Khaldei v. Kaspiev

• Decision Date: 07 August 2013
• Docket Number: No. 10 Civ. 8328(JFK)(GWG).,10 Civ. 8328(JFK)(GWG).
• Citation: 961 F.Supp.2d 564
• Parties: Anna Efimovna KHALDEI, Plaintiff, v. Kalman KASPIEV, Defendant.
• Court: U.S. District Court — Southern District of New York

961 F.Supp.2d 564

Anna Efimovna KHALDEI, Plaintiff,

v.Kalman KASPIEV, Defendant.

No. 10 Civ. 8328(JFK)(GWG).

United States District Court, S.D. New York.

Aug. 7, 2013.

Daniel Joseph Rothstein, Law Office of Daniel J. Rothstein, P.C., New York, NY, Joshua Hale Abramson, Porzio, Bromberg & Newman, P.C., New York, NY, Kenneth R. Meyer, Porzio, Bromberg & Newman, P.C., Morristown, NJ, for Plaintiff.

Jennifer Lindsay Jones, Margaret Antinori Dale, Michael Philip Richter, Proskauer Rose LLP, New York, NY, for Defendant.

OPINION & ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Plaintiff Anna Efimovna Khaldei brings this motion seeking sanctions for spoliation of evidence against defendant Kalman Kaspiev. Khaldei also seeks to reinstate Point II of her summary judgment motion. For the reasons stated below, these motions are denied.

I. BACKGROUNDA. The Nature of the Action and the Spoliation Allegations

This lawsuit concerns ownership of certain photographs, consisting of both prints and negatives, taken by Khaldei's father, Evgeny Khaldei. See Complaint, filed Nov. 4, 2010 (Docket # 1), ¶¶ 1–2, 23. Kaspiev had an agency relationship to promote and sell the photographs. Id. ¶¶ 1, 5. Khaldei terminated the parties' agency relationship in 1999 and alleges that Kaspiev has unlawfully withheld the photographs since then. Id. ¶¶ 2, 6, 15, 20, 23. Khaldei obtained a judgment of replevin for the photographs from the Superior Court of New Jersey on June 21, 2001, which has never been executed and whose validity is being contested in this suit. Id. ¶¶ 7–10, 14, 19, 20; Kalman Kaspiev's Memorandum of Law in Support of His Cross–Motion for Partial Summary Judgment and in Opposition to Plaintiff's Motion for Partial Summary Judgment, filed Mar. 20, 2012 (Docket # 75) (“Def. SJ Motion”), at 9–22. On November 4, 2010, Khaldei, appearing through pro bono counsel, filed this action seeking enforcement of the New Jersey judgment, damages for breach of contract, unlawful possession of property, and conversion, and a declaratory judgment enjoining Kaspiev from holding himself out as Evgeny Khaldei's agent. Id. ¶¶ 18–36.

Several weeks after the lawsuit was filed, Kaspiev obtained pro bono counsel, who filed a notice of appearance on January 20, 2011. On February 10, 2011, Khaldei's counsel sent an email to Kaspiev's counsel asking if Kaspiev would agree to an inspection of the photographs. Email Exchange between Jennifer L. Jones and Daniel Rothstein, dated Feb. 10, 2011 (annexed as Ex. 6 to Affirmation of Counsel for Plaintiff, filed June 6, 2013 (Docket # 97) (“Rothstein Decl.”)) (“Feb. 10 Email Exchange”). The email referred to a prior discussion between counsel about a proposed interrogatory “regarding the location, condition, insurance status, etc. of the materials described in the complaint.” Id. Kaspiev's counsel responded that she was still in the process of “fact-gathering,” that discovery was premature, and that she would contact plaintiff's counsel in several days. Id.¹

On March 2, 2011, Khaldei's counsel emailed Kaspiev's counsel to inquire about the location of the materials. Email Exchange between Jennifer L. Jones and Daniel Rothstein, dated Mar. 8–9, 2011 (annexed as Ex. 9 to Rothstein Decl.). In response, Kaspiev's counsel declined to disclose the location of the photographs. See id. at 2. On March 7, 2011, Kaspiev made initial disclosures pursuant to Fed.R.Civ.P. 26(a) that did not include the location of the photographs. Defendant Kaspiev's Initial Disclosures, dated Mar. 7, 2010 [sic] (annexed as Ex. 7 to Rothstein Decl.). On March 8, 2011, Kaspiev placed the photographs in a storage locker at Manhattan Mini Storage LLC, and signed a storage contract. Declaration of Kalman Kaspiev, dated June 24, 2013 (Docket # 100) (“Kaspiev Decl.”), ¶¶ 4–5; Self–Service Storage Facility Occupancy Agreement,dated Mar. 8, 2011 (annexed as Ex. 8 to Rothstein Decl.).

On March 9, 2011, Khaldei served her first set of interrogatories and a Notice of Inspection. See Plaintiff's First Set of Interrogatories and Notice of Inspection, dated Mar. 9, 2011 (annexed as Ex. 10 to Rothstein Decl.) (“Notice of Inspection”). This included the following request to inspect the materials:

1. Plaintiff hereby requests permission (i) to inspect the photographic materials that Defendant received as agent for Evgeny Khaldei, Plaintiff, or Leonid Khaldei and that are in Defendant's possession, custody, and control, and (ii) for the purpose of such inspection, to enter the location where Defendant keeps the materials....

3. The inspection shall include verification of the existence of the photographic materials, examination of their condition, and examination of the conditions in which they are stored (e.g., temperature and humidity).

See Notice of Inspection at 2–3.

Following the parties' failed attempt to agree on a preservation order, the Honorable John F. Keenan ordered the materials impounded. See Order, dated Mar. 29, 2011 (Docket # 18) (“Impoundment Order”). On April 8, 2011, Kaspiev, his counsel, plaintiff's counsel, and two United States Marshals went to Manhattan Mini Storage to impound the materials. Rothstein Decl. ¶ 4; Declaration of Jennifer L. Jones, dated June 27, 2013 (Docket # 102) (“Jones Decl.”), ¶ 10; Kaspiev Decl. ¶ 8. 254 prints and 3001 negatives were taken. Opp. Mem. at 7; Pl. Mem. at 7; Kaspiev Decl. ¶ 9. Following this impoundment, Khaldei's counsel withdrew the first set of interrogatories and the Notice of Inspection in an email exchange with Kaspiev's counsel on March 31, 2011, in which he agreed that the interrogatories and notice of inspection were “moot.” See Email Exchange between Daniel Rothstein and Jennifer L. Jones, dated Mar. 31, 2011 (annexed as Ex. 18 to Rothstein Decl.).

Notwithstanding this withdrawal, there remained a document request for “[a]ll documents concerning storage of photographic materials that Defendant has received in connection with his agency for Evgeny Khaldei.” See Plaintiff's First Request for Production of Documents, dated Mar. 11, 2011 (annexed as Ex. 11 to Rothstein Decl.), ¶ 19. Kaspiev originally objected to this request but ultimately agreed to look for such documents while maintaining a relevance objection. Pl. Mem. at 6; Email from Jennifer L. Jones to Daniel Rothstein (May 25, 2013, 7:59 P.M.) (annexed as Ex. 22 to Rothstein Decl.). In an email exchange between the parties' counsel on May 25 and 26, 2011, plaintiff's counsel asserted that documents responsive to this request were relevant as “further evidence of Defendant's whereabouts when notice of termination was sent and process was served.” See Email Exchange between Daniel Rothstein and Jennifer L. Jones, dated May 25–26, 2011 (annexed as Ex. 2 to Jones Decl.); Jones Decl. ¶ 14. Kaspiev never produced documents in response to this request. See Jones Decl. ¶ 16. Kaspiev has submitted a sworn statement that he looked for the agreement he signed with Manhattan Mini Storage but could not find it. See Kaspiev Decl. ¶ 6.

Since the April 2011 impoundment, Kaspiev has produced additional photographs. Specifically, in September 2011, Kaspiev provided for impoundment 30 additional negatives that he stated he had located in an envelope in his apartment. Kaspiev Decl. ¶ 11; Declaration of Margaret A. Dale, dated June 27, 2013 (Docket # 101) (“Dale Decl.”), ¶ 2; Opp. Mem. at 7–8. In response to this additional production, Khaldei's counsel reiterated the request for documents concerning storage and requested disclosure of the storage location of those negatives. See Email Exchange between Daniel Rothstein and Jennifer L. Jones, dated Nov. 14, 2011–December 15, 2011 (annexed as Ex. 26 to Rothstein Decl.), at 3. He also asked that he be permitted to inspect the location where these negatives had been kept. Id. at 2. Kaspiev's counsel responded that the negatives had been found at Kaspiev's apartment in Manhattan and that plaintiff could not inspect the location. Id. at 1. Kaspiev later produced additional photographs that he believes are unrelated to the agency relationship. Kaspiev Decl. ¶¶ 12–14; Opp. Mem. at 7–8. Kaspiev has also stated that he kept four additional prints that Evgeny Khaldei took of him and his family which he also believes are not covered by the agency agreement. Kaspiev Decl. ¶¶ 15–16.²

In response to a subpoena from Khaldei, Manhattan Mini Storage produced a copy of its storage agreement with Kaspiev, which is dated March 8, 2011. Pl. Mem. at 8; Self–Service Storage Facility Occupancy Agreement. Khaldei then issued additional interrogatories requesting information about storage of the materials before they were moved to the Manhattan Mini Storage facility, to which Kaspiev responded. See Defendant Kaspiev's Responses and Objections to Plaintiff's Fourth Set of Interrogatories, dated May 8, 2013 (annexed as Ex. 35 to Rothstein Decl.). Kaspiev stated that (1) from 1997–1998, he stored the prints at the home of Marina Otis in Long Branch, New Jersey, (2) from 1998 until 2001, he stored the prints at his sister's apartment in Brooklyn, New York, and (3) from 2001 until 2011, he stored the prints at his apartment in New York, New York. Id. at 2–3. He asserted that all these locations had air conditioning, temperature controls, and ventilation. Id.

B. Procedural History

Prior to the close of discovery, Khaldei filed a motion for partial summary judgment. See Motion for Partial Summary Judgment, filed Mar. 19, 2013 (Docket # 59). Kaspiev made a cross-motion for partial summary judgment. See Notice of Defendant and Counterclaim Plaintiff Kalman Kaspiev's Cross–Motion for Partial Summary Judgment, filed Mar. 20, 2013 (Docket # 68). The Court stayed certain elements of discovery pending the disposition of the pending motions. Order, filed Apr. 22, 2013 (Docket # 92) (“Apr. 22 Order”). On June 6, 2013, Khaldei filed the instant motion for sanctions.³

II. LAW GOVERNING MOTIONS FOR SANCTIONS

Spoliation is “ ...