Rothman v. City of New York

Background

Jeffrey Rothman sued The City of New York, Vincent Flores, Andrew Wunsch, Lawrence Byrne, and James O’Neill under the United States Constitution, the New York State Constitution, and New York common law. An earlier order dismissed most of his claims. The remaining case concerned whether Rothman could recover damages for the seizure of his pen, which was returned within minutes, and for papers allegedly thrown at him by Flores.

Rothman moved for sanctions based on the defendants’ failure to preserve security video and possibly audio recordings of the December 13, 2017 incident. The New York Police Department and the City maintained security footage for 30 days. Rothman sent a preservation letter on December 29, 2017. The opinion states that the letter was not received by the New York Police Department at the relevant location until January 10, 2018, and that it was processed on January 12, 2018, when the footage was scheduled to be destroyed. The defendants said the footage was destroyed during ordinary business operations under a pre-existing retention policy. They also attributed the failure to process the hand-delivered letter to an undetected delivery error.

Legal standard

The court applied Federal Rule of Civil Procedure 37(e), which governs lost electronically stored information. A party seeking the more serious sanctions—such as an adverse-inference instruction, an order preventing a party from presenting certain evidence, dismissal, or default judgment—must show that the opposing party acted with the intent to deprive it of the information’s use in the litigation. When there is prejudice but no intent to deprive, the court may order measures no greater than necessary to cure that prejudice.

The court also explained that a discovery-sanctions motion is ordinarily a non-dispositive pretrial matter. Because the court found that case-ending sanctions were not warranted, Magistrate Judge Wang concluded that she had authority to decide the motion.

Analysis

The court assumed for purposes of the motion that the defendants’ duty to preserve the recordings arose no later than January 12, 2018. It nevertheless found no evidence that the defendants acted with the required intent to deprive Rothman of evidence. The court therefore ruled that Rothman was not entitled to the sanctions available only when intent is shown, including an adverse-inference instruction, a preclusion order, or a default judgment.

The court also found that Rothman had not provided enough evidence to show that the lost recordings were relevant in the required sense. Rothman suggested that the video would show his pen being taken, whether his hand or wrist was grabbed, and whether the papers struck his face. But the court characterized these assertions as vague, noncommittal, and speculative. It noted that Rothman could not remember whether Wunsch grabbed his hand or arm and could not recall specifically where the papers made contact with his body.

The court further found that Rothman had not established meaningful prejudice. It reasoned that Rothman and the defendants remained available to testify, that the recordings were likely duplicative and at most useful for impeachment, and that the potential damages were very small. The court declined to expand the limited discovery already ordered because doing so would undermine a speedy and inexpensive resolution.

Disposition

Judge Ona T. Wang denied Rothman’s motion for sanctions. She also declined the discretionary sanctions requested under Rule 37(e)(1), including additional discovery, recovery costs, and fees, because Rothman had not shown sufficient relevance or prejudice and any sanctions would be disproportionate to the needs of the case. The parties were directed to provide a joint status letter by December 13, 2019.