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Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 26 of 42 culpable state of mind, nor is any argued. How can one have a culpable state of mind where there are no additional accounts to search or documents to be produced? Finally, and perhaps most importantly, Plaintiff fails to provide a shred of evidence 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.” Residential Funding Corp., 306 F.3d at 108. As discussed, completion of the multiple levels of forensic searches resulted in no responsive non-privileged documents. The hypothetical “undisclosed” email account does not exist. There can simply be no claim that there are any “missing” documents, let alone that they are relevant to Plaintiffs claims or defenses. Giarrizzo v. Holder, No. 07-CV-0801 MAD/GHL, 2012 WL 716189, at *3 (N.D.N.Y. Mar. 5, 2012) (refusing request for adverse inference where Plaintiff failed to demonstrate relevance prong stating “Plaintiff only identifies the alleged missing documents and speculates, without proof, that the documents support his claim. Indeed, plaintiff has not proven that the aforementioned documents exist”); Sovulj v. United States, No. 98 CV 5550FBRML, 2005 WL 2290495, at *5 (E.D.N.Y. Sept. 20, 2005) (plaintiff could not meet the requirements for obtaining an adverse inference because assertion that missing evidence was relevant was pure speculation); see also Orbit One Commc'ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 439 (S.D.N.Y. 2010) (collecting spoliation cases holding that an adverse inference is inappropriate without proof beyond mere speculation allegedly lost information was relevant). “Without proof that defendant's actions, ‘created an unfair evidentiary imbalance, an adverse inference charge is not warranted.’” Giarrizzo, 2012 WL 716189, at *2 (citing Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 291 (S.D.N.Y. 2009)). Here, Plaintiff cannot demonstrate that there is any missing or non-produced information. She hypothecates a non- existent email account and speculates that it must have discoverable relevant evidence. She has 11