Hoffer v. Tellone

22-1377-cv

Hoffer v. Tellone

In the

United States Court of Appeals

For the Second Circuit

________

AUGUST TERM 2024

ARGUED: SEPTEMBER 11, 2024

DECIDED: FEBRUARY 13, 2025

No. 22-1377

RICHARD HOFFER,

Plaintiff–Appellant,

v.

POLICE OFFICER ELYSSA TELLONE, SHIELD #730387, POLICE OFFICER

TREVOR GOFF, SHIELD #731915, POLICE OFFICER LAMONT BROWN,

SHIELD #734149, POLICE OFFICER DARCY DRUMMOND, SHIELD #731907,

Defendants–Appellees,

CITY OF YONKERS, CITY OF YONKERS POLICE DEPARTMENT, POLICE

OFFICER JOHN DOE 1, POLICE OFFICER JOHN DOE 2, POLICE OFFICER

JOHN DOE 3, POLICE OFFICER JOHN DOE 4, POLICE OFFICER JOHN

DOE 5, POLICE OFFICER JOHN DOE 6, POLICE OFFICER JOHN DOE 7,

POLICE OFFICER JOHN DOE 8,

Defendants.

________

Appeal from the United States District Court

for the Southern District of New York.

________

No. 22-1377

Before: WALKER, PARK, and NATHAN, Circuit Judges.

________

Plaintiff–Appellant Richard Hoffer sued the City of Yonkers,

the City of Yonkers Police Department, and various individual police

officers under 42 U.S.C. § 1983, alleging that the officers used

excessive force when arresting him. After trial, the jury returned a

verdict in favor of the officers. Hoffer now appeals the judgment of

the district court.

Hoffer’s appeal is a narrow one. He argues that the district

court (Krause, M.J.) erred in denying his request for an adverse

inference instruction, based on a missing video of him being tased,

pursuant to Federal Rule of Civil Procedure 37(e)(2). On appeal,

Hoffer and Defendants-Appellees dispute the standard applicable to

requests for adverse inference instructions under Rule 37(e)(2).

We hold that to impose sanctions pursuant to Rule 37(e)(2), a

district court or a jury must find, by a preponderance of the evidence,

that a party acted with an “intent to deprive” another party of the lost

information. Consistent with this holding, we further hold that the

lesser “culpable state of mind” standard, which includes negligence,

see Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d

Cir. 2002), does not apply to the imposition of sanctions under

Rule 37(e)(2).

Applying the above standard, we conclude that the district

court did not err in denying Hoffer’s request for an adverse inference

instruction. We therefore AFFIRM the judgment of the district court.

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No. 22-1377

________

C. MITCHELL HENDY, Mayer Brown LLP, Los

Angeles, CA, for Plaintiff–Appellant.

BRIAN D. GINSBERG, Harris Beach PLLC, White

Plains, NY, for Defendants–Appellees.

________

JOHN M. WALKER, JR., Circuit Judge:

Plaintiff–Appellant Richard Hoffer sued the City of Yonkers,

the City of Yonkers Police Department, and various individual police

officers under 42 U.S.C. § 1983, alleging that the officers used

excessive force when arresting him. After trial, the jury returned a

verdict in favor of the officers. Hoffer now appeals the judgment of

the district court.

Hoffer’s appeal is a narrow one. He argues that the district

court (Krause, M.J.) 1 erred in denying his request for an adverse

inference instruction, based on a missing video of him being tased,

pursuant to Federal Rule of Civil Procedure 37(e)(2). On appeal,

Hoffer and Defendants-Appellees dispute the standard applicable to

requests for adverse inference instructions under Rule 37(e)(2).

We hold that to impose sanctions pursuant to Rule 37(e)(2), a

district court or a jury must find, by a preponderance of the evidence,

that a party acted with an “intent to deprive” another party of the lost

information. Consistent with this holding, we further hold that the

lesser “culpable state of mind” standard, which includes negligence,

1On January 15, 2019, the parties consented to jurisdiction by a magistrate judge.

On October 15, 2020, the case was reassigned from Magistrate Judge Lisa Margaret

Smith to Magistrate Judge Andrew E. Krause.

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No. 22-1377

see Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d

Cir. 2002), does not apply to the imposition of sanctions under

Rule 37(e)(2).

Applying the above standard, we conclude that the district

court did not err in denying Hoffer’s request for an adverse inference

instruction. We therefore AFFIRM the judgment of the district court.

BACKGROUND

On February 9, 2018, Plaintiff–Appellant Richard Hoffer

commenced a § 1983 suit against the City of Yonkers, the City of

Yonkers Police Department, and various individual police officers.

Hoffer alleged, among other things, that the officers used excessive

force during Hoffer’s arrest on November 20, 2016. In late 2021, the

district court held a trial on the claims against police officers Elyssa

Tellone, Trevor Goff, Lamont Brown, and Darcy Drummond

(collectively, the “Officer Defendants”).

At trial, the parties presented differing accounts of the arrest

that principally focused on Officer Goff’s use of a taser gun on Hoffer.

Hoffer testified that he was tased twice in the lower back while he was

incapacitated, lying face down with his hands underneath his

stomach, and being kicked and punched by eight to ten officers.

Officer Goff, however, testified that he first tased Hoffer while Hoffer

was struggling with two officers attempting to control him. Goff

explained that, after issuing a standard warning, he deployed his

taser from about ten feet away, and only after this point did Hoffer

and the two officers fall to the ground. Goff further testified that, after

the first deployment of the taser, Hoffer appeared to be “trying to

collect himself and get up to flee again,” so Goff performed a “drive

stun” maneuver, whereby he touched Hoffer’s lower back directly

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No. 22-1377

with the taser gun for five seconds to “incapacitate the muscles.”

App’x 424.

Officer Goff explained that the taser itself generates a log,

which reflects each use of the taser. The November 20, 2016 log for

Goff’s taser reflected two deployments: the first at 4:16 p.m., when

Goff tested the taser at the beginning of his shift, and the second at

8:02 p.m., lasting eight seconds, which Goff testified corresponded to

the second time he tased Hoffer. The log also reflected an event at

10:24 p.m. titled “USB Connected,” that apparently corresponded to

the taser syncing to an external device.

Officer Goff stated that each deployment of the taser generates

a video. He testified that he had only seen the video of the second

deployment, because the video of the first deployment “had

somehow been overwritten.” App’x 426. Goff did not provide any

further explanation as to the absence of the first video. Prior to Goff’s

testimony, however, Sandra Cuebas (who was, at the time of trial,

Hoffer’s girlfriend) had testified that, when she was at the police

station after Hoffer’s arrest, she saw Officer Tellone holding a USB

drive and heard her say to Goff: “It shows everything that we did and

nothing that he did.” App’x 389-90.

Following Goff’s testimony, Hoffer’s counsel orally requested

that the district court instruct the jury that it could draw an adverse

inference against the Officer Defendants based on the purported

spoliation of the first video. At the charge conference, the district

court, after assessing the request under Federal Rule of Civil

Procedure 37(e)(2), declined. 2 The district court found that the

2 The record appears to contain a transcription error: it reflects the district court

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No. 22-1377

evidence before it was insufficient to establish that any defendant

“acted with an intent to deprive [Hoffer] of the use of the video.”

App’x 644. It reasoned that there was no “clear evidence” that the

first taser video existed in the first place, speculating that perhaps the

first taser deployment did not trigger a video recording or that the

first and second taser deployments happened within the same eight-

second period captured by the log. App’x 644. The court further

reasoned that it was not clear what Goff meant when he testified

about “something being overwritten,” and nothing in Goff’s

testimony suggested that he had any direct knowledge or experience

with the document management system for taser videos, let alone

with this video in particular. App’x 645. The district court observed

that the theory that the video was purposely destroyed was undercut

by officer testimony establishing that there were two taser

deployments and no effort by defendants to “cover up that fact.”

App’x 645. Finally, it advised that Hoffer’s counsel could address the

absence of the first video in closing arguments.

After the charge conference, the district court read aloud to the

jury its entire jury charge, which excluded an adverse inference

instruction. When the district court asked Hoffer’s counsel whether

she had any objections to the jury instructions, she responded, “No,

Judge.” App’x 719-20.

After deliberating for two days, the jury informed the district

court that it was unable to reach a unanimous verdict with respect to

two of the defendants. The district court gave a modified Allen

having stated that no defendant had the “requisite intent to warrant an adverse

inference instruction under Rule 37(a)(2),” rather than (e)(2). App’x 646 (emphasis

added).

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No. 22-1377

charge, and, after further deliberation the next day, the jury returned

a unanimous verdict, finding in favor of the Officer Defendants.

Following the trial, Hoffer moved to set aside the excessive

force verdict in Goff’s favor and to enter a verdict in Hoffer’s favor,

arguing that no reasonable juror could have concluded that Goff’s

actions did not constitute excessive force. The district court denied

Hoffer’s motion and this appeal followed.

DISCUSSION

On appeal, Hoffer argues that the district court erred by failing

to instruct the jury that it could draw an adverse inference based on

the purported spoliation of the first taser video. To decide that issue,

we must first resolve the parties’ dispute regarding the showing

required for an adverse inference instruction under Rule 37(e)(2). For

the reasons that follow, we hold that to impose sanctions pursuant to

Rule 37(e)(2), a district court or a jury must find, by a preponderance

of the evidence, that a party acted with the “intent to deprive” another

party of the lost information. Further, upon application of

Rule 37(e)(2), we conclude that the district court did not abuse its

discretion in declining to give an adverse inference instruction in this

case.

I. Waiver

As a threshold matter, we first address the Officer Defendants’

contention that Hoffer waived or forfeited his right to challenge the

district court’s denial of an adverse inference instruction because after

the jury charge was read to the jury, his counsel did not object to it.

We find this argument to be without merit.

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No. 22-1377

Because the district court, before it read aloud the jury charge,

had definitively denied the request for an adverse inference

instruction, Hoffer’s counsel was not required to object to the charge

to preserve Hoffer’s right to appeal. See Fed. R. Civ. P. 51(d)(1) (“A

party may assign as error . . . a failure to give an instruction, if that

party properly requested it and--unless the court rejected the request in

a definitive ruling on the record--also properly objected.” (emphasis

added)); cf. Tirreno v. Mott, 375 F. App’x 140, 141 (2d Cir. 2010)

(summary order) (concluding that challenge to jury instruction was

unpreserved where court did not definitively rule on the record with

respect to plaintiffs’ requested instruction and plaintiffs did not object

to charge).

Hoffer’s challenge, therefore, is preserved for appeal.

II. Rule 37(e) Requirements

The parties dispute (A) whether the district court erred in

requiring a showing that the spoliating party acted with “intent to

deprive” for an adverse inference instruction under Rule 37(e)(2);

(B) whether the requirements of Rule 37(e)(2) must be proven by clear

and convincing evidence or by a preponderance of the evidence; and

(C) whether the district court erred in resolving factual questions

itself rather than submitting them to the jury. We address each

question in turn.

A. State of Mind Required for Sanctions Under

Rule 37(e)(2)

Before 2015, a party seeking an adverse inference instruction

based on lost evidence—electronic or otherwise—had to establish that

a party obligated to preserve or produce such evidence who failed to

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No. 22-1377

do so acted with “a culpable state of mind.” See Residential Funding

Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal

quotation marks omitted). We held that this requirement could be

satisfied when a party acted knowingly or negligently—in other

words, an intentional act was not required to establish a “culpable

state of mind.” Id. at 108 (internal quotation marks omitted).

Then, in 2015, Federal Rule of Civil Procedure 37(e) was

amended to specify the measures a court could employ if

electronically stored information (“ESI”) was wrongfully lost and the

findings required to order such measures. See Fed. R. Civ. P. 37(e)(2)

advisory committee’s note to 2015 amendment. 3 Rule 37 was split

into two subsections. The first subsection allows a court, upon a

finding of prejudice to another party arising from the loss of ESI, to

order “measures no greater than necessary to cure the prejudice.”

Fed. R. Civ. P. 37(e)(1). The second subsection enumerates certain

sanctions—namely, presuming that the lost information was

unfavorable to the spoliating party, giving an adverse inference

instruction to the jury, dismissing the action, or entering default

judgment—that the court may impose “only upon finding that the

party acted with the intent to deprive another party of the

information’s use in the litigation.” Fed. R. Civ. P. 37(e)(2).

The Advisory Committee notes to the 2015 Amendment

explicitly state that subdivision (e)(2) rejects cases such as Residential

Funding that authorize adverse inference instructions upon a finding

3 Before the 2015 Amendment, Rule 37(e) provided in full: “Absent exceptional

circumstances, a court may not impose sanctions under these rules on a party for

failing to provide electronically stored information lost as a result of the routine,

good-faith operation of an electronic information system.” Fed. R. Civ. P. 37(e)(2)

advisory committee’s note to 2015 amendment.

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No. 22-1377

of negligence. Fed. R. Civ. P. 37(e)(2) advisory committee’s note to

2015 amendment (citing Residential Funding, 306 F.3d 99). The notes

reason that only the intentional loss or destruction of evidence gives

rise to an inference that the evidence was unfavorable to the party

responsible for that loss or destruction; negligent—or even grossly

negligent—behavior does not logically support that inference. Id.

Hoffer acknowledges that the plain language of Rule 37(e)(2)

requires a finding of “intent to deprive,” but argues that this court has

continued to apply the lesser “culpable state of mind” standard

articulated in Residential Funding even after the 2015 Amendment

went into effect. Hoffer is correct that various decisions by this court,

issued after the 2015 Amendment, have referenced or used the lesser

“culpable state of mind” standard in the context of lost ESI. See, e.g.,

Rossbach v. Montefiore Med. Ctr., 81 F.4th 124, 139–42 (2d Cir. 2023);

Klipsch Grp., Inc. v. ePRO E-Com. Ltd., 880 F.3d 620, 628 (2d Cir. 2018);

Johnson v. Perry, 763 F. App’x 81, 84 (2d Cir. 2019) (summary order);

but see Mazzei v. Money Store, 656 F. App’x 558, 560 (2d Cir. 2016)

(summary order) (stating that adverse inference instruction may only

issue under Rule 37(e)(2) upon finding intent to deprive).

None of these decisions, however, expressly held that the state

of mind required for a sanction under Rule 37(e)(2) could be less than

“intent to deprive.” Indeed, not one decision directly addressed the

question presently before us: whether the 2015 Amendment

abrogated the lesser “culpable state of mind” standard in the context

of lost ESI. To the extent that these decisions implied that a

Rule 37(e)(2) sanction could issue upon a finding of a state of mind

other than “intent to deprive,” any such implication was mistaken

after the 2015 Amendment.

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No. 22-1377

Today, we make clear that the imposition of a sanction under

Rule 37(e)(2) requires a finding of “intent to deprive another party of

the information’s use in the litigation.” Thus, the 2015 Amendment

to Rule 37(e)(2) abrogated the lesser “culpable state of mind”

standard used in Residential Funding, 306 F.3d at 108 (internal

quotation marks omitted), in the context of lost ESI. A party’s acting

negligently or knowingly will not suffice to justify the sanctions

enumerated in Rule 37(e)(2).

In holding that the requisite state of mind to impose a sanction

under Rule 37(e)(2) is “intent to deprive,” we join the majority of our

sister circuits. See Jones v. Riot Hosp. Grp. LLC, 95 F.4th 730, 735 (9th

Cir. 2024); Ford v. Anderson Cnty., Texas, 102 F.4th 292, 323–24 (5th Cir.

2024); Skanska USA Civ. Se. Inc. v. Bagelheads, Inc., 75 F.4th 1290, 1312

(11th Cir. 2023) (specifying that “intent to deprive” means “more than

mere negligence”); Wall v. Rasnick, 42 F.4th 214, 222–23 (4th Cir. 2022);

Auer v. City of Minot, 896 F.3d 854, 858 (8th Cir. 2018); Applebaum v.

Target Corp., 831 F.3d 740, 745 (6th Cir. 2016) (“A showing of

negligence or even gross negligence will not do the trick.”).

We note that, in deciding the foregoing, we do not call into

question the applicability of Residential Funding to cases that fall

outside the province of Rule 37(e)(2)—namely, cases evaluating the

loss of non-electronic evidence.

B. Burden of Proof for Rule 37(e)(2) Determination

The parties dispute whether Rule 37(e)(2)’s requirements must

be proven by clear and convincing evidence or by a preponderance of

the evidence. Although Hoffer did not raise this issue in his opening

brief, we nevertheless have discretion to address it. See Patterson v.

Balsamico, 440 F.3d 104, 112 (2d Cir. 2006) (“[T]his [c]ourt has

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No. 22-1377

discretion to decide the merits of a forfeited claim or defense where

the issue is purely legal and there is no need for additional fact-

finding.” (internal quotation marks omitted)). Further, we think it

necessary to address the issue in light of the varying approaches taken

by district courts within this circuit. See, e.g., Chepilko v. Henry, 722 F.

Supp. 3d 329, 338 n.2 (S.D.N.Y. 2024) (reasoning that “intent to

deprive” must be shown by clear and convincing evidence “given the

severity of the sanctions permitted under” Rule 37(e)(2)

(quoting Lokai Holdings LLC v. Twin Tiger USA LLC, No. 15-CV-9363

(ALC) (DF), 2018 WL 1512055, at *1 (S.D.N.Y. Mar. 12, 2018))); Europe

v. Equinox Holdings, Inc., 592 F. Supp. 3d 167, 175 (S.D.N.Y. 2022)

(applying “clear and convincing” burden to “intent to deprive”); In re

Aluminum Warehousing Antitrust Litig., No. 13-MD-2481 (KBF), 2016

WL 11727416, at *5 (S.D.N.Y. May 19, 2016) (applying preponderance

burden to “intent to deprive” finding).

We think that the preponderance standard is appropriate for a

number of reasons. First, the preponderance standard is the “usual

rule in civil cases.” In re Plaza Shoe Co., 15 F.2d 278, 279 (2d Cir. 1926).

Indeed, we have already stated outside the context of Rule 37(e)(2)

that a party seeking discovery sanctions on the basis of spoliation

must show the requisite elements by a preponderance of the evidence.

See Klipsch Grp., 880 F.3d at 628; see also ComLab, Corp. v. Tire, 815 F.

App’x 597, 600 (2d Cir. 2020) (summary order). Adhering to this

usual rule furthers the goal of uniformity.

Second, the nature of the sanctions authorized by Rule 37(e)(2)

does not justify venturing above the preponderance default. The

Supreme Court has observed that “we presume that [the

preponderance-of-the-evidence] standard is applicable in civil actions

between private litigants unless particularly important individual

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No. 22-1377

interests or rights are at stake.” Grogan v. Garner, 498 U.S. 279, 286

(1991) (internal quotation marks omitted). The Supreme Court has

listed as examples of such “important individual interests or rights”:

proceedings to terminate parental rights, involuntary commitment

proceedings, and deportation, while noting that other “severe civil

sanctions” can be proved by a preponderance of the evidence. See

Herman & MacLean v. Huddleston, 459 U.S. 375, 389–90 (1983)

(collecting cases). The issuance of an adverse inference instruction, or

even the dismissal of an action, does not invoke interests or rights of

the same caliber as those proceedings listed above. See Ramirez v.

T&H Lemont, Inc., 845 F.3d 772, 778 (7th Cir. 2016) (“The interests

implicated by the dismissal of a suit as a sanction for misconduct

occurring in civil litigation (including discovery) are not so important

as to demand that the facts underlying the dismissal be established by

clear and convincing evidence.”).

Third, the specific intent required to impose sanctions under

Rule 37(e)(2) sets a sufficiently high bar such that a “clear and

convincing” burden of proof is unnecessary. As district courts have

recognized, the “intent to deprive” standard is “both stringent and

specific,” and contemplates “not merely the intent to perform an act

that destroys ESI but rather the intent to actually deprive another

party of evidence.” Karsch v. Blink Health Ltd., No. 17-CV-3880 (VM)

(BCM), 2019 WL 2708125, at *21 (S.D.N.Y. June 20, 2019) (quoting

Leidig v. Buzzfeed, Inc., No. 16-CV-542 (VM) (GWG), 2017 WL 6512353,

at *11 (S.D.N.Y. Dec. 19, 2017)). Proving such specific intent is not

easy and frequently depends upon circumstantial evidence. See

Huddleston, 459 U.S. at 390 n.30 (“If anything, the difficulty of proving

the defendant’s state of mind supports a lower standard of proof.”).

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Fourth, neither the language of Rule 37(e)(2) nor the Advisory

Committee notes to the 2015 Amendment suggests an intent to

impose a heightened burden of proof. Indeed, if the Rule’s drafters

had sought to deviate from the default preponderance standard, they

could have done so explicitly, just as they explicitly rejected certain

severe sanctions in cases of mere negligence.

Finally, the default preponderance standard is preferable

because, as we have previously observed, imposing “too strict a

standard of proof” in the context of establishing entitlement to an

adverse inference instruction risks “subvert[ing] the prophylactic and

punitive purposes of the adverse inference.” Kronisch v. United States,

150 F.3d 112, 128 (2d Cir. 1998).

For all these reasons, we hold that a party seeking sanctions

under Rule 37(e)(2) must establish the requisite elements—including

that the party act with “intent to deprive”—by a preponderance of the

evidence.

C. Whether the Jury Must Find Facts and Make

Credibility Determinations for a Rule 37(e)(2) Ruling

Hoffer argues that it should be left to the jury to resolve

disputed questions of fact relating to whether the prerequisites for

issuing an adverse inference instruction have been met. We disagree.

Rule 37(e) plainly contemplates that findings relevant to the

imposition of sanctions, including the finding of an “intent to

deprive,” be made by courts. See Fed. R. Civ. P. 37(e) (“[T]he court . . .

only upon finding that the party acted with the intent to deprive

another party of the information’s use in the litigation may . . .

instruct the jury that it may or must presume the information was

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No. 22-1377

unfavorable to the party . . . .” (emphasis added)); see also Fed. R. Civ.

P. 37(e)(2) advisory committee’s note to 2015 amendment

(“Subdivision (e)(2) limits the ability of courts to draw adverse

inferences based on the loss of information in these circumstances,

permitting them only when a court finds that the information was lost

with the intent to prevent its use in litigation.” (emphasis added)).

And, although Rule 37(e)(2) allows courts to delegate the intent

finding to the jury, whether to do so is left to the court’s discretion.

See Fed. R. Civ. P. 37(e)(2) advisory committee’s note to 2015

amendment (“If a court were to conclude that the intent finding

should be made by a jury, the court’s instruction should make clear

that the jury may infer from the loss of the information that it was

unfavorable to the party that lost it only if the jury first finds that the

party acted with the intent to deprive another party of the

information’s use in the litigation.”).

Finally, this court has observed that “one of the district court’s

roles in resolving a motion for sanctions is to act as factfinder.”

Rossbach, 81 F.4th at 139–40 (holding that Rule 37(e) sanctions “do[]

not implicate the Seventh Amendment’s jury trial guarantee” and that

district court was entitled to make findings of fact and credibility

determinations). That a district court would make factual findings to

resolve a motion affecting the admission of evidence as a sanction is

routine. A comparable example is a motion to suppress evidence. 4

4 In contending that the district court should have left any factual questions to the

jury, Hoffer chiefly relies on Van Winkle v. Rogers, which held, in the context of

spoliation of non-ESI, that “[i]f a genuine dispute of material fact exists as to bad

faith, a jury should make that determination.” 82 F.4th 370, 378 (5th Cir. 2023).

Van Winkle, however, does not bind this court, does not address Rule 37, and

appears to contradict our decision in Rossbach.

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No. 22-1377

We conclude, therefore, that although a district court may

reserve for the jury questions of fact related to adverse inference

instructions under Rule 37(e)(2), it is also proper for a district court to

make those factual determinations—including a finding of “intent to

deprive”—itself.

***

In sum, we hold that to impose sanctions pursuant to

Rule 37(e)(2), a district court (or a jury, if authorized by the district

court) must find, by a preponderance of the evidence, that a party

acted with the “intent to deprive” another party of the lost ESI. The

lesser “culpable state of mind” standard articulated in Residential

Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002), does

not apply to the imposition of sanctions under Rule 37(e)(2).

III. Application of Rule 37(e)(2) to This Case

We review the grant or denial of a motion for Rule 37 discovery

sanctions for abuse of discretion. See Lore v. City of Syracuse, 670 F.3d

127, 174 (2d Cir. 2012). We accept a district court’s factual findings in

determining whether to impose sanctions unless they are clearly

erroneous. See Rossbach, 81 F.4th at 139. With the above-stated Rule

37(e)(2) framework in mind, we conclude that the district court did

not abuse its discretion in declining to instruct the jury that it could

infer that the purportedly lost taser video was unfavorable to the

Officer Defendants.

In denying Hoffer’s request for an adverse inference

instruction, the district court, applying the correct “intent to deprive”

standard, concluded that the evidence was insufficient to establish

that any defendant acted with the intent to deprive Hoffer of the use

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No. 22-1377

of the first taser video. The district court reasoned that it did not

“know what to make of” the taser report, which reflected only one

use of the taser during the arrest, and that there was “just not enough

evidence for [the court] to be even convinced” that there ever existed

a video of the first taser deployment. App’x 644–45. The district court

further observed that it was “not at all clear” what Officer Goff meant

by information being “overwritten,” and that “nothing about

Sergeant Goff’s testimony suggested that he had any direct

knowledge or experience with the document management system for

these taser videos, let alone anything having do with this particular

video.” App’x 645. These findings were not clearly erroneous.

Even assuming that there were sufficient evidence of the first

video’s existence, the district court did not clearly err in finding

insufficient evidence that any defendant acted with intent to deprive

Hoffer of the video. The strongest evidence of such intent was Ms.

Cuebas’s testimony that she saw Officer Tellone holding a USB drive

and heard her say that “[i]t shows everything that we did and nothing

that he did.” App’x 389–90. Although the district court did not

discuss this evidence in its ruling, it was entitled to make its own

credibility determinations and to discount Ms. Cuebas’s testimony, as

discussed above. Indeed, the district court had previously registered

its skepticism of Ms. Cuebas’s credibility. See App’x 500 (noting that

Ms. Cuebas had a relationship with Hoffer). Additionally, the district

court reasonably noted that “the notion that the Yonkers Police

Department went to such lengths to destroy a video and manipulate

this taser record” was undercut by officer testimony establishing that

there were two deployments, and that “if there was an effort to cover

up that fact,” such testimony would be “surprising.” App’x 645–46.

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Although the district court did not specify what burden of

proof it applied, it does not appear that it improperly applied a

heightened “clear and convincing” standard. The district court’s

statement that there was no “clear evidence” that a first video existed,

App’x 644, does not alone indicate that it applied the “clear and

convincing” standard to the intent analysis. In any event, the district

court’s assessment of the evidence demonstrates that the evidence

would readily fall short of the preponderance threshold, as it did not

find “any direct or circumstantial evidence that the City of Yonkers or

any of the individual defendants had the requisite intent to warrant

an adverse inference instruction under Rule 37([e])(2).” App’x 646

(emphasis added).

In sum, we conclude that the district court did not abuse its

discretion in denying Hoffer’s request for an adverse inference

instruction under Rule 37(e)(2).

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

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