Normally, I cover case law rulings. This time, I’m going inside the appeal of a case law ruling not to issue an adverse inference sanction.

The case is Richard Hoffer, Plaintiff-Appellant, v. Police Officer Elyssa Tellone, et al., Defendants-Appellees, and the appeal was being argued before the Second Circuit Court of Appeals. It involves an incident that occurred on November 20, 2016, involving Hoffer, who was involved in a high-speed car chase with the Yonkers Police Department and was eventually caught and tased by the officers during the arrest.

The taser captures video each time it’s deployed. The number of times the taser was deployed was part of the dispute, as there was only one video produced, but Hoffer claimed that he was tased twice (with the second video potentially showing excessive force) and the defendants destroyed the second taser video. Supporting Hoffer’s contention that there was a second taser deployment was that Officer Goff, who deployed the taser, testified that he used it twice against Hoffer. However, the taser report only showed one activation. Additionally, Sandra Cuebas, a witness present during the arrest, testified that she saw an officer with a USB drive, potentially used to download taser footage, which contradicted officer testimonies claiming they never used USB drives.

New York Magistrate Judge Andrew E. Krause determined that Hoffer didn’t provide clear and convincing evidence that a second taser video existed or that the defendants intentionally destroyed it. Judge Krause also found Cuebas’ testimony not credible and relied on the taser report and the testimony of officers at the scene. The central issue in the appeal was whether the trial court erred in refusing to provide an adverse inference instruction to the jury about potential spoliation of evidence regarding the claimed taser video.

A key point of contention in the appeal was whether the trial court improperly acted as a factfinder in discrediting testimony about the existence and subsequent destruction of the second video, a role that Hoffer’s counsel contended belonged to the jury, depriving Hoffer of his right to have the jury fully consider the spoliation issue. In response, defense counsel argued that the plaintiff waived his right to challenge the jury instruction on appeal by stating he had no objections to the jury charge as read. He also contended that the court acted within its discretion in finding that the plaintiff failed to meet the burden of proof for an adverse inference instruction, including finding that the alleged spoliation did not meet the “intent to deprive” standard for spoliation sanctions.

Two notable Second Circuit cases were cited as part of the arguments by Hoffer’s counsel and defense counsel:

1. Residential Funding Corp. v. DeGeorge Fin. Corp., cited by Hoffer’s counsel, which established that gross negligence could suffice for “intent” in pre-2015 spoliation cases. Hoffer’s counsel argued this precedent still holds.
2. Rossbach v. Montefiore Med. Ctr., cited by defense counsel, which argued that a District Court can act as a factfinder in resolving motions for sanctions, including assessing witness credibility, even if it results in a case-terminating sanction.

Many of us who have been in eDiscovery long term are familiar with both cases, especially the Rossbach case (where the plaintiff was found to have fabricated an email exchange and the emoji she used wasn’t available on her particular iPhone version).

That’s the set-up inside the appeal, and (to my knowledge) the Second Circuit hasn’t ruled yet. However, I received copies of the briefs and the oral argument recording before the Second Circuit from Brian Ginsberg, who was the counsel arguing on behalf of the defense before the Second Circuit. So, I thought I would share the briefs and the oral argument recording for you to check out on your own. Here they are:

Appellant’s Opening Brief and Special Appendix (67 pages)

Appellee’s Brief (49 pages)

Appellant’s Reply Brief (19 pages)

Oral Arguments before the Second Circuit Court of Appeals (24 minutes, 38 seconds):

While I received these files from defense counsel, it should be noted that I’m taking no position in this ruling, nor (as the Disclaimer states below) offering no legal advice. I simply thought it would be an interesting look inside the appeal of a case law ruling! Thanks, Brian!

So, what do you think? Is this an interesting look inside the appeal of a case law ruling? Please share any comments you might have or if you’d like to know more about a particular topic.

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