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An employment discrimination plaintiff who claims that a tape of a recorded conversation with a supervisor has gone missing will pay the price at trial. U.S. District Judge Robert W. Sweet of the U.S. District Court for the Southern District of New York sanctioned Laila Barsoum for spoliation of evidence, ruling that having lost the tape, she cannot introduce evidence of the conversation with her supervisor at trial. And in an additional sanction, Sweet ruled that if the conversation is revealed to the jury at trial, the jury will also hear about the tape recording and how it came to be missing. The ruling, which was issued Tuesday, came after the New York Housing Authority asked the judge to sanction Barsoum for refusing to disclose the existence of the tape during depositions in Barsoum v. New York City Housing Authority, 00 Civ. 3679. Barsoum, an employee at the Housing Authority’s Office of Quality and Cost Control (OQCC), applied for the position of deputy director in 1997. She claims that she was interviewed for the position in January 1998, but at the time of the interview, the position had already been offered to another employee from a different department. The Housing Authority denied ever interviewing her for the position, asserting instead that Michael Meyer, deputy general manager for the Housing Authority’s Capital Projects, met with her to discuss other job opportunities with the agency. During that meeting, held on Jan. 29, 1998, Barsoum taped the conversation without Meyer’s knowledge. She later transcribed notes from the recording. After filing suit alleging employment discrimination and retaliation, Barsoum informed her attorney, Adrian C. Hunte, that she had taped the conversation with Meyer. Hunte told her client to turn the tape over to her. Hunte did not disclose the existence of the tape when she responded to the Housing Authority’s discovery requests. But she did bring her client’s transcribed notes of the tape to deposition, where she began using them to question Meyer. “At some point during the deposition, Hunte’s strategy became apparent to counsel for the defendants,” Judge Sweet said. “Hunte confirmed there was an undisclosed tape recording and offered to provide the defendants with a copy of Barsoum’s notes.” The Housing Authority refused to accept the notes, demanded the tape, and broke off the deposition of Meyer. Barsoum claimed she had put the tape in an envelope and left it on top of her desk. She said she noticed later the same day that the envelope was missing. To this day, the tape has not been recovered. SETTING SANCTIONS When Barsoum moved to compel the deposition of Meyer, the Housing Authority countered by asking for sanctions, including the dismissal of the case. “Barsoum’s conduct was at the very least grossly negligent,” Sweet said. “By her own account, Barsoum left the tape out on her desk at the office, in an area which is open to passers-by and not under her exclusive control, despite having been put on specific notice by her counsel of her obligation to turn over the tape.” And Barsoum’s misconduct was “compounded by that of her counsel, who failed to disclose the existence of the tape or Barsoum’s notes until confronted by defendant’s counsel at Meyer’s deposition.” ‘BAD FAITH’ Although Hunte claimed she did not disclose the existence of the notes, believing they would be inadmissible, and said that she fully intended to turn the tape over once it was found by Barsoum, Sweet said “this is not an acceptable excuse for conduct,” and “indeed, amounted to bad faith.” Barsoum’s “rudimentary” notes, Sweet said, contained some indication of general concerns expressed by Meyer about the wisdom of filling the position at all, but they also show, to a small degree, “that the tape would have contained evidence of nondiscriminatory motive on Meyer’s part.” He therefore said the showing of prejudice by the Housing Authority was “not a high one,” that would justify dismissal. However, Sweet said, “preclusion of any evidence relating to the meeting between Barsoum and Meyers would serve the purposes of punishment and deterrence.” The judge barred Barsoum from testifying about the meeting, but added a caveat. “If, however, the defendants themselves wish to introduce evidence of the meeting into this litigation, then a different sanction will apply,” he said. In that event, Barsoum can present evidence of the meeting, but the jury will be informed about the missing tape and “may draw a negative inference against Barsoum” regarding the meeting. The judge also ruled that Barsoum’s notes may not be used in any manner, and precluded her from asking Meyer about the meeting in depositions. Hunte is an attorney with Harkins & Hunte in Mohegan Lake, N.Y. Assistant Corporation Counsel Lanny R. Alexander represented the Housing Authority.

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