ORDER On February 24, 2020, plaintiff John Karlyg commenced this action against the City of New York and several Taxi and Limousine Commission (“TLC”) enforcement officers, asserting claims arising out of his arrest on July 9, 2019, which took place while he was working as a Lyft driver. (ECF No. 1). On May 6, 2022, plaintiff filed his Second Amended Complaint, which alleges false arrest, excessive use of force, fabrication of evidence, and related tort and civil rights claims in connection with the arrest. (Sec. Am. Compl.1). Currently pending before this Court is defendants’ Motion for Spoliation Sanctions Pursuant to Fed. R. Civ. P. 37(e). (Defs.’ Mot.2). For the reasons set forth below, defendants’ motion for sanctions is denied. BACKGROUND Plaintiff alleges that on July 9, 2019, an undercover TLC officer, defendant White, harassed him and asked for his license and registration; plaintiff then started taking photographs of defendant White and the other co-defendants, at which point defendant White “struck the phone out of plaintiff’s hand and proceeded to forcefully arrest the plaintiff.” (Pl.’s Opp.3 at 1). In discovery, plaintiff produced, by email in PDF format, six photographs of the defendants from the incident — the only photographs at issue here. (Defs.’ Mot. at 1-2; Pl.’s 11/6/20 Discovery Responses4 at 6-12). The photographs plaintiff produced allegedly depict the defendants standing at the scene shortly before they arrested plaintiff; that is, they “aided in identifying the participants” but do not depict the defendants “engaging in any of the conduct [of which] the plaintiff complained.” (Pl.’s Opp. at 4). Defendants contend that the photographs may have been “taken later and/or saved as screenshots sometime after plaintiff’s July 9, 2019 arrest.” (Defs.’ Mot. at 3). If the photographs were screenshots, defendants argue, that would indicate that plaintiff recorded a video during the incident and “later deleted it, saving only screenshots from the video.” (Id. at 3-4). In addition, plaintiff took three photographs of his license plates that he claims he took a week after the incident to defend against charges brought by the TLC that plaintiff was arrested for having covers over his license plates. (Defs.’ Mot. at 1; Pl.’s Opp. at 1-2). Plaintiff testified at his September 2021 deposition that he could not remember if he took any other photographs on the day in question, but that he did not record any videos. (Defs.’ Mot at 2 (citing Pl.’s 9/9/21 Dep.5 at 57-58, 107)). When questioned at his deposition about a license plate picture where the N in New York was partially covered, plaintiff stated that there existed “originals and you can see everything” on the license plate in the originals. (Pl.’s 9/9/21 Dep. at 111). Defendants then requested “any additional photographs that had not already been produced and the ‘originals’ of photographs that plaintiff claimed were different than the photographs that were previously produced,” as well as any video recordings. (Defs.’ Mot. at 2). In response, plaintiff produced only one “‘Full license plate photo’” that had not been previously produced. (Id. at 3). He did not produce any additional photographs taken the day of the incident. (Id.) A year after plaintiff’s deposition, in September 2022, defendants requested the native files of all produced photographs. (Id.) Plaintiff’s counsel responded by agreeing to an inspection of plaintiff’s cell phone. (Id.) On February 9, 2023, defendants inspected plaintiff’s cell phone, but no photographs or videos existed on the phone from prior to June 29, 2020.6 (Id. at 4). Defendants conducted a second deposition of plaintiff on April 3, 2023, and inquired about the lack of photographs from 2019. (Pl.’s 4/3/23 Dep.7 at 9-10). Plaintiff stated that he did not delete the photographs and was not sure what happened to them, but that they may have been lost or removed by the phone company after a period of years. (Id. at 13). Plaintiff also stated that he believed he sent photographs to his attorney through email. (Id. at 18-19). Defendants requested the emails be produced, and plaintiff produced five emails that included the three photographs of the license plates and two screenshots from the Lyft app. (Defs.’ Mot. at 4-5). Plaintiff did not find any email to his counsel with the six previously produced photographs of the defendants. (Id. at 5). Defendants argue that plaintiff intentionally destroyed relevant electronically stored information (“ESI”) by deleting certain images from his cell phone. (Id. at 7). Specifically, defendants argue that plaintiff intentionally destroyed “the original, native versions along with metadata for the [six] images he produced depicting the defendants during the incident at issue in this case.” (Id.) Therefore, without the metadata, defendants cannot test whether the photographs were taken during the incident, or were screenshots taken from a video of the incident. (Id. at 3). Defendants submit that this warrants spoliation sanctions, specifically “(1) dismissal of his false arrest and fabrication of evidence claims; (2) a permissive adverse inference instruction and an opportunity to cross examine plaintiff on the destruction of evidence, if any of plaintiff’s claims proceed to trial; and (3) reasonable attorneys’ fees incurred in connection with plaintiff’s spoliation of evidence.” (Id. at 11). DISCUSSION I. Legal Standard Rule 37(e) provides: If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Fed. R. Civ. P. 37(e). The threshold requirements for Rule 37(e) are as follows: “(1) that relevant ESI existed; (2) that the ESI should have been preserved in anticipation of litigation; (3) that the allegedly spoliating party did not take reasonable steps to preserve the ESI; and (4) that the ESI cannot be entirely restored or replaced.” Castro v. Smith, No. 16 CV 8147, 2023 WL 5371311, at *7 (S.D.N.Y. Aug. 22, 2023) (citations omitted). Under subsection (e)(1), there must be a finding of prejudice, the analysis of which “necessarily includes an evaluation of the information’s importance in the litigation.” Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment. The rule “does not place a burden of proving or disproving prejudice on one party or the other.” Id. “It is sufficient if the existing evidence plausibly ‘suggests’ that the spoliated ESI could support the moving party’s case.” Karsch v. Blink Health Ltd., No. 17 CV 3880, 2019 WL 2708125, at *21 (S.D.N.Y. June 20, 2019) (quoting Coan v. Dunne, 602 B.R. 429, 440 (D. Conn. 2019)). Subsection (e)(2) requires an “intent to deprive,” but not a finding of prejudice, since the existence of intent supports the “inference that the lost information was unfavorable to the party that intentionally destroyed it, but also an inference that the opposing party was prejudiced by the loss of information that would have favored its position.” Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment. “Whether the spoliator affirmatively destroys the data, or passively allows it to be lost, is irrelevant; it is the spoliator’s state of mind that logically supports the adverse inference.” Ungar v. City of New York, 329 F.R.D. 8, 13 (E.D.N.Y. 2018), aff’d, No. 21 CV 1384, 2022 WL 10219749 (2d Cir. Oct. 18, 2022). II. The Parties’ Submissions Defendants argue that plaintiff failed in his duty to preserve the original photographs of defendants, and the metadata therein “cannot be obtained through alternative means.” (Defs.’ Mot. at 5, 7-8). Defendants further argue that this failure to preserve ESI is prejudicial because defendants are “unable to test whether or not the photographs were created contemporaneously with the incident…or whether they were created from a video of the incident.” (Id. at 8). Defendants argue that whether or not a video was taken of the incident is relevant given that plaintiff claims the arresting officer created a false police report stating that plaintiff was recording an undercover officer and impeding her operation, as well as “‘screaming and cursing in front of multiple passengers.’” (Id. at 9 (citing Sec. Am. Compl.
