New York City has been sanctioned for not preserving documents in a civil rights class action alleging police improperly set quotas for the number of summonses each officer must issue.
Southern District Judge Robert Sweet said the New York City Police Department was “grossly negligent” in allowing documents to be destroyed knowing they could be relevant to the case.
He also faulted a police order on the routine destruction of documents, including summonses—an order that “included information on how to utilize an industrial shredding truck to destroy documents en masse.”
The case alleges hundreds of thousands of people have been issued summonses without probable cause in violation of the First, Fourth, Fifth, Eight and Fourteenth Amendments. The plaintiffs accuse officers of issuing summonses solely to hit the number set by their superiors.
Plaintiffs counsel Gerald Cohen, left, and lead plaintiff Sharif Stinson in 2013NY Daily News/Andrew Savulich
The lead plaintiff in the case, Sharif Stinson, was 19 years old when the suit was brought in 2010. He said he was stopped, detained and searched without probable cause on New Year’s Eve 2009 as he left his aunt’s apartment building on East 179th Street. He was given a disorderly conduct summons that was ultimately dismissed.
A trial in Stinson v. City of New York, 10 Civ. 4228, is expected to start sometime this year. Sweet said the jury will be instructed that “the absence of documentary evidence does not in this case establish the absence of a summons quota policy.”
Sweet, in his opinion on the consequences for spoliation of evidence, said the city’s litigation hold, which was issued in August 2013, was “late and ineffective.”
The plaintiffs filed suit in 2010, but Sweet noted that summons quotas were a major issue as far back as Jan. 31, 2008, when the complaint was filed in another case, Floyd v. City of New York— the central piece of litigation over police stop-and-frisk practices.
The city settled Floyd, and a remedial order remedying unconstitutional practices is now being implemented.
Because Floyd “contained significant quota-related allegations,” Sweet said the duty to preserve arose on the date Floyd was filed.
The city had argued that it was unreasonable to require that police documents be preserved indefinitely because the NYPD is so often involved in litigation. It contended that a broad duty to preserve would, in effect, amount to a “perpetual litigation hold.”
“The statement is inarguable,” Sweet said. “But it does not justify a three-year failure to issue a litigation hold in this action, or a failure to preserve documents while the Floyd case, in which the issue of an alleged quota was ‘hotly contested’ … remained pending.”
Sweet disagreed with the NYPD’s complaint that the plaintiffs were demanding the city preserve every relevant document in the hands of the department.
“While the plaintiffs have made overbroad discovery requests before, the reasonableness of one party’s demands does not determine the scope of the other party’s obligation to preserve documents,” he said.
The judge faulted policies that provided for the destruction of evidence, including the destruction of bureau chief memos after three years, monthly performance reports after four years and criminal court summonses after four years.
The same was true of electronically stored information such as email and text, as well as the destruction of materials relating to police CompStat meetings, where crime and performance-related data are exchanged and policy is set, and officer activity reports.
The judge found few responsive documents were produced on emails from former Commissioner Raymond Kelly, former Chief of Department Joseph Esposito and other officials—an indication the emails were deleted.
The judge’s instruction to the jury, which serves as the city’s sanction, is called a “permissive inference.”
The sanction fell well short of the set of 16 mandatory adverse inferences that plaintiffs lawyers wanted to put before the jury, including one where the court would instruct the jury that there was a summons quota in place and that Kelly, Esposito and other senior department officials implemented it.
Sweet said to adopt the plaintiffs’ sanction would be to “dictate success on seriously contested issues” in a case where the plaintiffs “face a steep evidentiary burden to establish the existence of an official policy, pattern, or practice” under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978).
Nevertheless, the sanction of a permissive inference is a big advantage for the plaintiffs either in settlement talks or at trial.
While Sweet found the city was grossly negligent in destroying evidence, “there is no basis to conclude that the city acted in bad faith.” Rather, he said, the city’s conduct showed “a broad failure to take its preservation obligations seriously rather than any attempt to lie or mislead.”
The judge noted that the parties exchanged “inflammatory language” on whether the existence of the emails established that senior officers committed perjury. He found that allegation “unsupported.”
Law Department spokesman Nicholas Paolucci issued a statement Wednesday saying, “While the court suggests that there may have been systemic failures in preserving electronic and other communications, Judge Sweet categorically dismisses any suggestion that either former commissioner Kelly or former chief Esposito testified falsely as to the matters in question.”
The plaintiffs are represented by Gerald Cohen and Joshua Fitch of Cohen & Fitch, solo practitioner Jon Norinsberg and attorneys with Quinn Emanuel Urquhart & Sullivan: partners Elinor Sutton, Steig Olson and Stephen Neuwirth.
“Plaintiffs are pleased to see that the federal court has insured that defendants will face severe consequences for failing to take their legal obligations seriously, especially in light of the fact that this case concerns the constitutional rights of hundreds of thousands of individuals,” Sutton said. “The plaintiffs hope that the court’s decision will help ensure that relevant evidence is no longer destroyed in future litigation with the NYPD.”
The city is represented by assistant corporation counsels Qiana Smith-William, Joanne McLaren, Sheila Weinstein, Steven Silverberg and Suzanna Mettham.