued an order on June 2, 2015, denying MPM’s request that the spoliation issue be referred to Magistrate Judge Baxter, but granting MPM’s request to defer the matter “until after completion of the summary judgment briefing.” (Dkt. No. 88). The Court ordered MPM to respond to UCC’s May 27 letter (Dkt. No. 83) on a date after the summary judgment briefing was completed.[6] (Dkt. No. 88). MPM filed a response on July 6, 2015, (Dkt. No. 102), and UCC filed its reply on July 24, 2015. (Dkt. No. 115). *5 At oral argument on September 16, 2015, the Court heard arguments from both parties relating to the spoliation motion. While counsel for UCC noted that UCC has “no idea what records were on [Heintzman’s] hard drive,” counsel argued that because MPM’s conduct was “grossly negligent or willful,” UCC did not have “to describe with any particularity what evidence was destroyed.” (Dkt. No. 131, p. 143). Counsel for UCC also argued that the 2003 index described by Heintzman “has never surfaced,” and “there could be documents which would substantiate Heintzman’s statement that anything that was asked for was provided,” in due diligence, such as correspondence between MPM and Crompton. (Id., p. 145-46). II. ANALYSIS In general, 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 an adverse inference instruction based on the destruction of evidence must show: “(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. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 107–12 (2d Cir. 2001)). A. Duty to Preserve Evidence “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.” Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001). The trigger date for the duty to preserve is determined on a case by case basis, see id., with the filing of the complaint a common start. See Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). Regarding the scope of the duty: That duty should certainly extend to any documents ... made by individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” The duty also includes documents prepared for those individuals, to the extent those documents can be readily identified.... The duty also extends to information that is relevant to the claims or defenses of any party, or which is “relevant to the subject matter involved in the action.” Thus, the duty to preserve extends to those employees likely to have relevant information-the “key players” in the case. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217-18 (S.D.N.Y. 2003) (“Zubulake IV”) (footnotes omitted). At the time MPM “wiped clean” the hard drive at issue, this action had been pending for about one year, MPM had named Heintzman as an individual with knowledge relating to the case, and MPM had acknowledged its duty to preserve documents by issuing a litigation hold memorandum to Heintzman. Thus, UCC has established that MPM had a duty to preserve evidence on Heintzman’s hard drive at the time it wiped the hard drive. B. Culpability MPM argues that UCC has failed to establish the culpability prong because UCC has failed to show that any evidence was lost. (Dkt. No. 102, pp. 15-16). There is no evidence that Heintzman’s hard drive contained evidence that MPM had not already been produced. Steven Klarman, who worked with Heintzman, legal counsel, and other MPM employees to identify and collect relevant documents in 2009 and 2010, submitted a declaration stating that “I believe that in 2009 and 2010 [Heintzman] had searched for relevant documents and had provided me with all of the documents in his possession that he believed could be relevant to the origin of PCB contamination at the Site or to historical knowledge of PCB use or disposal at the Site.” (Dkt. No. 102-2, p. 3). MPM’s Engineering Project Manager, Mark Leskowicz, submitted a declaration describing MPM’s search for, and collection of documents in early 2010 and again in the summer of 2010. (Dkt. No. 102-1, pp. 2-3). Mr. Leskowicz stated that “Heintzman had been actively looking for documents that might relate to PCB releases at the Site, the use of PCBs at the Site, or past knowledge of PCB uses or releases;” that document provided to MPM’s outside counsel included “both physical and electronic documents;” that the search included Mr. Heintzman’s records and files; and that when Heintzman left in 2012, Mr. Leskowicz “understood that all of the documents in his possession related to PCBs at the Site, whether hard copies or copies on his hard drive, had been produced to counsel through the process described above.” (Id. at pp. 3-4). Mr. Leskowicz stated that his “understanding was confirmed in [a] May 8, 2015 call when Mr. Heintzman told [Leskowicz] that he believed he had provided all of the documents he had which related to PCBs in connection with MPM’s search for documents in the 2010 time period.” (Id., ¶ 16). Leskowicz further stated that Heintzman’s records and files from his time in the environmental, health and safety department “have been maintained to this day,” and that Leskowicz recently reviewed documents in Heintzman’s former office and “did not find a copy of a 2003 index of documents prepared in connection with the 2003 transfer of ownership of the Site to General Electric.” (Id. at ¶¶ 12, 17). MPM argues that none of the parties to the 2003 transaction had an index in their files other than a disclosure schedule attached as an exhibit to the 2003 Purchase and Exchange Agreement. (Dkt. No. 102, p. 5). Thus, MPM asserts that either “Heintzman was confused about whether he created a new index for the 2003 transaction or ... the index he recalled was the one in the 2003 Agreement.” (Id., pp. 5-6). *6 In any event, as counsel for MPM acknowledged at oral argument, the hard drive should not have been wiped clean when Heintzman retired. (Dkt. No. 131, p. 151). Ordinary negligence may suffice to show a culpable state of mind for spoliation. Residential Funding Corp., 306 F.3d at 108; see also Byrnie, 243 F.3d at 109 (“[I]ntentional destruction of documents in the face of a duty to retain those documents is adequate for present purposes.”). “Once the duty to preserve attaches, any destruction of documents is, at a minimum, negligent.” Zubulake IV, 220 F.R.D. at 220 (footnote omitted). See also Pension Comm. v. Banc of Am. Securities, 685 F. Supp. 2d 456, 464 (S.D.N.Y. 2010)(stating that a failure to conform to the applicable standard of conduct during discovery is “negligent even if it results from a pure heart and an empty head”) abrogated on other grounds by Chin v. Port Auth., 685 F.3d 135 (2d Cir. 2012). Thus, MPM’s conduct constitutes at least ordinary negligence. UCC argues that MPM’s conduct “constitutes gross negligence at a minimum, and likely willfulness.” (Dkt. No. 115, p. 19). Gross negligence is “a failure to exercise even that care which a careless person would use.” Pension Comm., 685 F. Supp. 2d at 464 (citing Prosser & Keeton on Torts § 34). Gross negligence “differs from ordinary negligence only in degree, not in kind.” Id. (citing Prosser & Keeton on Torts § 34). Willfulness “requires ‘that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.’ ” Id. (quoting Prosser & Keeton on Torts § 34). “A failure to preserve evidence resulting in the loss or destruction of relevant information is surely negligent, and, depending on the circumstances, may be grossly negligent or willful.” Id. (footnotes omitted). MPM’s conduct does not rise to the level of gross negligence or willfulness. While MPM undoubtedly had a duty to preserve evidence on Heintzman’s hard drive, and destroyed the hard drive, it also made a reasonably diligent effort to comply with its discovery obligations by issuing a litigation hold notice, and working with key employees to identify and locate relevant documents. See In re Pfizer Inc. Securities Litig., 288 F.R.D. 297, 317 (S.D.N.Y. 2013) (concluding that Pfizer’s conduct was “at most, negligent” where it complied with discovery obligations by issuing a litigation hold notice, identifying “key players,” and producing numerous documents, even though its litigation hold did not cover all potentially relevant databases); Adorno v. Port Auth. of N.Y. & N.J., 258 F.R.D. 217, 228 (S.D.N.Y. 2009) (finding that the defendant’s conduct was “at worst negligent” where the plaintiff had not “shown a wholesale failure ... to put in place a ‘litigation hold’ or otherwise communicate document preservation or destruction policies to its employees, such that a finding of gross negligence by defendant would be appropriate”); cf. Sekisui Am. Corp. v. Hart, 945 F. Supp. 2d 494, 507-508 (S.D.N.Y. 2013) (finding gross negligence where the plaintiff did not issue a litigation hold until fifteen months after sending its notice of claim to the defendants, and then took another six months to notify its IT vendor of its duty to preserve documents); Zubulake IV, 220 F.R.D. at 220 (holding that destruction of evidence was “grossly negligent, if not reckless” where the defendant “failed to include [evidence from a key employee] in its preservation directive”); Dataflow, Inc. v. Peerless Ins. Co., No. 3:11-CV-1127 (LEK/DEP), 2013 WL 6992130, at *7, 2013 U.S. Dist. LEXIS 183398 (N.D.N.Y. June 6, 2013) report recommendation adopted in pertinent part, 2014 WL 148685; 2014 U.S. Dist. LEXIS 3882 (N.D.N.Y. Jan. 13, 2014) (finding gross negligence where “[t]he record [was] devoid of any evidence ... that a litigation hold was implemented to insure the preservation of relevant and potentially discoverable evidence pertaining to plaintiff’s claim at any time, including once litigation was reasonably anticipated” and where the deletion of evidence “was in direct violation of” the defendant’s own record retention policy). C. Relevance *7 In order to succeed on its motion, UCC must establish that the destroyed evidence is relevant. Residential Funding Corp., 306 F.3d at 108. In the context of a spoliation motion, relevance means something more than being sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence. “Rather, the party seeking an adverse inference must adduce sufficient evidence from which a reasonable trier of fact could infer that ‘the destroyed [or unavailable] evidence would have been of the nature alleged by the party affected by its destruction.’ ” Id., at 109 (quoting Kronisch, 150 F.3d at 127). Further: It is not enough for the innocent party to show that the destroyed evidence would have been responsive to a document request. The innocent party must also show that the evidence would have been helpful in proving its claims or defenses—i.e., that the innocent party is prejudiced without that evidence. Proof of relevance does not necessarily equal proof of prejudice. Pension Comm., 685 F. Supp. 2d at 467; see also Byrnie., 243 F. 3d at 108 (“The burden falls on the ‘prejudiced party’ to produce ‘some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files.’ ”) (quoting Kronisch, 150 F.3d at 127); Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 431 (S.D.N.Y. 2004) (“Zubulake V”) (“In the context of a request for an adverse inference instruction, the concept of ‘relevance’ encompasses not only the ordinary meaning of the term, but also that the destroyed evidence would have been favorable to the movant.”) (footnotes omitted).[7] UCC seeks an adverse inference that would essentially bolster Heintzman’s deposition testimony that there was a policy at the Site of full disclosure to prospective purchasers. (See Dkt No. 115, p. 24; Dkt. No. 83, p. 2). UCC seeks an inference at trial establishing, inter alia, that: “the GE entities were provided with, or upon request would have been provided with by Crompton, all then-existing documents from the files of the Sistersville Site that MPM has produced in this action,” and MPM “does not dispute any statements by Dennis Heintzman” in his deposition regarding the documents that were made available. (Dkt. No. 83). UCC argues that it has met its burden: [b]ased on (a) the varying accounts of the witnesses involved in the due diligence as to what information they recall being disclosed, (b) the existence of documents demonstrating that PCB use and potential disposal was in fact disclosed during the 2003 due diligence, and (c) the existence of emails showing that Mr. Heintzman had electronic documents relating to the 2003 due diligence in his possession as late as 2009. (Dkt. No. 115, pp. 24-25). However, neither the fact that witnesses have varying “present-day” recollections of the 2003 due diligence, nor the documented disclosures in 2003 constitute evidence that Heintzman’s hard drive had documents which would support his deposition testimony. Further, the fact that Heintzman had some electronic documents relating to the 2003 diligence in 2009 is irrelevant, as UCC has not asserted that MPM failed to produce the documents that Heintzman had on his computer and sent by email in 2009 (see id., p. 17; see also Dkt. No. 83-7, p. 2), indicating that MPM produced all of the relevant documents that were in Heintzman’s possession. *8 UCC’s claim that Heintzman’s hard drive contained as-yet-unproduced documents regarding the due diligence for the 2003 sale transaction, which would be helpful to UCC by corroborating Heintzman’s testimony, is too speculative to support an adverse inference. SeePension Comm., 685 F. Supp. 2d at 479 (“Unless [the moving party] can show through extrinsic evidence that the loss of the documents has prejudiced their ability to defend the case, then a lesser sanction than a spoliation charge is sufficient to address any lapse in the discovery efforts of the negligent plaintiffs.”); see also Zubulake IV, 220 F.R.D. at 220 (“[T]he adverse inference instruction is an extreme sanction and should not be given lightly.”). Cf. Wandering Dago Inc. v. N.Y. State Office of Gen. Servs., No. 1:13-CV-1053 MAD, 2015 WL 3453321, at *13, 2015 U.S. Dist. LEXIS 69375 (N.D.N.Y. May 29, 2015). (“[W]here the destroyed evidence is of limited or marginal relevance, an adverse inference instruction is inappropriate.”) (citing Chin, 685 F.3d at 162; Mahar v. U.S. Xpress Enters., Inc., 668 F. Supp. 2d 95 (N.D.N.Y. 2010)). “While requiring the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the party seeking relief has some obligation to make a showing of relevance and eventually prejudice, lest litigation become a ‘gotcha’ game rather than a full and fair opportunity to air the merits of a dispute.” Id. at 468. See also In re Pfizer Inc. Securities Litig., 288 F.R.D. 297, 321 (S.D.N.Y. 2013)(holding that the plaintiffs did not establish relevance as to documents contained in certain “eRooms” when they did not explain what specific documents were located in the eRooms or how they would have been helpful to the plaintiffs' case, and where the documents in question would likely have been found elsewhere); Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 179 (E.D.N.Y. 2009) (holding that the plaintiff did not establish relevance of destroyed emails when she produced “nothing, aside from speculation, as support for her claim that the destroyed emails would have” supported her case); Treppel v. Biovail Corp., 249 F.R.D. 111, 123 (S.D.N.Y. 2008) (holding that the plaintiff failed to establish relevance where he was “unable to demonstrate that any single document, or even any type of document, that was destroyed would have been favorable to him”). Because MPM’s conduct was only ordinarily negligent, and because UCC has not established that the destroyed hard drive would have been helpful to its case, UCC has not satisfied the relevance requirement. D. Monetary Sanctions “For less severe sanctions—such as fines and cost-shifting—the inquiry focuses more on the conduct of the spoliating party than on whether documents were lost, and, if so, whether those documents were relevant and resulted in prejudice to the innocent party.” Pension Comm., 685 F. Supp. 2d at 467. However, “a district court has broad discretion in crafting a proper sanction for spoliation.” Residential Funding Corp., 306 F.3d at 103. “The determination of an appropriate sanction for spoliation, if any, is confined to the sound discretion of the trial judge, and is assessed on a case-by-case basis.” Fujitsu Ltd., 247 F.3d at 436. The Court declines to impose monetary sanctions. While MPM negligently failed to comply with its discovery obligations, MPM appears to have made a good faith effort to gather relevant documents, including by issuing a litigation hold notice to Heintzman and others, and by enlisting Heintzman’s help in locating relevant documents. Sanctions are therefore not warranted. See In re Pfizer Inc. Securities Litig., 288 F.R.D. 297, 316 (S.D.N.Y. 2013) (“[A] court should never impose spoliation sanctions of any sort unless there has been a showing—inferential or otherwise—that the movant has suffered prejudice.”) (quoting GenOn Mid–Atlantic, LLC v. Stone & Webster, Inc., 282 F.R.D. 346, 353 (S.D.N.Y. 2012)); Ramadhan v. Onondaga Cnty., No. 5:10-CV-103 (MAD), 2012 WL 1900198, at *2, 2012 U.S. Dist. LEXIS 72414 (N.D.N.Y. May 24, 2012) (same). III. CONCLUSION *9 WHEREFORE, for the foregoing reasons, it is hereby ORDERED that Defendant’s request for sanctions (Dkt. No. 83) is DENIED. IT IS SO ORDERED. Footnotes [1] UCC originally requested an adverse inference instruction. (Dkt. No. 83, pp. 4-5). After the parties stipulated to a nonjury trial, (Dkt. No. 110), UCC recharacterized its request as one for an “order deeming the facts specified in the requested instruction to be established.” (Dkt. No. 115, pp. 12-13). The Court construes UCC’s request as one for an adverse inference against MPM. [2] General Electric Company (“GE”) purchased the property from Crompton. (Dkt. No. 89-1, p. 4). GE transferred the real property associated with the Site to its affiliate, GE Silicones WV, L.L.C., on July 31, 2003. (Id., p. 5). GE Silicones WV, L.L.C. merged with GE Silicones, LLC (“GE Silicones”) on August 13, 2004. (Id.). “On September 14, 2006, Nautilus Holdings Acquisition Corporation (‘Nautilus’) bought the parent company of GE Silicones, making GE Silicones a wholly owned subsidiary of a Nautilus-owned company. Subsequently, GE Silicones was renamed MPM Silicones, LLC, the plaintiff in this case.” (Id., pp. 5-6). [3] Klarman submitted a declaration confirming that he worked with Heintzman to collect relevant documents in 2009 and 2010, and that in Summer 2010, “all of the potentially relevant records in the environmental, health, and safety department were reviewed, as were documents at a number of other locations.” (Dkt. No. 102-2, p. 3). Mark Leskowicz, an Engineering Project Manager and formerly the Environmental Health and Safety Site Manager for the site, submitted a declaration stating: In 2012 when Mr. Heintzman left MPM, I understood that all of the documents in his possession relating to PCBs at the Site, whether hard copies or copies on his hard drive, had been produced to counsel through the process described above. That this understanding was correct was confirmed in [a] May 8, 2015 [telephone] call when Mr. Heintzman told me that he believed he had provided all of the documents he had which related to PCBs in connection with MPM’s search for documents in the 2010 time period. (Dkt. No. 102-1, p. 4). At oral argument, counsel for MPM explained that the litigation hold was imposed in 2010, before this lawsuit was filed, when MPM realized UCC’s “role in the PCBs we found,” and collected all of the relevant documents to voluntarily produce them in an attempt to avoid litigation. (Dkt. No. 131, p. 150). [4] On October 22, 2013, MPM’s corporate representative, Kristen Smith, testified at a deposition under Fed. R. Civ. P. 30(b)(6)that MPM searched the hard drives of only two of its current employees – Mark Leskowicz and Steve Klarman. (Dkt. No. 83-1, pp. 4-5; see also Dkt. No. 83, p. 1). At oral argument, counsel for MPM acknowledged that MPM did not ever look at Heintzman’s hard drive; MPM asked Heitzman to do that. (Dkt. No. 131, pp. 151, 155-56). [5] Heintzman’s hard drive was replaced at least once after GE acquired the Site in 2003, at which point Heintzman “was given oversight responsibilities ‘for Americas’ and spent only about 30% of his time working on Site-related matters.” (Dkt. No. 102, pp. 11, 16). UCC argues that Heintzman’s hard drive likely contained relevant documents at the time MPM wiped it, noting that “[b]ased on correspondence sent as late as 2009, Mr. Heintzman kept documents relevant to this case electronically, including environmental due diligence-related documents from 2004.” (Dkt. No. 115, p. 10). [6] The Court will address the parties' summary judgment motions (Dkt. Nos. 76, 77) in a separate Memorandum-Decision and Order, to be issued at a later date. [7] A finding of bad faith or gross negligence may support an inference that the destroyed evidence was harmful to the destroying party. When there is evidence that one party destroyed “potential evidence (or otherwise rendered if unavailable) in bad faith or through gross negligence (satisfying the “culpable state of mind” factor), that same evidence of the opponent’s state of mind will frequently also be sufficient to permit a jury to conclude that the missing evidence is favorable to the party (satisfying the ‘relevance’ factor.”) Residential Funding Corp., 306 F.3d at 109. In this case, the Court has not found bad faith or gross negligence.