Court Imposes Sanctions on Sexual Harassment Plaintiff Who Deleted Audio Recording

In Hsueh v. N.Y. State Dep’t of Fin. Servs., No. 15 CIV. 3401 (PAC), 2017 WL 1194706 (S.D.N.Y. Mar. 31, 2017), the court imposed spoliation sanctions on a sexual harassment plaintiff arising from┬áher deletion of a digital recording of a conversation with an HR representative.

Initially, the court held that, while the recording constitutes “electronically stored information” (or ESI) within the meaning of Federal Rule of Civil Procedure 37(e), that rule did not apply in this case, which involved the intentional, as opposed to inadvertent, destruction of evidence.

The court continued:

Because Rule 37(e) does not apply, the Court may rely on its inherent power to control litigation in imposing spoliation sanctions. A party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. If these elements are established, a district court may, at its discretion, grant an adverse inference jury instruction insofar as such a sanction would serve the threefold purpose of (1) deterring parties from destroying evidence; (2) placing the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and (3) restoring the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation.

The fact that plaintiff eventually produced a recording did not prevent sanctions from being imposed, since there was reason to believe that the recording that was actually produced was incomplete.

The court also concluded that plaintiff deleted the recording in bad faith. For example, while plaintiff asserted that she deleted the recording because she “could barely hear” it, that explanation was “seriously undermined by the fact that she agreed she could hear the recording when it was played during her second deposition.” The court concluded that plaintiff deleted the recording to prevent defendant from using it during the litigation.

The court ultimately imposed spoliation sanctions in the form of an adverse inference, as well as costs and attorney’s fees incurred in making the spoliation motion and conducting further discovery.

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