Galgano v. County of Putnam, New York

Background

The individual county defendants moved under Federal Rule of Civil Procedure 37(e) for sanctions based on alleged intentional spoliation of evidence. Spoliation means destroying, significantly altering, or failing to preserve evidence that should have been kept for reasonably foreseeable litigation. The defendants alleged that Galgano used three additional cellular numbers between July and December 2014, discarded the associated phones before or shortly after this lawsuit began, and concealed the numbers for nearly two and a half years.

The underlying lawsuit includes claims under 42 U.S.C. § 1983 concerning alleged unlawful electronic surveillance, searches and seizures, malicious prosecution, due process violations, retaliation, supervisory liability, and conspiracy, along with several New York state-law claims. The opinion states that Galgano served a notice of claim on September 30, 2014, and commenced this action on May 13, 2016.

Preservation duty and disclosure history

The court agreed that Galgano’s duty to preserve evidence arose on October 1, 2014, when the notice of claim was served. But it rejected the defendants’ argument that this duty required Galgano to preserve information on phones he acquired after July 2, 2014. The court explained that Galgano’s claims and the defenses to them centered on the defendants’ conduct and information known to them before the July 2 searches and seizures. Because the later-acquired phones did not concern relevant information for the foreseeable litigation, the court found no duty to preserve the information on those phones.

The court agreed that Galgano had a duty to provide accurate information about the cellular numbers he had used. It found that he failed to do so when responding to an information exchange in June 2018. Galgano later supplemented and corrected his discovery response in January 2021, identifying three additional numbers.

The defendants subpoenaed AT&T in April 2021. AT&T produced incoming and outgoing call records, but the defendants could not obtain text-message or voicemail information. The defendants attributed this loss to the delay in learning about the additional numbers. At a hearing, however, their counsel said an AT&T representative had estimated that the company preserved such information for only two to three years. The court stated that, even assuming that estimate was accurate, the defendants could not show that the 2018 disclosure delay caused the loss of the 2014 text-message or voicemail information, because it was already too late to obtain those records by June 2018.

Rulings

Rule 37(e) permits measures to address prejudice when electronically stored information that should have been preserved is lost and cannot be restored or replaced. More severe sanctions require a finding that the party acted with the intent to deprive another party of the information’s use in the litigation. The court held that the defendants failed to establish prejudice and therefore had no basis for sanctions. It denied the individual county defendants’ motion for sanctions based on alleged intentional spoliation.

Galgano also sought sanctions against the individual county defendants under Rule 11, arguing that their motion was frivolous. The court denied that cross-motion. Although the court found that Galgano’s failure to preserve the phones or initially disclose the additional numbers was not sanctionable spoliation, it stated that the events leading to the defendants’ discovery of the numbers reasonably raised the possibility of spoliation. The Clerk was directed to terminate the pending motion.