Some courts, especially courts within the S.D.N.Y., have questioned if rule 37(e) applies to all ESI spoliation cases. In this case, the court uses its inherent authority, not rule 37(e), to issue sanctions.
In this sexual harassment case, the defendant motioned for spoliation sanctions, an adverse inference instruction, against the plaintiff based on the deletion of an audio recording.
While the alleged sexual harassment occurred, the plaintiff stated that she had met with an HR representative employed by the defendant. When asked if the plaintiff recorded any conversations between the two, she said no, but then eventually conceded she had recorded one meeting but deleted it after the commencement of this lawsuit. A day before the plaintiff’s opposition to spoliation sanctions was due, the plaintiff said she had recovered the allegedly deleted audio file.
Download the PDF version of Hsueh v. N.Y. State Dep’t of Fin. Servs. case analysis here.