In Bursztein v. Best Buy, No. 20-cv-00076 (AT) (KHP) (S.D.N.Y. May 17, 2021), New York Magistrate Judge Katharine H. Parker, finding that “[d]efendants have thwarted and disrupted discovery throughout the life of this case” sanctioned them for failing to produce certain ESI, but (finding no intent to deprive) rejected the plaintiff’s request for a summary judgment sanction, instead permitted the plaintiff to present evidence at an eventual trial regarding the spoliation of liability-related ESI and also awarded fees and costs “to compensate Plaintiff for the time and resources spent because of Defendants’ dilatory conduct.”

Case Background

This was a trip and fall case where the plaintiff alleged that she tripped and fell over a raised piece of metal on the landing at the top of an escalator in a New York City Best Buy Store, injuring her shoulder.  Plaintiff’s initial discovery requests served on April 1, 2020 for video surveillance footage; inspection, maintenance, and repair records for the location of the fall; and Best Buy’s customer safety policy were “met with silence”.  Six weeks after the initial requests, the plaintiff sent Best Buy a follow-up letter requesting responses to her discovery demands.  On May 27, 2020, Best Buy served its responses, which consisted of three pages of general objections and four pages of boilerplate specific objections to the individual requests. Best Buy also asserted that it did not possess additional responsive documents to Plaintiff’s requests.  Only two documents were produced to the Plaintiff: the Safety Incident Review for Plaintiff’s accident and a Facilities Services Agreement.  Best Buy’s answers to Plaintiff’s interrogatories also consisted of boilerplate objections with limited helpful information.

The plaintiff sent a deficiency letter on June 8th and followed up on June 23rd, and (again) was “met with silence”.  After another follow up on June 30th, the defendants finally responded on July 8th with only “minor clarifications”, maintaining that “they do not possess surveillance footage of the accident, that they do not maintain records of inspection, and that they do not maintain any schedule of inspection or maintenance.”

However, during a 30(b)(6) witness deposition of the store’s general manager (Spencer Stanfield), He testified (1) that Best Buy employees received copies of policies and procedures for store safety; (2) that employees were also trained through on-line videos; (3) that all repair and maintenance requests were logged on the Facilities Request System; (4) that surveillance footage of the incident exists; and (5) that Stanfield preserved that footage personally.

The plaintiff served post-deposition demands for these documents, but (two months later) the defendants responded with more boilerplate objections, numerous invoices for escalator maintenance and repairs carried out between June and November 2017, claims that the remaining documents “were no longer in Best Buy’s custody and control” and that Stanfield was mistaken in his testimony about the video surveillance footage and that Best Buy did not possess any such footage.  Subsequently, Stanfield executed a sworn affidavit claiming that he had misunderstood the question concerning the video footage during his deposition and that was a general practice as opposed to the specific surveillance footage at issue in this case.  After defendants indicated they had no more documents to produce, the plaintiff filed the instant motion for sanctions.

Judge’s Ruling

With regard to the defendants’ actions in the case, Judge Parker stated: “Defendants have thwarted and disrupted discovery throughout the life of this case. As already outlined above, Defendants repeatedly flouted their discovery obligations, failed to promptly communicate with opposing counsel, and repeatedly lodged baseless boilerplate objections to Plaintiff’s discovery requests. Best Buy’s attempts to use those objections to avoid producing documents are a ‘paradigm of discovery abuse.’… Further, courts in this District have previously said that general objections should rarely be used, unless the objections specifically apply to each document request at issue.”

Judge Parker also rejected the defendants’ unclean hands argument, noting that plaintiffs had produced many of the documents they alleged were withheld “well before the close of discovery in this case” and also rejected their claim that they never received Plaintiff’s preservation letter and were therefore under no obligation to preserve evidence, stating: “This is not true. The letter was sent by Plaintiff on November 22, 2017 via certified mail and Plaintiff received a signed return receipt, which has been submitted to the Court.”  Judge Parker, while acknowledging Stanfield’s affidavit, also stated: “Stanfield affirmatively represented that he saw ‘a trip’ in the video” and that “the questions posed to Stanfield and his answers were abundantly clear.”

So, Judge Parker stated: “Best Buy’s pattern of dilatory and obstructive conduct throughout discovery lead me to find that the video footage likely existed at one point and that Best Buy had a duty to preserve that footage” and ruled that “all of the ESI in question did exist and should have been preserved in anticipation of this litigation.”

However, while noting that “this case presents a close call on the issue of intent”, Judge Parker did not find intent to deprive, instead ruling: “While the Court finds that Best Buy should not be precluded from introducing any evidence at this time, Plaintiff should be permitted to present evidence at an eventual trial regarding the spoliation of liability-related ESI and whether such ESI ever existed in the first place, to the extent that any such evidence exists… Plaintiff should also, of course, be permitted to submit evidence to an eventual jury concerning Stanfield’s initial deposition testimony regarding the surveillance footage.”  She also awarded fees and costs, as noted above.

So, what do you think?  Are you surprised that the sanctions weren’t more significant?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.  Check out the transcript and video of Kelly Twigger’s analysis of this case here!

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