Pugh-Ozua v. Springhill Suites
| Decision Date | 09 November 2020 |
| Docket Number | No. 18-CV-1755 (RA),18-CV-1755 (RA) |
| Parties | SHANELL PUGH-OZUA, Plaintiff, v. SPRINGHILL SUITES a/k/a SPRINGHILL SUITES MARRIOTT, MARRIOTT HOTEL SERVICES, INC., MARRIOTT WORLDWIDE RESERVATION SERVICES, LLC, CARRIE CARPENTER, GINA NGEAU, AND AUBREY KARACIA, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Shanell Pugh-Ozua1 filed this employment discrimination action against her former employer, Defendants Springhill Suites, Marriott Hotel Services, Inc., Marriott Worldwide Reservation Services, LLC, Marriott Resorts Hospitality Corporation, and Marriott Resorts, Travel Company, Inc, and her former individual supervisors Carrie Carpenter, Gina Ngeau, and Arberie Karacica (sued as Aubrey Karacia).2 Now before the Court are Plaintiff's Objections to Magistrate Judge Freeman's February 5, 2020 Order, Dkt. 124 (the "Order"), which denied Plaintiff's motion for discovery sanctions pursuant to Fed. R. Civ. P. 37(e). For the reasons that follow, Judge Freeman's Order is affirmed and Plaintiff's objections are overruled.
The Court assumes familiarity with the factual allegations and procedural history of this case, and therefore includes only those facts necessary to address the instant objections.
Plaintiff was employed by Defendants as a front desk agent at one of Defendants' hotels in Manhattan from November 2015 to February 2016. Compl. ¶¶ 25, 69. She alleges that Defendants discriminated against her based on her gender and pregnancy, and based on her son's medical needs, in violation of various federal and state anti-discrimination laws. According to Plaintiff, Defendants discriminated against her by improperly reducing her work schedule after her son's hospitalization for emergency surgery and after she became pregnant, and by ultimately terminating her for complaining of the discrimination. See, e.g., Compl. ¶¶ 85, 88, 99-100.
Plaintiff's objections to Judge Freeman's order arise from a lengthy dispute over the existence and retrievability of certain electronically stored information ("ESI") purportedly held by Karacica, including an audio recording and certain text messages and emails. Many of the facts surrounding such ESI are uncontested. The parties do not dispute that Karacica recorded Plaintiff's termination meeting and a conversation between Karacica and Plaintiff that occurred immediately after that meeting. See Pl. Obj., Dkt. 133, at 3; Defs. Opp'n, Dkt. 136, at 3. Nor do they dispute that Karacica deleted the portion of the audio recording containing her conversation with Plaintiff immediately after the termination meeting. See Pl. Obj. at 3; Defs. Opp'n at 3-4. When Plaintiff realized that the recording had been edited, she alerted the Court and requested an extension of the discovery deadlines to allow for further investigation. See Dkt. 75. In response, on March 26, 2019, Judge Freeman directed Defendants "to secure the assistance of a forensic expert to determine whether the remaining audio may be recovered from Karacica's phone." See Dkt. 89 at 13. Defendants did so, and their forensic expert concluded that the complete recording was notretrievable from Karacica's phone. See Dkt. 93-1. Thereafter, Plaintiff filed a letter arguing that the forensic report was inconsistent with statements made by Karacica at her deposition, in that that the forensic analyst was told that there were no backups in iCloud but Karacica testified that the recording should be in her iCloud. See Dkt. 94 at 5. Judge Freeman then directed Defendants to engage their forensic expert to "attempt to restore the recording from iCloud storage and supplement his report with an explanation of the steps taken to do so." Dkt. 99 at 8. Defendants' expert ultimately concluded that the full audio file was not recoverable from iCloud, which indicated that the complete file was deleted prior to the earliest backup date of February 1, 2019. See Dkt. 111-8 at 3.
As to the text messages and emails pertinent to Plaintiff's case, which Plaintiff alleges Karacica deleted, Defendants previously asserted that they have been unable to retrieve text messages from Karacica's service provider beyond August 2017 and that they have not located any additional emails beyond those already provided by Plaintiff. See Defs. Opp'n at 6-7; see also Dkt. 67-2 at 2 (); Dkt. 87 at 2 (). On June 12, 2019, Judge Freeman concluded that she was "satisfied" with Defendants' attempts to locate and produce such emails, and noted that "the mere fact that no further emails were located and produced does not mean that the search was inadequate."3 Dkt. 99 at 2.
On August 1, 2019, Plaintiff moved for a finding of spoliation, adverse inference, attorney's fees, and other remedies against Defendants pursuant to Rule 37(e). See Sanctions Mot.,Dkt. 109, at 26. Plaintiff argued that the audio recording, emails, and texts had all been deleted intentionally, depriving her of critical evidence to support her case. In a text order on February 5, 2020, Judge Freeman denied the motion, explaining that Plaintiff's allegations that Karacica had deliberately destroyed the audio recording were "wholly unsupported by the record," and that, with respect to the text messages and emails, "even if Karacica was on notice of a duty to preserve such communications," Plaintiff had not demonstrated Karacica's intent to deprive her of the information's use in litigation, as required for the imposition of penalties under Rule 37(e)(2). See Dkt. 124.
Plaintiff timely filed the instant Rule 72(a) objections to the February 5, 2020 text order on February 19, 2020. See Dkt. 126. Defendants filed their opposition on March 4, 2020, see Dkt. 127, and Plaintiff replied on March 12, 2020, see Dkt. 131.4
"[A] judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court." 28 U.S.C. § 636(b)(1)(A). With respect to non-dispositive matters, such as the discovery order at issue here, a district court "must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a); see also Goonewardena v. N.Y. Workers Comp. Bd., No. 09-CV-8244 (RA), 2015 WL 3404078, at *1 () (quoting Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)). "A magistrate judge's order is 'clearly erroneous' if the district court 'is left with the definite and firm conviction that a mistake has been committed.'" David v. WeinsteinCompany LLC, No. 18-CV-5414 (RA), 2020 WL 4042773, at *3 (S.D.N.Y. July 17, 2020) (quoting Thai Lao Lignite (Thailand) Co., Ltd. v. Gov't of Lao People's Democratic Republic, 924 F. Supp. 2d 508, 512 (S.D.N.Y. 2013)). "An order is 'contrary to law' when it 'fails to apply or misapplies relevant statutes, case law, or rules of procedure.' Id. (citing State Farm Mut. Auto. Ins. Co. v. Fayda, No. 14-CV-9792, 2016 WL 4530890, at *1 (S.D.N.Y. Mar. 24, 2016)).
"It is well-settled that a magistrate judge's resolution of a nondispositive matter should be afforded substantial deference." Roth v. United States, No. 09-CV-8712 (GBD) (LMS), 2011 WL 2947004, at *1 (S.D.N.Y. July 19, 2011) (internal quotation omitted). This standard of review is "highly deferential," and "magistrate judges are afforded broad discretion in resolving nondispositive disputes and reversal is appropriate only if their discretion is abused." Williams v. Rosenblatt Sec., Inc., 236 F. Supp. 3d 802, 803 (S.D.N.Y. 2017) (quoting Thai Lao Lignite, 924 F. Supp. 2d at 511). Thus, a party seeking to overturn a magistrate judge's decision must carry a "heavy burden." Weinstein Company, 2020 WL 4042773, at *3; Thai Lao Lignite, 924 F. Supp. 2d at 512. Moreover, "courts in this circuit generally follow the rule that a district court reviewing an appeal of a non-dispositive motion from a magistrate judge may not look beyond the factual record presented to the magistrate judge." NIKE, Inc. v. Wu, 349 F. Supp. 3d 346, 353 (S.D.N.Y. 2018) (citing Thai Lao Lignite, 924 F. Supp. 2d at 511). Additionally, courts in this Circuit "generally do not entertain new legal arguments not presented to the magistrate judge." Id. at 353 (quoting Anderson v. Phoenix Beverage Inc., No. 12-cv-1055, 2015 WL 737102, at *3 (E.D.N.Y. Feb. 20, 2015)).
Plaintiff makes two objections. First, she objects that the Order did not consider the potential for remedies under Rule 37(e)(1), see Pl. Obj. at 2, and argues that she was entitled tosuch remedies. Id. at 7-8. Second, she objects that Judge Freeman erred by failing to address her request for discovery of certain emails provided by Defendant in camera. See id. at 6-7. The Court will address each objection in turn.
Plaintiff first objects that Judge Freeman's order focused exclusively on remedies under Rule 37(e)(2) without considering that less severe remedies may be available under Rule 37(e)(1). See Pl. Obj. at 2. Whereas Rule 37(e)(2) authorizes three "particularly harsh" enumerated sanctions on a party that fails to preserve electronically stored information "with the intent to deprive another party of the information's use," Lokai Holdings LLC v. Twin Tiger USA LLC, No. 15-cv-9363 (ALC) (DF), 2018 WL 1512055, at *8 (S.D.N.Y. Mar. 12, 2018), Rule 37(e)(1) authorizes unspecified remedies whenever the loss of electronically stored information causes "prejudice to another party," regardless of intent. See Karsch v. Blink Health Ltd., No. 17-cv-3880 (...
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