Tyson v. Connecticut Dep't of Energy & Envtl. Prot.

Decision Date15 November 2022
Docket Number3:21-cv-736 (JAM)
CourtU.S. District Court — District of Connecticut


Jeffrey Alker Meyer United States District Judge

The defendant Connecticut Department of Energy and Environmental Protection (DEEP) moves for spoliation sanctions against plaintiff Omar Tyson.[1] DEEP contends that Tyson willfully destroyed evidence-a particular photo and a cellphone used to take the photo- relating to his discrimination claim. Although I agree with DEEP that Tyson should not have discarded the photo and the phone, I am unable to conclude on the present record that he did so intentionally to make this evidence unavailable for this litigation.

Accordingly I will grant DEEP's motion in part to the extent that I will instruct the jury that Tyson had a duty to preserve the photo and the phone but failed to do so and then to allow the jury to draw a permissive adverse inference if it concludes that Tyson discarded this evidence with improper intent to make it unavailable for this litigation. I will otherwise deny DEEP's motion to the extent that DEEP seeks dismissal, preclusion of evidence, or a mandatory adverse inference instruction.


Tyson is an African American who has been employed as a sanitary engineer at DEEP since 2004.[2] As relevant here, Tyson claims that he was subject to a race-based hostile working environment. He premises this claim in part on his alleged discovery on or around June 20, 2018, of a noose tied into the drawstrings of venetian blinds by his cubicle.[3] Tyson promptly reported the incident to his supervisor, Lori Saliby.[4] He alleges that after receiving no meaningful response, he also reached out to his union steward, Dawn McKay.[5] Tyson forwarded her a photo he took of the noose.[6]

Several days later the Connecticut State Police began an investigation into the incident.[7]As part of the investigation the police requested to conduct a forensic examination of Tyson's phone so they could restore the original photograph of the noose, which Tyson had purportedly deleted.[8] Tyson declined, citing privacy reasons.[9] The police investigation ultimately concluded there was insufficient evidence to support Tyson's claim regarding the noose.[10]

On February 2, 2022, DEEP requested discovery relating to any photographs Tyson ever took of the noose and the associated metadata.[11] Tyson initially produced a PDF version of the requested photograph without any intact metadata.[12] He later supplemented his response explaining that he had deleted the original photograph of the noose because he did not want the picture to remain in his general photo library.[13] The image he produced in discovery was a screenshot of the original photo.[14]

DEEP then requested to conduct a forensic examination of the phone and camera on which Tyson took the original photo.[15] Tyson responded that he no longer had that phone, as it was “at least two versions ago.”[16]

DEEP now moves for spoliation sanctions because of Tyson's deletion of the original photo and because of his discarding the cellphone he used to take the photo.[17] DEEP claims that Tyson's destruction of this evidence prevents or impairs it from challenging Tyson's claim that he found a noose at the time that he claimed to do so.[18] DEEP seeks dismissal of the case or to prevent Tyson from asserting any evidence about his finding the noose or an adverse jury instruction.[19]


A court has “broad discretion” when deciding whether and how to sanction parties for spoliation of evidence. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776 779 (2d Cir. 1999). To obtain sanctions based on the spoliation of evidence, the movant must show (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Klipsch Group, Inc v. ePRO ECommerce Limited, 880 F.3d 620, 628 (2d Cir. 2018).[20]

Rule 37 of the Federal Rules of Civil Procedure was amended in 2015 to clarify the parties' obligations to preserve electronically stored information. In relevant part, the rule now requires a court to conclude that “the destroying party acted with the intent to deprive another party of the information's use in the litigation” before the court may impose sanctions such as entry of an adverse inference instruction or default judgment. Coan v. Dunne, 602 B.R. 429, 437 (D. Conn. 2019).

The amended version of Rule 37(e) sets forth a three-part inquiry. First, a court takes on the threshold question of whether a party failed to take “reasonable steps” to preserve electronically stored information “that should have been preserved in the anticipation or conduct of litigation.” Fed.R.Civ.P. 37(e). Second, a court examines if there has been “prejudice to another party from loss of the information.” Fed R. Civ. P. 37(e)(1). If there has, the court “may order measures no greater than necessary to cure the prejudice.” Ibid. Finally, if the destroying party “acted with the intent to deprive another party of the information's use in the litigation,” then a court may impose measures such as mandatory presumptions or instructions that the lost information was unfavorable to the party or the entry of default judgment. Fed.R.Civ.P. 37(e)(2).

As to the first element, Tyson does not dispute that he deleted the original photo of the noose along with its associated metadata. Neither does he dispute that he has not produced the phone on which he took the original photo. There is thus no question that the evidence has not been preserved. The remaining issue is whether Tyson had an obligation to do so.

A party that “reasonably anticipates litigation must maintain all evidence that they knew or should have known . . . may be relevant to that litigation.” Jacquety v. Baptista, 538 F.Supp.3d 325, 342 (S.D.N.Y. 2021) (citing Fujitsu Ltd. V. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001)). The duty to preserve can arise “even before formal initiation of an action, once a party reasonably anticipates litigation.” Ibid.

Tyson first mentioned the possibility of filing a discrimination claim in March 2018.[21] In text messages between Tyson and McKay on March 20, 2018, Tyson told McKay that he had consulted with his sister, an attorney, who advised him to pursue a discrimination case with the Commission on Human Rights and Opportunities.[22] A few days later, Tyson told McKay that he wanted his sister, whom he referred to as his “attorney,” as well as a Connecticut State Senate member, to be present at a meeting scheduled with HR to “let them know we mean business.”[23]

Courts have found that a duty to preserve evidence may arise when a plaintiff has clearly signaled an intention to pursue legal action. See, e.g., Karsch v. Blink Health Ltd., 2019 WL 2708125, at *18 (S.D.N.Y. 2019) (obligation to preserve arose when plaintiff sent defendant a letter demanding repayment and threatening legal action); Ottoson v. SMBC Leasing and Finance, Inc., 268 F.Supp.3d 570, 581 (S.D.N.Y. 2017) (the plaintiff had an obligation to preserve evidence from the date her counsel “sent a demand letter . . . threatening litigation and requesting [p]laintiff's personnel file”). Tyson's texts show that he was making concrete plans to file a discrimination claim at least three months before he discovered the noose in June 2018. And so by the time Tyson deleted the original photo of the noose, he certainly had an obligation to preserve any evidence that might be relevant to contemplated future legal action.

Tyson counters that he could not have foreseen that a photo of the noose would become a “critical piece of evidence” in his claim.[24] But this argument is hard to square with Tyson's own assertion that discovering the noose was the “straw that broke the camel's back” in motivating him to pursue legal action.[25] Moreover, the duty to preserve arises when a plaintiff knows or should have known that the evidence would be “relevant” to future litigation. In re Keurig Green Mtn. Single-Serve Coffee Antitrust Lit., 341 F.R.D. 474, 495 (S.D.N.Y. 2022). Tyson himself agrees that evidence of the noose is “unquestionably relevant to his claim.”[26]

Tyson further contends that he did not know he had a legal obligation to preserve the original copy of the photo and its associated metadata or the phone on which he took the original photo.[27] Certainly in evaluating what constitute “reasonable steps” under Rule 37 a court should “be sensitive to the party's sophistication,” as “individual litigants[] may be less familiar with preservation obligations.” Rule 37(e) adv. comm. n. to 2015 amend. But even taking into consideration Tyson's status as an individual litigant, I still find that it was unreasonable for him to not retain evidence relating to the noose. At the time he found the noose, Tyson was taking steps to catch someone “in the act of harassing him, believing that was the only way to prove a discrimination claim.[28] It would be odd for Tyson to make plans to “catch” the person in the act but not believe he should retain other evidence of the noose he allegedly found on June 20.

Tyson's duty to preserve the original phone on which he took the photo is even clearer. Tyson still had the original phone at the time of the initial police investigation in 2018. The request from the police to conduct a forensic analysis...

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