Not a Lexis Advance subscriber? Try it out for free.

Ottoson v. SMBC Leasing & Fin., Inc.

United States District Court for the Southern District of New York

July 13, 2017, Decided; July 13, 2017, Filed

13 Civ. 1521


 [*572]  Sweet, D.J.

Defendants SMBC Leasing and Finance, Inc. ("SMBCLF"), David Ward ("Ward"), and Lisa Savinon ("Savinon") (collectively, the "Defendants") have moved pursuant to Rule 37 of the Federal Rules of Civil Procedure for sanctions to be imposed upon plaintiff Maureen Ottoson ("Ottoson" or the "Plaintiff") for spoliation of evidence, specifically seeking an adverse inference instruction, and fees and costs.

For the reasons set forth below, the motion of the Defendants for an adverse inference is granted, and their application for fees and costs is adjourned to the settlement of final judgment.

I. Prior Proceedings

Plaintiff filed this action accusing Defendants of discrimination based on a perception of disability arising from a report allegedly in SMBCLF's possession on March 2, 2013. Plaintiff was employed by SMBCLF as an Assistant Vice President performing contract administration from April 30, 2012 through August 1, 2012. Plaintiff's Complaint ("Compl.") ¶¶ 25, 26.

On July 9, 2012, Plaintiff's then-counsel Jesse [**2]  Rose ("Rose") sent a demand letter to Defendants' Human Resources Department threatening litigation and requesting Plaintiff's personnel file. Declaration of Andrew E. Rice [hereinafter, "Rice Decl."], Ex. X (Rose Letter to Smith). Plaintiff alleges that on or around August 31, 2012, she filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"), and that she received a Notice of Right to Sue dated January 31, 2013. Compl. ¶¶ 4-5.

The Complaint alleges that subsequent to her hire, SMBCLF performed a background check on Plaintiff, the results of  [*573]  which included a "government/insurance report" (the "Report") that contained "inaccurate and defamatory information about Ottoson, her home, and her state of mind." Compl. ¶¶ 20; 29. Plaintiff testified during her deposition that she first learned of the existence of this Report in the 1980s. Rice Decl., Ex. C (Relevant Excerpts of Plaintiff's May 2014 and September 2015 Depositions) [hereinafter, "Tr."], at 538:7-9. Plaintiff alleges that Defendants "formed the inaccurate belief that Ottoson suffers from a mental impairment and disability" based on the contents of the alleged Report. Compl. ¶¶ 30, 48. Plaintiff [**3]  further alleges that she was terminated based on SMBCLF's misperception that she was disabled, and in retaliation for complaining about discrimination based on perceived disability. Id. ¶¶ 47, 49.

Plaintiff stated at her deposition that, as of November 2013, eight months after she filed this lawsuit, she had no proof that the Report existed. Tr. at 596:17-19. Despite issuing more than a dozen subpoenas to past employers and others, Plaintiff failed to receive the Report. Rice Decl. ¶ 23; see Tr. 596:8-11 ("Q . . . So as of November 2013, you had not obtained the report from any source, correct? A. No, I didn't."). Defendants have repeatedly denied having ever seen or received the Report, and have stated under penalty of perjury that they did not, and do not, possess the Report. See, e.g., ECF No. 33; Rice Decl., Ex. V (Excerpts of Deposition of Defendant David Ward) at 82, 88-91; Rice Decl., Ex. W (Excerpts of Deposition of Defendant Lisa Savinon) at 86-87, 107-09.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

268 F. Supp. 3d 570 *; 2017 U.S. Dist. LEXIS 109079 **; 2017 WL 2992726


Subsequent History: Counsel Amended September 14, 2017.

Prior History: Ottoson v. SMBC Leasing & Fin., Inc., 2015 U.S. Dist. LEXIS 99779 (S.D.N.Y., July 29, 2015)


emails, documents, communications, spoliation, sanctions, deposition, discovery, deleting, destroyed, adverse inference, allegations, requests, destruction, electronic, habit, steps, discovery request, telephone, witnesses, remember, lawsuit, parties, Notice, motion to compel, defense counsel, Inspection, responded, costs, missing evidence, Supplemental

Evidence, Relevance, Preservation of Relevant Evidence, Civil Procedure, Judicial Officers, Judges, Discretionary Powers, Preservation of Relevant Evidence, Spoliation, Discovery & Disclosure, Discovery, Misconduct During Discovery, Trials, Jury Trials, Jury Instructions, Remedies, Costs & Attorney Fees