Carmody v. New York University

Background

Plaintiff Kristin A. Carmody’s employment with Defendant New York University was terminated on December 6, 2020. After Plaintiff sent NYU a demand letter in April 2021, her counsel included a litigation hold directing Defendants to preserve relevant documents, including emails and text messages. The hold identified Catherine Jamin and Christopher Caspers as material witnesses, but NYU’s written preservation instructions were not sent to them. Defense counsel later told Jamin orally about her preservation obligation, but the record did not show that Caspers received a litigation hold.

During discovery, Plaintiff produced more than 1,000 pages of text messages, while Defendants initially produced none. Depositions later revealed that certain Defendants had communicated by text about work-related matters. Defendants made supplemental productions after fact discovery closed. Text messages from Femia, Jamin, and Caspers during the critical period from November 30 through December 6, 2020, were unavailable. Femia had manually deleted his messages before receiving the April 2021 litigation hold. Caspers’s phone automatically deleted messages after 30 days, and Jamin’s phone automatically deleted them after one year.

Attorneys’ Fees

The court considered Federal Rule of Civil Procedure 37, which governs sanctions and expenses for discovery violations. It found that the mandatory fee sanction under Rule 37(a)(5)(A) did not fully apply because Defendants’ conduct was substantially justified in some respects. Defense counsel had instructed Defendants to search their phones manually, reviewed screenshots for responsiveness, and produced additional messages shortly after discovering them. The court also found that Plaintiff had not shown that Defendants’ discovery statements were misrepresentations.

Nevertheless, the court concluded that some fee award was appropriate. The April 2021 litigation hold identified Jamin as a material witness, but Defendants represented that she was not informed of her preservation obligation until November 18, 2021. The court found that delay unreasonable. It also found that Defendants unnecessarily prolonged the dispute despite evidence that additional responsive messages existed. The court therefore ordered reimbursement of 50% of the fees and costs related to Plaintiff’s efforts to compel production of responsive text messages, including the specified pre-motion letter, adverse-inference motion, and motion to compel.

Preservation of Jamin’s Messages

The court held that the duty to preserve evidence arose in April 2021, when Plaintiff’s litigation hold put Defendants on notice of reasonably foreseeable litigation. The court rejected Plaintiff’s argument that the duty arose in December 2020 based only on the belief of Sanchez and Francois that Plaintiff had contacted or retained a lawyer. The court found that Defendants were not on notice to preserve Caspers’s and Femia’s messages before those messages were deleted, but were on notice to preserve Jamin’s messages for seven months before their deletion.

The court found that Defendants failed to take reasonable steps to preserve Jamin’s messages. The record did not show that Jamin was told to suspend automatic deletion or that counsel investigated whether her phone automatically deleted information. The court found that this failure caused evidence to be destroyed and prejudiced Plaintiff.

Adverse Inference and Disposition

An adverse inference is an instruction allowing a jury to consider missing evidence as potentially unfavorable to the party responsible for its loss. The court found no sufficient basis to conclude that Defendants or defense counsel acted in bad faith or intended to deprive Plaintiff of the information. Because of that finding, the court denied Plaintiff’s request for leave to file a renewed motion seeking a mandatory adverse inference, ruling that such a motion would be futile on the current record.

The court separately ordered a permissive adverse inference regarding Jamin’s text messages. At trial, the jury must be told that the messages are unavailable because Defendants failed to preserve evidence, but the jury may, without being required to, assume that the messages contained information adverse to Defendants’ interests. The parties may argue about the relevance of the deleted messages and what inferences should be drawn from their absence. The court granted Plaintiff’s motion for attorneys’ fees in part, granted the permissive adverse inference, and denied leave to file a renewed motion for a mandatory adverse inference.