In Part I of this article, we discussed the revised Rule 37(e) of the Federal Rules of Civil Procedure, which took effect on Dec. 1, and how in January the Southern District of New York, in Cat3 v. Black Lineage, 14 Civ. 5511 (AT) (JCF)(S.D.N.Y. Jan. 12, 2016), interpreted the revised rule. In Part II, we will discuss how the Southern District interpreted the revised rule in Stinson v. City of N.Y., 1:10-cv-04228-RWS (S.D.N.Y. Jan. 2, 2016), and how the courts’ interpretations of the revised rule are not that different from their interpretation of the rule prior to revision.
In Stinson, the plaintiffs, “a class of individuals who were allegedly issued summonses without probable cause,” filed a letter-motion seeking sanctions for spoliation of evidence against defendants, City of New York, 50 unnamed New York Police Department officers, and former NYPD Commissioner Raymond W. Kelly. The city did not issue any litigation hold until more than three years after the filing of the complaint, and the hold itself—a preservation notice to NYPD members of service, to be read to all commands—was not effectively communicated; none of the officers named in the city’s initial disclosures acknowledged receiving it.
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