In Vagenos v. LDG Financial Services, LLC, 2009 U.S. Dist. Lexis 121490 (E.D.N.Y. Dec. 31, 2009), District Court Judge Brian M. Cogan denied defendant's in limine motion to preclude plaintiff from offering at trial an alleged duplicate recording of an electronically-stored telephone message, but ordered an adverse inference instruction for plaintiff and his counsel's failure to preserve the message.

Plaintiff's Fair Debt Collection Practices Act claim is predicated upon telephonic communications received from the defendant.  However, plaintiff deleted the original recording that was left on his cell phone answering machine when he switched cell phone companies.  Prior to the deletion, plaintiff played the message to his attorney who made a duplicate recording.  Defendant objected to the admission the duplicate recording at trial.

The court ruled that Federal Rule of Evidence 1004(1) permits a party to use secondary evidence to prove the contents of an original when all of the originals are lost or destroyed, unless done so in bad faith.  The court found no evidence of bad faith, but held that plaintiff and his counsel breached their respective duties to preserve critical evidence in the case. The court found the conduct particularly egregious noting the obligation to preserve evidence "runs first to counsel, who has 'a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction'" citing Chan v. Triple 8 Palace, 2005 WL 1925579 (S.D.N.Y. Aug. 11, 2005) (quoting Turner v. Hudson Transit Lines, 142 F.R.D. 68, 73 (S.D.N.Y. 1991).  According to the court, the responsibility of counsel to inform his client is "heightened in this age of electronic discovery."  Having chosen to retain his attorney, plaintiff was held responsible for his attorney's negligent conduct or bad advice in connection with the action.

Accordingly, the court ordered an adverse inference instruction at trial that the jury may consider plaintiff's failure to preserve the original recording as evidence that the destroyed portion of the message contained information harmful to plaintiff's case.