A federal judge has punished a vendor, who sells food and other products to sporting venues, for allegedly concealing and delaying production of evidence associated with the vendor’s lawsuit against Queens Ballpark Company, LLC, a builder and operator of baseball facilities.
Specifically, the court ordered the plaintiff to reimburse the defendant for costs associated with bringing a motion for sanctions, and held that it would “instruct the jurors at trial that they may infer that the lost evidence was unfavorable to the plaintiff.”
The underlying claim centered on plaintiff Kosher Sports, Inc.’s allegation that the defendant, which operates Citi Field (the baseball stadium of the New York Mets), breached its contract with the plaintiff, a vendor of kosher food products, and tortiously interfered with the contractual arrangement between the plaintiff and Aramark, the defendant’s concessionaire.
More specifically, the plaintiff complained, among other things, that the defendant had improperly prevented the plaintiff from distributing its kosher products at games occurring at Citi Field during the Jewish Sabbath, i.e., on Friday evenings and Saturdays.
The defendant countered that it was Aramark’s decision “to deny the plaintiff’s request to operate on the Jewish Sabbath.”
As for the discovery controversy, the defendant accused the plaintiff of “concealing and delaying production of two surreptitiously created recordings of conversations in 2011, between representatives of non-party Aramark Sports and Entertainment Services, LLC and the plaintiff’s president, Jonathan Katz.
Katz apparently informed his attorney of the existence of this recording prior to the completion of the plaintiff’s responses to defendant’s first set of interrogatories and document requests. However, the plaintiff’s responses did not disclose the existence of the January 2011 recording.
The court wrote that “several provisions of the Federal Rules of Civil Procedure authorize sanctions for untimely, incomplete, or misleading responses during discovery.
“Generally speaking, in deciding whether to impose sanctions under Rule 37, the court considers the following factors: ‘(1) the willfulness of the noncompliant party or the reasons for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the noncompliant party had been warned of the consequences of his noncompliance.’ Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002)”.
Addressing the failure to disclose in a timely manner, the court opted for leniency, ruling that the plaintiff and his counsel “will bear joint responsibility for defendant’s reasonable expenses.”
As for the spoliation of some evidence, or the “destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation,” the court was less generous. Byrnie v. Town of Cromwell, 243 F.3d 93, 107 (2d Cir. 2001) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)).
It focused specifically on the sanction of adverse inference. Such a sanction “should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss. Residential Funding Corp., 306 F.3d at 108 (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991).”
The court concluded that “the two recordings strongly suggest that Mr. Katz used secret taping as an ambush tactic and not as an aide-mémoire: Mr. Katz spent considerable time during the January 6, 2011 and April 6, 2011 discussions attempting to bait Messrs, Kleckner and Grey into making statements contrary to the defendant’s litigation position. The court concludes that a reasonable fact finder could infer that the pre-2011 recordings would have been favorable to the defendant.”
Kosher Sports, INC. v. Queens Ballpark Company, LLC; E.D.N.Y.; 10-CV-2618 (JBW), 2011 U.S. Dist. LEXIS 86651; 8/5/11.
Attorneys of Record: (for plaintiff) Ira D. Tokayer, Ira D. Tokayer, Esq., New York, NY. (for defendant) Avery S. Mehlman, Ronald Jay Levine, LEAD ATTORNEYS, Herrick, Feinstein, LLP, New York, NY.
