Xu v. The City of New York

Background

Yan Ping Xu, representing herself, sued the City of New York, identified in the caption as doing business as the New York City Department of Health and Mental Hygiene, and Brenda M. McIntyre. The opinion states that Xu alleged, among other things, unequal treatment and violations of procedural due process connected to her firing from a city research scientist position.

On December 24, 2019, Xu moved under Federal Rule of Civil Procedure 37 for sanctions based on alleged destruction or loss of evidence. She specifically requested an order striking all of defendants’ defenses. On January 13, 2020, Magistrate Judge Robert W. Lehrburger denied the motion. Xu then objected to that ruling.

Review of the Objections

Under Rule 72(a), a district judge must modify or set aside a magistrate judge’s ruling on a non-dispositive matter if the ruling is clearly erroneous or contrary to law. The court therefore reviewed Judge Lehrburger’s order for clear error.

Xu argued that defendants failed to preserve files from former supervisor Dennis J. King’s computer, including a January 2008 positive performance evaluation that Xu believed existed. She also argued that defendants failed to keep track of former employee Michael Hansen, whom the parties could not locate during discovery.

Computer Files and Electronically Stored Information

The court applied Rule 37(e), which governs sanctions for failing to preserve electronically stored information. If the loss of information prejudiced another party, the court may order measures no greater than necessary to address that harm. More severe measures—such as presuming the information was unfavorable, giving the jury that instruction, dismissing the action, or entering default judgment—require a finding that the party acted with the intent to deprive the other party of the information’s use in the litigation.

The court held that Xu had not shown enough prejudice to justify striking all of defendants’ defenses. Defendants disputed that the positive evaluation existed and argued that Xu had, at most, shown that King had discussed her positive performance. The court also agreed that striking all defenses would be disproportionately severe, regardless of whatever prejudice Xu suffered from the loss of information.

The court separately held that Xu had not shown an intent to deprive her of electronically stored information. It explained that negligence or gross negligence was not enough under the version of Rule 37(e) applicable to Xu’s request, which was filed after the rule’s 2015 amendments.

Former Employee

The court considered Rule 37(b), which allows discovery sanctions when a party fails to comply with a court order. It found no indication that defendants disobeyed such an order. The court had never ordered Hansen to appear for a deposition, and Xu had never requested one.

The court also noted defendants’ explanations concerning two amended interrogatories that might have required information from Hansen. Hansen’s supervisor answered one interrogatory. Defendants argued that the other interrogatory, which asked for Hansen’s opinion about Xu’s performance evaluation, was not relevant because Hansen was not Xu’s supervisor and did not complete the evaluation. The court concluded that the requested sanctions were not warranted.

Disposition

The court found no clear error in Judge Lehrburger’s ruling. It overruled Xu’s objections and affirmed the January 13, 2020 order denying her motion for sanctions. The order did not impose the requested sanctions.