Bursztein v Best Buy Stores, L.P., (2021 WL 1961645 [SD NY 2021]) involves a personal injury lawsuit arising from plaintiff Perla Bursztein’s slip and fall accident in a New York City Best Buy store.

During discovery, Bursztein requested: (i) video surveillance footage of the accident; (ii) maintenance, and repair records for the location of the accident; and (iii) Best Buy’s customer safety policy. In response, Best Buy produced two documents, interposed boilerplate specific objections to Plaintiff’s requests and claimed it did not maintain surveillance footage of the accident and other critical records.

However, this claim was at odds with deposition testimony provided by Spencer Stanfield (“Stanfield”), the general manager of the store where the accident occurred, who testified repair and maintenance requests were logged on a Facilities’ Request System and surveillance footage of the incident had been preserved by him. And so, Plaintiff served post-deposition demands seeking the surveillance footage and the relevant entries on the Facilities’ Request System.  Best Buy, however, responded with the same boilerplate objections as previously interposed and further stated it no longer had possession of the requested materials.

Fatigued by Best Buy’s discovery games, Plaintiff filed a Rule 37 motion seeking sanctions against defendants for failure to comply with discovery obligations and spoliation of evidence. In opposition, Best Buy submitted an affidavit from Stanfield, claiming he misunderstood at deposition the question concerning the video footage.

Finding Rule 37 (e) the “sole source” to address the loss of relevant ESI, the Court observed sanctions are appropriate when (a) there was anticipated or actual litigation triggering the duty to preserve ESI; (b) the relevant ESI should have been preserved at the time the litigation was anticipated or ongoing; (c) the ESI must have been lost because a party failed to take reasonable steps to preserve it; and (d) the lost ESI cannot be replaced through other discovery.

Ultimately, the Court granted Plaintiff’s motion and held she was entitled to the fees and costs associated with the motion and “permitted to present evidence at an eventual trial regarding the spoliation of liability-related ESI.”  In concluding sanctions were appropriate, the Court noted that Best Buy: “thwarted and disrupted discovery throughout the life of this case” by using dilatory and obstructive tactics; “repeatedly flouted their discovery obligations, failed to promptly communicate with opposing counsel, and repeatedly lodged baseless boilerplate objections to Plaintiff’s discovery requests;” and engaged in nothing short of a “paradigm of discovery abuse.”  Further, given the conflict between Stanfield’s deposition testimony and his affidavit, the Court concluded that video surveillance of the incident likely existed at one point and that Best Buy failed to preserve relevant ESI.

This decision serves as an important reminder that preservation obligations and discovery obligations must be taken seriously.  Indeed, as more and more decisions are demonstrating, there is no room for boilerplate objections, discovery games, or negligent/willful failures to preserve potentially relevant ESI.

Thank you to second year associate, James Maguire in the Firm’s Uniondale office, for his research assistance related to today’s blog.