Cite as: Pope v. County of Albany, 1:11-CV-00736, NYLJ 1202583840789, at *1 (NDNY, Decided January 7, 2013)

District Judge Lawrence E. Kahn

Decided: January 7, 2013






Presently before the Court in this voting-rights action is Plaintiffs' Appeal of a Memorandum-Decision and Order filed by the Honorable David R. Homer, U.S. Magistrate Judge,1 on July 31, 2012 denying Plaintiffs' Motion for discovery sanctions against Defendants County of Albany and the Albany County Board of Elections (collectively, "the County"). Dkt. Nos. 134 ("Motion"), 157 (the "July Order"), 159 ("Appeal"). For the reasons stated below, Plaintiffs' Appeal is denied, the July Order is affirmed, and Plaintiffs' request that an adverse-inference instruction be given to the fact-finder at trial is denied without prejudice to renew.


A. Redistricting of the Albany County Legislature

The Albany County Legislature consists of representatives elected every four years from 39




single-member districts. See Albany County Charter Art. 2, §§201, 206. Section 207 of the Albany County Charter requires the County Legislature to appoint a seven-member commission after each federal census taken in the County to "evaluate the existing County legislative districts for equity and representation in relation to population." This redistricting commission "shall review the population data and…make recommendations…in the form of a proposed local law as to changes in the boundaries of County Legislative districts." Id. §207. Under §207, which commands the commission to "consider…the equal protection clause[] of the fourteenth amendment of the United States Constitution," the commission must necessarily include in its recommendations the number of majority-minority districts it believes are justified by the population data.

As the Second Circuit has noted, "[t]he County's past redistricting efforts have routinely triggered litigation." Pope v. County of Albany, 687 F.3d 565, 567 (2d Cir. 2012).2 After the 1990 census, the County redistricting commission adopted a plan that provided for only one minority-majority district. Id. A challenge to that plan resulted in the County entering into a consent judgment that prevented the plan's implementation and provided instead for the establishment of three majority-minority districts. Id. (citing Consent J. & Decree, NAACP v. Albany Cnty., No. 91- CV-1288 (N.D.N.Y. filed Nov. 13, 1991)). The plan adopted by the commission after the 2000 census, which provided for three majority-minority districts, was also challenged in court. The court in that case enjoined implementation of the plan because it concluded that section 2 of the




Voting Rights Act ("VRA") of 1965 required the County to create a fourth majority-minority district. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 281 F. Supp. 2d 436 (N.D.N.Y. 2003); Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 289 F. Supp. 2d 269, 276 (N.D.N.Y. 2003).

After the 2010 census, on January 10, 2011, the County appointed a redistricting commission (the "Commission") to evaluate the new population data and recommend changes, if any, to the existing boundaries of the County Legislative districts. See Dkt. No. 136-1 ("2011 Redistricting Resolution"). The Commission was composed of Shawn Morse, as chair of the Commission, Joseph Rabito, Thomas Nardacci, Norma Chapman, Thomas Cotrofeld, Christine Benedict, and Peter Kermani. Id. Many of these individuals were asked to join the Commission because of their past experience with redistricting efforts either in Albany County or elsewhere. See Dkt. No. 136-7 ("McCoy Transcript"). Thomas Marcelle, attorney for the County in this action as well as counsel to the Legislative Minority, was also involved in the Commission and the current redistricting process. See Dkt. No. 136-12 ("Scarff's Minutes") (indicating that Marcelle attended the first, nonpublic meeting of the Commission); McCoy Tr. at 80:18-23; Dkt. No. 136-2 ("Merrill's Notes") ¶12. The County asserts that Marcelle was the Commission's legal advisor whose involvement was sought because of his knowledge of the legal challenges to past County redistricting efforts. Defendant's Memorandum of law in opposition to Plaintiff's Appeal of magistrate judge's Order dated July 31, 2012 (Dkt. No. 169) ("Def.'s Opp.") at 1; see also McCoy Tr. at 80:18-23; Merrill's Notes ¶12.

One of the Commission's first actions was to rehire John Merrill, a redistricting expert who had previously retired from County employment, to prepare a plan based on the new census




information. See generally McCoy Tr. at 91:11-16; Merrill's Notes. The Commission held public hearings to gather input from community members on Merrill's draft plans. See generally Scarff's Minutes. Thomas Scarff, secretary to the Commission, took notes that he later reduced to typed minutes on six public hearings and one private meeting of the Commission that occurred during March and April 2011.3 Several minority groups expressed concerns over Merrill's draft plans during the public hearings; they urged the Commission to establish a fifth majority-minority district in addition to the four called for in Merrill's draft plan. One group, the Arbor Hill Environmental Justice Corporation ("Arbor Hill"), through Aaron Mair,4 submitted a proposed redistricting plan to the Commission that would provide the desired fifth majority-minority district.

Despite the public's request for a fifth majority-minority district, Merrill's final plan provided for just four such districts, the same number as already existed in Albany County when the current redistricting process began. Merrill advised the Commission that the Arbor Hill plan's fifth majority-minority district was not in his opinion sufficiently compact and contiguous, therefore likely constituting racial gerrymandering. See Merrill's Notes ¶27. Accordingly, on May 19, 2011, the Commission adopted Merrill's final plan. The County Legislature in turn adopted the plan as




Local Law C on May 23, 2011. See Dkt. No. 100-1.

On June 29, 2011, Plaintiffs filed a Complaint challenging Local Law C for its failure to establish a fifth majority-minority district. Dkt. No. 1 ("Complaint"). They seek an order declaring the redistricting plan unlawful under section 2 of the VRA and requiring the County to adopt either the Arbor Hill plan or an alternative plan providing for a fifth majority-minority district. Id. at 11- 16. The County filed an Answer to the Complaint on July 26, 2011 denying that Local Law C violates the VRA and opposing adoption of a fifth majority-minority district. Dkt. No. 37 ("Answer"). Discovery, the course and conduct of which is now at issue here, followed.

B. Plaintiffs' Motion for Discovery Sanctions

On May 29, 2012, Plaintiffs filed a Motion seeking sanctions against the County for spoliation of evidence. See generally Mot. In their Motion, Plaintiffs allege several specific instances of the County's failure to preserve and intentional destruction of relevant evidence. First, Plaintiffs contend that the County violated its duty to preserve relevant evidence when Scarff intentionally destroyed his handwritten notes of the Commission's public hearings after reducing them to typed minutes. Plaintiff's Memorandum of law in support of their Motion for discovery sanctions (Dkt. No. 135) ("Pl.'s Mem.") at 5-6. According to Plaintiffs, those typed minutes do not contain all of the information in the handwritten notes, and the notes are "the only contemporaneous evidence of the Commission's knowledge and intent, as well as the circumstances surrounding the Commission's eventual decision not to create a fifth majority-minority district." Id. at 6.

Second, Plaintiffs contend that the County violated its preservation duty when Scarff intentionally threw away a list of citizens that had contacted Merrill with concerns over his redistricting plan. Id. That list, according to Plaintiffs, "could have provided…the names of




potential witnesses with information crucial to this lawsuit." Id.

Finally, Plaintiffs contend that the County violated its preservation duty when the outgoing County Executive administration conducted a "shredding party" on December 17, 2011, several months after this litigation began, that intentionally destroyed allegedly relevant documents, including the County Executive's file concerning the 2011 redistricting process.5 Id. at 10-11. Plaintiffs allege that this file "would have contained comments and analysis of Aaron Mair regarding redistricting, copies of the alternative redistricting plan Aaron Mair created, demographic information for Local Law C, and evidence of the County Executive's interactions with the minority community." Id. at 11.

As to when the County's duty to preserve relevant evidence arose, Plaintiffs make two distinct arguments. First, they argue that the County's duty to preserve arose when the County could reasonably have anticipated litigation, which at the earliest was when the redistricting process began but certainly not later than "April [or] May 2011, when members and representatives of Albany County's minority community had publicly stated their dissatisfaction with the redistricting process, and warned of lawsuits." Id. at 13-14. Second, they argue that the County was independently obligated by New York State's record-keeping law, codified at New York Arts and Cultural Affairs Law section 57-A, to preserve documents relevant to this action from the very beginning of the redistricting process. Id. at 15-16.

As to the state of mind with which the County destroyed relevant evidence, Plaintiffs argue: (1) that the County acted in bad faith because its document destruction was intentional and in




disregard of the two independent preservation duties discussed above; and (2) that if the destruction were not done in bad faith, then it was done with at least gross negligence, primarily because the County never issued a litigation hold but also because the County's counsel failed to adequately supervise the document collection process. Id. at 17-18. In either case, Plaintiffs argue that the destroyed documents' relevance can be presumed, although Plaintiffs also maintain that the nature of the documents demonstrates their relevance. Id. at 20-21.

Plaintiffs seek several sanctions against the County. Primarily, they seek an order that spoliation occurred and instructing any finder of fact to conclude that the destroyed documents would have been helpful to Plaintiffs' case and harmful to the County's "on the issue of whether the County adequately addressed minority concerns." Id. at 1-2. They also seek orders that: (1) the County produce County Comptroller Michael Conners and the County's responsible information technology officers for deposition; (2) a computer forensics expert of Plaintiffs' choosing be permitted to examine and extract all remaining relevant information from the County's computer systems; and (3) the Plaintiffs be reimbursed by the County for the costs of the forensics expert as well as all other reasonable costs and fees associated with the Motion. Id.

C. The Magistrate Judge's Opinion

Plaintiffs' Motion for discovery sanctions was referred to Judge Homer, who issued the July Order denying it.

At the outset, the July Order did not address when the County's preservation obligation arose because "[t]he County does not dispute that it was obliged to preserve documents relevant to this action." Id. at 4. Assuming, accordingly, that the County was under a duty to preserve the documents that Plaintiffs allege were destroyed, and that those documents were in fact destroyed,




the Order addresses whether the County acted with bad faith or gross negligence in destroying the documents and whether the destroyed documents were in fact relevant to Plaintiffs' claims. Id. at 4- 11.

Judge Homer found that the County acted neither in bad faith nor with gross negligence during the course of discovery. First, citing Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012), he rejected Plaintiffs' argument that the County's failure to issue a formal litigation hold was per se gross negligence and instead considered the litigation hold as a factor in the culpability analysis. July Order at 5. He therefore concluded that the County's responses to Plaintiffs' discovery demands, taken as a whole, were sufficient to show that the County had not acted inappropriately. Id. at 7.

Second, the July Order rejected Plaintiffs' arguments about the applicability of the New York State record-keeping law to a finding of bad faith or gross negligence, concluding that state law played no part in resolving the Motion. Id. at 5 n.3.

Next, the July Order addressed Plaintiffs' specific allegations of the County's bad faith or gross negligence. As to Scarff's destruction of his handwritten notes,6 Judge Homer held that

it is difficult to discern a culpable state of mind in the destruction of Scarff's notes. No credible motive appears from the record for their destruction, particularly where there existed minutes prepared from the notes, where others both from the County and the public were present at the meetings and could testify about them, and where certain of the meetings were videotaped and transcribed. In the absence of a demonstrable bad motive and where discovery concerning all aspects of the meetings was available from witnesses and other documents and things, the destruction of Scarff's notes affords no basis for finding a culpable state of mind.

Id. at 8 (citations omitted). Because typed minutes existed, others could testify about the hearings,




and certain of the hearings were videotaped, Judge Homer concluded that Scarff's notes were not relevant to Plaintiffs' claims. Id. at 10.

As to the documents destroyed during the outgoing County Executive's "shredding party," the Order held that they were not destroyed in bad faith or with gross negligence because "[t]here is no indication from the record of the destruction or from any other source that any document destroyed related in any way to the redistricting plan." Id. at 9. Further, Judge Homer found that "it appears that whatever documents were possessed by the County Executive's Office were copies of documents originating elsewhere and that all such documents were provided in discovery from the originating source." Id. at 9 (citing Dkt. No. 143 at 13-14). For the same reasons, as well as the additional reason that Plaintiffs took oral depositions of the individuals involved in "creating, receiving, and destroying" the documents, Judge Homer also concluded that any documents destroyed during the "shredding party" were not relevant to Plaintiffs' claims. Id. at 10-11.

On August 14, 2012, Plaintiffs timely filed this Appeal of the July Order. Dkt. No. 159.7


In reviewing a magistrate judge's orders concerning "discovery matters, which are nondispositive, the 'district judge in the case must consider timely objections and modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or contrary to law.'" Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010) (quoting FED. R. CIV. P. 72(a)); see also




28 U.S.C. §636(b)(1)(A). An order is "clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (internal quotation marks omitted); see also Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting U.S. Gypsum Co., 333 U.S. at 395). An order is contrary to the law "if it fails to apply or misapplies relevant statutes, case law or rules of procedure." Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp. 2d 70, 74 (N.D.N.Y. 2000) (internal quotation marks omitted); see also New York v. Salazar, No. 6:08-CV-644, 2011 WL 1938232, at *4 (N.D.N.Y. Mar. 8, 2011) (Kahn, J.). "[A] magistrate judge is afforded broad discretion when resolving discovery disputes and a reversal is appropriate only if the district judge finds that discretion is abused." E.g., Moore v. Publicis Groupe SA, No. 11 Civ. 1279, 2012 WL 517207, at *1 (S.D.N.Y. Feb. 14, 2012).8


"Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 465 (S.D.N.Y. 2010); see also West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). "The right to impose sanctions for spoliation arises from a court's inherent power to control




the judicial process and litigation, but the power is limited to that necessary to redress conduct 'which abuses the judicial process.'" Pension, 685 F. Supp. 2d at 465 (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991)).

"Where…the nature of the alleged breach of a discovery obligation is the non-production of evidence, a district court has broad discretion in fashioning an appropriate sanction, including…to proceed with a trial and give an adverse inference instruction." Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002). To be entitled to an adverse-inference instruction (or some other form of sanction), a party must demonstrate:

(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.

Chin, 685 F.3d at 162 (quoting Residential Funding Corp., 306 F.3d at 107).

1. The County's Duty to Preserve Relevant Evidence

"A party is on notice to preserve relevant documents 'when litigation is reasonably anticipated,' and 'at least by the time the complaint [is] served.'" Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp. 2d 378, 409 (S.D.N.Y. 2010) (citing Pension, 685 F. Supp. 2d at 461; Turner v. Hudson, 142 F.R.D. 68, 73 (S.D.N.Y.1991)). Once litigation is reasonably anticipated, a party has the obligation to preserve

what it knows, or reasonably should know, is relevant to the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request…whether or not the evidence has been specifically requested in a demand for discovery.

Id. at 409 (citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)). Under this




obligation, "anyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary." Zubulake v. UBS Warburg LLC ("Zubulake IV"), 220 F.R.D. 212, 217 (S.D.N.Y. 2003)

Because the County did not dispute that it was obligated to preserve documents relevant to this action, the July Order did not analyze when the County's duty actually arose. The Court finds no abuse of discretion in this decision because the County's concession that the duty element was satisfied left as live issues only: (1) whether any documents were destroyed or lost with a culpable state of mind; and (2) whether those documents were relevant to Plaintiffs' claims.

Nonetheless, because Court must address the culpability element, which in turn depends on when the County's preservation duty arose, in an abundance of caution, the Court independently determines when the duty arose. A combination of factors leads the Court to conclude that the County not only could reasonably have anticipated this litigation from the very beginning of the redistricting process, but that the County did, in fact, so anticipate it.

As the Court notes above, the County's previous redistricting efforts have all been successfully challenged in court. Not only were the members of the Commission selected for their experience guiding Albany County and other surrounding communities through prior redistrictings, but Thomas Marcelle was asked to advise the Commission for the specific purpose of avoiding the prior redistrictings' mistakes. Because the County is a sophisticated organization with equally sophisticated members, which had encountered similar litigation multiple times in the past, the County's document preservation duty arose when it formed the Commission and began the




redistricting process in earnest in January 2011.9 See Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 748 (8th Cir. 2004) (affirming imposition of a document preservation duty on a railroad company following a grade crossing collision because its prior experience indicated that type of accident often led to litigation). Moreover, although the County may have been trying to avoid litigation proactively by selecting Commission members with redistricting experience and assigning Marcelle as the Commission's legal advisor, those actions demonstrate that the County believed that litigation was a reasonable possibility here.10

Accordingly, as of January 2011, the County was obligated to preserve documents relevant to the redistricting process. Destruction of relevant documents after that time can justify discovery sanctions if such destruction was done with a sufficiently culpable state of mind and if the destroyed documents were relevant to Plaintiffs' claims. Chin, 685 F.3d at 162.

2. The County's State of Mind

The second element in the spoliation test requires a plaintiff to show "that the [evidence] was destroyed 'with a culpable state of mind.'" Residential Funding Corp., 306 F.3d at 107. "[A]s the Second Circuit recently observed, '[t]he law in this circuit is not clear on what state of mind a spoliator must have when destroying [evidence].'" Sterbenz v. Atina, 205 F. Supp. 2d 65, 74 n.13 (E.D.N.Y. 2002) (citing Byrnie v. Town of Cromwell Bd. of Ed., 243 F.3d 93, 107-08 (2d Cir.




2001)). "Some courts in this circuit have required a showing of bad faith, some have required proof of intentional destruction, and others have drawn an inference based on gross negligence." Zimmerman v. Poly Prep Country Day Sch., No. 09-CV-4586, 2011 WL 1429221, at *21 (E.D.N.Y. Apr. 13, 2011) (citing Byrnie, 243 F.3d at 107-08). Further, district courts in this circuit have held that the culpability element can be satisfied by mere negligence. See, e.g., Essenter v. Cumberland Farms, Inc., No. 09-CV-539, 2011 WL 124505, at *4 (N.D.N.Y. Jan. 14, 2011) (Kahn, J.) (citing Schwarz v. FedEx Kinko's Office, No. 08 Civ. 6486, 2009 WL 3459217, at *7 (S.D.N.Y. Oct. 27, 2009)); Passlogix, Inc., 708 F. Supp. 2d at 410-11 (citing Zubulake v. UBS Warburg LLC ("Zubulake V"), 229 F.R.D. 422, 431 (S.D.N.Y. 2004); Residential Funding Corp., 306 F.3d at 109)). Thus, the Second Circuit has concluded that "a cases by case approach [i]s appropriate." Byrnie, 243 F.3d at 108. "Plaintiffs, however, have the burden of showing that the [evidence] was destroyed, at a minimum, either knowingly or negligently." Zimmerman, 2011 WL 1429221, at *21.

"Neither negligence or gross negligence have been clearly defined in the context of discovery misconduct, such as spoliation." Id. (citing Pension, 685 F. Supp. 2d at 463). "[T]hese terms simply describe a continuum. Conduct is either acceptable or unacceptable. Once it is unacceptable the only question is how bad is the conduct…. That said, it is well established that negligence involves unreasonable conduct in that it creates a risk of harm to others." Pension, 685 F. Supp. 2d at 463-64. "'Gross negligence has been described as a failure to exercise even that care which a careless person would use.'" Id. (citation omitted). Courts in this circuit have found that the "failure to preserve evidence resulting in the loss or destruction of relevant information is surely negligent, and, depending on the circumstances, may be grossly negligent." Id. at 464-65. The




Second Circuit has "reject[ed] the notion that a failure to institute a 'litigation hold' constitutes gross negligence per se. Rather…'the better approach is to consider [the failure to adopt good preservation practices] as one factor' in the determination of whether discovery sanctions should issue." Chin, 685 F.3d at 162 (quoting Orbit Comm'ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.N.Y. 2010)).

On appeal, Plaintiffs identify several potential errors in the part of the July Order that addresses the County's culpable state of mind. First, Plaintiffs argue that the Magistrate Judge applied a heightened, and thus incorrect, standard in his culpability analysis when he held that "[i]n the absence of a demonstrable bad motive…the destruction of Scarff's notes affords no basis for finding a culpable state of mind." Pl.'s Appeal Mem. at 7 (quoting July Order at 8) (emphasis added). Plaintiffs contend that gross negligence or ordinary negligence is enough to satisfy the culpability element. Id. at 7, 19-20. Second, Plaintiffs argue that the July Order misapplied Chin by conducting its culpability analysis as if that case precluded a finding of culpability based on a combination of preservation shortcomings including, but not limited to, the failure to issue a litigation hold. Id. at 7-13. According to Plaintiffs, this mistake also included considering only the County's preservation efforts after litigation began and not its efforts once litigation was anticipated, as Plaintiffs argue that Second Circuit precedent requires. Id. at 13-17. Third, Plaintiffs argue that the Magistrate Judge erred by relying on self-serving attorney affidavits to support his conclusion that the County had taken "reasonable and appropriate steps…to preserve and produce." July Order at 7; Pl.'s Appeal Mem. at 9-11. Finally, Plaintiffs argue that it was error not to consider the County's alleged violation of the New York State record-keeping law. Pl.'s Appeal Mem. at 17-19.

Addressing Plaintiffs' last argument first, the Court concludes that it was not error to




dismiss the applicability of the New York State record-keeping law to a finding of the County's culpable state of mind. Interpreting the case law from other circuits that Plaintiffs cite on appeal, the Second Circuit has held that a violation of a record-retention regulation may give rise to an adverse inference. Byrnie, 243 F.3d at 108-10. Byrnie, however, only held as it did in relation to the duty element of the spoliation test; the party seeking discovery sanctions must still show that the remaining elements are satisfied. Id. at 109 ("Although a regulation may supply the duty to preserve records, a party seeking to benefit from an inference of spoliation must still make out the other usual elements of a spoliation claim."); see also Blasi v. N.Y. City Bd. of Ed., Nos. 00-CV-5320, 03-CV- 3836, 2012 WL 3307227, at *26 (E.D.N.Y. Mar. 12, 2012) (holding that defendant had a duty to retain records under Byrnie and a record-retention regulation, but conducting an independent analysis on the culpability and relevance elements). Thus, it was not error to decline to consider any alleged violation of the law in his culpability analysis.

Similarly, the July Order correctly applied Chin in concluding that "the absence of a formal litigation hold is but one factor to be considered in determining whether the County acted with the requisite state of mind." Accord Chin, 685 F.3d at 162. Contrary to Plaintiffs' argument, the July Order never states that Chin necessarily precluded a finding of bad faith or gross negligence based on a combination of preservation shortcomings; instead, it simply found that the combination of the County's preservation shortcomings did not warrant either finding in light of the County's document collection and production efforts. Therefore, the Court finds no error in the determination that the County's post — July 19, 2011 discovery efforts satisfied its duty and any document destruction thereafter was not grossly negligent

However, the July Order does overstate the County's fulfilment of the duty prior to July 19,




2011. First, the holding is based on the preservation steps the County took after Plaintiffs filed this action. July Order at 7 ("Therefore, while the County did not issue a formal written litigation hold, it took reasonable steps when this action was commenced to preserve and gather documents and [electronically stored information] to respond to plaintiff's discovery demands") (emphasis added). Even if the County took reasonable steps once the action had been commenced, as discussed supra, there is nothing in the record showing that the County made any preservation efforts between the time its duty arose in January 2011 and the filing of this action on June 29, 2011. The evidence demonstrates that the County made no efforts to preserve relevant documents until months after it anticipated litigation. See, e.g., Dkt. No. 136-17 ("Condon Transcript") at 36:9-23 ("I'm not aware of any efforts that were made before or after [the lawsuit was filed]. I was not involved in, nor was the Department of Law involved, in [the redistricting]."); see also McCoy Tr. at 53:20-22; Dkt. Nos. 136-8 ("Scarff April 12 Transcript") at 44:20-45:6 (stating that he was never told to preserve documents relating to the redistricting process), Perrin Tr. at 89:16-21 (same). Neither Chin nor any other decision in this circuit has eliminated a party's obligation to preserve relevant documents once it anticipates litigation, and satisfaction of that obligation should be a factor courts consider when determining whether a party acted culpably in destroying relevant documents.

Second, responsibility for overseeing the County's discovery response was not quickly assigned to outside counsel. Contra July Order at 7. Plaintiffs filed their original Complaint on June 29, 2011, but outside counsel were not brought in to represent the County in this litigation until July 13 and 19, 2011. See Dkt. Nos. 8 ("Marcelle Notice of Appearance"), 33 ("Barber Notice of Appearance"). It was not until July 19, 2011 that outside counsel began to contact people who may have possessed relevant documents to request that they preserve and produce them. Barber Aff.




¶11. The County made no similar efforts in the intervening weeks between Plaintiffs' filing of the Complaint and outside counsel's actions. See Condon Tr. at 36:9-23. Yet the County's preservation duty was in full effect during this time. Although the County asserts that it produced thousands of pages of relevant documents (Barber Aff. ¶27), given that it made no efforts to prevent the destruction or loss of documents in the months after the start of the redistricting process and leading up to July 19, 2011, the Court cannot be certain that essential relevant documents were not destroyed or lost during that time.

Even if the July Order erred in concluding that the County had satisfied its duty, however, the Court must consider whether Defendants' failures justify a finding of sufficient culpability. The Court concludes that while the evidence is insufficient to support a finding of bad faith, it might be sufficient to support a finding of ordinary negligence or perhaps gross negligence. Here, the County had knowledge that its past redistricting efforts have all led to litigation as well as knowledge that this particular redistricting could also lead to litigation, yet they took no steps to preserve documents relevant to this redistricting until weeks after litigation began.

Based on the record, the Court finds that at least one specific set of documents was definitely destroyed during the period between January 2011 and the July 19, 2011.11 That set of documents is Scarff's handwritten notes, which he admittedly destroyed after reducing them to




typed minutes shortly after each hearing. Scarff Apr. 12 Tr. at 68:13-16 ("It depends on how quickly I transcribed them. Usually I'd do it right away, so yeah.").

As to the County Executive redistricting file, not unlike the concerned-citizens list,12 the evidence that the file actually existed is highly speculative. Perrin, the then-Deputy County Executive, testified at his deposition that he presumed, based on the County Executive Office's standard practice, that the file was in fact maintained but that he was unable to locate it (Perrin Tr. at 133:10-23). Although Plaintiffs argue that the file may have been destroyed during the "shredding party," when viewed in the context of the entire evidence, this contention is pure speculation. Plaintiffs maintain that the file existed and that it is now gone, with the "shredding party" as one possible explanation. Even if the file were among the documents destroyed during the "shredding party," any such documents were shredded after July 19, 2011, and as a consequence, their destruction was not grossly negligent.

Nevertheless, the circumstances surrounding the County's destruction of these documents supports a finding of negligence. The County should have known that any relevant County Executive documents, as well as Scarff's handwritten notes, might all be requested during discovery in a suit challenging the redistricting efforts. Even if these documents were not destroyed with gross negligence, their destruction was certainly negligent.

3. Relevance of the Destroyed Documents to Plaintiffs' Claims

In addition to satisfying the duty and culpability requirements of the spoliation test, however, "to obtain an adverse inference instruction [or other discovery sanction], a party must establish that the unavailable evidence is 'relevant' to its claims or defenses." Residential Funding




Corp., 306 F.3d at 108 (citing Byrnie, 243 F.3d at 109; Kronisch, 150 F.3d at 128). "Relevant" means in this context "sufficient evidence from which a reasonable trier of fact could infer that 'the destroyed [or unavailable] evidence would have been of the nature alleged by the party affected by its destruction.'" Id. at 109 (citing Byrnie, 243 F.3d at 110; Kronisch, 150 F.3d at 127). "A discarded document is relevant where a reasonable trier of fact could find that the document either would harm the spoliator's case or support the innocent party's case." Passlogix, 708 F. Supp. 2d at 411 (citing Port Auth. Police Asian Jade Soc'y of N.Y. & N.J. Inc. v. Port Auth. of N.Y. & N.J., 601 F. Supp. 2d 566, 570 (S.D.N.Y. 2009); Zubulake V, 229 F.R.D. at 430)).

"Where a party destroys evidence in bad faith, that bad faith alone is sufficient circumstantial evidence from which a reasonable fact finder could conclude that the missing evidence was unfavorable to that party." Residential Funding Corp., 306 F.3d at 109 (citation omitted). Courts sometimes also presume the relevance of evidence destroyed with gross negligence, although such a presumption is warranted only when the circumstances under which the destruction occurred were sufficiently "egregious." See Toussie v. Cnty. of Suffolk, No. 01-CV- 6716, 2007 WL 4565160, *8 (E.D.N.Y. Dec. 21, 2007) (citing Residential Funding Corp., 306 F.3d at 109; Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1064 (2d Cir. 1979)); Passlogix, 708 F. Supp. 2d at 414. In the absence of bad-faith destruction of evidence, "the moving party may submit extrinsic evidence tending to demonstrate that the missing evidence would have been favorable to it." Chan v. Triple 8 Palace, Inc., No. 03-CV-6048, 2005 WL 1925579, at *8 (S.D.N.Y. Aug. 11, 2005). Moreover, "when the spoliating party [is] merely negligent, the innocent party must prove both relevance and prejudice in order to justify the imposition of a severe sanction." Pension, 685 F. Supp. 2d at 467-68; see also Byrnie, 243 F.3d at




108 ("[T]he burden falls on the 'prejudiced party' to produce 'some evidence suggesting that a document or documents relevant to substantiating [its] claim would have been included among the destroyed files.'" (quoting Kronisch, 150 F.3d at 128)). The innocent party may do so by presenting "'extrinsic evidence tending to show that the destroyed [evidence] would have been favorable to [its] case.'" Pension, 685 F. Supp. 2d at 468 (quoting Toussie, 2007 WL 4565160, at *8).

Courts, however, "must take care not to 'hold[ ] the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed [or unavailable] evidence,' because doing so 'would subvert the…purposes of the adverse inference, and would allow parties who have…destroyed evidence to profit from that destruction.'" Residential Funding Corp., 306 F.3d at 109 (quoting Kronisch, 150 F.3d at 128; Byrnie, 243 F.3d at 110). Thus, "it is not incumbent upon the plaintiff to show that specific documents were lost." Treppel v. Biovail Corp., 233 F.R.D. 363, 372 (S.D.N.Y. 2006).

Finally, "a party seeking an adverse inference instruction need not…rely on the same evidence to establish that the missing evidence is 'relevant' as it uses to establish the opponent's 'culpable state of mind.'" Residential Funding Corp., 306 F.3d at 110. "Typically, the evidence used to establish relevance of missing documents is deposition testimony." De Espana v. Am. Bureau of Shipping, No. 03 Civ.3573, 2007 WL 1686327, at *8 (S.D.N.Y. June 6, 2007) (quoting Residential Funding Corp., 306 F.3d 109) (quotation marks omitted).

To the extent that any of the destruction or loss of evidence might have been done with gross negligence, the circumstances are not sufficiently egregious to warrant an inference of relevance. Plaintiffs must have, therefore, submitted extrinsic evidence showing the relevance of Scarff's handwritten notes and showing that the County Executive documents destroyed negligently during




the "shredding party" were both relevant to and would have supported their claims.

Mindful of the Second Circuit's admonition that the party seeking discovery sanctions should not face too onerous a burden on the relevance element, see Residential Funding Corp., 306 F.3d at 109, but also mindful of the deferential standard of review owed to magistrate judges in discovery matters, the Court concludes that it will not reverse the July Order and will therefore not impose an adverse-inference instruction at this time.

In the July Order, Judge Homer concluded that Scarff's notes were cumulative of other evidence available to Plaintiffs because the notes were condensed into reports, "certain of [the Commission's hearings] were videotaped and transcribed," and Scarff and other members [of the Commission] were subject to discovery and available as sources of information on these matters." July Order at 10. While the Court notes that sanctions might in some cases be levied when handwritten notes were destroyed and replaced with reports,13 the Court cannot conclude that the July Order's analysis on this issue was erroneous and is susceptible to reversal.

Even if the Court were to conclude that it was error not to find the County negligent in the disappearance of the purported County Executive redistricting file, the Court cannot conclude that Plaintiffs have met their burden of showing relevance and prejudice. Perrin testified that it was his "supposition," although he did not "know [it] for a fact," that this file would likely have contained "documents that [the County Executive Office] would have received from constituents who were making comment, maybe Mr. Mair's [(the Arbor Hill)] proposal, [and] his [Mr. Mair's] analysis may well have been in that file." Perrin Tr. at 133:12-18. This testimony is essentially speculative




in nature, and the Court cannot disturb the Magistrate Judge's decision on this basis.

Further, the Court finds no clear error in the determination that the County Executive documents destroyed during the "shredding party" were irrelevant to Plaintiffs' claims. In making that determination, Judge Homer relied, in part, on the record of the categories of documents destroyed, which established that the following categories of documents were authorized for shredding and disposal: (1) copies of resumes (from 2000-2011 and 1994-2011); (2) "confidential constituent issues" (from 2005-2011); (3) personnel records/files (from 1995-2000 and 1995-2003); (4) "litigation copies" (from 1998-2011); and (5) correspondence (from 2000-2005). Dkt. No. 136- 33. Nothing in that record suggests that the documents related in any way to the redistricting efforts, which did not get under way until January 2011.

Finally, the Court cannot say that it was clear error by not to indulge Plaintiffs' speculation that additional unauthorized document destruction took place in the absence of some evidence — besides additional speculation — that it did. Plaintiffs simply have not met their burden, however low it is, in regard to these documents because they offer little more than speculation on the documents' relevance in the face of evidence tending to show that the documents were irrelevant. See Dkt. No. 136-33; Perrin Tr. at 132:5-9 ("Q: Do you know if any of the recycled documents concerned the redistricting or the passage of Local Law C? A: No. I don't know that. But it's not likely."). Judge Homer was thus well within his discretion when he found the destroyed documents irrelevant on this basis.14

Therefore, even if it were clear error to fail to consider ordinary negligence as a sufficiently




culpable state of mind to trigger sanctions, the absence of clear error in the relevance analysis makes any such error in the culpability analysis harmless and therefore not grounds for reversal.


For the foregoing reasons, the Court finds that Plaintiffs have not met their burden on appeal and affirms the July Order denying Plaintiffs' request for discovery sanctions. The Court notes, however, that in affirming the denial of Plaintiffs' request for an adverse-inference instruction, this Memorandum-Decision and Order does not preclude Plaintiffs from re-filing a request for such a jury instruction nor the Court from concluding that — based on evidence adduced at trial — an adverse inference is warranted.

Accordingly, it is hereby:

ORDERED, that Judge Homer's July 31, 2012 Memorandum-Decision and Order (Dkt. No. 157) is AFFIRMED; and it is further

ORDERED, that Plaintiffs' Appeal (Dkt. No. 159) of that Memorandum-Decision and Order is DENIED; and it is further

ORDERED, that Plaintiffs' Motion (Dkt. No. 134) for discovery sanctions is DENIED without prejudice; and it is further

ORDERED, that the Clerk of the Court set the deadline for the parties to move for summary judgment in this matter for thirty (30) days from the filing of this Memorandum-Decision and Order in accordance with the Court's Order (Dkt. No. 174) filed September 18, 2012. This deadline for the parties to move for summary judgment is set for February 06, 2013; and it is further

ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on the parties.





1. Due to Judge Homer's retirement, the case has since been reassigned to the Honorable Christian F. Hummel, U.S. Magistrate Judge. Dkt. No. 170.

2. Plaintiffs previously moved for a preliminary injunction, which was denied by the Court in a Memorandum-Decision and Order filed on August 18, 2011. Dkt. No. 76; Pope v. Cnty. of Albany, No. 11-CV-736, 2011 WL 3651114 (N.D.N.Y. Aug. 18, 2011) (Kahn, J.). The Second Circuit affirmed that Memorandum-Decision and Order on May 29, 2012 in Pope, 687 F.3d 565

3. Both Merrill's notes on the redistricting process and articles appearing in the Albany Times Union show that more public hearings were held than were memorialized in Scarff's minutes. Merrill refers in his notes to a May 9, 2011 public hearing at which sixteen members of the public commented. Merrill's Notes ¶¶27-28. That same May 9 meeting is described in a May 10, 2011 Times Union article entitled "New Lines Draw Critics." The last public hearing on which Scarff produced minutes, however, occurred on April 23, 2011. See Scarff Minutes. Furthermore, the author of the Times Union article recalls a commissioner responding to public criticism at the May 9 hearing by asserting that nearly a dozen public hearings had been held to that point. In addition, the article mentions another public hearing to be held a few days later, on May 17, 2011.

4. Mair was intimately involved in the challenges to the County's two previous redistricting efforts.

5. This is the "correspondence file" then-Deputy County Executive Michael Perrin refers to in his deposition testimony. Pl.'s Mem. at 11 (citing Dkt. No. 136-11 ("Perrin Transcript") at 132:15-134:17).

6. The July Order contains no specific finding on Merrill's or Scarff's destruction or loss of the list of citizens who had contacted Merrill with concerns about the redistricting plan.

7. The Court notes that the July Order also denied Plaintiffs' Motion to compel the deposition of Thomas Marcelle (Dkt. No. 138), the legal advisor to the Commission during the redistricting process and attorney for the County in this action. July Order at 11-24. Plaintiffs' Memorandum of law in support of their appeal only raises objections to the denial of discovery sanctions and does not address the deposition issue, however, so the Court will not consider the propriety of the propriety of the denial of Plaintiffs' Motion to compel. See FED. R. CIV. P. 72(a) ("The district judge in the case must consider timely objections…." (emphasis added)).

8. Citing cases from the First and Third Circuits, Plaintiffs contend that when a magistrate judge's order is contrary to law, a district court should conduct plenary, de novo review of the legal issues under Rule 72(a). Plaintiff's Memorandum of law in support of Appeal of magistrate judge's Order dated July 31, 2012 (Dkt. No. 159-2) ("Pl.'s Appeal Mem.") at 5 (citing PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010); Haines v. Liggett Group Inc., 975 F.2d 81, 91 (3d Cir. 1992)). The Second Circuit has not addressed this issue directly, Hasbrouck v. BankAmerica Housing Services, Inc., 190 F.R.D. 42, 44 (N.D.N.Y. 1999). But because the Court does not find the July Order to be contrary to law, it need not address this issue

9. Because the Court concludes on this basis that the County's preservation duty arose at the beginning of the redistricting process, the Court declines to consider Plaintiffs' argument that the County's duty arose at the same time under the New York State record-keeping law. See Pl.'s Appeal Mem. at 17.

10. See also Scarff Notes at 2 (stating that at the first Commission meeting on February 24, 2011, Chairman Morse expressed his belief that the Commission "should be ever cognizant of the problems that plagued the last census and to make every attempt to circumvent those problems" and avoid "the legal encumbrances of the previous redistricting"); McCoy Tr. at 80:18-23.

11. As mentioned supra, the July Order does not discuss the purported list of concerned citizens who had contacted Merrill. See supra note 5. However, nothing in the record requires the conclusion that the list even existed. Merrill's May 20 email to Scarff regarding the citizens who had questioned him makes no mention of how he was questioned or whether he even recorded the questioners' information. See Dkt. No. 136-9. And Scarff's deposition testimony on whether Merrill ever gave him the purported list is nothing short of equivocal, vacillating between near certainty that he did receive it and near certainty that he did not. See Scarff Apr. 12 Tr. at 50:5- 53:22. Therefore, it was appropriate for the July Order not to address the list.

12. See supra note 8.

13. See Anderson v. Sotheby's Inc. Severance Plan, No. 04-CIV-8180, 2005 WL 2583715, at *4 (S.D.N.Y. Oct. 11, 2005).

14. The Court, therefore, need not also address the finding that all of the documents destroyed were duplicates of documents already produced to Plaintiffs.