Giuffre_Maxwell_Batch3_p00261.png

Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 18 of 21 show (1) that the party having control over the evidence had an obligation to timely produce it; (2) that the party that failed to timely produce the evidence had ‘a culpable state of mind’; and (3) that the missing evidence is ‘relevant’ to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” /d. (citing Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2d Cir. 2002)). Furthermore, as discussed in detail in Ms. Giuffre’s Motion for an Adverse Inference Instruction (DE 315), an adverse inference is appropriate regarding the documents that Defendant is withholding under the Second Circuit’s test set forth in Residential Funding. Defendant has admitted to deleting emails as this Court noted in its Order. Defendant has not collected what data remains from at least half of her email accounts. An adverse inference is equally appropriate if the non-compliance was due to Defendant’s destruction of evidence. See Brown v. Coleman, 2009 WL 2877602, at *2 (S.D.N.Y. Sept. 8, 2009) (“Where a party violates a court order—either by destroying evidence when directed to preserve it or by failing to produce information because relevant data has been destroyed—Rule 37(b) of the Federal Rules of Civil Procedure provides that the court may impose a range of sanctions, including dismissal or judgment by default, preclusion of evidence, imposition of an adverse inference, or assessment of attorneys' fees and costs. Fed. R. Civ. P. 37(b); see Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 106-07 (2d Cir.2002)”). See also Essenter v. Cumberland Farms, Inc., 2011 WL 124505, at *7 (N.D.N.Y. Jan. 14, 2011); and Rule 37(e), Fed. R. Civ. P. (‘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. . . the court: (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 18