In Brown v. M.D. Sydney Coleman, et. al., 2009 U.S. Dist. LEXIS 82302 (S.D.N.Y. Sept. 9, 2009) U.S. Magistrate Judge Ronald L. Ellis denied defendants' request for certain records relating to plaintiff's expert witness's experience with a particular procedure because of the burden and expense of searching for them in the expert's "antiquated computer system."  However, the court ruled the expert was precluded from providing any testimony regarding the number of similar procedures he had performed due to his spoliation of surgical logs containing the information two weeks after the court ordered their production.

Plaintiff brought this action against three individual doctors and Tribeca Plastic Surgery alleging medical malpractice related to plastic surgery on plaintiff's face.  Plaintiff retained an expert to testify as to the minimum standard of care for the operation.  Defendants filed a motion to compel certain records from the expert's own practice, including operating room records and logs for the last three years and access to employment records from two schools where the expert claimed to have taught.

On February 10, 2009, the court ordered plaintiff to produce a list of her expert's continuing medical education classes and a list of all operating room procedures that the expert had performed in the last three years.  A month later, plaintiff replied that the expert did not keep surgical schedules and did not retain accounts of his experience performing fat grafting procedures.  Defendants countered that the expert was required to maintain detailed logs for a three-year period in order to receive accreditation by the American Association for Accreditation of Ambulatory Surgery Facilities, Inc. (AAAASF).

Plaintiff conceded that the expert was a member of the AAAASF, but maintained that the expert closed his medical office in March 2009 and subsequently destroyed the relevant logs.  The only way to obtain the information would have been for the expert to search up to 50,000 individual patient medical files to determine whether the expert had performed fat grafting procedures in each one.  Plaintiff argued that it would be "unduly and unnecessarily burdensome and extremely expensive because of an antiquated computer system in [the expert's] office."  The court agreed and denied production under FRCP 26(b)(2)(C)(iii) as the burden and expense of the proposed discovery was outweighed by its likely benefit considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

While the expert's spoliation of his relevant medical records made the court-ordered production of documents unduly burdensome and impractical, the court sanctioned plaintiff for her expert's evidence destruction.  The court held that the expert would be precluded from presenting any testimony in any subsequent proceeding in the case regarding the number of fat grafting procedures he had performed.  The court ruled that such a sanction would mitigate any prejudice to defendants resulting from the destruction of the logs.