Marianne T. O'Toole v. The City of New York

Background

The defendants moved to prevent Officer Pedro Serrano from discussing at trial an adverse inference previously imposed because defendants failed to preserve his February 17, 2013 memo book. An adverse inference permits a factfinder to infer that lost or destroyed evidence would have supported the opposing party’s position.

The memo book was relevant to Serrano’s claims that Christopher McCormack retaliated against him for testifying in a lawsuit concerning allegedly unconstitutional and racially discriminatory stops and frisks. In an earlier ruling, the court found that defendants had a duty to preserve the memo book, that their failure to preserve it amounted to grossly negligent destruction of evidence, and that Serrano was prejudiced because the same evidence was unavailable from another source. The court imposed an inference that the memo book likely would have supported Serrano’s claims of adverse employment action and retaliation. That inference was later upheld on reconsideration and after objections before Chief Judge Laura Taylor Swain.

Defendants’ arguments

The defendants argued that the adverse inference should not apply to McCormack because the earlier spoliation request had referred to the City of New York, while Serrano’s remaining retaliation claim was proceeding against McCormack. They also argued that Serrano could no longer show prejudice because a later summary-judgment decision relied on his deposition testimony about McCormack’s alleged actions.

Plaintiffs argued that the earlier motion requested an inference against the defendants, plural, and that McCormack was the only defendant then facing Serrano’s retaliation claim. They also argued that the prejudice issue had already been considered and rejected in earlier rulings.

Court’s reasoning

The court treated the defendants’ filing as a motion for reconsideration under Federal Rule of Civil Procedure 60(b) and Local Civil Rule 6.3. Reconsideration is an exceptional remedy generally limited to overlooked controlling law or facts that could change the result; it is not a chance to repeat arguments previously rejected or present arguments that could have been made earlier.

The court rejected the notice argument. It explained that the earlier spoliation motion sought an adverse inference against the defendants, and the ruling stated that the inference supported Serrano’s claims. Because McCormack was the only defendant facing Serrano’s retaliation claim at that time, the court concluded that the inference applied to him. The court also noted that defendants’ counsel had represented McCormack throughout the case.

The court likewise rejected the argument that Serrano was no longer prejudiced. The court had already rejected the same argument based on photographs of parts of the memo book and Serrano’s deposition testimony. The later summary-judgment ruling’s reliance on Serrano’s testimony did not mean that the memo book itself would not have been valuable evidence at trial. The court found that the memo book’s breadth and frequency of entries meant that the photographs and testimony did not provide the same evidence.

Ruling

The court denied defendants’ motion. The adverse inference therefore remained in place for trial. The court also noted that, at an earlier hearing, it had denied plaintiffs’ request for sanctions without prejudice and set a briefing schedule for plaintiffs’ motion to amend. The clerk was directed to close the docket entries for the defendants’ motion and plaintiffs’ request to reserve judgment.