HASNA JALAL, Plaintiff, v. MARY LOU SHANAHAN, and CUT RIGHT LANDSCAPING & CONSRUCTION, Defendants 16 CV 281 (CBA)(LB) United States District Court, E.D. New York Filed December 01, 2017 Counsel Edward James Mullins, Edward J. Mullins III, Esq. LLC, Bayonne, NJ, Nicholas M. Moccia, Law Office Of Nicholas M. Moccia, P.C., Staten Island, NY, for Plaintiff. Michael Vincent Gervasi, Russo Scamardella & D'Amato, Staten Island, NY, for Defendants. Bloom, Lois, United States Magistrate Judge ORDER *1 Plaintiff, Hasna Jalal, moves this Court under Federal Rule of Civil Procedure 37 for sanctions against defendants for failing to preserve electronically stored information (“ESI”), specifically text messages and emails. ECF No. 31. Plaintiff maintains that defendant Shanahan destroyed screenshots of text messages sent between them, as well as emails and text messages sent between defendant and plaintiff’s estranged ex-husband, David Nasser, in violation of her discovery obligation to preserve ESI in this action. Plaintiff seeks sanctions in the form of a Court Order precluding defendants from (1) calling non-party David Nasser as a witness at trial, (2) introducing communications between defendant and Nasser and (3) any other documentary evidence from Nasser, including testimony from his neighbor, Lydia Lopez. Plaintiff also seeks reasonable attorney’s fees and costs for the instant sanctions motion. The Court held a telephone conference on November 9, 2017. For the reasons that follow, plaintiff’s motion is denied. BACKGROUND Plaintiff commenced this action on January 20, 2016. In her complaint, plaintiff alleges violations of the Fair Housing Act, 42 U.S.C. § 3604(b). Specifically, plaintiff alleges that her former landlord, defendant Mary Lou Shanahan, discriminated against her on the basis of her religion. ECF No. 1. Plaintiff also brings state law claims against defendants for loss of property as the result of an illegal lockout. After nineteen months, discovery in this matter closed on August 15, 2017. See Order dated August 29, 2017. On August 29, 2017, the Court held a status conference to address plaintiff’s motion to compel. Id.; ECF No. 28. At that time, I ordered defendants to produce “the text and email communications between defendant Shanahan and David Nasser between September 1, 2015 and January 1, 2016, as well as the text and email communications between plaintiff and defendant Shanahan from the same period.” On October 16, 2017, defendants’ counsel produced (1) defendant Shanahan’s Sprint records for the September 1, 2015 to January 1, 2016 period (“relevant period”), (2) a letter from Sprint responding to plaintiff’s 2016 subpoena for defendant Shanahan’s text message and email records,[1] (3) a spreadsheet of 266 text messages between defendant Shanahan and plaintiff in chronological order from August 4, 2015 and September 22, 2015, and (4) a spreadsheet of 297 text messages between defendant Shanahan and David Nasser in chronological order from October 15, 2015 through December 31, 2015. ECF No. 31, Page 1. Plaintiff filed the instant motion for sanctions on October 29, 2017. ECF No. 31. Plaintiff objects to defendants’ October 16, 2017 production on the ground that the format in which the text messages were produced lends itself to alteration and/or fabrication. Specifically, plaintiff objects that the text messages were produced in the form of a spreadsheet rather than as individual screenshots from defendant Shanahan’s cell phone. Plaintiff alleges that when compared to the subpoenaed Sprint records, there are text messages that are missing between both defendant and plaintiff, and defendant and Nasser. As set forth in her affidavit, defendant Shanahan was advised by her criminal defense attorney, before this civil litigation commenced, to preserve all text messages with plaintiff and with David Nasser. See Defendant Shanahan’s Affidavit, ECF No. 31-10, ¶ 5. To preserve the text messages with plaintiff and Nasser, defendant purchased an application called Export SMS. Id. Defendant states, “[t]he application took all the text messages from plaintiff and Mr. Nasser from my phone and organized them into the tables that were already produced. This is how I preserved the text messages content.” Id. at ¶ 6. *2 Plaintiff alleges that she is prejudiced by the format of the text messages produced because the text messages may have been altered or certain texts may have been omitted.[2] STANDARD The Court may impose sanctions under Rule 37(b) for a party’s failure to comply with discovery orders. Fed. R. Civ. P. 37(b). However, “[e]ven in the absence of a discovery order, a court may impose sanctions on a party for misconduct in discovery under its inherent power to manage its own affairs.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106 (2d Cir. 2002) (citing DLC Mgt. Corp. v. Town of Hyde Park, 163 F.3d 124, 135-36 (2d Cir. 1998)). “Whether exercising its inherent power, or acting pursuant to Rule 37, a district court has wide discretion in sanctioning a party for discovery abuses... and for the spoliation of evidence.” Reilly v. Natwest Mkts Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999) (internal citations omitted). “As of December 1, 2015, the new Fed. R. Civ. P. 37(e) governs a party’s failure to preserve electronically stored information.” Best Payphones, Inc. v. City of N.Y., No. 01-CV-3924 (JG)(VMS), 2016 WL 792396, at *3 (E.D.N.Y Feb. 26, 2016) (court may issue an adverse inference instruction with regard to tangible evidence on a finding of negligence, but may not issue an adverse inference with regard to electronic evidence without finding intent to deprive); see also Mazzei v. The Money Store, 656 Fed. Appx. 558, 560 (2d Cir. 2016) (summary order). Rule 37(e) provides a remedy where ESI was either intentionally destroyed, or negligently destroyed where the destruction nevertheless prejudices plaintiff.[3] Under the rule, a court may only issue an adverse inference after finding that a party acted with intent to deprive another party of the use of electronic information in litigation. Fed. R. Civ. P. 37(e)(2). Whereas, if no intent to deprive is found, but the moving party was prejudiced by the destruction, a court may impose less severe sanctions that place the prejudiced party in the position that it would have been in had the destruction not occurred. Fed. R. Civ. P. 37(e)(1). *3 “The degree of culpability bears on the severity of sanctions.” Best Payphones, 01-CV-3924 (JG)(VMS), 2016 WL 792396 (E.D.N.Y. Feb. 26, 2016) (internal citations omitted). Here, plaintiff seeks a more severe sanction than that which is provided for under Rule 37(e): plaintiff seeks to preclude defendants from offering any information from plaintiff’s estranged ex-husband, David Nasser, including Nasser’s testimony.[4] The sanction of precluding witness testimony is not discussed in Rule 37(e). Rather, preclusion is more commonly imposed, though rarely, where a party fails to provide information or identify witnesses as required by Rule 26(a) or (e). Even under Rule 26, “preclusion is an ‘extreme sanction’ and, before ordering preclusion, a court must consider less extreme” sanctions. Charles v. County of Nassau, 116 F.Supp.3d 107, 121 (E.D.N.Y. 2015) (internal citations omitted). Under Rule 37(e)(1), “upon a finding of prejudice to another party from [negligent] loss of information, [the Court] may order measures no greater than necessary to cure the prejudice.” In the advisory committee’s notes to the 2015 amendment, the committee cautions, “[t]he better rule for the negligent or grossly negligent loss of [ESI] is to preserve a broad range of measures to cure prejudice caused by its loss, but to limit the most severe measures to instances of intentional loss or destruction.” Fed. R. Civ. P. 37(e). Thus, the amended rule differentiates between loss and destruction caused by the “failure to take reasonable steps to preserve it,” and that which is caused by “the intent to deprive another party of the information’s use,” and ascribes remedies accordingly, saving the most severe remedies for the most severe discovery abuses. Id. DISCUSSION Plaintiff alleges that discrepancies between the list of communications reflected in defendant’s Sprint records compared to the spreadsheet of text messages that defendant produced demonstrates that defendant Shanahan withheld certain texts. Plaintiff provides a “List of Exhibits” (ECF No. 31-1), in which she details defendant’s alleged omissions: [B] Text messages with Nasser or Jalal in the subpoenaed records that are not listed in Defendant Shanahan’s compilation are identified as “missing.” There are also numerous text message[s] listed in the Defendants[’] compilation that were not represented in the subpoenaed records. [D] There are at least 20 messages in the subpoenaed records from Sprint that are missing in the Defendants’ compilation .... [E] Only 101 of the 297 text messages between Defendant Shanahan via (917) 623-0882 and David Nasser via (718) 490–7818 from September 1, 2015 to January 1, 2016, are listed in the records subpoenaed from Sprint. Moreover, there are text message communications listed in the subpoenaed records that are not listed in Defendant Shanahan’s spreadsheet compilation. In addition, the subpoenaed records from Sprint show that there are at least six missing text message communications between Defendant Shanahan and Nasser that are not listed in the spre[a]dsheet compilation .... The Court asked defendants’ counsel to explain the discrepancies between the spreadsheets and Sprint records during the November 9, 2017 telephone conference. Defendants’ counsel stated, “I did have a conversation for what it’s worth, with Sprint in light of your Honor’s previous order and Sprint says that, you know, the messages don’t come through – don’t necessarily come through directly. It has something to do with ... a relay. So one text message can show up on the subpoenaed records two or three times because it gets relayed. It doesn’t – it’s not a one for one correlation on the subpoenaed records.” See Transcript 17:9-18.[5] Thus, counsel explained the inconsistencies between the Sprint records and defendants’ spreadsheets. The “relay” would address both categories that plaintiff identifies: those that appear in the Sprint records (marked only by date and time) that do not appear in defendant Shanahan’s spreadsheet, and those that defendant Shanahan produced in the spreadsheet that are not reflected in the Sprint records. Plaintiff fails to demonstrate that she was actually deprived of any text messages, let alone that defendant intended to deprive plaintiff of ESI. As an initial observation, the Court notes that plaintiff’s annotations demonstrate that defendants turned over the content of text messages that are not reflected in the Sprint records. Rather than supporting plaintiff’s belief that defendants have omitted or withheld text messages, defendants’ production of text messages that are not reflected in the Sprint records suggests defendants’ counsel’s explanation regarding the relay of text messages is credible. The Sprint records may not correspond to defendants’ production of text messages because Sprint’s records do not always reflect the correct date and time the messages were sent and received. Sprint’s record keeping method is entirely outside of the defendants’ control. As the Sprint records may not reflect the date and time each message was sent and received, the discrepancies between Sprint’s records and defendants’ production do not support a finding that defendant Shanahan altered the records. *4 Furthermore, defendant Shanahan’s affidavit does not amount to an admission that she intentionally destroyed the text messages, as plaintiff contends. Defendant admits that she purchased an application for her phone, Export SMS, which replicated the text messages that she sent and received from both plaintiff and Nasser and compiled the text messages in the spreadsheet format that she produced to plaintiff. Plaintiff maintains that the format in which the text messages were produced leaves them susceptible to alteration, but plaintiff does not provide the Court with any evidence that they were altered.[6] Furthermore, defendants’ counsel sent plaintiff’s counsel a few screenshots of the same text messages that had been preserved by Export SMS.[7] When asked whether those were altered, plaintiff’s counsel reported that “what it was that we saw appears to be accurately preserved.”[8] See Transcript, 5:11-12. Plaintiff has not demonstrated that defendants altered or withheld text messages. Therefore, there is no basis to sanction defendant Shanahan. See CAT3, LLC v. Black Lineage, Inc., 164 F.Supp.3d 488, 497 (S.D.N.Y. 2016) (“Referring to this language in Rule 37(e), the Advisory Committee noticed that ‘[b]ecause electronically stored information often exists in multiple locations, loss from one source may often be harmless when substitute information can be found elsewhere.’ ... Thus, relief would not be available under the amended rule where, for example, emails are lost when one custodian deletes them from his mailbox, but remain available in the records of another custodian.” (citation omitted)); see also Alter v. Rocky Point School District, No. 13-CV-1100(JS)(AKT), 2014 WL 4966119, at *11 (E.D.N.Y. Sept. 30, 2014) (Despite failing to provide discovery “in native format” ... “the Court finds that defendants made an attempt to comply with their discovery obligations once this lawsuit was initiated.”). CONCLUSION *5 Accordingly, plaintiff’s motion for sanctions is denied. Discovery remains closed. SO ORDERED. Footnotes [1] The letter states that Sprint does not retain the content of text message or emails sent or received on a Sprint phone. [2] Plaintiff states that defendants have not produced any emails between defendant Shanahan and Nasser. Defendant maintains that all email communications between plaintiff and defendant have been produced, and defendant never exchanged any emails with Nasser. As there is no evidence regarding defendant’s use of email, the instant Order focuses solely on text messages. [3] Rule 37(e) of the Federal Rules of Civil Procedure went into effect on December 1, 2015, and provides: “Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of the 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: (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. [4] Plaintiff also seek to preclude defendants from calling David Nasser’s neighbor, Lydia Lopez, from testifying at trial. However, plaintiff provides no information to explain Lopez’s connection to this case or why defendant should be precluded from offering Ms. Lopez’s testimony. [5] All references are to the November 9, 2017 telephone conference. ECF No. 35. [6] During the November 9, 2017 telephone conference, the Court asked plaintiff’s counsel why he could not compare the content of the messages produced with those preserved on plaintiff’s cell phone, as half of the text messages at issue are between defendant Shanahan and plaintiff. Plaintiff’s counsel stated that defendant took plaintiff’s phone sometime on or after September 22, 2015, and it was never returned to plaintiff. When asked whether plaintiff filed a police report or contacted the police regarding the alleged theft of plaintiff’s cell phone, counsel stated that he did not know if there was a police report, he only knows that plaintiff does not have her phone. Transcript 8:11-12. Plaintiff’s counsel suggested that the fact that “the phone communications between my client and Ms. Shanahan cutoff after the date that the phone was stolen” may serve as evidence that the phone was stolen and never returned to plaintiff. Transcript 8: 13-16. As noted during the conference, there are a number of possible explanations for why there are no communications between plaintiff and defendant after a certain date, including the possibility that plaintiff dropped her phone or the parties decided that texting each other was no longer a good idea given the breakdown in their relationship. The Court cannot credit plaintiff’s unsubstantiated allegations. Furthermore, it is not credible to conclude that defendant stole plaintiff’s phone and plaintiff took no legal action. The record reflects that plaintiff called the police and had defendant arrested following the allegedly illegal lockout. Plaintiff also filed complaints against defendant in criminal and civil court shortly after the incidents underlying this lawsuit. Thus, plaintiff’s allegation that defendant stole her cell phone, but plaintiff did nothing about it strains credulity. [7] Defendants’ counsel states that he produced the only screenshots that exist. [8] Plaintiff’s counsel then went on to say that “the real prejudice that I am pointing to in this motion has more to do with the communications with Mr. Nasser which is why the relief that I am seeking focuses on him.” Transcript, 11:19-23. However, plaintiff’s counsel fails to provide any basis on which to conclude that defendants omitted or altered the text communications with Nasser.