PLAINTIFFS OBJECTION TO MAGISTRATE JUDGES OPINION

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

[ENTER NAME],
Plaintiff,
Vs.

[ENTER NAME],
Defendants

Civil Case No.: 1:16-cv-09707-VSB-SN

Magistrate Judge Kevin Castel

PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE’S OPINION
COMES NOW Plaintiff and files this objection to Magistrate Judge Sarah Netburn’s
opinion on Plaintiff’s spoliation motion in its entirety [See Dkt # 132]. Plaintiff has listed
below her objections to the omissions, findings of fact, usage of evidence, contradictory
statements, and conclusions made in the opinion. In support of the objection, Plaintiff states as
follows:
i. The Complaint sufficiently states claims upon which relief can be granted
A complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562–63, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007).
The Supreme Court has held that the requirement to state a claim upon which relief can
be granted does "not require a claimant to set out in detail the facts upon which he bases his
claim. To the contrary, the said Rule requires a short and plain statement of the claim that will

give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it
rests. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Accordingly, a
complaint need only plead enough facts to state a claim for relief that is plausible on its face.
Sharkey v. Quarantillo, 541 F.3d 75, 92 (2d Cir. 2008) (quoting Bell Atl. Corp. v. Twombley,
127 S. Ct. 1955, 1974 (2007).
A complaint can be challenged for failing to state a claim upon which relied can be
granted if it appears beyond doubt that the Plaintiff can prove no set of facts in support of his
claim which would entitle him to relief. Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. 99. See
also Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
The Court must accept as true all the factual allegations in the Complaint, drawing all
inferences from those allegations in the light most favorable to Plaintiff. Todd v. Exxon Corp.,
275 F.3d 191, 197 (2d Cir. 2001).
Plaintiff asserts that the Complaint indeed states claims upon which relief can be
granted. To demonstrate the Complaint’ averment, Plaintiff makes factual objections to the
opinion as follows:
a) Objection 1. Plaintiff objects to the magistrate judge’s order in its entirety on the
ground that a magistrate judge may not rule on a potentially dispositive motion
without consent of the parties
A magistrate judge may not rule on a potentially dispositive motion without consent of
the parties. Courts have made opinions supporting that assertion. See Lamberson v. Fin. Crimes
Servs., LLC, Civil No. 11-98 (RHK/JJG) (D. Minn. Apr. 13, 2011).
Further, motions that present potentially dispositive questions that are beyond the scope
of magistrate jurisdiction are appropriately addressed through a report and recommendation

under 28 U.S.C. § 636. Lamberson v. Fin. Crimes Servs., LLC, Civil No. 11-98 (RHK/JJG) (D.
Minn. Apr. 13, 2011).
Under Rule 72(b), a magistrate judge may not rule on a dispositive motion without
consent of the parties. See Gaiters v. City of Catoosa, Case No. 03-CV-0425-CVE-SAJ (N.D.
Okla. Jul. 28, 2006).
“As to regards dispositive motions, a Magistrate Judge may not rule on that motion, but
may only issue “findings and recommendations.” Fed.R.Civ.P. 72(b)(1). See Cruz v. Miss. Dep't
of Human Servs., 9 F. Supp. 3d 668 (S.D. Miss. 2014).
On February 2nd 2021, Plaintiff filed a motion for sanctions against Defendant in which
she asked the Court to: “(1) find HHC engaged in spoliation and (2) enter default judgment
against HHC or, alternatively, require mandatory adverse inference jury instructions at trial. In
particular, the jury should be instructed to infer that Ms. Humphreys performed admirably at her
job, that HHC manufactured or doctored false performance evaluations saying otherwise, that
Ms. Humphreys was performing the correct duties according to her job description, and that Ms.
Humphreys' FMLA leave application was whole and complete. In addition – and importantly –
given the willful loss of information, this Court should infer that Ms. Humphreys has identified
properly her comparators. Ms. Humphreys further requests this Court (3) prohibit HHC from
presenting arguments or evidence regarding lost evidence and reasons for lost evidence at trial;
(4) award her attorney's fees and costs associated with this motion or, if default judgment is
entered, for the full case; and (5) grant such further relief that it deems appropriate.” [See Dkt #
101 pg 8].
On November 12th 2021, Judge Broderick referred Plaintiff’s case to Magistrate Judge
Sarah Netburn as Dispositive Motion (i.e., motion requiring a Report and Recommendation)

Particular Motion: Motion for Sanctions for Spoliation and Settlement [See Dkt # 124]. On
March 3rd 2022, Magistrate Judge Netburn admitted that Plaintiff’s sanction motion seeks case
“dispositive relief” [See Dkt # 132 pg 3-4, 132]. On March 3rd 2022, however, Magistrate Judge
Netburn still entered a ruling on Plaintiff’s sanction motion instead of providing a report and
recommendation for the Court's consideration. In the opinion, Netburn stated “to the extent a
party files a Rule 72 objection, Judge Broderick may conclude that the motion should have been
deemed dispositive.” Plaintiff never gave a magistrate judge consent to rule on her potentially
dispositive motion (See Dkt# 70) nor did Defendant (See Dkt# 70). Accordingly, Plaintiff asks
the Court to set aside the Magistrate Judge's order on Plaintiff’s motions for sanctions.
Objection to the usage of evidence in the opinion
b) Objection 2 (A-I) Plaintiff objects to the usage/admission of the following testimony
as evidence in the opinion: (#2A) Dkt # 108 ¶80 (#2B) Dkt # 108 ¶3, (#2C) Dkt #
108 ¶4, (#2D) Dkt # 108 ¶7 (#2E) Dkt # 108 ¶28, (#2F) Dkt # 108 ¶30, (#2H) Dkt #
108 ¶75, (#2I) Dkt # 108 ¶76 [See Dkt #108] Dkt # 108 ¶ 80.
Plaintiff objects to the usage of Dkt # 108 ¶ 80 as clearly erroneous because it is false and
contradictory to/inconsistent with depositions in the record that show Plaintiff deposed HHC
witnesses about the nature of SR70s such as:
i. Sanford Operowsky’s Deposition Transcript about SR70s at Dkt # 115-15 pgs 17-18
& pgs 14-19 (Note: Sanford is Nash’s Supervisor at Gouverneur)
ii. Nash Dunlap’s Deposition Transcript About SR 70s at Dkt #115-15 pgs 6-12 & pgs
1-14 (Note: Nash was Plaintiff’s Supervisor at Gouverneur)
iii. Elizabeth Rivera’s Deposition Transcript About SR70s at Dkt #108-17 & Dkt # 114-
6 (Note: Elizabeth was HR at Gouverneur at Gouvernuer)

Dkt # 108 at ¶ 3, 4, 7, 30
Plaintiff objects to the usage of Dkt # 108 at ¶ 3, 4, 7, 30 as evidence because they are
clearly erroneous. Dkt # 108 at ¶ 3, 4, 7, 30 are clearly erroneous because they are contrary to
and/or inconsistent with Dkt # 108-3 pg 2 thru 3 (& Exhibit 4)—an email in the record from
Plaintiff’s counsel to Defendant’s counsel dated 9/30/2019 which said “Unfortunately, I have not
yet received any discovery from Defendant, and the CD you described has not arrived. However,
I look forward to receiving the information you described as soon as possible so that Defendant's
depositions may be scheduled. As soon as the material is received, I will provide Plaintiff's
documents. I will provide you with deposition notices shortly.” [Dkt # 108-3 pg 2 thru pg 3]
Dkt # 108 at ¶ 3, 4, 7, 30 are clearly erroneous because they are contrary to and/or
inconsistent with Dkt # 108 ¶ 5—Mark’s own testimony which says “On September 30, 2019,
ACC Carter provided plaintiff with H+H’s responses and objections to plaintiff’s first set of
document requests and first set of interrogatories. See email dated September 30, 2019, a copy of
which is annexed hereto as Exhibit C; H+H Responses and Objections to Plaintiff’s Discovery
Requests, a copy of which is annexed hereto as Exhibit D.”
Dkt #108 ¶ 7 is clearly erroneous because (1) it is false August 18th 2020 is not “almost a
year after H+H had provided its discovery responses” [See Dkt # 108 at ¶ 5 ] and (2) Dkt # 108
¶ 7 is contrary/inconsistent with Dkt #108-10.
Dkt # 108 at ¶¶ 3, 30 are clearly erroneous because they are not supported by the exhibit
they cite, Dkt # 108-1 (also known as Exhibit A in Dkt # 108) and Dkt #108-16 (also known as
Exhibit P in Dkt # 108).
Dkt # 108 at ¶ 28

Plaintiff objects to the usage/admission of Dkt # 108 at ¶ 28 as evidence in the opinion
because it is clearly erroneous: Dkt# 108 at ¶ 28 is clearly erroneous because it is not supported
by the exhibits it cites, Dkt #108-16 (also known as Exhibit P in Dkt #108) and Pl. Exhibit 1.
Dkt# 108 at ¶ 28 is clearly erroneous because it is contradictory to and/or inconsistent
with evidence in the record:
Dkt # 108 at ¶ 28 is clearly erroneous because it is contradictory to and/or inconsistent
with Dkt #114-8 (also known as Bates Stamp Def 592-593). In Dkt # 108 at ¶ 28, Mark
Ferguson, Defendant’s Counsel, testified that Defendant produced Plaintiff’s signed job
description at Bates Stamp Def 592-593. However, Dkt #114-8 (also known as Bates Stamp Def
592-593) is not Plaintiff’s signed job description it doesn’t even have a signature on it.
Dkt # 108 at ¶ 28 is clearly erroneous because it is contradictory to and/or inconsistent
with Dkt #104-3 (Plaintiff’s Testimony) — In Dkt # 108 at ¶28, Mark claims that Defendant
produced Plaintiff’s signed job description, promotion evaluation, and rebuttal. In Dkt # 104-3,
however, Plaintiff testified that she doesn’t have the job description, promotion evaluation, and
rebuttal as she signed and submitted it to Defendant.
Dkt # 108 at ¶ 28 is is contradictory to and/or inconsistent with 114-2 /Dkt # 108-4
(Defendant’s Answers to Plaintiff’s Request for Production of Documents, Dkt #114-1) — In its
response to Plaintiff’s request for production of documents Defendant did not list any page nor
exhibit numbers in it answers to which documents mentioned in Dkt # 108 at ¶ 28 was
responsive which is the same as producing nothing. [See pg Dkt #113 pg 8-20, Dkt #114-1 thru
#114-2, Dkt #108-4]. Rule 37(a) expressly provides that an evasive or incomplete disclosure,
answer, or response must be treated as a failure to disclose, answer, or respond. [See Federal
Rule of Civil Procedure 37]

Dkt # 108 at ¶ 28 is contradictory to and/or inconsistent with Exhibit 5. In Dkt # 108 at ¶
28, Mark testified that Defendant produced Victor Duran’s Resume at Bates Stamp Def 3581.
[See Dkt # 108 at ¶ 28, Dkt #108 pg 6-7]. However, a review of Exhibit 5 (also known as Bates
Stamp Def 3581) shows that Bates Stamp Def 3581 is Freda Fried’s resume not Victor Duran’s
resume. [See Exhibit 5]
Dkt # 108 at ¶ 28 conflicts with Netburn’s own findings/conclusions in the opinion. In
Dkt # 108 at ¶ 28 Mark testified Defendant produced documents like plaintiff’s promotion
evaluation, plaintiff’s rebuttal, job descriptions signed by Plaintiff, cowokers job descriptions,
performance evaluations, [job app emails, job posting] Etc. However, in the opinion Netburn
concluded otherwise when she said, “Ultimately, defendant was unable to locate..….the
corporate job descriptions for plaintiff and her coworkers, plaintiff’s doctor’s note submitted in
support of her application for FMLA leave, the “promotion evaluation” and “promotion
evaluation rebuttal,” plaintiff’s email application for employment and subsequent emails
inquiring about the position, HHC’s “Employee Handbook,” defendant’s FMLA policies, and a
letter allegedly sent to plaintiff regarding withholding of pay. “ [See Dkt# 132 pg 9]
Dkt # 108 at ¶ 28 is clearly erroneous because it is false. In pgs 33-48, 51-59 of her
spoliation motion reply (Dkt # 113), Plaintiff pointed to multiple evidence the testimony at Dkt #
108 at ¶ 28 was false and inaccurate. [See Dkt # 113 pgs 33-59 & Exhibit 1 ¶ 4N].
Plaintiff objects to the usage/admission of Dkt # 108 at ¶ 28 as evidence in the opinion
because its usage is contrary to law, Federal Rule of Civil Procedure 37, as it regards information
about documents Defendant submitted to Plaintiff after the close of discovery and her spoliation
motion was filed. (Defendant admits it submitted some documents to Plaintiff after the date
Plaintiff’s spoliation motion was filed like some electronic timesheets (Dkt #108-18 ¶¶ 15-16),

personnel files (Dkt # 108 ¶ 32 & 24), non ESI documents with bates stamp other than Def 0001
thru Def 1481 (i.e. Plaintiff’s injury report, resumes for Michal Ambrose/Nash Dunlap/ Echo
Song/Frieda Fried/Sanford Operowsky/Che Yu, Plaintiff’s Paystubs, Personnel Files of Michal
Ambrose/Victor Duran/ Nash Dunlap/Echo Song/Frieda Fried/Sanford Operowsky/Che Yu/Luz
Nazario/Matthew Driscoll/ Elizabeth Rivera, HHC FMLA policies, HHC FMLA application
form, some HHC Operating Procedures, and More—–See Dk #107 pg 6 & 9, Dkt # 108 ¶ 28,
Dkt # 132 pg 8, Dkt#107). Federal Rule of Civil Procedure 37(c)(1) states as follows: "If a party
fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a
trial. . . ." Fed.R.Civ.P. 37(c)(1).
Dkt # 108 at ¶¶ 75, 76, 3, 4
Plaintiff objects to the usage/admission of Dkt # 108 at ¶¶ 75, 76, 3, 4 as evidence in the
opinion because they are hearsay statements not based on personal knowledge. If an affidavit
contains hearsay matters or statements not based on an affiant's personal knowledge, the court
should not consider those portions of the affidavit. See Moore v. Coachmen Industries, Inc., 129
N.C. App. 389, 499 S.E.2d 772 (1998). (See Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d
124 (N.C. Ct. App. 2003)
Dkt #108 ¶¶ 3, 4, 7, 28, 30, 75, 76, and 80 are material
Dkt #108 ¶¶ 3, 4, 7, 28, 30, 75, 76, and 80 are material because they affect the outcome
of the motion: Netburn used/cited Dkt #108 ¶¶ 3, 4, 7, 28, 30 in the opinion to determine if,
when, and/or what documents sought in Plaintiff’s spoliation motion were produced by
Defendant. [See Dkt #132 pg 2, 7].

Netburn used Dkt ¶¶75-76 in the opinion to claim Plaintiff has not established physical
timesheets and SR 70s she seeks in her spoliation motion were lost or destroyed. [See Dkt # 132
pg 8-9].
Netburn used/cited Dkt #108 ¶ 80 in the opinion to claim absence of evidence timesheets
and SR 70s were lost or destroyed and to deny Plaintiff sanctions in her spoliation claim. [See
Dkt #132 pg 9]
iv. Objection #3 Plaintiff objects to the usage/admission of Mark Ferguson’s
testimony, Dkt #108, as evidence in the opinion
Plaintiff objects to the usage/admission of Mark’s testimony, Dkt #108, as evidence in
the opinion because it is clearly erroneous and contrary to evidence in the record i.e. depositions,
sworn testimony, and more. When an affidavit is contradictory to the extent that it is "inherently
inconsistent" with deposition testimony, a court should disregard that affidavit as a sham and
exclude it from the evidence considered…” Rollins v. Techsouth, Inc., 833 F.2d 1525 (11th Cir.
1987); see also Lane v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986). In pgs 33-59 of her
spoliation motion reply (Dkt # 113), Plaintiff pointed to evidence Mark Ferguson’s testimony
(Dkt # 108) was false, not credible, contrary to depositions, contrary to evidence, and shouldn’t
have been relied on in the opinion. [See Dkt # 113 pgs 33-59 & Exhibit 1 ¶ 4N].
First — Dkt #108 is clearly erroneous because it is contrary to and/or inconsistent with
evidence in the record. Dkt # 108 at ¶ 80 (which says “During discovery, plaintiff had the
opportunity to depose multiple H+H witnesses regarding the nature of SR 70s, yet she did not do
so”) is contradictory to/inconsistent with depositions in the record that show Plaintiff deposed
HHC witnesses about the nature of SR70s such as:

 Sanford Operowsky’s Deposition Transcript about SR70s at Dkt # 115-15 pgs 17-18
& pgs 14-19 (Note: Sanford is Nash’s Supervisor at Gouverneur)
 Nash Dunlap’s Deposition Transcript About SR 70s at Dkt #115-15 pgs 6-12 & pgs
1-14 (Note: Nash was Plaintiff’s Supervisor at Gouverneur)
 Elizabeth Rivera’s Deposition Transcript About SR70s at Dkt #108-17 & Dkt # 114-
6 (Note: Elizabeth was HR at Gouverneur )
Dkt # 108 at ¶ 28 is contradictory to and/or inconsistent with:
 Dkt #104-3 (Plaintiff’s Testimony) — In Dkt # 108 at ¶ 28, Mark testified
Defendant produced the signed job description, promotion evaluation, and rebuttal
Plaintiff seeks in her spoliation motion. In Dkt # 104-3, however, Plaintiff testified
that she doesn’t have those documents.
 Dkt #114-8 (also known as Def 592-593) — In Dkt # 108 at ¶ 28, Mark testified
Defendant produced Plaintiff’s signed job description at Bates Stamp Def 592-593.
However, Dkt #114-8 (also known as Bates Stamp Def 592-593) is not Plaintiff’s
signed job description it doesn’t even have a signature on it.
 Dkt # 108 at ¶ 28 is is contradictory to and/or inconsistent with Dkt# 114-2 /Dkt #
108-4 (Defendant’s Answers to Plaintiff’s Request for Production of Documents,
Dkt #114-1) — In its response to Plaintiff’s request for production of documents
Defendant did not list any page nor exhibit numbers in it answers to which
documents mentioned in Dkt # 108 at ¶ 28 was responsive which is the same as
producing nothing. [See pg Dkt #113 pg 8-20, Dkt #114-1 thru #114-2, Dkt #108-4].
Rule 37(a) expressly provides that an evasive or incomplete disclosure, answer, or

response must be treated as a failure to disclose, answer, or respond. [See Federal
Rule of Civil Procedure 37]
Dkt # 108 ¶ 46 is contradictory to and/or inconsistent with Plaintiff’s testimony at Dkt
#104-3 and Dkt# 37 ¶ 105 & 108 which claim that Plaintiff gave HR, Elizabeth Rivera, the
doctor note. Dkt # 108 ¶ 46 is also contradictory to and/or inconsistent with HR, Elizabeth
Rivera’s deposition transcript at Dkt # 114-6 pg 11-12 which claims that Plaintiff gave her the
doctor note.
Dkt # 108 at ¶ 3 (which says “On August 20, 2019, Assistant Corporation Counsel John
Corbin Carter (“ACC Carter”) provided plaintiff with H+H’s document production Bates stamp
Def 0001- 1481. This included plaintiff’s personnel file, the file containing documents relating to
plaintiff’s EEOC charge (“EEOC File”), plaintiff’s EEO complaints, and relevant H+H policies.
See H+H Document Production Letter, a copy of which is annexed hereto as Exhibit A”) as well
as Dkt # 108 at ¶¶ 7, 30, 33, 50, 84, 86, 33, and 4 are contradictory to/inconsistent with:
 Dkt # 108-3 pg 2 thru 3 (& Exhibit 4) – an email in the record from Plaintiff’s
counsel to Defendant’s counsel dated 9/30/2019 which said “Unfortunately, I have
not yet received any discovery from Defendant, and the CD you described has not
arrived. However, I look forward to receiving the information you described as soon
as possible so that Defendant's depositions may be scheduled. As soon as the
material is received, I will provide Plaintiff's documents. I will provide you with
deposition notices shortly.” [Dkt # 108-3 pg 2 thru pg 3]
Dkt # 108 ¶ 5—Mark’s own testimony which says “On September 30, 2019, ACC Carter
provided plaintiff with H+H’s responses and objections to plaintiff’s first set of document
requests and first set of interrogatories. See email dated September 30, 2019, a copy of which is

annexed hereto as Exhibit C; H+H Responses and Objections to Plaintiff’s Discovery Requests,
a copy of which is annexed hereto as Exhibit D.”
Dkt # 108 ¶ 7 is contrary to and/or inconsistent with Dkt #108-10
Dkt # 108 at ¶ 52 is contradictory with Plaintiff’s testimony at Dkt#37 and Dkt # 114-3
Dkt # 108 at ¶ 28 conflicts with Netburn’s own findings/conclusions in the opinion. In
Dkt # 108 at ¶ 28 Mark testified Defendant produced documents like plaintiff’s promotion
evaluation, plaintiff’s rebuttal, job descriptions signed by Plaintiff, cowokers job descriptions,
performance evaluations, [job app emails, job posting] Etc. However, in the opinion Netburn
concluded otherwise when she said, “Ultimately, defendant was unable to locate..….the
corporate job descriptions for plaintiff and her coworkers, plaintiff’s doctor’s note submitted in
support of her application for FMLA leave, the “promotion evaluation” and “promotion
evaluation rebuttal,” plaintiff’s email application for employment and subsequent emails
inquiring about the position, HHC’s “Employee Handbook,” defendant’s FMLA policies, and a
letter allegedly sent to plaintiff regarding withholding of pay. “[See Dkt# 132 pg 9]
In pgs 33-34, 35-37, 40-41, 51-59 of her spoliation motion reply (Dkt # 113), Plaintiff
pointed to evidence Mark Ferguson’s testimony (Dkt # 108) was contrary to deposition
testimony. [See Dkt # 113 pgs 33-59 & Exhibit 1 ¶ 4N]. When an affidavit is contradictory to the
extent that it is "inherently inconsistent" with deposition testimony, a court should disregard that
affidavit as a sham and exclude it from the evidence considered…” Rollins v. Techsouth, Inc.,
833 F.2d 1525 (11th Cir. 1987); Lane v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986).
Second— Dkt #108 is clearly erroneous because it is not supported by exhibit(s) it cites
as evidence. Dkt # 108 at ¶¶37, 44 are not supported by the exhibit they cite, Exhibit W at
146:13-147:11 (also known as Dkt #108-23 at 146:13-147:11 ).

Dkt # 108 at ¶ 22 is not supported by the exhibit it cites, Exhibit N (also known as Dkt
#108-14)
Dkt # 108 at ¶¶ 28, 30,31, & 32 are not supported by the exhibit they cite, Exhibit P (also
known as Dkt # 108-16)
Dkt # 108 at ¶¶ 39,40 are not supported by the exhibit they cite, Exhibit Q 127:2-128:1;
119:1-23 (also known as Dkt# 108-17 at 127:2-128:1; 119:1-23)
Dkt # 108 at ¶ 52 is not supported by the exhibit it cites, Exhibit Z (also known as Dkt #
108-26) (i.e. there are other major differences between the annual evaluation and promotion
evaluation in exhibit Z like the promotion evaluation in exhibit z doesn’t have Plaintiff’s
signature on it acknowledging receipt/discussion of the document while Defendant forged
Plaintiff’s signature on the annual evaluation acknowledging receipt/discussion of the
document.)
Dkt # 108 at ¶ 55 is not supported by the exhibits it cites, Exhibit W at 29:5-10 (also
known as Dkt #108-23 at 29:5-10); Exhibit S at 54:10-55:17 (also known as Dkt #108-19 at
54:10-55:17; Excerpt of the Transcript of the Deposition of Nash Dunlap, dated September 22,
2020 a copyof which is annexed hereto as Exhibit T, at 188:3-9 (also known as Dkt # 108-20 at
188:3-9)
Dkt # 108 at ¶¶ 57, 54 is not supported by the exhibit it cites
Third— Dkt #108 is clearly erroneous because it is false and inaccurate testimony. In pgs
33-48, 51-59 of her spoliation motion reply (Dkt # 113), Plaintiff pointed to evidence Mark
Ferguson’s testimony (Dkt # 108) was false and inaccurate. [See Dkt # 113 pgs 33-48, Dkt # 113
pgs 51-59, Exhibit 1 ¶ 4N].

Dkt# 108 is false because it contradicts itself many at times throughout the testimony as
follows:
 Dkt # 108 at ¶ 48 is contrary to and/or inconsistent with Dkt # 108 ¶51
 Dkt # 108 at ¶ 73 is contradictory to and/or inconsistent with Dkt # 108 at ¶ 72
 Dkt # 108 at ¶ 51-52 is contrary to and/or inconsistent with Dkt # 108 at ¶28, 34, 48
Dkt# 108 is false because it is based on altered and forged evidence as follows:
 Dkt # 108 ¶¶ 37, 44, 55, 56, 57, 102 cites/is based on altered evidence, Dkt #108-23
(also known as “Exhibit W” in Dkt #108). Dkt# 108-23 is altered evidence because
it is Plaintiff deposition transcript without its attached errata sheet. Proof the errata
sheet exists can be found in Plaintiff’s exhibit of some of her deposition transcript at
Dkt #114-7 pg 1-3. [See Dkt # 108, Dkt # 108-23, & Dkt #114-7 pgs 1-3].
 Dkt # 108 ¶ 52 cites/is based on altered evidence, Dkt #108-26 (also known as
Exhibit Z in Dkt # 108). Mark did not disclose to the Court that Defendant forged
Plaintiff’s signature on pg 12 of Dkt #108-26 and Defendant forged/fabricated
evaluation dates on pg 1 & 13 of Dkt #108-26 (Its not possible for Nash Dunlap to
“prepare” an evaluation on Oct 28th 2014 for the evaluation period of 7/1/2013-
10/29/2014). Additionally, the evaluation in Dkt#108-26 pg 13-24 has a signature
on it that says a rebuttal is attached. Yet no rebuttal is found in that exhibit.
Dkt# 108 is false because Dkt #108 ¶¶ 35, 38, 48, 64, 84, 95 is based on a phone call
discussion Mark testified to have had between Plaintiff and Plaintiff’s counsel on March 16,
2021. However, Humphreys never had any phone call nor phone call discussion with Mark on
March 16, 2011. [See Exhibit Dkt #108 & Exhibit]

Additionally, Plaintiff objects to the usage/admission of Mark’s testimony, Dkt #108, as
evidence in the opinion because:
 Dkt #108 contains multiple hearsay statements not based on personal knowledge
like Dkt #108 ¶¶ 3, 4, 52, 53, 55, 66-77, 79, 83, 88-92, 96-102, 108 [See Dkt #108]
 Mark Ferguson is not a credible witness
Before Plaintiff’s spoliation motion was filed, Mark told the Court and Plaintiff that
Defendant already produced all appropriate discovery. [See Dk #108-9, Dkt #108-13, Dkt #108-
14, Dkt #96]. Additionally, on September 25th 2020, Mark told the Court and Plaintiff that as
discussed in the meet and confer Defendant agreed to resolve alleged deficiencies in Defendant’s
production and it produced its responses to the meet and confer on “September 24, 2020.” [See
Dkt #Dkt 108-10, Dkt #89]. On January 21st 2021, Mark reiterated to the Court and Plaintiff that
“Plaintiff requests leave to bring a motion with regard to these spoliation issues. Defendant
contends that such a motion is unnecessary as these documents have already been
produced.”[See Dkt #96]. Then after Plaintiff’s spoliation motion was filed, Mark and
Defendant changed their position. They admitted/claimed that Defendant did not produce 10 of
the “outstanding categories of documents” including timesheets and personnel files (See Dkt #
107 pg 9, Dkt # 107, Dkt # 108 ¶31, Dkt # 108) and proceeded to submit numerous documents to
Plaintiff after her spoliation motion was filed i.e. electronic timesheets (Dkt #108-18 ¶¶ 15-16),
personnel files (Dkt # 108 ¶ 32 & 24), non ESI documents with bates stamp other than Def 0001
thru Def 1481 (i.e. Plaintiff’s injury report, resumes for Michal Ambrose/Nash Dunlap/ Echo
Song/Frieda Fried/Sanford Operowsky/Che Yu, Plaintiff’s Paystubs, Personnel Files of Michal
Ambrose/Victor Duran/ Nash Dunlap/Echo Song/Frieda Fried/Sanford Operowsky/Che Yu/Luz
Nazario/Matthew Driscoll/ Elizabeth Rivera, HHC FMLA policies, HHC FMLA application

form, some HHC Operating Procedures, and More—–See Dk #107 pg 6 & 9, Dkt # 108 ¶ 28,
Dkt # 132 pg 8, Dkt#107).
Mark submitted altered and forged evidence to the Court to support his testimony at Dkt
#108 and did not inform the Court he did so. Mark’s testimony at Dkt # 108 (i.e. Dkt # 108 ¶¶
37, 44, 55, 56, 57, 102) cites/is based on altered evidence #1, Dkt #108-23 (also known as
“Exhibit W” in Dkt #108), which is Plaintiff’s deposition transcript without its attached errata
sheet. Proof the errata sheet exists can be found in Plaintiff’s Exhibit of some of her deposition
transcript at Dkt #114-7 pg 1-3. [See Dkt # 108, Dkt # 108-23, & Dkt #114-7 pgs 1-3].
Mark’s testimony cites/is based on altered evidence #2, Dkt #108-26 (also known as
Exhibit Z in Dkt # 108). Mark did not disclose to the Court that Defendant forged Plaintiff’s
signature on pg 12 of Dkt #108-26. Defendant also did not disclose to the Court that it
forged/fabricated evaluation dates on pg 1 & 13 of Dkt #108-26 (Its not possible for Nash
Dunlap to “prepare” an evaluation on Oct 28th 2014 for the evaluation period of 7/1/2013-
10/29/2014). Additionally, the evaluation in Dkt#108-26 pg 13-24 has a signature on it that says
a rebuttal is attached. Yet no rebuttal is found in that exhibit.
Usage of Dkt #108 is contrary to law, Federal Rule of Civil Procedure 37 and
Fed.R.Civ.P. 37(c)(1), as it regards information (at paragraphs like Dkt # 108 at ¶¶ 27-34, 78-79
) about documents Defendant submitted to Plaintiff after her spoliation motion was filed and
after the close of discovery. Defendant’s reason for late submittal is not justified as those
documents (with the exception of possibly Mr. Sylvester’s personnel file) were evidence
responsive to Plaintiff’s first request for production of documents dated November 8th 2018.
[See Dkt#113 pg 8-20, Dkt #114-1 & #114-2]

Defendant admits it submitted some documents to Plaintiff after the date Plaintiff’s
spoliation motion was filed like some electronic timesheets (Dkt #108-18 ¶¶ 15-16), personnel
files (Dkt # 108 ¶ 32 & 24), non ESI documents with bates stamp other than Def 0001 thru Def
1481 (i.e. Plaintiff’s injury report, resumes for Michal Ambrose/Nash Dunlap/ Echo Song/Frieda
Fried/Sanford Operowsky/Che Yu, Plaintiff’s Paystubs, Personnel Files of Michal
Ambrose/Victor Duran/ Nash Dunlap/Echo Song/Frieda Fried/Sanford Operowsky/Che Yu/Luz
Nazario/Matthew Driscoll/ Elizabeth Rivera, HHC FMLA policies, HHC FMLA application
form, some HHC Operating Procedures, and More—–See Dk #107 pg 6 & 9, Dkt # 108 ¶ 28,
Dkt # 132 pg 8, Dkt#107.
Federal Rule of Civil Procedure 37(c)(1) states as follows: "If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless. In addition to or instead of this sanction, the
court, on motion and after giving an opportunity to be heard: (A) may order payment of the
reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of
the party's failure; and (C) may impose other appropriate sanctions. . . ." Fed.R.Civ.P. 37(c)(1).
Dkt #108 is material
Netburn heavily relied on/cited Dkt #108 throughout her opinion to make her decision on
Plaintiff’s spoliation motion. [See Dkt # 132, Dkt #132 pg 2,7,8,9]. Dkt # 108 is material as it
affects the outcome of the motion as follows:

 Netburn used/cited Dkt #108 ¶¶ 3, 4, 7, 28, 30 in the opinion to determine if,
when, and/or what documents sought in Plaintiff’s spoliation motion were
produced by Defendant. [See Dkt #132 pg 2, 7].

 Netburn used Dkt ¶¶75-76 in the opinion to claim Plaintiff has not established
physical timesheets and SR 70s she seeks in her spoliation motion were lost or
destroyed. [See Dkt # 132 pg 8-9].
 Netburn used/cited Dkt #108 ¶ 80 in the opinion to claim absence of evidence
timesheets and SR 70s were lost or destroyed and to deny Plaintiff sanctions in her
spoliation claim. [See Dkt #132 pg 9]
Dkt #108 is also material because Netburn made the following statement in her opinion
“A review of the parties’ briefs and supporting documentation reveals that most of the
documents sought by plaintiff were, in fact, produced in defendant’s initial production on August
20, 2019,” in the opinion Netburn claimed she reviewed all the supporting documents to make
her decision on when, if, and/or what documents were produced by Defendant in Plaintiff’s
spoliation claims. [See Dkt # 132 pg 7]
v. Objection 4 (A-C) Plaintiff objects to the usage/admission of the following
documents as evidence: (#4A) Dkt #108-18 ¶15, (#4B) Dkt #108-18 ¶18 , (#4C)
Dkt # 108-18 ¶¶ 4, 6, 7, 8, and 16
Dkt #108-18 ¶15
Plaintiff objects to the usage/admission of Dkt #108 ¶15 as evidence because it is false
and contradictory to/inconsistent with evidence in the record. Dkt #108 ¶15 claims that on March
30th 2021 Defendant submitted Plaintiff’s electronic timesheets for entire period of Plaintiff’s
employment, July 1st 2013 to May 22nd 2015. However, Dkt # 115-1 (HHC’s electronic
timesheets records Defendant submitted regarding Plaintiff) are only showing Plaintiff’s
attendance times for July 1st 2013 to April 26th 2015. [See DKT #115-1]. It is not showing

plaintiff’s attendance record for the entire period of Plaintiff’s employment, July 1st 2013 to
May 22nd, 2015. [See Dkt #37]
Dkt #108-18 ¶18
Plaintiff objects to the usage/admission of Dkt #108 ¶18 as evidence because it is false
and contradictory to evidence in the record. Dkt #108 ¶18 claims that the information in
electronic timesheets are identical to the information in SR70s however that is false.
In Plaintiff spoliation motion reply Plaintiff said/claimed that HHC’s electronic records
do not contain the same information as SR70s. SR70s are “HHC’s request for time and leave
forms.” SR70s show whom requested leave, the date an employee requested leave, the type of
leave requested, “denial” and approval of requests for leave, whom denied and approved request
for leave, date request for leave was approved or denied, what the employee said when they
requested leave, HHC’s time and leave polices, HHC’s FMLA policies, notes and emails
regarding request for leave were also included/attached to SR70s [See Exhibit 13 (Also known as
Dkt#114-13) for copy of blank HHC SR 70s form]. While HHC’s electronic records only show
whom took leave, date leave was taken, and limited information regarding type of leave taken as
categorized by Defendant [See Exhibit 14 (Also known as Dkt #115-1) to view HHCs electronic
records Pgs Def 605-645, Def 467-479, & Def 4368-4379]. HHC’s electronic records also do not
show if leave request were specifically marked “approved” or “denied” by Defendant. During
Plaintiff’s employment many times Plaintiff’s supervisor, Nash Dunlap, marked Plaintiff’s leave
as unscheduled even though Plaintiff requested the leave in advance and he even gave Plaintiff a
discipline for taking “unscheduled leave.” In order for Plaintiff to prove Dunlap’s actions were
unwarranted she needs possession of all the SR70s. Plaintiff worked for Defendant from July 1st
2013 thru May 22nd 2015 [See Dkt # 37]. Physical Timesheets were submitted to Defendant

once a week according to Nash Dunlap [See Nash Deposition at Exhibit 28 pg 7 (Also known as
Dkt #115-15 pg 7) ]. HHC’s electronic records [See Exhibit 14 (Also known as Dkt # 115-1)]
Defendant submitted to Plaintiff are also only showing Plaintiff’s attendance times for July 1st
2013 to April 26th 2015. The electronic records HHC submitted to Plaintiff are not showing
attendance times for all dates of Plaintiff’s employment. [See Dkt #113 pg 54-55]
Dkt # 108-18 ¶¶ 4, 6, 7, 8, 16, and 18
Plaintiff objects to the usage/admission of Dkt # 108-18 ¶¶ 4, 6, 7, 8, 16, and 18 as
evidence because they are hearsay statements not based on personal knowledge. Plaintiff worked
for Gouverneur from July 1st 2013-May 22nd 2015. [See Dkt #37 and Dkt # 108-18 ¶15]. In Dkt
#108-18 ¶ 1, Stacey testifies/admits she didn’t work for Gouverneur during Plaintiff’s
employment and the person whom worked for Gouverneur during Plaintiff’s employment and
handled Plaintiff’s timesheets is Olga Leon whom has since retired. So Stacey’s testimony about
events that happened at Gouverneur during Plaintiff’s employment i.e. Dkt # 108-18 ¶¶ 4, 6, 7,
8, 16, 18 are hearsay statements not based on personal knowledge. [See Dkt # 108-18 ¶¶ 4, 6, 7,
8, 16, 18 and Dkt #108-18]. If an affidavit contains hearsay matters or statements not based on an
affiant's personal knowledge, the court should not consider those portions of the affidavit. See
Moore v. Coachmen Industries, Inc., 129 N.C. App. 389, 499 S.E.2d 772 (1998).( Strickland v.
Doe, 156 N.C. App. 292, 577 S.E.2d 124 (N.C. Ct. App. 2003) )
vi. Objection 5 Plaintiff objects to the usage/admission of Dkt # 108-1 as evidence
in the opinion
Dkt #108-1
Plaintiff objects to the usage/admission of Dkt #108-1 as evidence in the opinion because
it is condictary to /or inconsistent with evidence in the record.

Dkt # 108-1 is contradictory to and inconsistent with Dkt # 108-3 pg 2-3 (& Exhibit 4),
an email from Plaintiff’s counsel to Defendant’s counsel dated 9/30/2019 which said
“Unfortunately, I have not yet received any discovery from Defendant, and the CD you described
has not arrived. However, I look forward to receiving the information you described as soon as
possible so that Defendant's depositions may be scheduled. As soon as the material is received, I
will provide Plaintiff's documents. I will provide you with deposition notices shortly.” [See Dkt
# 108-3 pg 2 thru 3 & Dkt 108-1]
Dkt # 108-1 is contradictory to and inconsistent with Dkt # 108 ¶ 5, Defendant counsel’s
own testimony which says “On September 30, 2019, ACC Carter provided plaintiff with H+H’s
responses and objections to plaintiff’s first set of document requests and first set of
interrogatories. See email dated September 30, 2019, a copy of which is annexed hereto as
Exhibit C; H+H Responses and Objections to Plaintiff’s Discovery Requests, a copy of which is
annexed hereto as Exhibit D.” [See Dkt # 108 ¶ 5 & Dkt 108-1]
Dkt #108-1 is material
Dkt #108-1 is material because it affects the outcome of the motion: Dkt #108-1 was
used/cited by Dkt #108 ¶ ¶ 27, 28, 30, 31, 32, 34 and Dkt #107 pg 9 as evidence and Netburn
used/cited Dkt #108 ¶¶ 28, 30 in (page 2& 7) of her opinion to determine if, when, and/or what
documents sought in Plaintiff’s spoliation motion were produced by Defendant. [See Dkt #132
pg 2, 7].
vii. Objection #6) Plaintiff objects to the usage/admission of Dkt #108-16 as
evidence
Plaintiff objects to the usage/admission of Dkt #108-16 as evidence because its usage is
contrary to law, Federal Rule of Civil Procedure 37 i.e. Fed. R. Civ. P. 37(c)(1) which states that

"If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.”
In its spoliation motion reply and/or its supporting documentation, Defendant admits it
submitted some documents to Plaintiff after the date Plaintiff’s spoliation motion was filed like
some electronic timesheets (Dkt #108-18 ¶¶ 15-16), personnel files (Dkt # 108 ¶ 32 & 24), non
ESI documents with bates stamp other than Def 0001 thru Def 1481 (i.e. Plaintiff’s injury report,
resumes for Michal Ambrose/Nash Dunlap/ Echo Song/Frieda Fried/Sanford Operowsky/Che
Yu, Plaintiff’s Paystubs, Personnel Files of Michal Ambrose/Victor Duran/Michael
Sylvester/Nash Dunlap/Echo Song/Frieda Fried/Sanford Operowsky/Che Yu/Luz
Nazario/Matthew Driscoll/ Elizabeth Rivera, HHC FMLA policies, HHC FMLA application
form, some HHC Operating Procedures, and More—–See Dk #107 pg 6 & 9, Dkt # 108 ¶ 28,
Dkt # 132 pg 8). Defendant referred to those documents at Dkt #108-16 ¶¶ pg 2, 5, 6, 8-12.
Accordingly, Dkt #108-16 is not permitted to be used as evidence by Defendant pursuant to
Federal Rule of Civil Procedure 37(c)(1). Dkt # 108-16 is material because it affects the outcome
of the motion: Dkt #108-16 was used/cited by Dkt #108 ¶ ¶ 27, 28, 30, 31, 32, 34 and Dkt #107
pg 9 as evidence and Netburn used/cited Dkt #108 ¶¶ 28, 30 in her opinion to determine if, when,
and/or what documents sought in Plaintiff’s spoliation motion were produced by Defendant. [See
Dkt #132 pg 2, 7].
Objections to omissions in the opinion
Plaintiff objects to numerous omissions in the opinion by the magistrate judge. These
objections are listed below.

viii. Objection # 2 (A-U): Plaintiff objects to omission in the opinion of the
following factual finding(s): Fact 2A, 2B, 2C, 2D, 2E, 2F, 2G, 2H, 2I, 2J, 2K, 2L,
2R, 2S, 2T, & 2U in Exhibit 1 [See Exhibit 1]
Facts 2A thru 2U listed in Exhibit 1 are facts found from a review of Plaintiff’s Sworn
Testimony/Pro Se Court Complaint (Dkt #37-38) & Plaintiff’s Affidavit (Dkt # 104-3). They are
material, in the record, and should not have been omitted from the opinion.
Facts 2A, 2B, 2D, 2E, 2G, 2H, 2I, 2J, 2K, 2S, 2T, & 2U
First –The omission of Fact(s) 2A, 2B, 2D, 2E, 2G, 2H, 2I, 2J, 2K, 2S, 2T, & 2U are
material because they are important to Plaintiff’s spoliation claims / A reasonable person would
consider the fact(s) important.
Facts 2A, 2B, 2D, 2E, 2G, 2H, 2I, 2J, 2K, 2S, 2T, & 2U are material because they
determine whether:
 Plaintiff submitted EEO Complaints to Defendant on October 28th 2014, November
6th 2014 and/or December 30th 2014; Plaintiff submitted a rebuttal to Defendant on
November 14th 2014 which alleged her performance evaluation was an illegal
retaliatory employment action; Plaintiff filed an injury report with Defendant in
December 2014; and Plaintiff submitted a doctor note to Defendant in March 2015
which supported her application for FMLA leave.
 Defendant had a duty to preserve evidence on: October 28th 2014, November 6th
2014, and December 30th 2014– the dates Plaintiff filed EEO complaints with
Defendant; November 14th 2014– the date Plaintiff submitted a rebuttal to Defendant
in which she alleged her performance evaluation was an illegal retaliatory
employment action; December 2014 — the date Plaintiff gave Defendant an injury

report regarding her back injury; and March 2015–the date Plaintiff’s doctor’s note
was submitted to Defendant in support of her application for FMLA leave.
Netburn erred when she did not even mention nor consider in her opinion that Defendant
had a duty to preserve evidence on October 28th 2014, November 6th 2014, and December 30th
2014 — the dates Plaintiff submitted EEO Complaints to Defendant. Numerous courts have
found duty to preserve evidence begins when an EEO complaint is filed. Example of Court
opinion supporting this assertion is listed below.
“BPA's duty to preserve at a minimum began when Ms. Scott filed her EEO claim on
August 17, 2011, although it appears that EEO Counselor, Anthony Jackson, may have issued
the preserve evidence request on August 2, 2011. Dkt. 58-3. Because there is no EEOC
documentation releasing BPA of its obligation otherwise, the obligation continued from August
2011 until July 8, 2014, when the EEOC issued its Notice of Final Agency Decision and right-to-
sue letter. See Dkt. 58-3. Therefore, BPA's reliance on its default retention policies in the interim
time period was a mistake; BPA failed to preserve the evidence at issue.” See Scott v. Moniz,
CASE NO. 3:14-CV-5684-RJB (W.D. Wash. Jun. 19, 2015).
Documents sought by Plaintiff in her spoliation motion (i.e her EEO Complaints,
Rebuttal, Injury Report, doctor note supporting her application for FMLA leave) existed.
Defendant had a duty to preserve evidence before August 18th 2015, the date Plaintiff
filed her EEOC Charge.
Documents sought by Plaintiff in her spoliation motion (i.e her EEO Complaints, Dr. note
supporting her application for FMLA leave, Rebuttal, Injury report) were relevant to her claim
such that a reasonable trier of fact could find that it would support that claim

Defendant acted with willfulness, negligence, and/or gross negligence in Plaintiff’s
spoliation claim(s)
Second– The omission of Fact(s) 2A, 2B, 2D, 2E, 2G, 2H, 2I, 2J, 2K, 2S, 2T, & 2U is
material because the opinion implies: Defendant’s duty preserve evidence began on August 18,
2015; when in reality fact(s) 2A, 2B, 2D, 2E, 2G, 2H, 2I, 2J, 2K, 2S, 2T, and/or 2U show that
Defendant had a duty to preserve evidence on October 28th 2014 and that duty to preserve
continued through dates like November 6th 2014 (the date Plaintiff’s second EEO Complaint
was filed), November 6th (date of rebuttal filing), December 30th 2014 (the date Plaintiff’s third
EEO Complaint was filed), and March 2015 (date of dr note filing).
There is no extrinsic evidence in the record that document(s) sought in Plaintiff’s
spoliation motion were relevant to her claims such that a reasonable trier of fact could find that it
would support that claim; when in reality, fact(s) 2A, 2B, 2D, 2E, 2G, 2H, 2I, 2J, 2K, 2S, 2T,
and/or 2U show there is extrinsic evidence in the record that document(s) sought in Plaintiff’s
spoliation motion were relevant to her claims
Third– In the opinion, Netburn included many facts and conclusions that were incorrect
or had contradictory evidence in the record. The omission of Fact(s) 2A, 2B, 2D, 2E, 2G, 2H, 2I,
2J, 2K, 2S, 2T, & 2U are material because if they were included in the opinion they would
contradict or dispute Netburn’s conclusion(s)/finding(s) that say:
 “To establish that she is entitled to spoliation sanctions, plaintiff must establish first
that HHC had a duty to preserve the documents in question…. this obligation arose…
on August 18, 2015, when she filed her EEOC charge. Pl. Br. at 3; see also Zubulake
v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003).” [DKT #132 pg 9]

 “Even if plaintiff could establish that defendant was negligent in failing to retain the
documents, she cannot prove that the documents are relevant…………she does not
“present extrinsic evidence tending to show that [the documents] would have been
favorable to [her] case.”” [See Dkt # 132 pg 10]
 “As for the second element, plaintiff cannot establish that defendant acted
intentionally to destroy evidence or that its failure to retain the records was grossly
negligent.” [See Dkt # 132 pg 9]
The omission of Fact(s) 2A, 2B, 2D, 2E, 2G, 2H, 2I, 2J, 2K, 2S, 2T, & 2U are material
as it affects the outcome of the motion. Had Netburn Included/understood the facts correctly she
would not have made the finding(s)/conclusion(s) listed above.
Facts 2F, 2O, 2P
First– The omission of Fact(s) 2F, 2O, and 2P are material because they are important to
Plaintiff’s spoliation claims/ A reasonable person would consider the fact(s) important. Facts 2F,
2O,and 2P are material because they determine whether:
 Defendant altered, lost, and/or destroyed evidence sought in Plaintiff’s spoliation motion
i.e. the signed promotion evaluation, the signed rebuttal, signed job description.
 Defendant acted with bad faith, negligence, willfulness, and/or gross negligence, when it
altered, lost, and/or destroyed evidence sought in Plaintiff’s spoliation motion i.e. the
signed promotion evaluation, the signed rebuttal, and the signed job description.
 Defendant acted with a culpable state of mind when it altered, lost, and/or destroyed
evidence sought in Plaintiff’s spoliation motion i.e. the signed promotion evaluation, the
signed rebuttal, and the signed job description,.

 Documents sought by Plaintiff in her spoliation motion (i.e the signed promotion
evaluation, the signed rebuttal, the signed job description, Etc) were relevant to her claim
such that a reasonable trier of fact could find that it would support that claim
Second –In the opinion, Netburn included many facts and conclusions that were incorrect
or had contradictory evidence in the record. The omission of Fact(s) 2F, 2O, 2P are material
because if they were included in the opinion they would contradict or dispute Netburn’s
conclusion(s)/finding(s) that:
 “As for the second element, plaintiff cannot establish that defendant acted intentionally to
destroy evidence or that its failure to retain the records was grossly negligent.” [See Dkt #
132 pg 9]
 “it is also debatable whether plaintiff has established that defendant acted negligently in
failing to retain the relevant documents.” [See Dkt # 132 pg 10]
 Discrepancies in dates and missing signatures are minor differences [See Dkt #132 pg 7]
 Plaintiff points to discrepancies in dates and missing signatures to obscure document
production by Defendant [See Dkt #132 pg 7]
 “The Court of Appeals has held that the failure to adopt good preservation practices is
indicative of gross negligence, but plaintiff has not produced any evidence that this is true
of defendant. See Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 115 Fair. Empl. Prac.
Cas. 720 (2d Cir. 2012).” [See Dkt # 132 9-10]
 “Even if plaintiff could establish that defendant was negligent in failing to retain the
documents, she cannot prove that the documents are relevant…………she does not
“present extrinsic evidence tending to show that [the documents] would have been
favorable to [her] case.”” [See Dkt # 132 pg 10]

The omission of Fact(s) 2F, 2O, 2P are material as it affects the outcome of the motion.
Had Netburn included/understood the facts correctly she would not have made her
finding(s)/conclusion(s) listed above.
Facts 2Q, 2R, 2L, 2S, 2E, & 2V
First — The omission of Fact(s) 2Q, 2R, 2L, 2S, 2E, & 2V are material because they are
important to Plaintiff’s spoliation claims / A reasonable person would consider the fact(s)
important. Facts 2Q, 2R, 2L,, 2S, 2E, & 2V are material because they determine whether:
Defendant acted with willfulness, negligence, gross negligence, and/or a culpable state of
mind when it altered, lost, destroyed, and/or failed to produce evidence sought in Plaintiff’s
spoliation motion i.e. the signed promotion evaluation, the signed rebuttal, the doctor note
supporting application for FMLA leave, Etc
Second — In the opinion, Netburn included many facts and conclusions that were
incorrect or had contradictory evidence in the record. The omission of 2Q, 2R, 2L, 2S, 2E, & 2V
are material because if they were included in the opinion they would contradict or dispute at least
one of the below conclusion(s)/finding(s) by judge Netburn:
“As for the second element, plaintiff cannot establish that defendant acted
intentionally to destroy evidence or that its failure to retain the records was
grossly negligent.” [See Dkt # 132 pg 9]
“Defendant argues it met “its obligation to participate meaningfully and fairly
in the discovery phase of a judicial proceeding,” Harkabi v. SanDisk Corp.,
275 F.R.D. 414, 418–19 (S.D.N.Y. 2010), and that it had no reason believe that
the doctor’s note, “promotion evaluation,” the physical timesheets and SR 70s,
the “Employee Handbook,” and the insurance refund letter were likely to be
requested in discovery until plaintiff asked for the specific documents either
just before or after the close of discovery. Def. Br. at 15–16.” [See Dkt # 132
pg 10]
“it is also debatable whether plaintiff has established that defendant acted
negligently in failing to retain the relevant documents.” [See Dkt # 132 pg 10]

The omission of Fact(s) 2Q, 2R, 2L, 2S, 2E, & 2V are material as it affects the outcome
of the case. Had Netburn Included/understood the facts correctly she would not have made her
finding(s)/conclusion(s) listed above.
Facts 2O, 2N, & 2M
First — In the opinion, Netburn included many facts and conclusions that were incorrect
or had contradictory evidence in the record. The omission of fact(s) 2O, 2N, & 2M are material
because if they were included in the opinion they would contradict or dispute Netburn’s
conclusion(s)/finding(s) that say:
“apart from the box checked on the first page, the copy of the alleged “promotion
evaluation” is identical to the “annual evaluation” produced in full by defendant: both conclude
that plaintiff’s job performance was unsatisfactory. See ECF No. 115, Ex. 3, Ex. 9 at 4–15“ [See
Dkt # 132 pg 10]
The omission of Fact(s) 2O, 2N, 2M are material as it affects the outcome of the motion.
Had Netburn Included/understood the facts correctly she would not have made her
finding(s)/conclusion(s) listed above.
ix. Objection 3 (A-CC)) Plaintiff objects to the omission in the opinion of the
following factual finding(s): Facts 3A, 3B, 3C, 3D, 3E, EF, 3G, 3H, 3I, 3J, 3K,
3L, 3M, 3N, 3O, 3P, 3Q, 3R, 3S, 3T, 3U, 3V, 3W, 3X, 3Y, 3Z, 3AA, 3BB, 3CC,
3EE, 3FF in Exhibit 1 [See Exhibit 1]
Facts 3A thru 3CC listed in Exhibit 1 are facts found from Defendant’s spoliation motion
reply (Dkt # 107) and/or its supporting documentation (Dkt # 108, 108-1 thru 108-26). They are
material, in the record, and should not have been omitted from the opinion.
Facts 3A, 3B, & 3C

First –The omission of Facts 3A, 3B, & 3C are material because they are important to
Plaintiff’s spoliation claims / A reasonable person would consider the fact(s) important. Fact(s)
3A, 3B, & 3C are material because they determine whether:
 Plaintiff submitted EEO Complaints to Defendant on October 28th 2014, November
6th 2014, and December 30th 2014; Plaintiff submitted an accident/injury report
regarding her back injury to Defendant in December 2014; and Plaintiff gave
Defendant a doctor note supporting her application for FMLA leave in March 2015.
 Defendant had a duty to preserve evidence when Plaintiff submitted EEO
Complaints on October 28th2014, November 6th 2014, and December 30th 201;
Defendant had a duty to preserve evidence when Plaintiff gave Defendant a doctor
note supporting her application for FMLA leave in March 2015, and Defendant had
a duty to preserve evidence when Plaintiff submitted an accident/injury report to
Defendant in December 2014.
 Documents sought by Plaintiff in her spoliation motion existed i.e her EEO
Complaints, doctor note supporting her application for FMLA leave,
Accident/Injury Report
 Documents sought by Plaintiff in her spoliation motion (i.e her EEO Complaints,
doctor note supporting her application for FMLA leave, Accident/Injury Report)
were relevant to her claim such that a reasonable trier of fact could find that it would
support that claim
 Defendant acted with willfulness, negligence, and/or gross negligence in Plaintiff’s
spoliation claim
Second– The omission of Fact(s) 3A, 3B, & 3C is material because the opinion implies:

 defendant’s duty preserve evidence began on August 18, 2015 when in reality
Fact(s) 3A, 3B, and/or 3C show that Defendant had a duty to preserve evidence
on October 28th 2014 and that duty to preserve continued through dates like
November 6th 2014 (the date Plaintiff’s second EEO Complaint was filed),
December 2014 (Plaintiff’s injury report filing), December 30th 2014 (the date of
Plaintiff’s third EEO Complaint was filed), March 2015 (date of dr note filing),
Etc.
 There is no extrinsic evidence in the record that document(s) sought in Plaintiff’s
spoliation motion were relevant to her claims such that a reasonable trier of fact
could find that it would support that claim. When in reality, Fact(s) 3A, 3B,
and/or 3C show there is extrinsic evidence in the record that document(s) sought
in Plaintiff’s spoliation motion were relevant to her claims
Third, in the opinion, Netburn included many facts and conclusions that were incorrect or
had contradictory evidence in the record. The omission of fact(s) 3A, 3B, & 3C are material
because if they were included in the opinion they would contradict or dispute the below
conclusion(s)/finding(s) by Judge Netburn:
 “To establish that she is entitled to spoliation sanctions, plaintiff must establish first
that HHC had a duty to preserve the documents in question…. this obligation
arose… on August 18, 2015, when she filed her EEOC charge. Pl. Br. at 3; see also
Zubulake, 220 F.R.D. at 216.” [Dkt #132 pg 9
 “Even if plaintiff could establish that defendant was negligent in failing to retain the
documents, she cannot prove that the documents are relevant…………she does not

“present extrinsic evidence tending to show that [the documents] would have been
favorable to [her] case.”” [See Dkt # 132 pg 10]
 “As for the second element, plaintiff cannot establish that defendant acted
intentionally to destroy evidence or that its failure to retain the records was grossly
negligent.” [See Dkt # 132 pg 9]
 “it is also debatable whether plaintiff has established that defendant acted
negligently in failing to retain the relevant documents.” [See Dkt # 132 pg 10]
The omission of fact (s) 3A, 3B, & 3C are material as it affects the outcome of the
motion. Had Netburn Included/understood the facts correctly she would not have made her
finding(s)/conclusion(s) listed above.
Facts 3L, 3M, 3N, 3O, 3P, 3Q, 3R, 3S, & 3T
First –The omission of Fact(s) 3L, 3M, 3N, 3O, 3P, 3Q, 3R, 3S, and 3T are material
because they are important to Plaintiff’s spoliation claims / A reasonable person would consider
the fact(s) important. Fact(s) 3L, 3M, 3N, 3O, 3P, 3Q, 3R, 3S, and 3T are material because they
determine whether:
 Defendant lost, destroyed, and/or failed to produce evidence sought In Plaintiff’s
spoliation motion i.e. Plaintiff’s doctor note supporting her application for FMLA
leave, Plaintiff’s signed promotion evaluation she submitted to Defendant i,
Plaintiff’s Physical Timesheets, Plaintiff’s SR70s, Coworkers Physical Timesheets,
SR70s, Refund Letter, and letter regarding pay, HHC employee handbook)
 Defendant lost, destroyed, and/or failed to produce evidence sought In Plaintiff’s
spoliation motion during discovery and/or by the time Plaintiff filed her spoliation
motion on 2/19/2021.

Second — In the opinion, Netburn included many facts and conclusions that were
incorrect or had contradictory evidence in the record. The omission of fact(s) 3L, 3M, 3N, 3O,
3P, 3Q, 3R, 3S, and 3T are material because if they were included in the opinion they would
contradict or dispute at least one of the below conclusion(s)/finding(s) by Judge Netburn:
“Plaintiff served her first request for documents on Defendant on November 8,
2018. More than nine months later, defendant produced its first tranche of
responsive documents (Bates stamped Def 0001–1481). This production
contained plaintiff’s personnel file, documents related to plaintiff’s Equal
Employment Opportunity Commission (EEOC) charge, plaintiff’s Equal
Employment Opportunity (EEO) complaints, and HHC’s organizational
policies for time and leave, performance evaluations, and EEO. ECF No. 108,
Declaration of Mark R. Ferguson (“Ferguson Decl.”) at ¶ 3. [See Dkt #132 pg
2]
“Ultimately, defendant was unable to locate only a small subset of the 33
categories of documents plaintiff contests.” [See Dk # 132 pg 9]
“The Court of Appeals has held that the failure to adopt good preservation
practices is indicative of gross negligence, but plaintiff has not produced any
evidence that this is true of defendant. See Chin, 685 F.3d at 162.” [See Dkt #
132 9-10]
“Additionally, Plaintiff has not established that the physical timesheets and SR
70s she seeks were lost or destroyed.” [See Dkt # 132 pg 8]
“In the absence of evidence that the timesheets and SR 70s were lost or
destroyed, spoliation sanctions are not appropriate.” [See Dkt # 132 pg 9]
“Ultimately, defendant was unable to locate only a small subset of the 33
categories of documents plaintiff contests. These documents include the
corporate job descriptions for plaintiff and her coworkers, plaintiff’s doctor’s
note submitted in support of her application for FMLA leave, the “promotion
evaluation” and “promotion evaluation rebuttal,” plaintiff’s email application
for employment and subsequent emails inquiring about the position, HHC’s
“Employee Handbook,” defendant’s FMLA policies, and a letter allegedly sent
to plaintiff regarding withholding of pay. Only these documents are properly
the subject of a motion for spoliation.” [See Dkt # 132 pg 9]
Plaintiff quibbles with defendant’s assertion that the documents were produced, pointing
to discrepancies in dates, missing signatures, and differences between the titles of policies to

obscure the fact that defendant timely produced many of the documents sought. [See Dkt # 132
pg 7]
Indeed, the copies of the contested documents produced by defendant in discovery do not
support her claims that the originals “would have constituted evidence favorable to plaintiff.”
[Dkt #132 pg 10]
The omission of fact(s) 3L, 3M, 3N, 3O, 3P, 3Q, 3R, 3S, and 3T are material as it affects
the outcome of the motion. Had Netburn Included/understood the facts correctly she would not
have made her finding(s)/conclusion(s) listed above
Facts 3D, 3E, 3F, 3G, 3H, 3U, 3V, 3W, 3X, 3Y, 3EE, & 3FF
First — The omission of Fact(s) 3D, 3E, 3F, 3G, 3H, 3U, 3V, 3W, 3X, 3Y, 3EE, & 3FF
are material because they are important to Plaintiff’s spoliation claims / A reasonable person
would consider the fact(s) important. Fact(s) 3D, 3E, 3F, 3G, 3H, 3U, 3V, 3W, 3X, 3Y, 3EE, &
3FF are material because they determine whether:
 Defendant failed to issue litigation hold(s)
 Defendant failed to issue timely litigation holds in Plaintiff’s spoliation claims
 Defendant acted with negligence and gross negligence when it failed to produce,
altered, lost, and/or destroyed the evidence sought in Plaintiff’s spoliation motion.
 Defendant acted with willfulness when it failed to produce, altered, lost, and/or
destroyed the evidence sought in Plaintiff’s spoliation motion.
 Defendant acted with culpable state of mind in Plaintiff’s spoliation claims.
Second, in the opinion, Netburn included many facts and conclusions that were incorrect
or had contradictory evidence in the record. The omission of fact(s) 3D, 3E, 3F, 3G, 3H, 3U, 3V,

3W, 3X, 3Y, 3EE, & 3FF are material because if they were included in the opinion they would
contradict or dispute Netburn’s conclusion(s)/finding(s) that:
“As for the second element, plaintiff cannot establish that defendant acted
intentionally to destroy evidence or that its failure to retain the records was
grossly negligent.” [See Dkt # 132 pg 9]
“it is also debatable whether plaintiff has established that defendant acted
negligently in failing to retain the relevant documents.” [See Dkt # 132 pg 10]
“The Court of Appeals has held that the failure to adopt good preservation
practices is indicative of gross negligence, but plaintiff has not produced any
evidence that this is true of defendant. See Chin v. Port Auth. of N.Y. & N.J.,
685 F.3d 135, 115 Fair. Empl. Prac. Cas. 720 (2d Cir. 2012).” [See Dkt # 132
9-10]
The omission of fact(s) 3D, 3E, 3F, 3G, 3H, 3U, 3V, 3W, 3X, 3Y, 3EE, & 3FF are
material as it affects the outcome of the motion. Had Netburn Included/understood the facts
correctly she would not have made her finding(s)/conclusion(s) listed above.
Facts 3J, 3K, 3I
First — In the opinion, Netburn included many facts and conclusions that were incorrect
or had contradictory evidence in the record. The omission of Fact(s) 3I, 3J, & 3K are material
because if they were included in the opinion they would contradict or dispute the
conclusion(s)/finding(s) by Judge Netburn that say:
“Plaintiff did not inform defendant that she believed the productions were
incomplete until August 2020, a year after the initial production.” [See Dkt #
132 pg 12]
“Plaintiff only provided a comprehensive list of the documents allegedly
omitted by defendant on November 13, 2020, after the close of discovery and
the same day that a status letter was due to the Court. See ECF No. 108, Ex.
14.: [See Dkt # 132 pg 12]
“The failure to timely communicate with defense counsel regarding the
deficiencies in defendant’s production suggests that plaintiff did not, in good
faith, attempt to obtain the discovery without court action” [See Dkt #132 pg
12]

“Defense counsel promptly contacted HHC to seek additional records after
plaintiff’s counsel requested specific documents, but the production was further
delayed by the logistical challenges associated with the COVID-19 pandemic.
ECF No. 108, Ex. 11, Ex. 12”[See Dkt # 132 pg 12-13]
“Relevant to plaintiff’s burden, some of these documents, including the injury
report and the personnel files, were not in plaintiff’s initial discovery demands
but were requested by plaintiff’s counsel only on September 25, 2020, just a
few days before the close of discovery and during the COVID-19 pandemic.”
See ECF No. 108, Ex. 4, Ex. 9. [See Dkt #132 pg 8]
“Defendant argues it met “its obligation to participate meaningfully and fairly
in the discovery phase of a judicial proceeding,” Harkabi v. SanDisk Corp.,
275 F.R.D. 414, 418–19 (S.D.N.Y. 2010), and that it had no reason believe that
the doctor’s note, “promotion evaluation,” the physical timesheets and SR 70s,
the “Employee Handbook,” and the insurance refund letter were likely to be
requested in discovery until plaintiff asked for the specific documents either
just before or after the close of discovery. Def. Br. at 15–16.” [See Dkt #132 pg
10]
The omission of fact(s) 3J, & 3K are material as it affects the outcome of the motion. Had
Netburn Included/understood the facts correctly she would not have made her
finding(s)/conclusion(s) listed above
Facts 3I
First — In the opinion, Netburn included many facts and conclusions that were incorrect
or had contradictory evidence in the record. The omission of Fact 3I is material because if it was
included in the opinion it would contradict or dispute the conclusion(s)/finding(s) by Judge
Netburn that say:
“Plaintiff did not inform defendant that she believed the productions were
incomplete until August 2020, a year after the initial production.” [See Dkt #
132 pg 12
“The failure to timely communicate with defense counsel regarding the
deficiencies in defendant’s production suggests that plaintiff did not, in good
faith, attempt to obtain the discovery without court action” [See Dkt #132 pg
12]

“Defense counsel promptly contacted HHC to seek additional records after
plaintiff’s counsel requested specific documents, but the production was further
delayed by the logistical challenges associated with the COVID-19 pandemic.
ECF No. 108, Ex. 11, Ex. 12”[See Dkt # 132 pg 12-13]
“Relevant to plaintiff’s burden, some of these documents, including the injury
report and the personnel files, were not in plaintiff’s initial discovery demands
but were requested by plaintiff’s counsel only on September 25, 2020, just a
few days before the close of discovery and during the COVID-19 pandemic.”
See ECF No. 108, Ex. 4, Ex. 9. [See Dkt #132 pg 8]
“Defendant argues it met “its obligation to participate meaningfully and fairly
in the discovery phase of a judicial proceeding,” Harkabi v. SanDisk Corp.,
275 F.R.D. 414, 418–19 (S.D.N.Y. 2010), and that it had no reason believe that
the doctor’s note, “promotion evaluation,” the physical timesheets and SR 70s,
the “Employee Handbook,” and the insurance refund letter were likely to be
requested in discovery until plaintiff asked for the specific documents either
just before or after the close of discovery. Def. Br. at 15–16.” [See Dkt # 132
pg 10]
The omission of facts 3I, 3J, & 3K are material as it affects the outcome of the motion.
Had Netburn Included/understood the facts correctly she would not have made her
finding(s)/conclusion(s) listed above
Second – Fact 3I is important because: On pages 2-3 of the opinion, Netburn introduced
into evidence Defendant’s writing from a joint letter(s) to the Court but she left out Plaintiff’s
writing/responses in the joint letter. [See Dkt #132 pgs 2-3]
Facts 3Z
First — The omission of Fact 3Z is material because it is important to Plaintiff’s
spoliation claims / A reasonable person would consider the fact important. Fact 3Z is material
because:
 it determines whether Defendant produced some documents sought in Plaintiff’s
spoliation motion in August 2020

 it determines one of the dates Plaintiff attempted to obtain discovery without court
action
 it determines one of the dates Plaintiff informed Defendant that its claim(s) of
production was false/deficient
Second — In the opinion, Netburn included many facts and conclusions that were
incorrect or contradictory to evidence in the record. The omission of Fact 3Z is material because
if it was included in the opinion it would contradict or dispute the below conclusion(s)/finding(s)
by Judge Netburn:
“A review of the parties’ briefs and supporting documentation reveals that most
of the documents sought by plaintiff were, in fact, produced in defendant’s
initial production on August 20, 2019.” [See Dkt # 132 pg 6-7]
“Plaintiff did not inform defendant that she believed the productions were
incomplete until August 2020, a year after the initial production.” [See Dkt #
132 pg 12]
“The failure to timely communicate with defense counsel regarding the
deficiencies in defendant’s production suggests that plaintiff did not, in good
faith, attempt to obtain the discovery without court action” [See Dkt #132 pg
12]
“Here, defendant provided most of the documents requested by plaintiff in
August and September 2019.” [See Dkt #132 pg 12]
“A review of the parties’ briefs and supporting documentation reveals that most
of the documents sought by plaintiff were, in fact, produced in defendant’s
initial production on August 20, 2019. This list includes plaintiff’s annual
evaluation, her evaluation rebuttal, her job description, the job descriptions for
her coworkers, her job posting, a November 2014 memorandum to plaintiff
from her supervisor at HHC, her termination letter, resume, personnel file,
HHC’s Benefits Manual, HR Policy Number 18, HHC’s FMLA and EEOC
policies, documents defendant cited in support of their defense of plaintiff’s
EEOC charge, and the internal EEO complaints plaintiff filed with Human
Resources…….Plaintiff quibbles with defendant’s assertion that the documents
were produced, pointing to discrepancies in dates, missing signatures, and
differences between the titles of policies to obscure the fact that defendant
timely produced many of the documents sought. She does not, however,

explain why these minor differences render the documents unresponsive to her
discovery requests.” [See Dkt #132 pg 6-8]
The omission of Fact 3Z is material as it affects the outcome of the motion.
Had Netburn included/understood the facts correctly she would not have made her
finding(s)/conclusion(s) listed above.
Had Neburn included/ understood the facts correctly she would not have found Defendant
produced some documents in August 2019 like “plaintiff’s annual evaluation, her evaluation
rebuttal, her job description, the job descriptions for her coworkers, her job posting, a November
2014 memorandum to plaintiff from her supervisor at HHC, her termination letter, resume,
personnel file, HHC’s Benefits Manual, HR Policy Number 18, HHC’s FMLA and EEOC
policies, documents defendant cited in support of their defense of plaintiff’s EEOC charge, and
the internal EEO complaints plaintiff filed with Human Resources.”
Facts 3AA, 3BB
First — The omission of Facts 3AA, 3BB is material because it is important to Plaintiff’s
spoliation claims / A reasonable person would consider the fact important. Fact(s) 3AA, 3BB, &
3CC is material because:
 it determines whether Plaintiff attempted to obtain discovery without court action
 it determines one of the dates Plaintiff communicated to Defendant that its production
was deficient before the close of discovery
Second — In the opinion, Netburn included many facts and conclusions that were
incorrect or had contradictory evidence in the record. The omission of Facts 3AA, 3BB, & 3CC
is material because if it was included in the opinion it would contradict or dispute the below
conclusion(s)/finding(s) by Judge Netburn:

“Plaintiff did not inform defendant that she believed the productions were
incomplete until August 2020, a year after the initial production.” [See Dkt #
132 pg 12]
“The failure to timely communicate with defense counsel regarding the
deficiencies in defendant’s production suggests that plaintiff did not, in good
faith, attempt to obtain the discovery without court action” [See Dkt #132 pg
12]
The omission of Facts 3AA, 3BB is material as it affects the outcome of the motion.
Had Netburn included/understood the facts correctly she would not have made her
finding(s)/conclusion(s) listed above.
Had Neburn included/understood the fact(s) correctly she would have found that Plaintiff
attempted to obtain discovery without court action
Facts 3CC
First — The omission of Facts 3AA, 3BB, and 3CC is material because it is important to
Plaintiff’s spoliation motion / A reasonable person would consider the fact important. Fact(s)
3AA, 3BB, & 3CC is material because:
 it determines whether Plaintiff attempted to obtain discovery without court action
 it determines one of the dates Plaintiff communicated to Defendant that its
production was deficient before the close of discovery
Second — In the opinion, Netburn included many facts and conclusions that were
incorrect or had contradictory evidence in the record. The omission of Facts 3AA, 3BB, & 3CC
is material because if it was included in the opinion it would contradict or dispute the below
conclusion(s)/finding(s) by Judge Netburn:
“Plaintiff only provided a comprehensive list of the documents allegedly
omitted by defendant on November 13, 2020, after the close of discovery and
the same day that a status letter was due to the Court.” See ECF No. 108, Ex.
14. [See Dkt # 132 pg 12]

“Plaintiff did not inform defendant that she believed the productions were
incomplete until August 2020, a year after the initial production.” [See Dkt #
132 pg 12]
‘The failure to timely communicate with defense counsel regarding the
deficiencies in defendant’s production suggests that plaintiff did not, in good
faith, attempt to obtain the discovery without court action” [See Dkt #132 pg
12]
The omission of Facts 3AA, 3BB, & 3CC is material as it affects the outcome of the
motion.
Had Netburn included/understood the facts correctly she would not have made her
finding(s)/conclusion(s) listed above.
Had Neburn included/understood the fact(s) correctly, she would have found that Plaintiff
attempted to obtain discovery without court action; and she would not have found that Plaintiff
only provided a comprehensive list of the documents allegedly omitted by defendant on
November 13, 2020, after the close of discovery and the same day that a status letter was due to
the Court
x. Objection 4 (A-R): Plaintiff objects to omission in the opinion of the following
factual finding(s): Fact 4A, 4B, 4C, 4D, 4E, 4F, 4G, 4H, 4I, 4J, 4K, 4L, 4M. 4N,
4O, 4P, 4Q, & 4R in Exhibit 1 [See Exhibit 1]
Facts 4A thru 4R listed in Exhibit 1 are facts found from Plaintiff’s Spoliation Motion
(Dkt # 101), Plaintiff’s Spoliation Motion Reply (Dkt #113), and/or their Supporting
Documentation (Dkt # 101-1, Dkt #114-1 thru 115-27). They are material, in the record, and
should not have been omitted from the opinion.
Fact 4A & 4E
First – The omission of Facts 4A & 4E are material because Fact 4A & 4E is important to
Plaintiff’s spoliation motion / A reasonable person would consider the facts important.

Facts 4A & 4E are material because they determine what evidence was specifically
sought by Plaintiff in her spoliation motion.
Second– In the opinion, Nettburn misstated / misunderstood the specific version of
documents Plaintiff was seeking in her spoliation motion. The omission of Fact 4A & 4E is
material because the opinion implies:
 Plaintiff sought “documents defendant cited in support of their defense of plaintiff’s
EEOC charge” when in reality if facts 4a & 4e were included in the opinion they would
show Plaintiff sought “copies of documents which H+H contends support its defense of
Ms Humphreys' Complaint, i.e., internal EEO complaints, rebuttal, evaluations “ [See
Dkt # 132 pg 7]
 Plaintiff sought “her job description” when in reality if facts 4a & 4e were included in
the opinion they would show Plaintiff sought “a job description Ms. Humphreys signed
and submitted to HHC human resources in November 2014” [See Dkt # 132 pg 7]
 Plaintiff sought “her evaluation rebuttal” when in reality if facts 4a & 4e were included
in the opinion they would show Plaintiff sought “Ms. Humphreys' signed performance
evaluation rebuttal, submitted by Ms. Humphreys to HHC in November 2014 “ [See Dkt
132 pg 7]
 Plaintiff sought “a November 2014 memorandum to plaintiff from her supervisor at
HHC” when in reality if facts 4a & 4e were included in the opinion they would show
Plaintiff sought “a memorandum from HHC to Ms. Humphreys in November 2014,
produced by HHC in its EEOC Position Statement but which HHC failed to produced in
discovery” [See Dkt #132 pg 7]

 Plaintiff sought “a photograph of her doctor’s note” when in reality if facts 4a & 4e were
included in the opinion they would show Plaintiff sought a doctor’s note as she submitted
it to Defendant in March 2015 [See Dkt #132 pg 11]
 Plaintiff sought “her termination letter “ when in reality if facts 4a & 4e were included in
the opinion they would show Plaintiff sought “the termination letter and accompanying
termination documents “ [See Dkt # 132 pg 7]
 Plaintiff sought “documents related to plaintiff’s Equal Employment Opportunity
Commission (EEOC) charge” when in reality if facts 4a & 4e were included in the
opinion they would show Plaintiff sought “copies of documents which H+H contends
support its defense of Ms Humphreys' Complaint, i.e., internal EEO complaints, rebuttal,
evaluations” [See Dkt # 132 pg 2]
Third–In the opinion, Netburn included many facts and conclusions that were incorrect
or had contradictory evidence in the record. The omission of Fact 4A & 4E is material because if
Fact 4A & 4E were included in Netburn’s opinion it would contradict or dispute at least one of
the below finding(s)/conclusion(s) by judge Netburn:
“A review of the parties’ briefs and supporting documentation reveals that most
of the documents sought by plaintiff were, in fact, produced in defendant’s
initial production on August 20, 2019. This list includes plaintiff’s annual
evaluation, her evaluation rebuttal, her job description, the job descriptions for
her coworkers, her job posting, a November 2014 memorandum to plaintiff
from her supervisor at HHC, her termination letter, resume, personnel file,
HHC’s Benefits Manual, HR Policy Number 18, HHC’s FMLA and EEOC
policies, documents defendant cited in support of their defense of plaintiff’s
EEOC charge, and the internal EEO complaints plaintiff filed with Human
Resources…….Plaintiff quibbles with defendant’s assertion that the documents
were produced, pointing to discrepancies in dates, missing signatures, and
differences between the titles of policies to obscure the fact that defendant
timely produced many of the documents sought. She does not, however,
explain why these minor differences render the documents unresponsive to her
discovery requests.” [Dkt # 132 pg 6-7].

“Plaintiff herself produced a photograph of her doctor’s note, the job
application emails, the Employee Handbook, defendant’s FMLA policies, and
the insurance reimbursement letter, which she characterizes as a letter
regarding the improper withholding of her pay. See ECF No. 115, Ex. 8 at 3–4
(job application emails), Ex. 14 (Employee Handbook), Ex. 16 (photograph of
doctor’s note), Ex. 19 (FMLA policies); Ferguson Decl. at ¶ 95 (insurance
reimbursement letter). Thus, she already possesses most of the documents she
seeks from defendant.” [See Dkt # 132 pg]
“Plaintiff claims that defendant failed to produce, lost, or destroyed 33
documents or categories of documents.” [Dkt #132 pg 9]
“Plaintiff served her first request for documents on Defendant on November 8,
2018. More than nine months later, defendant produced its first tranche of
responsive documents (Bates stamped Def 0001–1481). This production
contained plaintiff’s personnel file, documents related to plaintiff’s Equal
Employment Opportunity Commission (EEOC) charge, plaintiff’s Equal
Employment Opportunity (EEO) complaints, and HHC’s organizational
policies for time and leave, performance evaluations, and EEO. ECF No. 108,
Declaration of Mark R. Ferguson (“Ferguson Decl.”) at ¶ 3. [See Dkt #132 pg
2]
The omission of Fact(s) 4A & 4E are material as it affects the outcome of the case. Had
Netburn Included/understood the facts correctly she would not have made her
finding(s)/conclusion(s) listed above.
Facts 4G, 4M, 4D, 4C, 4N, 2W, & 2X
First – The omission of Facts 4G, 4M, 4D, 4C, 4N, 2W, and 2X are material because they
are important to Plaintiff’s spoliation motion / A reasonable person would consider the fact(s)
important.
Fact(s) 4G, 4M, 4D, 4C, 4N, 2W, 2X are material because they determine whether:
 Defendant failed to produce, lost, and/or destroyed evidence sought in Plaintiff’s
spoliation motion by the time Plaintiff filed her spoliation claim
 Defendant failed to produce, lost, and/or destroyed evidence sought in Plaintiff’s
spoliation motion

 Defendant acted with a culpable state of mind in Plaintiff’s spoliation claims
 Defendant acted with negligence, gross negligence, willfulness, or bad faith in
Plaintiff’s spoliation claims
 Plaintiff made a showing of prejudice
Second- In the opinion, Netburn included many facts and conclusions that were incorrect
or had contradictory evidence in the record. The omission of Facts 4G, 4M, 4D, 4C, 4N, 2W, 2X
are material because if they were included in the opinion they would contradict or dispute the
below finding(s)/conclusion(s) by Judge Netburn that say:
“A review of the parties’ briefs and supporting documentation reveals that most
of the documents sought by plaintiff were, in fact, produced in defendant’s
initial production on August 20, 2019. This list includes plaintiff’s annual
evaluation, her evaluation rebuttal, her job description, the job descriptions for
her coworkers, her job posting, a November 2014 memorandum to plaintiff
from her supervisor at HHC, her termination letter, resume, personnel file,
HHC’s Benefits Manual, HR Policy Number 18, HHC’s FMLA and EEOC
policies, documents defendant cited in support of their defense of plaintiff’s
EEOC charge, and the internal EEO complaints plaintiff filed with Human
Resources…….Plaintiff quibbles with defendant’s assertion that the documents
were produced, pointing to discrepancies in dates, missing signatures, and
differences between the titles of policies to obscure the fact that defendant
timely produced many of the documents sought. She does not, however,
explain why these minor differences render the documents unresponsive to her
discovery requests.” [See Dkt #132 pg 6-7]
“The Court of Appeals has held that the failure to adopt good preservation
practices is indicative of gross negligence, but Plaintiff has not produced any
evidence that this is true of defendant. See Chin, 685 F.3d at 162.” [See Dkt #
132 pg 9-10]
“Even if plaintiff could establish that defendant was negligent in failing to
retain the documents, she cannot prove that the documents are relevant, or that
she was prejudiced by defendant’s failure to produce them” [Dkt #132 pg 10]
“Even if plaintiff could establish that defendant was negligent in failing to
retain the documents, she cannot prove that the documents are
relevant…………she does not “present extrinsic evidence tending to show that
[the documents] would have been favorable to [her] case.”” [See Dkt # 132 pg
10]

The omission of Fact(s) 4G, 4M, 4D, 4C, 4N, 2W, and 2X are material as it affects the
outcome of the case. Had Netburn Included/understood the facts correctly she would not have
made her finding(s)/conclusion(s) listed above.
Facts 4H, 4I, 4J, 4M, & 4F
First – The omission of Facts 4H, 4I, 4J, 4M , and 4F are material because they are
important to the spoliation claims/ A reasonable person would consider the facts important
Facts 4H, 4I, 4J, 4M, & 4F are material because they determine whether Defendant acted
with negligence, willfulness, bad faith, and/or gross negligence in Plaintiff’s spoliation claims.
Second– Omission of Facts 4H, 4I, 4J, 4M are material because the opinion implies there
is no evidence of negligence or willfulness to support Plaintiff’s spoliation claims when in reality
Facts 4H, 4L, 4J, &/or 4M show evidence of negligence and willfulness i.e. many documents
sought in Plaintiff’s spoliation claim were created by Defendant or submitted to Defendant after
Plaintiff filed an EEO Complaint(s) and/or after Defendant had a duty to preserve evidence
Third– In the opinion, Netburn included many facts and conclusions that were incorrect
or had contradictory evidence in the record. The omission of Fact(s) 4H, 4I, 4J, 4M, & 4F is
material because if they were included in the opinion they would contradict or dispute Netburn’s
conclusion(s)/finding(s) that say:
“it is also debatable whether plaintiff has established that defendant acted
negligently in failing to retain the relevant documents.” [See Dkt # 132 pg 10]
“As for the second element, plaintiff cannot establish that defendant acted
intentionally to destroy evidence or that its failure to retain the records was
grossly negligent.” [See Dkt # 132 pg 9]
“Defendant argues it met “its obligation to participate meaningfully and fairly
in the discovery phase of a judicial proceeding,” Harkabi v. SanDisk Corp.,
275 F.R.D. 414, 418–19 (S.D.N.Y. 2010), and that it had no reason believe that
the doctor’s note, “promotion evaluation,” the physical timesheets and SR 70s,
the “Employee Handbook,” and the insurance refund letter were likely to be

requested in discovery until plaintiff asked for the specific documents either
just before or after the close of discovery. Def. Br. at 15–16.” [See Dkt # 132
pg 10]
The omission of Fact(s) 4H, 4I, 4J, 4M, & 4F are material as it affects the outcome of
the case. Had Netburn Included/understood the facts correctly she would not have made her
finding(s)/conclusion(s) listed above.
Facts 4K, 4G, & 4L
First – The omission of Fact(s) 4K, 4G, and 4L are material because they are important
to Plaintiff’s spoliation claims / A reasonable person would consider the fact(s) important.
Facts 4K, 4G and/or, 4L are material because they help determine whether evidence
sought by Plaintiff in her spoliation motion were relevant to her claim(s) such that a reasonable
trier of fact could find that it would support that claim
Second– The omission of Facts 4K, 4G, and/or 4L are material because the opinion
implies that there is no evidence of relevance to support Plaintiff’s spoliation claims and there is
no extrinsic evidence tending to show the documents Plaintiff seeks would have been favorable
to her case when in reality if Facts 4K, 4G, and/or 4L were included in the opinion they would
show otherwise.
Third– In the opinion, Netburn included many facts that were incorrect or had
contradictory evidence in the record. The omission of Facts 4K, 4G, and/or 4L are material
because If they were included in the opinion they would contradict or dispute at least one of the
below finding(s)/conclusion(s) by Judge Netburn:
“Even if plaintiff could establish that defendant was negligent in failing to
retain the documents, she cannot prove that the documents are relevant, or that
she was prejudiced by defendant’s failure to produce them” [Dkt #132 pg 10]
“Even if plaintiff could establish that defendant was negligent in failing to
retain the documents, she cannot prove that the documents are

relevant…………she does not “present extrinsic evidence tending to show that
[the documents] would have been favorable to [her] case.”” [See Dkt # 132 pg
10]
The omission of Fact(s) 4K, 4G, and/or 4L are material as it affects the outcome of the
case. Had Netburn Included/understood the facts correctly she may not have made her
finding(s)/conclusion(s) listed above.
Facts 4L, 4M, 4O, 4P, 4Q, 4R, 4S
First –The omission of Facts 4L, 4M, 4O, 4P, 4Q, 4R, & 4S are material because they are
important to Plaintiff’s spoliation claims / A reasonable person would consider the facts
important
Facts 4L, 4M, 4O, 4P, 4Q, 4R, & 4S are material because they help determine whether
Plaintiff was prejudiced by Defendant’s non-production, loss, and/or destruction of evidence in
Plaintiff’s claim
Second– In the opinion, Netburn included many facts and conclusions that were
incorrect or had contradictory evidence in the record. The omission of Facts 4L, 4M, 4O, 4P,
4Q, 4R, and/or 4S are material because the opinion implies:
 Plaintiff did not suffer prejudice by Defendant(s) non-production, loss, or
destruction of evidence sought in Plaintiff’s spoliation motion
 Defendant(s) non-production, loss, or destruction of evidence sought in Plaintiff’s
spoliation motion didn’t impair Plaintiff’s ability to go to trial
 Defendant(s) non-production, loss, or destruction of evidence sought in Plaintiff’s
spoliation motion didn’t threaten to interfere with the rightful decision of the case

 Defendant(s) non-production, loss, or destruction of evidence sought in Plaintiff’s
spoliation motion doesn’t force Plaintiff to rely on incomplete and spotty evidence
at trial
 Plaintiff has possession of all the documents that were lost or destroyed by
Defendant
 Plaintiff has possession of documents cumulative of all the documents lost or
destroyed by Defendant when in reality if Facts 4L, 4M, 4O, 4P, 4Q, 4R, and/or 4S
were included in the opinion they would show otherwise
Third–In the opinion, Netburn included many facts that had contradictory evidence in the
record. The omission of Facts 4L, 4M, 4O, 4P, 4Q, and/or 4R are material because If they were
included in Netburn’s opinion they would contradict or dispute her finding(s)/conclusion(s) that:
“Even if plaintiff could establish that defendant was negligent in failing to
retain the documents, she cannot prove that the documents are relevant, or that
she was prejudiced by defendant’s failure to produce them” [See Dkt #132 pg
10]
“…Plaintiff does not make a showing of prejudice.” [See Dkt #132 pg 11]
The omission of Fact(s) 4L, 4M, 4O, 4P, 4Q, 4R, and/or 4S are material as it affects the
outcome of the case. Had Netburn Included/understood the facts correctly she would not have
made her finding(s)/conclusion(s) listed above.
Fact 4B
First – the omission of Fact 4B is material because it is important to Plaintiff’s spoliation
claims/ A reasonable person would consider the fact important. Fact 4B determines what relief
was actually sought in Plaintiff’s spoliation motion
Fact 4B claims Plaintiff sought the following relief: “(1) find HHC engaged in spoliation
and (2) enter default judgment against HHC or, alternatively, require mandatory adverse

inference jury instructions at trial. In particular, the jury should be instructed to infer that Ms.
Humphreys performed admirably at her job, that HHC manufactured or doctored false
performance evaluations saying otherwise, that Ms. Humphreys was performing the correct
duties according to her job description, and that Ms. Humphreys' FMLA leave application was
whole and complete. In addition – and importantly – given the willful loss of information, this
Court should infer that Ms. Humphreys has identified properly her comparators. Ms. Humphreys
further requests this Court (3) prohibit HHC from presenting arguments or evidence regarding
lost evidence and reasons for lost evidence at trial; (4) award her attorney's fees and costs
associated with this motion or, if default judgment is entered, for the full case; and (5) grant
such further relief that it deems appropriate.”
Third– The omission of fact 4b is material because the opinion implies:
 Plaintiff did not seek case dispositive adverse jury instructions
 Plaintiff did not seek case dispositive adverse jury instructions in lieu of default
judgment
 Plaintiff did not seek attorneys fees for the full case if default judgment is entered
Netburn did not make an opinion on a potentially dispositive or dispositive motion
without consent of the parties when in reality if fact Fact 4b was included in the opinion it would
show otherwise.
Second–In the opinion, Netburn included many facts and conclusions that were incorrect
or had contradictory evidence in the record. The omission of fact 4b is material because If Fact
4B was included in the decision it would contradict or dispute Netburn’s finding/conclusion that:
“Plaintiff seeks: (1) default judgment against HHC; (2) an adverse inference
jury instruction at trial; (3) an order prohibiting HHC from presenting
arguments or evidence regarding lost evidence and reasons for lost evidence at
trial; (4) attorney’s fees and costs associated with the motion; and (5) such

further relief that it deems appropriate.” ECF No. 101, Plaintiff’s Memorandum
of Law (“Pl. Br.”) at 8. [See Dkt #132 pg 3]
The omission of Fact 4B are material as it affects the outcome of the case. Had Netburn
Included/understood the facts correctly she would not have made her finding/conclusion listed
above.
Objections to fact findings in the opinion
xi. Objection 5 Plaintiff objects to the following finding by the magistrate judge,
Finding 5: “Plaintiff only provided a comprehensive list of the documents allegedly
omitted by defendant on November 13, 2020, after the close of discovery and the same day that a
status letter was due to the Court. See ECF No. 108, Ex. 14.“ [See Dkt # 132 pg 12]
Plaintiff objects to Finding #5 as clearly erroneous. First —- Fact discovery closed on
September 30th 2020 (See Dkt # 88). Finding #5 is clearly erroneous because it is false and
contradictory to/inconsistent with evidence in the record. Dkt # 108-9 is an email in the record in
which Plaintiff’s counsel sent Defendant a list of omitted documents on September 25th 2020,
before the close of discovery. [See Dkt # 108-9]
Finding #5 is contradictory and/or inconsistent with Netburn’s own finding in the opinion
that said: “On September 25, 2020, Plaintiff’s counsel identified 13 types of documents that, she
claimed, had not been included in defendant’s disclosure, including a doctor’s note submitted by
plaintiff to defendant in support of her application for FMLA leave, a signed “promotion”
evaluation, plaintiff’s signed performance evaluation rebuttal, plaintiff’s signed job description,
timesheets and other timekeeping documents for plaintiff and her coworkers, and a document
described as “The Gouverneur Hospital Employee Handbook.” ECF No. 108, Ex. 9.” [See Dkt
#132 pg 2]

On September 25th 2020, in a joint letter to the Court regarding discovery dispute(s)
between the parties, Plaintiff wrote: “Plaintiff disputes Defendant's contentions regarding
discovery, as it has been asking about documents that appear to be missing from Defendant's
production for over a year. Unfortunately, the attorney from the Law Department that had been
working on this matter left, and Mr. Ferguson replaced him in October 2019. Immediately
thereafter there were a series of events that interfered with the ability of counsel to follow up
effectively, including important personal events, vacations, illnesses, and a pandemic. When the
parties again spoke regarding the missing documents, Plaintiff was assured that everything had
been produced and that they would continue to check diligently for any additional documents.
Plaintiff also conferred with Defendant regarding certain additional personnel files that should
have been produced, and Plaintiff was told that Defendant was considering whether to produce
them. Plaintiff continued to follow up with Defendant on these documents. Finally, on August
27, Plaintiff could wait no longer and a letter was sending discussing a motion to compel.
Plaintiff was assured on several occasions that documents would be forthcoming, but this did not
occur. Finally, Plaintiff produced a list of the specific items that it believed was missing and set
them forth explicitly in a second set of discovery demands. Plaintiff was assured that documents
would be forthcoming, but this also did not occur. At this point, Plaintiff seeks only to ensure
that it has received all documents that it has requested, and does not seek to engage in new
demands or new rounds of discovery.” [See Dkt #108-10 & Dkt # 89]
Dkt # 108-6 is a letter dated August 2020 in the record in which Plaintiff’s counsel sent
Defendant a list of omitted documents before the close of discovery. [See Dkt # 108-9]

Dkt # 108-8 is evidence in the record in which Defendant’s counsel claims Plaintiff gave
them a letter regarding omitted documents in August 2020, before the close of discovery. [See
Dkt # 108-9]
A Meet & Confer between the parties regarding the ‘omitted documents’ occurred on
8/27/2020. [See Dkt #108-8]
DKT # 108-13, Dkt 108-5, and/or Dkt # 108-11, are also evidence Plaintiff gave
Defendant notice of omitted documents before November 13th 2020 and before the close of
discovery.
Second —Finding #5 is clearly erroneous because ECF No. 108, Ex. 14 does not support
the finding.
ECF No. 108, Ex. 14 does not say nor show November 13, 2020 is the only time Plaintiff
provided Defendant with a list of allegedly omitted documents
Finding #5 is material
Finding #5 is material because it affects the outcome of the motion. In the opinion,
Netburn used Finding #5:
 to claim Plaintiff did not attempt to obtain discovery without court action
 to claim Plaintiff failed to timely communicate with defense counsel regarding the
deficiencies in defendant’s production
 to deny Plaintiff attorneys fees and cost for the documents submitted by Defendant
after the spoliation motion was filed. In the opinion, she said “Plaintiff only
provided a comprehensive list of the documents allegedly omitted by defendant on
November 13, 2020, after the close of discovery and the same day that a status letter
was due to the Court. See ECF No. 108, Ex. 14 The failure to timely communicate

with defense counsel regarding the deficiencies in defendant’s production suggests
that plaintiff did not, in good faith, attempt to obtain the discovery without court
action… As such, plaintiff is not entitled to an award of attorney’s fees and costs.”
Had Finding #5 been omitted from the opinion she may have found otherwise.
Finding #5 is material its inclusion makes the opinion imply Plaintiff only provided a
comprehensive list of the documents allegedly omitted by defendant on November 13, 2020,
after the close of discovery and the same day that a status letter was due to the Court when in
reality evidence like Dkt # 108-9 shows that did not occur.
Finding #5 is material because as discussed above, it is clearly erroneous.
xii. Objection #6) Plaintiff objects to the following finding by the magistrate judge,
Finding #6: “Furthermore, Defense counsel promptly contacted HHC to seek additional
records after plaintiff’s counsel requested specific documents, but the production was further
delayed by the logistical challenges associated with the COVID-19 pandemic. ECF No. 108, Ex.
11, Ex. 12. ” [See Dkt # 32 pg 12-13]
Plaintiff objects to Finding 6 as clearly erroneous.
Finding # 6 is clearly erroneous because it is false and contradictory to/inconsistent with
evidence in the record.
Defendant’s production was not delayed due to the COVID-19 pandemic nor logistical
challenges associated with the COVID-19 pandemic. Plaintiff served her request for production
of documents on November 8th 2018 (see Dkt #114-1 pg 1 thru pg 10), before the pandemic.
Defendant served its answers to Plaintiff’s request for production of documents on
September 30th 2019, before the pandemic. [See Dkt # 108-4]. Documents sought in Plaintiff’s

spoliation motion were evidence responsive to Plaintiff’s request for production of documents
dated November 8th 2018. [See Dkt#113 pg 8-20]
Defendant was on notice it had a duty to preserve evidence long before the pandemic as
(1) Plaintiff submitted EEO Complaints to Defendant on October 28th 2014, November 6th 2014
and/or December 30th 2014. (2) Plaintiff submitted a rebuttal to Defendant on November 14th
2014 which alleged her performance evaluation was an illegal retaliatory employment action. (3)
Plaintiff filed an injury report with Defendant in December 2014. (4) Plaintiff gave HR a doctor
note supporting her application for FMLA leave in March 2015 (5) Plaintiff filed her EEOC
Charge in August 2015 (6) and Plaintiff filed her Court Complaint in December 2016 [See Dkt
37-38]
In its spoliation motion reply, Defendant admits it no longer has and has not produced
many documents sought in Plaintiff’s spoliation motion. [Dkt #107]
Finding #6 is also clearly erroneous because ECF No. 108, Ex. 12 & Ex. 11 do not
support the finding. HHC doesn’t mention the word “COVID-19,” nor “pandemic” in ECF No.
108, Ex. 12.
ECF No. 108, Ex. 12 & Ex.11 don’t show that counsel “promptly” contacted HHC to
seek additional records after plaintiff’s counsel requested specific documents, but the production
was further delayed by the logistical challenges associated with the COVID-19 pandemic as
Plaintiff’s counsel requested specific documents on November 8th 2018 (see Dkt #114-1 pg 1
thru pg 10) & reminded Defendant their production was deficient on dates like August 2020
(See Dkt # 108-6) & September 23rd 2019 (See Dkt # 108-3 pg 2 thru pg 3) while the events in
ECF No. 108, Ex. 12 occurred on October 14th 2020 & ECF No. 108, Ex.11 occurred on
October 9th 2020.

Finding 6 are material
Finding 6 is material because it affects the outcome of the motion. In the opinion,
Netburn used Finding 6 to deny Plaintiff sanctions like attorney’s fees and cost i.e. in the
opinion, Netburn said “furthermore, defense counsel promptly contacted HHC to seek additional
records after plaintiff’s counsel requested specific documents, but the production was further
delayed by the logistical challenges associated with the COVID-19 pandemic. ECF No. 108, Ex.
11, Ex. 12. As such, plaintiff is not entitled to an award of attorney’s fees and costs.” [See Dkt #
32 pg 12-13]. Had Finding 6 been omitted from the opinion she may have found otherwise.
Finding 6 is material because its inclusion makes the opinion imply the pandemic delayed
Defendant’s production of documents when in reality it didn’t. Defendant served its answers to
Plaintiff’s initial request for production of documents on September 30th 2019, before the
pandemic started [See Dkt #108-4]
Finding 6 is material because its inclusion makes the opinion imply the documents sought
in Plaintiff’s spoliation motion were produced when in reality they were not. [See Dkt #107 &
Dkt #113]
Finding 6 is material because, as discussed above, it is clearly erroneous.
xiii. Objection 7) Plaintiff objects to the following finding by the magistrate
judge,
Finding #7: “At a subsequent Court conference, defense counsel explained that the
parties disagreed as to the existence of certain documents, and production of other documents
was delayed by COVID-19. ECF No. 108, Exhibit 11 at 5.” [See Dkt # 132 pg 3]
Plaintiff objects to Finding #7 as clearly erroneous.

First, Finding #7 is clearly erroneous because ECF No. 108, Exhibit 11 at 5 does not
support the finding. The word “COVID-19” is not mentioned in ECF No. 108, Exhibit 11 at 5.
And in ECF No. 108, Exhibit 11 at 5 Defense counsel did not explain that “that the parties
disagreed as to the existence of certain documents, and production of other documents was
delayed by COVID-19.” Rather in ECF No. 108, Exhibit 11 at 5 Defense counsel said “I think
there is, your Honor — this is Mark Ferguson. I think there is a good chance we might be able to
reach some kind of resolution without resorting to a motion. I think that the major disputes are on
the margins. I think, overall, most of the documents that are being sought have been produced or
can be produced without the need for going to a motion.”
Second, Finding #7 is clearly erroneous because it is false and contradictory
to/inconsistent with evidence in the record i.e. In Dkt #108-15, a joint letter to the Court
following the status conference, Defendant told the Court the pandemic only hampered its ability
to produce FMLA documents and time & leave records. [See Dkt # 108-15]
Finding #7 is material
Finding #7 is material because it affects the outcome of the motion. Netburn denied
Plaintiff relief including attorney’s fees and cost for the documents Defendant submitted after the
spoliation motion filing because she claims its production was delayed due to COVID. [See Dkt
#132 pg 12-13]. Had Finding #5 been omitted from the opinion she may have found otherwise.
Finding #7 is material because its inclusion makes the opinion imply COVID delayed
production of documents to which existence wasn’t disputed; when in reality, (i.e. Dkt # 108-15
shows) COVID did not delay production of all those documents.
Finding #7 is material because, as discussed above, it is clearly erroneous.
xiv. Objection #8) Plaintiff objects the following finding by the magistrate judge

Finding #8: “Plaintiff seeks: (1) default judgment against HHC; (2) an adverse inference
jury instruction at trial; (3) an order prohibiting HHC from presenting arguments or evidence
regarding lost evidence and reasons for lost evidence at trial; (4) attorney’s fees and costs
associated with the motion; and (5) such further relief that it deems appropriate. ECF No. 101,
Plaintiff’s Memorandum of Law (“Pl. Br.”) at 8.” [See Dkt # 132 pg 3]
Finding #8 is clearly erroneous because it is inaccurate and ECF No. 101 pg 8 does not
support the finding. Rather ECF No. 101 pg 8, shows Plaintiff asked the Court to: “(1) find HHC
engaged in spoliation and (2) enter default judgment against HHC or, alternatively, require
mandatory adverse inference jury instructions at trial. In particular, the jury should be instructed
to infer that Ms. Humphreys performed admirably at her job, that HHC manufactured or
doctored false performance evaluations saying otherwise, that Ms. Humphreys was performing
the correct duties according to her job description, and that Ms. Humphreys' FMLA leave
application was whole and complete. In addition – and importantly – given the willful loss of
information, this Court should infer that Ms. Humphreys has identified properly her comparators.
Ms. Humphreys further requests this Court (3) prohibit HHC from presenting arguments or
evidence regarding lost evidence and reasons for lost evidence at trial; (4) award her attorney's
fees and costs associated with this motion or, if default judgment is entered, for the full case;
and (5) grant such further relief that it deems appropriate.”
Finding #8 makes no mention of some relief requested at Dkt #101 pg 8 like dispositive
adverse jury instructions, attorney’s fees for the full case if default is entered, dispositive
adverse jury instructions in lieu of default judgment.”
Finding #8 is material

Finding #8 is material because it affects the outcome of the motion. In the opinion,
Netburn used Finding #8 to determine/establish what relief was sought in Plaintiff’s spoliation
motion.
Finding #8 is material because its inclusion makes the opinion imply:
 Plaintiff did not seek case dispositive adverse jury instructions in her spoliation
motion
 Plaintiff did not seek case dispositive adverse jury instructions in lieu of default
judgment in her spoliation motion
 Plaintiff did not seek attorney’s fees for the full case if default judgment is entered
Netburn did not make an opinion on a potentially dispositive or dispositive motion
without consent of the parties in her spoliation motion when in reality ECF No. 101
pg 8 shows otherwise.
Finding #8 is material because, as discussed above, it is clearly erroneous.
xv. Objection #9) Plaintiff objects to the following finding by the magistrate judge
Finding #9: “Relevant to plaintiff’s burden, some of these documents, including the
injury report and the personnel files, were not in plaintiff’s initial discovery demands but were
requested by plaintiff’s counsel only on September 25, 2020, just a few days before the close of
discovery and during the COVID-19 pandemic. See ECF No. 108, Ex. 4, Ex. 9.” [See Dkt # 132
pg 8 ]
From the paragraph:
“A second set of documents was produced by defendant in its supplemental production
following plaintiff’s spoliation motion. These documents include plaintiff’s injury report, her
paystubs, resumes and personnel files for her coworkers, HHC’s FMLA application form, and

HHC Policies 20-31, 120-19, 20-25, 20-16, 20-19. Ferguson Decl. at ¶¶ 24, 28. Relevant to
plaintiff’s burden, some of these documents, including the injury report and the personnel files,
were not in plaintiff’s initial discovery demands but were requested by plaintiff’s counsel only
on September 25, 2020, just a few days before the close of discovery and during the COVID-19
pandemic. See ECF No. 108, Ex. 4, Ex. 9.” [See Dkt # 132 pg 8]
Plaintiff objects to Finding #9 as clearly erroneous.
First —- Finding #9 is clearly erroneous because it is false and contradictory
to/inconsistent with evidence on the record.
The documents mentioned in Finding 9 including the injury report and personnel files
were responsive to (and/or mentioned in) Plaintiff’s initial discovery demand which is dated
November 8th 2018 i.e. Plaintiff’s first request for production of documents to Defendant dated
November 8th 2018 explicitly asked for personnel files of Nash D./Sanford O./Echo S./Michal
A./Echo S/Che Y./Freda F./Elizabeth R./Matthew D/Victor D., Plaintiff’s personnel file,
Plaintiff’s medical files, Plaintiff’s payroll records, ‘copies of other documents in the possession
of Defendant that pertain to this legal action and that are not described above’, copies of job
qualifications for Nash D./Echo S./Michal A./Echo S/Che Y./Freda F./Victor D, and More. [See
Dkt # 114-1 pg 9-10, Dkt # 114-1 pg 12, Dkt # 114-1 pg 4-5, Dkt # 114-1]
In her spoliation motion reply pg 9-12, Plaintiff pointed to evidence documents sought in
her spoliation motion (including Plaintiff’s injury report, her paystubs, resume and personnel
files for coworkers) were responsive to Plaintiff’s initial request for production of documents
dated November 8th 2018. [See Dkt #113 pg 9-20]
Second —Finding #9 is also clearly erroneous because ECF No. 108, Ex. 4, Ex. 9 does
not support the finding. Neither ECF No. 108, Ex. 4 Nor ECF No. 108, Ex. 9 are Plaintiff’s

initial discovery demands nor do they discuss all the content in Plaintiff’s initial discovery
demand. Additionally, ECF No. 108, Ex. 9 & Ex. 4 are not initial discovery demands for the
injury report nor the personnel folder. Rather ECF No. 108, Ex. 9 is a list of documents that were
responsive to Plaintiff’s initial discovery demand dated November 8th 2018 but which Defendant
failed to identify in its demand answers. This is confirmed by Netburn’s own finding in the
opinion which said:
“On September 25, 2020, Plaintiff’s counsel identified 13 types of documents
that, she claimed, had not been included in defendant’s disclosure, including a
doctor’s note submitted by plaintiff to defendant in support of her application
for FMLA leave, a signed “promotion” evaluation, plaintiff’s signed
performance evaluation rebuttal, plaintiff’s signed job description, timesheets
and other timekeeping documents for plaintiff and her coworkers, and a
document described as “The Gouverneur Hospital Employee Handbook.” ECF
No. 108, Ex. 9.” [See Dkt # 132 pg 2].
Finding #9 is material
Finding #9 is material because it affects the outcome of the motion. In the opinion,
Netburn used Finding #9 to deny Plaintiff sanctions i.e. in the opinion, Netburn said “Relevant to
plaintiff’s burden, some of these documents, including the injury report and the personnel files,
were not in plaintiff’s initial discovery demands but were requested by plaintiff’s counsel only
on September 25, 2020, just a few days before the close of discovery and during the COVID-19
pandemic. See ECF No. 108, Ex. 4, Ex. 9. Delay in production is not grounds for spoliation
sanctions. SeeIn re Pfizer Inc. Sec. Litig., 288 F.R.D. at 325 (“The ultimate production of these
documents militates against the imposition of sanctions.”); see also Steuben Foods, Inc., 2011
WL 1549450, at * 4 (rejecting spoliation sanctions where email was not destroyed, but rather
was initially overlooked and produced at a later date); Phoenix Four, Inc. v. Strategic Res. Corp.,
No. 05-cv-4837 (HB), 2006 WL 1409413, at *7 (S.D.N.Y. May 23, 2006) (finding that adverse
inference instruction was not warranted where defendants came forward with evidence after the ”

Finding #9 is material because its inclusion makes the opinion imply that some
documents Plaintiff sought in her spoliation motion (i.e. Plaintiff’s injury report, paystubs,
coworker resumes, coworker personnel files, Etc) were only requested by Plaintiff on September
25, 2020 when in reality, Dkt #113 pg 8-20, shows all the documents sought in Plaintiff’s
spoliation motion were evidence responsive to Plaintiff’s request for production of documents
dated November 8th 2018.
Finding #9 is material because its inclusion makes the opinion imply that COVID-19 and
the pandemic was responsible for Defendant’s non-production, loss, and/or destruction of
evidence when in reality it wasn’t, as Defendant had notice it needed to produce the documents
sought in Plaintiff’s spoliation motion on November 8th 2018 and earlier dates as well.
Finding #9 is material because, as discussed above, it is clearly erroneous.
xvi. Objection #10) Plaintiff objects to the following finding by the magistrate
judge
Finding #10: “Defendant argues it met “its obligation to participate meaningfully and
fairly in the discovery phase of a judicial proceeding,” Harkabi v. SanDisk Corp., 275 F.R.D.
414, 418–19 (S.D.N.Y. 2010), and that it had no reason believe that the doctor’s note,
“promotion evaluation,” the physical timesheets and SR 70s, the “Employee Handbook,” and the
insurance refund letter were likely to be requested in discovery until plaintiff asked for the
specific documents either just before or after the close of discovery. Def. Br. at 15–16.” [See Dkt
# 132 pg 10]
Plaintiff objects to Finding #10 as clearly erroneous.
First —Finding #10 is clearly erroneous because it is inaccurate: Defendants argument in
Finding 10 is not found on Dkt # 107 pgs 15-16.

Second—Fact Discovery closed on September 30th 2020. [See Dkt #88]. Finding #10 is
clearly erroneous because Defendant’s argument in Finding #10 is false, contradictory to
evidence in the record, and shouldn’t have been relied on in the opinion.
Before discovery started, Defendant had reason to believe the documents mentioned in
Finding #10 were likely to be requested as Plaintiff’s promotion evaluation, performance
evaluation, request for FMLA leave, notice of intent to take FMLA leave, doctor note,
timesheets, time and leave request, Defendant’s policies / operating procedures, Defendant’s
withholding of pay, Defendant’s late payment were explicitly mentioned in Plaintiff’s Court
Complaint(s) submitted to Defendant before discovery started, and/or Plaintiff’s EEOC Charge
submitted to Defendant in August 2015, before discovery started [See Dkt #37 pg 9-10, Dkt #
37-38]; Plaintiff’s performance evaluation was mentioned in her rebuttal submitted to Defendant
in November 2014, before this case was filed [See Dkt # 37-38 pg 23]; Plaintiff’s promotion
evaluation, performance evaluation, time and leave records, injury report regarding her back
injury, and more were mentioned in her EEO Complaint(s) Plaintiff submitted to Defendant in
2014, before this case was filed. [See Dkt # 37 pg 18-42].
In her spoliation motion reply, Plaintiff pointed to evidence her signed promotion
evaluation, doctor note supporting her application for fmla leave, time and leave request/SR70s,
timesheets, the employee handbook, insurance letter was evidence responsive to Plaintiff’s first
request for production of documents to Defendant dated November 8, 2018, nearly two years
before the close of discovery. [See Dkt #113 pg 8-33, 114-1, 101-1] Additionally, Plaintiff’s
request for production demands #47 dated November 8th 2018 asks for “documents in the
possession of Defendant that pertain to this legal action and that are not described above.” [See
Dkt #114-1 pg 10, Dkt #114)

Finding #10 implies Plaintiff first asked for her doctor’s note, promotion evaluation,
physical timesheets, SR70s, the employee handbook, and the insurance refund letter just before
the close of discovery. This is not true: Dkt #113 pg 8-20 & Dkt #114-1 pg 1-10, shows
documents sought in Plaintiff’s spoliation motion were evidence responsive to Plaintiff’s
discovery demand dated November 8th 2018.
Finding #10 misstates the version of documents sought in Plaintiff’s spoliation motion (
Dkt # 101 pg 1-3, 101-1).
Defendant did not meet its obligation to participate meaningfully and fairly in the
discovery phase of a judicial proceeding as Plaintiff served her request for production of
documents to Defendant in November 2018. [Dkt #114-1 pg 1 thru pg 10], Yet Defendant did
not submit its answers to Plaintiff’s request for production of documents until September 30th
2019. [See Dkt #108-4].
Finding #10 is material.
Finding #10 is material because if affects the outcome of the motion. Netburn used
Finding #10 to determine if Defendant acted intentionally or negligently in its non-production,
loss, and/or destruction of evidence sought in Plaintiff’s spoliation claim(s) i.e . in the opinion,
Netburn said:
“As for the second element, plaintiff cannot establish that defendant acted intentionally to
destroy evidence or that its failure to retain the records was grossly negligent ……..It is also
debatable whether plaintiff has established that defendant acted negligently in failing to retain
the relevant documents. Defendant argues it met “its obligation to participate meaningfully and
fairly in the discovery phase of a judicial proceeding,” Harkabi v. SanDisk Corp., 275 F.R.D.
414, 418–19 (S.D.N.Y. 2010), and that it had no reason believe that the doctor’s note,

“promotion evaluation,” the physical timesheets and SR 70s, the “Employee Handbook,” and the
insurance refund letter were likely to be requested in discovery until plaintiff asked for the
specific documents either just before or after the close of discovery. Def. Br. at 15–16.” [See Dkt
# 132 pg 9-10]
Finding #10 is material because its inclusion makes the opinion imply:
 Defendant had no reason believe that a doctor’s note, promotion evaluation,
timesheets, SR 70s, the Employee Handbook, and the insurance refund letter were
likely to be requested in discovery until just before or after the close of discovery.
 Plaintiff first asked for her doctor’s note, promotion evaluation, physical timesheets,
SR70s, the employee handbook, and the insurance refund letter just before or after the
close of discovery when in reality, that did not occur.
Before discovery even started, Defendant had reason to believe the documents mentioned
in Finding #10 were likely to be requested as Plaintiff’s promotion evaluation, performance
evaluation, request for FMLA leave, notice of intent to take FMLA leave, doctor note,
timesheets, time and leave request, Defendant’s policies / operating procedures, Defendant’s
withholding of pay, Defendant’s late payment were explicitly mentioned in Plaintiff’s Court
Complain(S)t submitted to Defendant before discovery started, and/or Plaintiff’s EEOC Charge
submitted to Defendant in August 2015, before discovery started. [See Dkt #37 pg 9-10, Dkt #
37-38]. Plaintiff’s performance evaluation was mentioned in her rebuttal submitted to Defendant
in November 2014, before this case was filed. [See Dkt # 37-38 pg 23]. Plaintiff’s promotion
evaluation, performance evaluation, time and leave records, injury report regarding her back
injury, and more were mentioned in her EEO Complaint(s) Plaintiff submitted to Defendant in
2014, before this case was filed. [See Dkt # 37 pg 18-42].

Dkt #113 pg 8-20, shows all the documents sought in Plaintiff’s spoliation motion were
evidence responsive to Plaintiff’s request for production of documents to Defendant dated
November 8th 2018, nearly two years before the close of discovery.
Finding #10 is material because, as discussed above, it is clearly erroneous.
Objection # 11) Plaintiff objects to the following finding by the magistrate’s judge
Finding # 11: “apart from the box checked on the first page, the copy of the alleged
“promotion evaluation” is identical to the “annual evaluation” produced in full by defendant:
both conclude that plaintiff’s job performance was unsatisfactory. See ECF No. 115, Ex. 3, Ex.
9 at 4–15.” [Dkt # 132 pg 10].
Plaintiff objects to Finding #11 as clearly erroneous.
First, Finding #11 is clearly erroneous because it is false.
Finding #11 is false because Dkt 115, Ex. 3 is not the version of the “alleged” promotion
evaluation Plaintiff seeks in her spoliation motion. In pages 35-37 of her spoliation motion reply
(Dkt #113), Plaintiff introduced Dkt 115, Ex. 3 as an exhibit to show the Court that it is not the
Promotion evaluation she seeks in her spoliation motion and to show the court that it is an altered
document. Plaintiff never claimed Dkt 115, Ex. 3 is the promotion evaluation as she received,
signed, and/or submitted to Defendant
Finding #11 is false because there are many other differences between the promotion
evaluation and annual evaluation at ECF No. 115, Ex. 3, Ex. 9 at 4–15 apart from the box being
checked off on the first page.
Defendant forged/imposed Plaintiff’s signature on the annual evaluation, ECF No. 115,
Ex. 9 at 4–15, without her consent. [See Dkt # 37 pg 31,Dkt # 37-38]. While the only evaluation
Plaintiff received, signed, and submitted with Defendant during her employment was a

promotion evaluation. [See Dkt # 37 pg 31 & 19, Dkt #114-3, Dkt #37-38, Dkt #113, Dkt # 101-
1]. Plaintiff never received, submitted, nor signed an annual evaluation with Defendant during
her employment. [See Dkt # 37 pg 31, Dkt #37-38, Dkt #113, Dkt # 101-1]
ECF No. 115, Ex. 3 does not have Plaintiff’s signature on it acknowledging receipt and
discussion of the document while Defendant forged Plaintiff’s signature on the evaluation at
ECF No. 115, Ex. 9 at 4–15 claiming receipt and discussion of the document
Plaintiff submitted her signed evaluation back to Defendant in November 2014. [See Dkt
#114-3]. Yet ECF No. 115, Ex. 9 at 4–15 has a stamped receipt date of 3/17/2015 while ECF No.
115, Ex. 3 does not.
The rebuttal attached to the evaluation at ECF No. 115 Ex. 9 at 4–15 is different from the
rebuttal attached to the evaluation at ECF No. 115 Ex. 3.
Finding 11 is false because both evaluations don’t conclude Plaintiff’s performance is
unsatisfactory. ECF No. 115, Ex. 3 shows Defendant was considering Plaintiff for a promotion
(for the alleged dates of 7/1/2013-10/29/2014). [See Dkt 37 pg 19-20, Dkt #115-25 pg 1, Dkt
#37-38, & Dkt #113]. Since Defendant was considering Plaintiff for a promotion that means she
was objectively qualified and eligible for the promotion. (Defendant's consideration of Plaintiff
as a candidate for a promotion shows that Plaintiff was objectively qualified for the position.
(See Walton v. Cives Corp., Civil Action No. No. 7:10-cv-87 (M.D. Ga. Dec. 22, 2011). If
Plaintiff was objectively qualified for a promotion that means she was performing satisfactory.
The annual evaluation at ECF No. 115 Ex. 9 at 4–15 does not show Plaintiff’s performance was
unsatisfactory because it is a document Defendant forged Plaintiff’s signature on and Plaintiff
never received it. [See Dkt # 37, Dkt #113, Dkt # 101-1].

Finding #11 is also false because the annual evaluation mentioned in ECF 115 Ex. 9 at
4–15 is not “produced in full” as Netburn claims.
Def 325- Def 339, the bates stamps of ECF 115 Ex. 9 at 4–15, are not listed in
Defendant’s discovery answers to Plaintiff’s request for production of documents inquiries to
which the annual evaluation would have been responsive i.e. Request for production answers 6,
12, 16, 17, 21, 31 [See Dkt #114-1 thru Dkt # 114-2 & Dkt # 113 pg 10]
Additionally, ECF 115 Ex. 9 at 4–15 says a rebuttal is attached: The rebuttal attached in
ECF 115 Ex. 9 is signed on 11/14/14 and it says documents are attached to the rebuttal like
“emails.” However, there are NO emails in ECF 115 Ex. 9 dated on or before 11/14/14.
Accordingly, ECF 115 Ex. 9 at 4–15 is not produced in full.
Second, Finding #11 is clearly erroneous because ECF No. 115, Ex. 3 & ECF No. 115,
Ex. 9 at 4–15 do not support the finding: as mentioned above there are many differences between
the evaluations other than the box being checked off on the first page; both evaluations don’t
show Plaintiff’s performance was unsatisfactory; and ECF No. 115, Ex. 3 & ECF No. 115, Ex. 9
at 4–15 do not show the annual evaluation is “produced in full.”
Third, Finding #11 is also clearly erroneous because it is contradictory to and/or
inconsistent with evidence in the record. Finding #11 is contradictory to and/or inconsistent
Plaintiff’s own testimony in the record. Finding #11 is contradictory to/inconsistent with
Plaintiff’s Pro Se Court Complaint Testimony, Dkt #37-38, which claims:
 Without Plaintiff’s consent, Defendant imposed/forged Plaintiff’s signature on an
annual evaluation she never received, signed, nor submitted to Defendant and a
rebuttal she never submitted to Defendant

 Plaintiff’s rebuttal was submitted to Defendant on November 14th 2014. (Note: The
rebuttal in ECF 115 Ex. 9 at 4–15 has a stamped receipt date of 3/17/2015)
 The only evaluation Plaintiff received and signed during her employment with
Defendant was a promotion evaluation.
 Plaintiff never received, signed, nor submitted to Defendant an annual evaluation
during her employment with Defendant.[See Dkt #37-38]
Finding #11 is contradictory to and/or inconsistent Plaintiff’s own writing in the record.
Finding #11 is contradictory to and/or inconsistent with pg 4-5 of her spoliation motion reply
(Dkt #113), where Plaintiff pointed to many differences between the promotion evaluation she
received and annual evaluation other than box being checked off on the first page. Plaintiff says:
Proof of evidence tampering on the part of Defendant is also sufficient to
conclude Defendant acted with willfulness, negligence or gross negligence.
Defendant gave a forged/fabricated performance evaluation and rebuttal to the
EEOC: Plaintiff received one evaluation from Defendant during her
employment, a promotion evaluation given to her on Oct 30th 2014 [See Dkt
37 & Plaintiff also has a color copy of the promotion evaluation she received
from Defendant “before” she signed and submitted it back to Defendant on
Nov 14, 2014 at exhibit 37]. Plaintiff signed and submitted her Promotion
evaluation back to Defendant on Nov 14th 2014 with her rebuttal attached to it
[See Exhibits 18, 17, 6, 3, & Dkt 37 which are emails, depositions, and
affidavit regarding submission of Plaintiff’s signed promotion evaluation and
rebuttal, Dkt 53 pg 8 Defendant’s answer to the court complaint]. Yet in their
EEOC position statement and EEOC RFI response, Defendant claimed that
Plaintiff received one evaluation during employment, an annual evaluation on
Oct 30th 2014 [See Exhibit 34]. The annual evaluation was fabricated: it had
Plaintiff’s signature on it even though she never signed nor received it, the
annual evaluation also had a stamped received date on it of March 17th 2015, it
also had a rebuttal attached to it with documents in it dated Nov 19th 2014, on
the cover page the box marked type of evaluation annual was also checked off
while the promotion box was not checked, it also had conflicting dates on it i.e
on the first page of the review the evaluation period is listed as July 1st 2013-
October 29th 2014, yet it says it was prepared by Nash Dunlap on 10/28/14.
Now, in their spoliation response, Defendant has finally come out and admitted
that it cannot produce the signed promotion evaluation Plaintiff submitted to
Defendant in Nov 2014 (Plaintiff’s rebuttal was attached to that review as
well). It is clear Defendant tampered with evidence, as it is not possible for

Plaintiff to submit a performance evaluation to Defendant on Nov 14th 2014
that has a stamped receipt date of March 17th 2015, nor is it possible for
Plaintiff to submit an evaluation rebuttal to Defendant on Nov 14th 2014 with
documents in it dated Nov 19th 2014. In addition, the dates of the annual
evaluation don’t match up as its not possible to prepare an evaluation on
“10/28/2014” for the evaluation period of “July 1st 2013-Oct 29th 2014.” Oct
28th 2014 was not even an appropriate time for an annual evaluation as
Plaintiff started on July 1st 2013. Defendant also gave a fabricated job
description to the EEOC” [See Dkt # 113 pg 4-5]
Finding #11 is contradictory and/or inconsistent with Netburn’s own conclusion in the
opinion that says:
“Ultimately, defendant was unable to locate only a small subset of the 33
categories of documents plaintiff contests. These documents
include……….…..the “promotion evaluation” and “promotion evaluation
rebuttal…“ [See Dkt# 132 pg 9]
Finding #11 is Material
Finding #11 is material as it affects the outcome of the motion. Finding #11 is material
because:

 Netburn used it in opinion to support her claim that “copies of the contested
documents produced by defendant in discovery do not support her claims that the
originals “would have constituted evidence favorable to plaintiff.””
 Netburn also used Finding #11 to claim Defendant produced documents in
discovery and Defendant produced annual evaluation in full. [See Dkt # 132 pg
10-11]
 it is clearly erroneous
xvii. Objection 12) Plaintiff objects to the following finding by the magistrate
judge
Finding #12: “Plaintiff sued HHC, her former employer, in December 2016, alleging
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Family

Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., the New York State Human Rights
Law, N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law, N.Y. City
Admin Code § 8-101 et seq., among others. ECF No. 2, Complaint at 1. Plaintiff later amended
her complaint, pleading additional claims under the Americans with Disabilities Act of 1990, 42
U.S.C. §§12101 et seq., the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and the New York
Labor Law § 215. ECF No. 37, Third Amended Complaint at 3–4.” [See Dkt #132 pg 1]
Plaintiff is only objecting to Finding 12, which mentions all the TAC claims, as clearly
erroneous because it is the only location in the opinion where her “third amended complaint” is
mentioned and it only refers to Dkt #37 as the TAC, it doesn’t refer to the errata sheet at Dkt #38
that goes with it.
xviii. Objection 13) Plaintiff objects to the following finding by the magistrate
judge
Finding # 13: “Defendant also points out that plaintiff had the opportunity to depose
multiple HHC employees about the SR 70s and the retention policy related to SR 70s but failed
to do so. Id. at 80” [See Dkt # 132 pg 8]
Plaintiff objects to Finding 13 as clearly erroneous.
First, Finding 13 is clearly erroneous because It is inaccurate and contradictory
to/inconsistent with evidence in the record. Finding 13 is false /contradictory to evidence in the
record because Plaintiff did in fact depose multiple employee(s) about SR 70s during
depositions. Some of Sanford Operowsky’s Deposition Transcript about SR70s is found at Dkt #
115-15 pgs 17-18 & pgs 14-19 (Note: Sanford is Nash’s Supervisor)
Some of Nash Dunlap’s Deposition Transcript About SR 70s is found at Dkt #115-15 pgs
6-12 & pgs 1-14 (Note: Nash was Plaintiff’s Supervisor)

Some of Elizabeth Rivera’s Deposition Transcript About SR70s is found at Dkt #108-17
& Dkt # 114-6 (Note: Elizabeth was HR at Gouverneur)
Plaintiff also deposed employees about SR70 retention policy. Some of Sanford
Operowsky’s Deposition Transcript about SR70s retention policy is found at Dkt # 115-15 pgs
14-19
Within her spoliation motion reply, Plaintiff also submitted & talked about Defendant’s
SR 70 document retention policy written/signed by HHC President Raju Ramanathan Raju at
Dkt #113 pg 3 thru 4, Dkt #113, & Dkt # 114-4
Second — Finding 13 is also clearly erroneous because it is based on false and not
credible testimony by Defendant’s Counsel Mark Ferguson (Dkt #108)
Dkt # 108 at ¶ 80 is false testimony by Mark because it says “During discovery, plaintiff
had the opportunity to depose multiple H+H witnesses regarding the nature of SR 70s, yet she
did not do so” when in reality Dkt # 115-15 pgs 6-19, Dkt #108-17, Dkt # 114-6 shows Plaintiff
did depose multiple witnesses regarding the nature of SR70s and/or SR70 document retention
policy.
In pgs 33-59 of her spoliation motion reply (Dkt # 113), Plaintiff alerted the Court to
numerous other evidence Mark Ferguson’s testimony (Dkt # 108) was false, contrary to
deposition(s), contrary to evidence, contradicted itself on occasions, contrary to Plaintiff’s Pro Se
Court Complaint Testimony, and shouldn’t have been relied on. [See Exhibit 1 ¶ 4N, Dkt # 113
pgs 33-59]. When an affidavit is contradictory to the extent that it is "inherently inconsistent"
with deposition testimony, a court should disregard that affidavit as a sham and exclude it from
the evidence considered.” Lane v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986).

In addition to being false, Mark’s testimony is also based on altered evidence submitted
to the Court to sway to decision in this case. Mark’s testimony cites/is based on altered evidence
(#1) Dkt #108-23 (also known as “Exhibit W” in Dkt #108), which is Plaintiff’s deposition
transcript without its attached errata sheet. Proof the errata sheet exists can be found in
Plaintiff’s Exhibit of some of her deposition at Dkt #114-7 pg 1-3. [See Dkt # 108, Dkt # 108-23,
& Dkt #114-7 pgs 1-3].
Mark’s testimony cites/is based on altered evidence (#2) Dkt #108-26 (also known as
Exhibit Z in Dkt # 108). Defendant did not disclose to the Court that it forged Plaintiff’s
signature on pg 12 of Dkt #108-26. Defendant also did not disclose to the Court that it
forged/fabricated evaluation dates on pg 1 & 13 of Dkt #108-26 (Its not possible for Nash
Dunlap to “prepare” an evaluation on Oct 28th 2014 for the evaluation period of 7/1/2013-
10/29/2014). Additionally, the evaluation in Dkt#108-26 pg 13-24 has a signature on it that says
a rebuttal is attached. Yet no rebuttal is found in that exhibit.
Finding 13 is material.
Finding 13 is material because it affects the outcome of the motion. In the opinion,
Netburn used Finding 13 to claim physical timesheets and SR70s were not lost/or destroyed.
[See Dkt # 132 pg 8-10]. The opinion also implies Netburn used Finding 13 to claim lack of
prejudice with regard to the timesheets and SR70s Plaintiff seeks in her spoliation motion. [See
Dkt #132 pg 8-11]. Had Fact 13 been omitted from the opinion Netburn may have found
otherwise.
Finding 13 is material because its inclusion makes the opinion imply Plaintiff did not
depose multiple HHC employees about SR70s and/or SR70 retention policy when in reality (i.e.
Dkt # 115-15 pgs 6-19, Dkt #108-17, Dkt # 114-6 shows) Plaintiff did do so.

Finding 13 is material because, as discussed above, it is clearly erroneous.
xix. Objection 14) Plaintiff objects to the following finding by the magistrate
judge
Finding # 14: “A second set of documents was produced by defendant in its supplemental
production following plaintiff’s spoliation motion. These documents include plaintiff’s injury
report, her paystubs, resumes and personnel files for her coworkers, HHC’s FMLA application
form, and HHC Policies 20-31, 120-19, 20-25, 20-16, 20-19. Ferguson Decl. at ¶¶ 24, 28.” [See
Dkt # 132 pg 8]
Plaintiff objects to Finding 14 as clearly erroneous.
First —Finding 14 is clearly erroneous because it is false.
Dkt #108/Ferguson Decl. at ¶¶ 24 does not support this finding. Dkt # 108/Ferguson
Decl. at ¶¶ 24, 28 are not evidence of document production. Evidence of document production
are found in answers to discovery demands.
There is no evidence in the record showing Defendant sent Plaintiff a set of answers to
Plaintiff’s discovery demands after Plaintiff filed her spoliation motion./ There is no evidence in
the record Defendant supplemented its request for production demand answers after Plaintiff
filed her spoliation motion.
Fact Discovery closed before Plaintiff filed her spoliation motion. [See Dkt # 88 ].
Second — Finding 14 is also clearly erroneous because it is based on false and not
credible testimony by Defendant’s Counsel Mark Ferguson (Dkt #108). Finding 14 cites/is based
on Dkt # 108 at ¶ 28. However, Dkt # 108 at ¶ 28 is false testimony because:
Dkt # 108 at ¶ 28 conflicts with Netburn’s own findings/conclusions in the opinion. In
Dkt # 108 at ¶ 28 Mark testified Defendant produced documents like plaintiff’s promotion

evaluation, plaintiff’s rebuttal, job descriptions signed by Plaintiff, cowokers job descriptions,
performance evaluations, [job app emails, job posting] Etc. However, in the opinion Netburn
concluded otherwise when she said, “Ultimately, defendant was unable to locate..….the
corporate job descriptions for plaintiff and her coworkers, plaintiff’s doctor’s note submitted in
support of her application for FMLA leave, the “promotion evaluation” and “promotion
evaluation rebuttal,” plaintiff’s email application for employment and subsequent emails
inquiring about the position, HHC’s “Employee Handbook,” defendant’s FMLA policies, and a
letter allegedly sent to plaintiff regarding withholding of pay. “ [See Dkt# 132 pg 9]
Dkt # 108 at ¶ 28 conflicts with Plaintiff’s own testimony. In Dkt # 108 at ¶ 28 Mark
testified Defendant produced Plaintiff’s signed job description and the promotion evaluation and
rebuttal Plaintiff seeks in her spoliation motion, Etc. However, in Dkt # 104-3, Plaintiff testified
that she doesn’t have those documents.
Dkt # 108 at ¶ 28 conflicts with evidence in the record i.e. Mark testified HHC produced
Plaintiff’s signed job description at Def 592-593. However Def 592-593 (Dkt #114-8) is clearly
not Plaintiff’s signed job description It doesn’t even have a signature on it.
Dkt # 108 at ¶ 28 also conflicts with plaintiff’s writing in her spoliation motion reply,
Dkt # 113, motion which claimed that Defendant hasn’t submitted to Plaintiff documents
#1,3,5,6,7,8, 9,10, 12, 14, 17,18,19,20,21, 22, 32,33 as labeled in Plaintiff’s spoliation motion
Dkt 101. [See Dkt # 113 & 101]
In her spoliation motion reply, Plaintiff alerted the Court to numerous other evidence
Mark Ferguson’s testimony (Dkt # 108) was false, contrary to deposition(s), contrary to
evidence, contradicted itself on occasions, contrary to Plaintiff’s Pro Se Court Complaint
Testimony, and shouldn’t have been relied on. [See Exhibit 1 ¶ 4N, Dkt # 113 pgs 33-59] When

an affidavit is contradictory to the extent that it is "inherently inconsistent" with deposition
testimony, a court should disregard that affidavit as a sham and exclude it from the evidence
considered. “ Lane v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986). In addition to being
false, Mark’s testimony is also based on altered evidence submitted to the Court to sway to
decision in this case.
Mark’s testimony cites/is based on altered evidence #1) Dkt #108-23 (also known as
“Exhibit W” in Dkt #108), which is Plaintiff’s deposition transcript without its attached errata
sheet. Proof the eratta sheet exists can be found in Plaintiff’s Exhibit of some of her deposition at
Dkt #114-7. [See Dkt # 108, Dkt # 108-23, & Dkt #114-7 pgs 1-3].
Mark’s testimony cites/is based on altered evidence #2) Dkt #108-26 (also known as
Exhibit Z in Dkt # 108). Defendant did not disclose to the Court that it forged Plaintiff’s
signature on pg 12 of Dkt #108-26. Defendant also did not disclose to the Court that it
forged/fabricated evaluation dates on pg 1& 13 of Dkt #108-26 (Its not possible for Nash Dunlap
to “prepare” an evaluation on Oct 28th 2014 for the evaluation period of 7/1/2013-10/29/2014).
Additionally, the evaluation in Dkt#108-26 pg 13-24 has a signature on it that says a rebuttal is
attached. Yet no rebuttal is found in that exhibit.
xx. Objection 15) Plaintiff objects to the following finding by the magistrate judge
Finding #15: “Plaintiff herself produced a photograph of her doctor’s note, the job
application emails, the Employee Handbook, defendant’s FMLA policies, and the insurance
reimbursement letter, which she characterizes as a letter regarding the improper withholding of
her pay. See ECF No. 115, Ex. 8 at 3–4 (job application emails), Ex. 14 (Employee Handbook),
Ex. 16 (photograph of doctor’s note), Ex. 19 (FMLA policies); Ferguson Decl. at ¶ 95 (insurance
reimbursement letter). Thus, she already possesses most of the documents she seeks from

defendant. See Steuben Foods, Inc., 2011 WL 1549450, at *6 (rejecting motion for sanctions
where copies of deleted emails were obtained from other sources). “[See Dkt # 132 pg 12]
Plaintiff objects to Finding 15 as clearly erroneous. First —Finding 15 is clearly
erroneous because ECF No. 115 Ex. 8 at 3–4, Ex. 16, Ex. 14, Ex. 19 do not support Finding 15.
ECF No. 115 Ex. 19 does not say/nor show that it contains all of Defendant’s FMLA
policies which Plaintiff seeks. Rather when Plaintiff introduced ECF No. 115 Ex. 19 (Also
known as “Exhibit 31” in Dkt #113) into her spoliation motion reply, she said that it was some of
Defendant’s FMLA polices. Plaintiff never said it was all HHC’s FMLA policies, See Dkt # 113
pg 22.
ECF No. 115 Ex. 8 (& ECF No. 115 Ex. 8 at 3–4) does not say/nor show it contains all
the job application emails which Plaintiff seeks. Rather when Plaintiff introduced ECF No. 115
Ex.8 in her spoliation motion reply, she said:
“The emails through which Humphreys applied for her job started on March 9,
2013 [See Exhibit 21 (also known as “ECF No. 115 Ex. 8”) to view the first
email through which Humphreys applied for her job] and than Plaintiff had
subsequent email discussions with HHC including the interview and
application process starting in April 2013”. [See Dkt # 113 pg 15]
“ECF No. 115 Ex. 19 does not support Finding 15. In Dkt #107 pg 14-33,
Defendant claims the version of the employee handbook Plaintiff has is not the
“widely” distributed version”. [See Dkt # 117]
Second —- Finding 15 is clearly erroneous because it is false/inaccurate and
contradictory to evidence in the record. Finding 15 is contradictory to/inconsistent with
Plaintiff’s own testimony & writing in the record. In #114-3, Plaintiff claimed she gave a Dr note
to HR, Elizabeth Rivera, in March 2015. The note requested FMLA leave. Defendant never gave
the doctor note back to Plaintiff. The picture of the doctor note Plaintiff mentioned in “exhibit
29” (also known as “ECF No. 115 Ex. 16”) and Exhibit A (also known as “ECF No. 115 Ex.

16”) was taken before Plaintiff attached FMLA paperwork to it and submitted it to HR in March
2015. [See Dkt #114-3]
In her spoliation motion reply, Plaintiff said that Plaintiff is not possession of the FMLA
dr note [See Exhibit 3 (also known as “ECF No. 115 Ex. 16”)]. Neither Plaintiff nor HR,
Elizabeth Rivera (the HHC HR employee whom took the note from Plaintiff), has ever testified
that Plaintiff is in possession of the note either [See Exhibit 6,7,3, & Dkt # 37]. The picture of a
doctor note on Plaintiff’s desk at Gouverneur which Plaintiff discussed in Exhibit A (also known
as “ECF No. 115 Ex. 16”) of her spoliation motion was taken before Plaintiff applied for FMLA
leave and before FMLA paperwork was attached to it and submitted to Defendant [See Dkt # 101
& 101-1].
Finding 15 is contradictory to/inconsistent with Netburn’s own conclusions/findings in
the record that say:
“Ultimately, defendant was unable to locate only a small subset of the 33
categories of documents plaintiff contests. These documents include the
corporate job descriptions for plaintiff and her coworkers, plaintiff’s doctor’s
note submitted in support of her application for FMLA leave, the “promotion
evaluation” and “promotion evaluation rebuttal,” plaintiff’s email application
for employment and subsequent emails inquiring about the position, HHC’s
“Employee Handbook,” defendant’s FMLA policies, and a letter allegedly sent
to plaintiff regarding withholding of pay. “[See Dkt# 132 pg 9]
Third, Finding 15 is clearly erroneous because it is false/inaccurate as Plaintiff didn’t
seek “a photograph of her doctor’s note” (that was taken before she applied for FMLA) rather
she sought a copy of her doctor’s note as she submitted it to HR in March 2015 [See Dkt #113,
101, 101-1]. Plaintiff testified her doctor note had an FMLA application attached to it. [See Dkt
# 114-3, #113]

In Finding 15 Netburn claimed that 6 documents were “most” of documents Plaintiff
seeks. However that is false. Plaintiff sought production of 33 documents in her spoliation
motion so “most” of the documents Plaintiff sought production of would be 17 documents.
Fourth— Finding 15 is clearly erroneous because it is based on false and not credible
testimony by Defendant’s Counsel Mark Ferguson (Dkt #108)
Dkt #108 (Ferguson Decl.) at ¶ 95 is inaccurate testimony by Mark as Plaintiff herself
never had any conversions with Mark on the phone. [See Dkt #108]
In pgs 33-59 of her spoliation motion reply (Dkt #113), Plaintiff alerted the Court to
numerous other evidence Mark Ferguson’s testimony (Dkt # 108) was false, contrary to
deposition(s), contrary to evidence, contradicted itself on occasions, contrary to Plaintiff’s Pro Se
Court Complaint Testimony, and shouldn’t have been relied on. [See Exhibit 1 ¶ 4N, Dkt # 113
pgs 33-59] When an affidavit is contradictory to the extent that it is "inherently inconsistent"
with deposition testimony, a court should disregard that affidavit as a sham and exclude it from
the evidence considered.” Lane v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986).
In addition to being false, Mark’s testimony is also based on altered evidence submitted
to the Court to sway to decision in this case. Mark’s testimony cites/is based on altered evidence
(#1) Dkt #108-23 (also known as “Exhibit W” in Dkt #108), which is Plaintiff’s deposition
transcript without its attached errata sheet. Proof the errata sheet exists can be found in
Plaintiff’s Exhibit of some of her deposition at Dkt #114-7. [See Dkt # 108, Dkt # 108-23, & Dkt
#114-7 pgs 1-3].
Mark’s testimony cites/is based on altered evidence (#2) Dkt #108-26 (also known as
Exhibit Z in Dkt # 108). Defendant did not disclose to the Court that it forged Plaintiff’s
signature on pg 12 of Dkt #108-26. Defendant also did not disclose to the Court that it

forged/fabricated evaluation dates on pg 1& 13 of Dkt #108-26 (It’s not possible for Nash
Dunlap to “prepare” an evaluation on Oct 28th 2014 for the evaluation period of 7/1/2013-
10/29/2014). Additionally, the evaluation in Dkt#108-26 pg 13-24 has a signature on it that says
a rebuttal is attached. Yet no rebuttal is found in that exhibit.
Finding 15 is material because its inclusion:
 Makes the opinion imply Plaintiff did not suffer prejudice for its non-production,
loss, and destruction of evidence sought in Plaintiff’s spoliation motion. When in
reality she did i.e. she doesn’t have the doctor note as it was submitted to Defendant
March 2015 with an FMLA application attached.
 Makes the opinion imply ECF No. 115 Ex 19 is all of Defendant’s FMLA policies,
when in reality it wasn’t.
 Makes the opinion imply ECF No. 115 Ex. 8 at 3–4 are all the job application
emails Plaintiff sought when in reality it wasn’t.
 Makes the opinion imply Plaintiff sought ECF No. 115, Ex. 8 at 3–4, Ex. 16, Ex. 19
in her spoliation motion. When in reality she didn’t as those were documents from
Plaintiff’s discovery file (which she had before this case started).
 Makes the opinion imply Plaintiff sought, in her spoliation motion, any random
photograph of her doctor’s note when in reality Plaintiff sought a copy of her
doctor’s note as she submitted it to HR in March 2015 (with an fmla application
attached to it).
 Makes the opinion imply that ultimately Plaintiff sought production of 11 or less
documents when in reality her spoliation motion sought 33 documents.
Finding 15 is material because, as discussed above, it is clearly erroneous.

xxi. Objection #16: Plaintiff objects to the following finding by the magistrate
judge
Finding #16: “Defense counsel then contacted HHC about obtaining further documents
but was told that no HHC staff were at the storage facility and so locating the documents would
take time. ECF No. 108, Ex. 12 at 1.” [See Dkt # 132 pg 3]
Plaintiff objects to Finding 16 as clearly erroneous. It is clearly erroneous because ECF
No. 108, Ex. 12 at 1 does not support the finding. HHC doesn’t mention the word “storage” in
ECF No. 108, Ex. 12 at 1. ECF No. 108, Ex. 12 at 1 also doesn’t show that Defendant’s counsel
first reached out to HHC and HHC then responded to Defendant’s counsel claiming no HHC
staff were at the storage facility and so locating the documents would take time.
Finding 16 is material.
Finding 16 is material because its inclusion:
 makes the opinion imply ECF No. 108, Ex. 12 at 1 shows Defense counsel
contacted HHC about obtaining further documents but was told that no HHC staff
were at the storage facility and so locating the documents would take time, when
in reality it does not.
 makes the opinion imply Defense counsel contacted HHC about obtaining further
documents sought in Plaintiff’s spoliation motion but was told that no HHC staff
were at the storage facility and so locating the documents would take time, when
in reality that did not occur.
Finding 16 is material because, as discussed above, it is clearly erroneous.
Objections to conclusions in the opinion

xxii. Objection 17) Plaintiff objects to the following finding by the magistrate
judge
Finding #17: “More than nine months later, defendant produced its first tranche of
responsive documents (Bates stamped Def 0001–1481). This production contained plaintiff’s
personnel file, documents related to plaintiff’s Equal Employment Opportunity Commission
(EEOC) charge, plaintiff’s Equal Employment Opportunity (EEO) complaints, and HHC’s
organizational policies for time and leave, performance evaluations, and EEO. ECF No. 108,
Declaration of Mark R. Ferguson (“Ferguson Decl.”) at ¶ 3. [See Dkt # 132 pg 2]
From the paragraph: “Plaintiff served her first request for documents on Defendant on
November 8, 2018. More than nine months later, defendant produced its first tranche of
responsive documents (Bates stamped Def 0001–1481). This production contained plaintiff’s
personnel file, documents related to plaintiff’s Equal Employment Opportunity Commission
(EEOC) charge, plaintiff’s Equal Employment Opportunity (EEO) complaints, and HHC’s
organizational policies for time and leave, performance evaluations, and EEO. ECF No. 108,
Declaration of Mark R. Ferguson (“Ferguson Decl.”) at ¶ 3. “[See Dkt # 132 pg 2]
Plaintiff objects to Finding 17 as clearly erroneous. First—Finding 17 is clearly
erroneous because it is based on false testimony, Dkt #108 ¶3. One of the reasons Dkt #108 ¶ 3 is
false is because it claims Defendant produced documents on August 20, 2019 when in reality
Defendant did not do so. Dkt # 108-3 pg 2 thru 3 (& Exhibit 4) is an email in the record from
Plaintiff’s counsel to Defendant’s counsel dated 9/30/2019 which says “Unfortunately, I have not
yet received any discovery from Defendant, and the CD you described has not arrived. However,
I look forward to receiving the information you described as soon as possible so that Defendant's
depositions may be scheduled. As soon as the material is received, I will provide Plaintiff's

documents. I will provide you with deposition notices shortly.” [Dkt # 108-3 pg 2 thru pg 3,
exhibit 4]
Second, Finding 17 is clearly erroneous because it is not supported by ECF No. 108 at ¶
3. ECF No. 108 at ¶ 3 does not even mention performance evaluations or HHC’s organizational
policies for time and leave.
Third, Finding 17 is clearly erroneous because it is contradictory to and/or inconsistent
with evidence in the record. Finding 17 is contradictory to and/or inconsistent with Netburn’s
own conclusions/findings in the opinion that say:
“Ultimately, defendant was unable to locate only a small subset of the 33
categories of documents plaintiff contests. These documents include the
corporate job descriptions for plaintiff and her coworkers, plaintiff’s doctor’s
note submitted in support of her application for FMLA leave, the “promotion
evaluation” and “promotion evaluation rebuttal,” plaintiff’s email application
for employment and subsequent emails inquiring about the position, HHC’s
“Employee Handbook,” defendant’s FMLA policies, and a letter allegedly sent
to plaintiff regarding withholding of pay.” [See Dkt# 132 pg 9]
Finding 17 is contradictory to/inconsistent with Plaintiff’s own testimony & writing in
the record. In Dkt # 114-3, Plaintiff testified she does not have possession of nor a copy of the
promotion evaluation as she signed and submitted it to Defendant in November 2014. [See Dkt
#114-3 & Dkt # 113]
On pg 48 of her spoliation motion reply (Dkt #113), Plaintiff pointed to evidence
Defendant did not submit all its time and leave policies to Plaintiff. [Dkt #113 pg 48]
Fourth, Finding 17 is clearly erroneous because it is false and inaccurate. Dkt # 108 ¶3 is
not evidence of document production. Evidence of document production is found in answers to
discovery demands.
In pgs 8-29 & 33-59 of her spoliation motion reply (Dkt #113), Plaintiff pointed to
evidence Defendant did not produce any of the documents sought in Plaintiff’s spoliation motion

during discovery. Plaintiff said that Defendant did not list any page nor exhibit numbers in its
discovery responses to which evidence she sought in her spoliation motion was responsive. She
said this is the same as producing nothing. [See Dkt #113 pg 8-20 & 33-59]. Federal Rule of
Civil Procedure 37(a) expressly provides that an evasive or incomplete disclosure, answer, or
response must be treated as a failure to disclose, answer, or respond.
Finding 17 is material as it affects the outcome of the motion. Finding 17 is material
because:

 Netburn used it to determine if, when, and what documents documents sought in
Plaintiff’s spoliation motion were produced by Defendant [See Dkt # 132 pg 2]
 It implies documents like Plaintiff’s performance evaluation and hhc time and
leave policies were produced in discovery when in reality that did not happen
[See Dkt #114-3, Dkt #113 pg 48/9-10/35-36, Dkt # 113)
 as discussed above it is clearly erroneous
xxiii. Objection 18) Plaintiff objects to the following finding by the magistrate
judge
Finding #18: “A review of the parties’ briefs and supporting documentation reveals that
most of the documents sought by plaintiff were, in fact, produced in defendant’s initial
production on August 20, 2019. This list includes plaintiff’s annual evaluation, her evaluation
rebuttal, her job description, the job descriptions for her coworkers, her job posting, a November
2014 memorandum to plaintiff from her supervisor at HHC, her termination letter, resume,
personnel file, HHC’s Benefits Manual, HR Policy Number 18, HHC’s FMLA and EEOC
policies, documents defendant cited in support of their defense of plaintiff’s EEOC charge, and
the internal EEO complaints plaintiff filed with Human Resources. Ferguson Decl. at ¶¶ 3, 28,

30; see also ECF No. 114, Ex. 8 at 1–2 (plaintiff’s job description), Ex. 10 (November 2014
memorandum), Ex. 11 at 2–3 (plaintiff’s annotated resume), Ex. 12 (document titled “Operating
Procedure No. 20-18: Corporation Policy with Respect to Requests for Religious
Accommodation”); ECF No. 115, Ex. 9 at 4–15 (annual evaluation), Exhibit 9 at 16–19
(evaluation rebuttal), Ex. 10 at 2–14 (coworkers’ job descriptions), Ex. 10 at 17 (plaintiff’s job
posting), Ex. 11 at 1 (termination letter), Ex. 19 at 70–75 (FMLA policies).
Plaintiff quibbles with defendant’s assertion that the documents were produced, pointing
to discrepancies in dates, missing signatures, and differences between the titles of policies to
obscure the fact that defendant timely produced many of the documents sought. She does not,
however, explain why these minor differences render the documents unresponsive to her
discovery requests. Ceglia v. Zuckerberg, No. 10-cv-00569A (F), 2012 WL 12995636, at *10
(W.D.N.Y. June 28, 2012) (rejecting plaintiff’s motion for discovery because he had “not
explained how the emails he maintains must have existed, yet been deleted by Defendants, would
establish the authenticity of the Contract”). Because these documents were produced, plaintiff
has not met her burden of establishing that this evidence was destroyed” [See Dkt # 132 pg 6-7]
Plaintiff objects to Finding 18 as clearly erroneous.
First —- Finding 18 is clearly erroneous because its contradictory to and/or inconsistent
with evidence in the record. Finding 18 is contradictory to and/or inconsistent with Dkt # 108-3
pgs 2-3 (& Exhibit 4), an email in the record from Plaintiff’s counsel to Defendant’s counsel
dated 9/30/2019 which says
“Unfortunately, I have not yet received any discovery from Defendant, and the
CD you described has not arrived. However, I look forward to receiving the
information you described as soon as possible so that Defendant's depositions
may be scheduled. As soon as the material is received, I will provide Plaintiff's
documents. I will provide you with deposition notices shortly.” [Dkt # 108-3
pg 2 thru pg 3, Exhibit 4]

Finding 18 is contradictory to and/or inconsistent with Netburn’s own
conclusions/findings in the opinion that say:
“Ultimately, defendant was unable to locate only a small subset of the 33
categories of documents plaintiff contests. These documents include the
corporate job descriptions for plaintiff and her coworkers, plaintiff’s doctor’s
note submitted in support of her application for FMLA leave, the “promotion
evaluation” and “promotion evaluation rebuttal,” plaintiff’s email application
for employment and subsequent emails inquiring about the position, HHC’s
“Employee Handbook,” defendant’s FMLA policies, and a letter allegedly sent
to plaintiff regarding withholding of pay. “ [See Dkt# 132 pg 9 (also known as
“Statement A”]] “Defendant provided most of the documents requested by
Plaintiff in August and September 2019” [See Dkt # 132 pg 12]
In Finding 18, Netburn is claiming Defendant produced documents like Plaintiff’s job
description, Plaintiff’s rebuttal, coworkers job description, Defendant’s FMLA policies.
However, in ‘Statement A’ above Netburn is claiming those documents were not produced/not
able to be located by Defendant. You can’t have it both ways either the documents were
produced or they weren’t.
In Finding 18, Netburn is also saying that “most” of the documents were produced By
Defendant on August 20, 2019 than in the statement above, Netburn again changes her position
when she claims that “Defendant provided most of the documents requested by Plaintiff in
August and September 2019”
Finding 18 is contradictory to/inconsistent with Plaintiff’s own testimony & writing in
the record. In April 2021, Plaintiff testified/said that does not have possession of her rebuttal nor
her job description as she signed and submitted it to Defendant in November 2014 [See Dkt
#114-3 & 113]
Finding 18 is contradictory to/ inconsistent with Mark Ferguson’s testimony which said
“On September 30, 2019, ACC Carter provided plaintiff with H+H’s responses and objections to

plaintiff’s first set of document requests and first set of interrogatories. See email dated
September 30, 2019, a copy of which is annexed hereto as Exhibit C; H+H Responses and
Objections to Plaintiff’s Discovery Requests, a copy of which is annexed hereto as Exhibit D.”
[Dkt # 108 ¶ 5]
Second — Finding 18 is clearly erroneous because its not supported by ECF No. 114,
Ex. 8 at 1–2, Ex. 10, Ex. 11 at 2–3, Ex. 12; ECF No. 115, Ex. 9 at 4–15, Ex. 9 at 16–19, Ex. 10 at
2–14, Ex. 10 at 17, Ex. 11 at 1, Ex. 19 at 70–75.
Plaintiff pointed to evidence in Dkt #113 pg 39-40 that ECF No. 114, Ex. 8 is NOT
Plaintiff’s signed job description which she seeks in her spoliation motion. ECF No. 114, Ex. 8 at
1–2 doesn’t even have Plaintiff’s signature on it.
Plaintiff pointed to evidence in Dkt #113 pg 42 that ECF No. 114, Ex. 10 is NOT the
November 2014 memorandum Plaintiff seeks in her spoliation motion. The November 2014
memorandum Plaintiff seeks that Defendant gave to the EEOC is dated 11/24/14.
Plaintiff pointed to evidence in #113 pg 37-38 that ECF No. 114, Ex. 9 at 16–19 is NOT
the rebuttal Plaintiff seeks in her spoliation motion.
Plaintiff pointed to evidence in Dkt #113 pgs 33-59 that ECF No. 114, Ex. 11 at 2–3, Ex.
12; ECF No. 115, Ex. 9 at 4–15, Ex. 10 at 2–14, Ex. 10 at 17, Ex. 11 at 1, Ex. 19 at 70–75 were
NOT the documents sought in Plaintiff’s spoliation motion.
ECF No. 114, Ex. 8 at 1–2, Ex. 10, Ex. 11 at 2–3, Ex. 12; ECF No. 115, Ex. 9 at 4–15,
Ex. 9 at 16–19, Ex. 10 at 2–14, Ex. 10 at 17, Ex. 11 at 1, Ex. 19 at 70–75 were Plaintiff’s
exhibits and Netburn ignored/disregarded Plaintiff’s comments about them listed in her
spoliation motion reply. Plaintiff used those exhibits to show Defendant’s testimony is not
credible and to show prejudice in her spoliation claims. Plaintiff did not use those exhibits to

claim that the documents she seeks in her spoliation motion exists. Nor did Plaintiff use those
exhibits to claim those were the documents Plaintiff seeks in her spoliation motion.
Third, Finding 18 is clearly erroneous because it cites and is based on false and/or not
credible testimony by Mark Ferguson, Dkt #108 at ¶¶ 3, 28, 30.
Dkt # 108 at ¶ 30, 3 is false and/or not credible testimony because:
 It is contrary to/ inconsistent with Dkt # 108-3 pg 2 thru 3 (& Exhibit 4)—an
email in the record from Plaintiff’s counsel to Defendant’s counsel dated
9/30/2019 which said “Unfortunately, I have not yet received any discovery from
Defendant, and the CD you described has not arrived. However, I look forward to
receiving the information you described as soon as possible so that Defendant's
depositions may be scheduled. As soon as the material is received, I will provide
Plaintiff's documents. I will provide you with deposition notices shortly.” [Dkt #
108-3 pg 2 thru pg 3]
 It is contrary to and/or inconsistent with Dkt # 108 ¶ 5—Mark’s own testimony
which says “On September 30, 2019, ACC Carter provided plaintiff with H+H’s
responses and objections to plaintiff’s first set of document requests and first set
of interrogatories. See email dated September 30, 2019, a copy of which is
annexed hereto as Exhibit C; H+H Responses and Objections to Plaintiff’s
Discovery Requests, a copy of which is annexed hereto as Exhibit D.”
 Dkt # 108 at ¶¶ 3, 30 are not supported by the exhibit they cite, Dkt # 108-1
(also known as Exhibit A in Dkt # 108) and Dkt #108-16 (also known as Exhibit
P in Dkt # 108).
Plaintiff also objects to Finding 18 because:

 it cites/is based on Dkt # 108 at ¶¶ 3, 30, which are hearsay statements not based
on personal knowledge. If an affidavit contains hearsay matters or statements not
based on an affiant's personal knowledge, the court should not consider those
portions of the affidavit. See Moore v. Coachmen Industries, Inc., 129 N.C. App.
389, 499 S.E.2d 772 (1998). (See Strickland v. Doe, 156 N.C. App. 292, 577
S.E.2d 124 (N.C. Ct. App. 2003)
 it is contrary to law, Federal Rule of Civil Procedure 37 i.e. Federal Rule of Civil
Procedure 37(c)(1) which states "If a party fails to provide information or identify
a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.” In its spoliation
motion reply and/or its supporting documentation, Defendant admits it submitted
some documents to Plaintiff after the date Plaintiff’s spoliation motion was filed
like some electronic timesheets (Dkt #108-18 ¶¶ 15-16), personnel files (Dkt #
108 ¶ 32 & 24), non ESI documents with bates stamp other than Def 0001 thru
Def 1481 (i.e. Plaintiff’s injury report, resumes for Michal Ambrose/Nash
Dunlap/ Echo Song/Frieda Fried/Sanford Operowsky/Che Yu, Plaintiff’s
Paystubs, Personnel Files of Michal Ambrose/Victor Duran/Michael
Sylvester/Nash Dunlap/Echo Song/Frieda Fried/Sanford Operowsky/Che Yu/Luz
Nazario/Matthew Driscoll/ Elizabeth Rivera, HHC FMLA policies, HHC FMLA
application form, some HHC Operating Procedures, and More—–See Dk #107 pg
6 & 9, Dkt # 108 ¶ 28, Dkt # 132 pg 8). Accordingly, Netburn was not suppose to

use documents with those batestamps against Plaintiff in her opinion which she
did in Finding 18.
Finding 18 is Material
Finding 18 is material as it affects the outcome of the motion. Finding 18 is material
because:

 Netburn used it to determine if, when, and what documents documents sought in
Plaintiff’s spoliation motion were produced by Defendant [See Dkt # 132 pg 6-7]
 It implies Defendant did not alter, lose, and/or destroy the signed promotion
performance evaluation, signed job description, the rebuttal Plaintiff submitted to
Defendant in November 2014 when in reality Defendant did do so. [See Dkt #
113, Dkt # 114-3, Dkt #132]
 It implies Defendant produced all its FMLA policies when in reality it did not do
so. [Dkt # 113]
 It implies Defendant “produced” documents sought in Plaintiff’s spoliation
motion in discovery/before the filing of the spoliation motion when in reality
Defendant did not do so. [See Dkt # 113 & Dkt # 132]
 as mentioned above Finding 18 is clearly erroneous
xxiv. Objection 19) Plaintiff objects to the following conclusion by the magistrate
judge
Conclusion #19: “Defendant objects to their production on the grounds that the burden or
expense of the proposed discovery far outweighs its likely benefit because much of the
information plaintiff seeks can be culled from the electronic timesheets previously produced by
defendant.” [See Dkt # 132 pg 8]

First, Plaintiff objects to conclusion 19 as clearly erroneous because it is false and
contrary to/inconsistent with evidence in the record. In regards to physical timesheets, electronic
timesheets, and/or SR70s, (before Plaintiff filed her spoliation motion) Defendant did not object
“to their production on the grounds that the burden or expense of the proposed discovery far
outweighs its likely benefit because much of the information plaintiff seeks can be culled from
the electronic timesheets previously produced by defendant.” Rather time and leave records such
as timesheets and SR70s were evidence responsive to Plaintiff’s Request For Production of
Documents Numbers #2, 12, 18, 19, 21, 31, 37, 41, 42, 44 yet Defendant did not say conclusion
19 nor the contents of conclusion 19 in all its answers to those request. [See Dkt # 114-2, Dkt
#114-1, Dkt #108-4, & Dkt #108-8 ]. For instance, Defendant did not say conclusion 19 in its
answer to request for production numbers 2, 12, 19, 31, 42, and/or 44. [See Dkt #114-2 pg 32-33,
Dkt #114-2]. If Defendant objects to the time and leave records production after Plaintiff’s
spoliation motion was filed and after the close of discovery neither Netburn nor Defendant can
use that as evidence against Plaintiff pursuant to Fed.R.Civ.P. 37.
Contrary to the claim in conclusion 19, Defendant did not provide Plaintiff with all the
electronic timesheets she seeks in her spoliation motion. In her spoliation motion reply, Plaintiff
said: Plaintiff worked for Defendant from July 1st 2013 thru May 22nd 2015 [See Dkt # 37].
Physical Timesheets were submitted to Defendant once a week according to Nash Dunlap [See
Nash Deposition at Exhibit 28 pg 7 (Also known as Dkt #115-15 pg 7) ]. HHC’s electronic
records [See Exhibit 14 (Also known as Dkt # 115-1)] Defendant submitted to Plaintiff are only
showing Plaintiff’s attendance times for July 1st 2013 to April 26th 2015. The electronic records
HHC submitted to Plaintiff are not showing attendance times for all dates of Plaintiff’s
employment. [See Dkt #113 pg 54-55]

Contrary to the claim in conclusion 19, much of the information Plaintiff seeks cannot be
culled from electronic timesheets in her spoliation motion reply, Plaintiff said:
“Electronic records do not contain the same exact information as the physical
timesheets. For example, HHCs physical timesheets show weekly shift time,
sick/annual leave balance for that week, and weekly supervisor information
[See a sample of a physical timesheet in Exhibit 19 (also known as Dkt #115-
6)], while HHC’s electronic records did not show that information. HHCs
electronic records only show times of attendance, dates of attendance, as well
as type of taken: That information is not enough information to tell you what
the employee’s weekly shift was, if an employee is coming in early/late/off-
schedule/on-schedule, and whether the employee took leave they had/hadn’t
accrued yet in their sick leave / annual leave balance”. [See Dkt # 113 pg 54]
“HHC’s electronic records (some of which for the first time were submitted to
Plaintiff after she filed her spoliation motion) do not contain the same
information as SR70s. SR70s are “HHC’s request for time and leave forms.”
SR70s show whom requested leave, the date an employee requested leave, the
type of leave requested, “denial” and approval of requests for leave, whom
denied and approved request for leave, date request for leave was approved or
denied, what the employee said when they requested leave, HHC’s time and
leave polices, HHC’s FMLA policies, notes and emails regarding request for
leave were also included/attached to SR70s [See Exhibit 13 for copy of blank
HHC SR 70s form (also known as Dkt #114-13)]. While HHC’s electronic
records only show whom took leave, date leave was taken, and limited
information regarding type of leave taken as categorized by Defendant [See
Exhibit 14 (also known as Dkt #115-11) to view HHCs electronic records Pgs
Def 605-645, Def 467-479, & Def 4368-4379]. HHC’s electronic records also
do not show if leave request were specifically marked “approved” or “denied”
by Defendant. During Plaintiff’s employment many times Plaintiff’s
supervisor, Nash Dunlap, marked Plaintiff’s leave as unscheduled even though
Plaintiff requested the leave in advance and he even gave Plaintiff a discipline
for taking “unscheduled leave.” In order for Plaintiff to prove Dunlap’s actions
were unwarranted she needs possession of all the SR70s.”

Plaintiff worked for Defendant from July 1st 2013 thru May 22nd 2015 [See Dkt # 37].
Physical Timesheets were submitted to Defendant once a week according to Nash Dunlap [See
Nash Deposition at Exhibit 28 pg 7 (Also known as Dkt #115-15 pg 7) ]. HHC’s electronic
records [See Exhibit 14 (Also known as Dkt # 115-1)] Defendant submitted to Plaintiff are also
only showing Plaintiff’s attendance times for July 1st 2013 to April 26th 2015. The electronic

records HHC submitted to Plaintiff are not showing attendance times for all dates of Plaintiff’s
employment. [See Dkt #113 pg 54-55]
Conclusion 19 is material because it affects the outcome of the motion. Conclusion 19 is
material because Netburn used it on pages 8-9 of the opinion to support her claim that the
timesheets and SR70s Plaintiff seeks in her spoliation motion were not lost or destroyed [See Dkt
#132 pg 8-9, Dkt #132]
xxv. Objection 20) Plaintiff objects to the following conclusion by the magistrate’s
judge
Conclusion #20: “Delay in production is not grounds for sanctions” [See Dkt # 132 pg 8]
Plaintiff objects to conclusion 20 because it is clearly erroneous.
First— Conclusion 20 as clearly erroneous because it is false. Numerous courts have
issued sanctions for delay in production. Some examples of Courts whom have done so are listed
below. “When the court instructs on an adverse inference for a delay in production, as in the
instant case, consciousness of a weak case is immaterial. Instead, the instruction would simply
allow an inference from the nature of the evidence that is ultimately presented to the jury. See
Stanphill v. Health Care Service Corp., Case No. CIV-06-985-BA (W.D. Okla. Jun. 3, 2008).
“In addition to its impact on judicial resources, including the Court's schedule
and the management of the trial in this case, the Court also finds that Tracinda
was prejudiced to some extent by the delay in production. While the Court
tailored the remainder of the trial so as to reduce the prejudice to Tracinda, the
Court could not completely obviate the effect of the late production on
Tracinda's ability to develop its case, including most particularly its impact on
Tracinda's decision of who to depose, the order of depositions and the
substance of its deposition questioning, as well as the substance and conduct of
the trial prior to the revelation of the documents. Although Defendants have
offered possible explanations for the delay in production, the Court concludes
that those explanations do not amount to substantial justification for the
disregard of the Court's Scheduling Order. Indeed, Defendants acknowledged
that the Valade Notes were responsive to discovery requests designed by
Tracinda and should have been produced during discovery. Thus, it is clear to

the Court that, regardless of the reason for the failure to produce these
documents, the fault for this production failure and the related delays and
proceedings which followed, lies with Defendants. Accordingly, Tracinda is
entitled to compensatory sanctions.” See Tracinda Corporation v.
Daimlerchrysler Ag, Civil Action No. 00-993-JJF, Consolidated (D. Del. Apr.
20, 2005).
Anheuser-Busch, Inc. v. Natural Beverage Distributors, Inc., 69 F.3d 337, 348 (9th Cir.
1995), states that “sanction of dismissal is warranted where a party has engaged deliberately in
deceptive practices that undermine the integrity of judicial proceedings. In that case, the court
held that plaintiff was prejudiced by defendant's failure to produce the documents because it was
forced to rely on incomplete and spotty evidence in presenting its defense to the counterclaim.”
With regard to the non-production of evidence, " [a] failure to disclose under Rule 37
encompasses both the destruction of evidence, or spoliation, and untimely production of
documents and information required to be produced." In re Sept. 11th Liab. Ins. Coverage Cases,
243 F.R.D. 114, 125 (S.D.N.Y.2007).
With regard to the non-production of evidence, " [a] failure to disclose under Rule 37
encompasses both the destruction of evidence, or spoliation, and untimely production of
documents and information required to be produced." In re Sept. 11th Liab. Ins. Coverage Cases,
243 F.R.D. 114, 125 (S.D.N.Y.2007).) See also Fed.R.Civ.P. 37
Second–Conclusion 20 is also clearly erroneous because it is contrary to and/or
inconsistent with Netburn’s own statement in the opinion which said: “Federal Rule of Civil
Procedure 37 states that “if the disclosure or requested discovery is provided after the motion
was filed . . . the court must . . . require the party . . .whose conduct necessitated the motion . . .
to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s
fees….”[See Dkt # 132 pg 12]

Plaintiff also objects to conclusion 20 as contrary to law, Federal Rule of Civil Procedure
37. For example, Conclusion 20 is contrary to Federal Rule of Civil Procedure 37(c)(1) which
states "If a party fails to provide information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness to supply evidence on a motion, at
a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to
or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A)
may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions. . .
." Fed.R.Civ.P. 37(c)(1).
Conclusion 20 is contrary to Fed.R.Civ.P. 37(a)(4)(A) which states that "if the disclosure
or requested discovery is provided after the motion was filed . . . the court must . . . require the
party . . . whose conduct necessitated the motion . . . to pay the movant’s reasonable expenses
incurred in making the motion including attorneys fee.”
Conclusion 20 is Material
Conclusion 20 is material because It affected the outcome of the motion: Netburn used it
in the opinion to deny Plaintiff sanctions in her spoliation motion. For example, Netburn used it
in the opinion to deny Plaintiff sanctions for documents Defendant submitted to Plaintiff after
her spoliation motion was filed. [See Dkt # 132 pg 8, Dkt #132]
xxvi. Objection #21) Plaintiff objects to the following conclusion by the magistrate
judge
Conclusion 21: “Ultimately, defendant was unable to locate only a small subset of the 33
categories of documents plaintiff contests. These documents include the corporate job
descriptions for plaintiff and her coworkers, plaintiff’s doctor’s note submitted in support of her

application for FMLA leave, the “promotion evaluation” and “promotion evaluation rebuttal,”
plaintiff’s email application for employment and subsequent emails inquiring about the position,
HHC’s “Employee Handbook,” defendant’s FMLA policies, and a letter allegedly sent to
plaintiff regarding withholding of pay .Only these documents are properly the subject of a
motion for spoliation” [See Dkt #132 pg 9]
Plaintiff also objects to conclusion 21 as clearly erroneous because it is false and contrary
to evidence in the record. Documents that are lost during discovery, untimely produced, altered,
not produced, lost, and destroyed are “properly the subject of a motion for spoliation” not just
documents that are “unable to be located.” [See Fed. R. Civ. Pro. 37, Dkt # 113 pg 33, Dkt # 101
pg 3, Dkt # 132 pg 12] “With regard to the non-production of evidence, " [a] failure to disclose
under Rule 37 encompasses both the destruction of evidence, or spoliation, and untimely
production of documents and information required to be produced." In re Sept. 11th Liab. Ins.
Coverage Cases, 243 F.R.D. 114, 125 (S.D.N.Y.2007). See also Fed.R.Civ.P. 37 (Anheuser-
Busch, Inc. v. Natural Beverage Distributors, Inc., 69 F.3d 337, 348 (9th Cir. 1995), states that
the severe sanction of dismissal is warranted where a party has engaged deliberately in deceptive
practices that undermine the integrity of judicial proceedings. In that case, the court held that
plaintiff was prejudiced by defendant's failure to produce the documents because it was forced to
rely on incomplete and spotty evidence in presenting its defense to the counterclaim. Anheuser-
Busch, Inc., 69 F.3d at 353-354. The court also rejected defendant's argument that plaintiff was
not prejudiced because the documents were produced two months before the scheduled
commencement of trial. The court noted that it has "squarely rejected the notion that a failure to
comply with the rules of discovery is purged by belated compliance." Kirk v. Rizzolo, Case No.
2:08-cv-00635-PMP-GWF (D. Nev. Aug. 10, 2010).

In its spoliation motion reply and/or its supporting documentation, Defendant admits it
submitted some documents to Plaintiff after the date Plaintiff’s spoliation motion was filed like
some electronic timesheets (Dkt #108-18 ¶¶ 15-16), personnel files (Dkt # 108 ¶ 32 & 24), non
ESI documents with bates stamp other than Def 0001 thru Def 1481 (i.e. Plaintiff’s injury report,
resumes for Michal Ambrose/Nash Dunlap/ Echo Song/Frieda Fried/Sanford Operowsky/Che
Yu, Plaintiff’s Paystubs, Personnel Files of Michal Ambrose/Victor Duran/Michael
Sylvester/Nash Dunlap/Echo Song/Frieda Fried/Sanford Operowsky/Che Yu/Luz
Nazario/Matthew Driscoll/ Elizabeth Rivera, HHC FMLA policies, HHC FMLA application
form, HHC Operating Procedures, and More—–See Dk #107 pg 6 & 9, Dkt # 108 ¶ 28, Dkt #
132 pg 8).
Those documents should have been included in Netburn’s (conclusion 21) list of
documents properly.
Federal Rule of Civil Procedure 37(c)(1) states that:
"If a party fails to provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial…..In addition to or
instead of this sanction, the court, on motion and after giving an opportunity to
be heard: (A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure; (B) may inform the jury of the party's
failure; and (C) may impose other appropriate sanctions…"
Failure to disclose under Rule 37 encompasses both the destruction of evidence, or
spoliation, and untimely production of documents and information required to be produced." In
re Sept. 11th Liab. Ins. Coverage Cases, 243 F.R.D. 114, 125 (S.D.N.Y.2007). Numerous courts
have issued sanctions for delayed submittal. Some examples of Courts whom have done so are
listed below:

“When the court instructs on an adverse inference for a delay in production, as in the
instant case, consciousness of a weak case is immaterial. Instead, the instruction would simply
allow an inference from the nature of the evidence that is ultimately presented to the jury. See
Stanphill v. Health Care Service Corp., Case No. CIV-06-985-BA (W.D. Okla. Jun. 3, 2008).
“In addition to its impact on judicial resources, including the Court's schedule
and the management of the trial in this case, the Court also finds that Tracinda
was prejudiced to some extent by the delay in production. While the Court
tailored the remainder of the trial so as to reduce the prejudice to Tracinda, the
Court could not completely obviate the effect of the late production on
Tracinda's ability to develop its case, including most particularly its impact on
Tracinda's decision of who to depose, the order of depositions and the
substance of its deposition questioning, as well as the substance and conduct of
the trial prior to the revelation of the documents. Although Defendants have
offered possible explanations for the delay in production, the Court concludes
that those explanations do not amount to substantial justification for the
disregard of the Court's Scheduling Order. Indeed, Defendants acknowledged
that the Valade Notes were responsive to discovery requests designed by
Tracinda and should have been produced during discovery. Thus, it is clear to
the Court that, regardless of the reason for the failure to produce these
documents, the fault for this production failure and the related delays and
proceedings which followed, lies with Defendants. Accordingly, Tracinda is
entitled to compensatory sanctions.”
See Tracinda Corporation v. Daimlerchrysler Ag, Civil Action No. 00-993-
JJF, Consolidated (D. Del. Apr. 20, 2005)
The court in Anheuser-Busch, Inc. v. Natural Beverage Distributors, Inc., 69 F.3d 337,
348 (9th Cir. 1995), held that “[a} sanction of dismissal is warranted where a party has engaged
deliberately in deceptive practices that undermine the integrity of judicial proceedings. In that
case, the court held that plaintiff was prejudiced by defendant's failure to produce the documents
because it was forced to rely on incomplete and spotty evidence in presenting its defense to the
counterclaim. The court also rejected defendant's argument that plaintiff was not prejudiced
because the documents were produced two months before the scheduled commencement of trial.
The court noted that it has "squarely rejected the notion that a failure to comply with the rules of

discovery is purged by belated compliance." Kirk v. Rizzolo, Case No. 2:08-cv-00635-PMP-
GWF (D. Nev. Aug. 10, 2010)
Rule 37(a) expressly provides that an evasive or incomplete disclosure, answer, or
response must be treated as a failure to disclose, answer, or respond.) In her spoliation motion
reply i.e. pages Dkt #113 pg 8-20 & 33-59, Plaintiff pointed to evidence Defendant did not
“produce” any of the documents sought in Plaintiff’s spoliation motion during discovery. In her
spoliation reply, Plaintiff pointed to evidence Defendant did not list any page nor exhibit
numbers in its answers to request for production demands for which evidence Plaintiff sought in
her spoliation motion was responsive which is the same as producing nothing. [See Dkt #113 pg
8-20 & 33-59]. Accordingly, all the documents sought in Plaintiff’s spoliation motion should
have been on Netburn’s (Conclusion 21) list of documents properly the subject of the spoliation
motion.
In her spoliation motion reply i.e. pages Dkt #113 pg 8-20 & 33-59, Plaintiff pointed to
evidence, Defendant did not provide and/or produce the documents sought in her spoliation
motion (by the time her spoliation motion was filed and by the close of discovery). [See Dkt
#113 pg 8-20 & 33-59]. Accordingly, all the documents sought in Plaintiff’s spoliation motion
should have been on Netburn’s (Conclusion 21) list of documents properly the subject of the
spoliation motion.
In its spoliation motion reply, Defendant admits it didn’t submit 10 of the “outstanding
categories of documents” to Plaintiff including timesheets and personnel files. [Dkt # 107 pg 9,
Dkt #107, Dkt #108]. Accordingly, those documents should have been on Netburn’s
(Conclusion 21) list of documents properly the subject of the spoliation motion.

In its spoliation motion reply and or its supporting documentation, Defendant admits it
did not produce and/or provide Plaintiff with SR70s, personnel files, timesheets, and more. [See
Dkt # 113 & 108, Dkt # ]. Accordingly, those documents should have been on Netburn’s
(Conclusion 21) list of documents properly the subject of the spoliation motion.
In its spoliation motion reply i.e. Dkt #113 pages 4-6 & 33-59, Plaintiff pointed to
evidence some documents she seeks in her spoliation motion were altered by Defendant.
Accordingly, those documents should have been on Netburn’s (Conclusion 21) list of documents
properly the subject of the spoliation motion. [Dkt # Dkt #113 pages 4-6 & 33-59]
Plaintiff also objects to the word “small” in conclusion 21 as inaccurate. In its spoliation
motion reply, Defendant admits it did not produce 10 of the “outstanding categories of
documents” including timesheets and personnel files. [Dkt # 107 pg 9]
In her spoliation motion reply, Plaintiff wrote that Defendant has still not provided 18 of
the 33 documents mentioned in Plaintiff’s spoliation motion. [See Dkt #113 pg 7-8, Dkt #113]
Additionally, Plaintiff objects to conclusion 21 as clearly erroneous because as mentioned above
its contradictory to law, Federal Rule of Civil Procedure 37. i.e. Federal Rule of Civil Procedure
37(c)(1) and Federal Rule of Civil Procedure 37(a)(5)(A).
Conclusion 21 is Material
Conclusion 21 is material because it affects the outcome of the motion. Conclusion 21is
material because: Netburn used it in the opinion to decide which/whether documents sought by
Plaintiff were properly the subject of a spoliation motion. [See Dkt #132 pg 9, Dkt #132]; and
Netburn used it in the opinion to decide which and how many documents sought by Plaintiff in
her spoliation motion were unable to be located by Defendant [See Dkt #132 pg 9, Dkt #132].

xxvii. Objection 22) Plaintiff objects to the following conclusion by the magistrate
judge
Conclusion 22: “A party seeking sanctions for spoliation of evidence “must establish (1)
that the party having control over the evidence had an obligation to preserve it at the time it was
destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the
destroyed evidence was 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.”” [See Dkt # 132 pg 4]
Plaintiff is objecting to conclusion 22 as inconsistent with and/or contradictory to
Netburn’s other statement(s) in her opinion which said:
“Courts have found that actual destruction or loss of relevant documents is a
prerequisite for sanctions based on spoliation.” (Dkt #132 pg 4)
“[F]or sanctions to be appropriate, it is a necessary, but insufficient, condition
that the sought-after evidence actually existed and was destroyed.” (Dkt # 132
pg 6-7)
“In the absence of evidence that the timesheets and SR 70s were lost or
destroyed, spoliation sanctions are not appropriate.” (Dkt # 132 pg 9)
“Ultimately, defendant was unable to locate only a small subset of the 33
categories of documents plaintiff contests……….Only these documents are
properly the subject of a motion for spoliation” (Dkt # 132 pg 9)
Federal Rule of Civil Procedure 37 states that “if the disclosure or requested discovery is
provided after the motion was filed … the court must… require the party… whose conduct
necessitated the motion . . . to pay the movant’s reasonable expenses incurred in making the
motion, including attorney’s fees….” [See Dkt # 132 pg 12]
In conclusion 22, Netburn is claiming evidence must be “destroyed” for a party to seek
sanctions for spoliation of evidence. Then she changes her position in the statements above when
she claims evidence must be lost or destroyed to seek sanctions for spoliation of evidence.

Conclusion 22 is material because it affects the outcome of the motion. Conclusion 22 is
material because it determines the burden Plaintiff had to meet in order to prove her spoliation
claim.
xxviii. Objection 23) Plaintiff objects to the following conclusion by the
magistrate judge
Conclusion #23: “To the extent that plaintiff believes that there may be discriminatory
remarks handwritten on the original documents, she cannot establish her right to sanctions by
claiming that “defendants’ conduct deprived [her] of a pond in which [she] would like to have
gone on a fishing expedition.”” [Dkt #132 pg 10-11]
Plaintiff objects to conclusion 23 as clearly erroneous because it is false.
In her spoliation motion and reply, Plaintiff never established her right to sanctions by
claiming “defendants’ conduct deprived [her] of a pond in which [she] would like to have gone
on a fishing expedition.”” There is no evidence in the record that supports this. [See Dkt #101 &
Dkt # 113]
Plaintiff also objects to conclusion 23 as clearly erroneous because there is no evidence in
the record to support it.
Conclusion 23 is Material
Conclusion 23 is material because it affects the outcome of the motion Netburn used it to
determine if/how Plaintiff established her right to sanctions
xxix. Objection 24) Plaintiff objects to the following conclusion by the magistrate
judge
Conclusion #24: “Here, defendant provided most of the documents requested by plaintiff
in August and September 2019.”

Plaintiff objects to conclusion 24 as clearly erroneous because it is false and
contradictory to evidence in the record.
Conclusion 24 is clearly erroneous because it is contradictory to and/or inconsistent with
evidence in the record. Conclusion 24 is contradictory to and/or inconsistent with Dkt # 108-3
pgs 2-3 (& Exhibit 4), an email in the record from Plaintiff’s counsel to Defendant’s counsel
dated 9/30/2019 which says
“Unfortunately, I have not yet received any discovery from Defendant, and the
CD you described has not arrived. However, I look forward to receiving the
information you described as soon as possible so that Defendant's depositions
may be scheduled. As soon as the material is received, I will provide Plaintiff's
documents. I will provide you with deposition notices shortly.” [Dkt # 108-3
pg 2 thru pg 3, Exhibit 4]
Conclusion 24 is contradictory to and/or inconsistent with Netburn’s statement in the
opinion that says
“A review of the parties’ briefs and supporting documentation reveals that most
of the documents sought by plaintiff were, in fact, produced in defendant’s
initial production on August 20, 2019.”
Conclusion 24 is contradictory to and/or inconsistent with Dkt # 108 ¶ 5—Mark’s own
testimony which says
“On September 30, 2019, ACC Carter provided plaintiff with H+H’s responses
and objections to plaintiff’s first set of document requests and first set of
interrogatories. See email dated September 30, 2019, a copy of which is
annexed hereto as Exhibit C; H+H Responses and Objections to Plaintiff’s
Discovery Requests, a copy of which is annexed hereto as Exhibit D.”
Conclusion 24 is Material.
Conclusion 24 is material because Netburn used it to determine if and when documents
sought in Plaintiff’s spoliation motion were produced by Defendant [See Dkt # 132 pg 2]; it
implies documents were provided by Defendant in August 2019 when in reality that did not
occur [See Dkt #108-3 pg 2-3]; and as mentioned above it is clearly erroneous.

xxx. Objection 25) Plaintiff objects to the following conclusion by the magistrate
judge
Conclusion #25: “Indeed, the copies of the contested documents produced by defendant
in discovery do not support her claims that the originals “would have constituted evidence
favorable to plaintiff.” [Dkt # 132 pg 10]
Plaintiff objects to conclusion 25 as clearly erroneous because there is no evidence in the
record to support it.
Plaintiff also objects to conclusion 25 as clearly erroneous because its false and
contradictory to/inconsistent with evidence in the record. Federal Rule of Civil Procedure 37(a)
expressly provides that an evasive or incomplete disclosure, answer, or response must be treated
as a failure to disclose, answer, or respond.) In pgs 8-20 & 33-59 of her spoliation motion reply
(Dkt #113), Plaintiff pointed to evidence Defendant did not “produce” any of the documents
sought in Plaintiff’s spoliation motion in discovery (Plaintiff claimed that Defendant did not list
any page nor exhibit numbers in its answers to Plaintiff’s request for production of documents
for which evidence sought in her spoliation motion was responsive. She said that is the same as
producing nothing). [See Dkt #113 pg 8-20 & 33-59].
The originals of all the documents sought in Plaintiff’s spoliation motion constituted
evidence favorable to plaintiff. In Dkt #113 pg 20-33, 101-1, & 101, Plaintiff listed an
explanation of materiality for the documents sought in her spoliation motion. And in Dkt #113
pgs 20-33 & 33-59, Plaintiff pointed to evidence (i.e. affidavits, depositions, testimony, emails,
images, and more) which showed the documents she sought in her spoliation motion would have
constituted evidence favorable to Plaintiff.
Conclusion 25 is Material

Conclusion 25 is material because it affects the outcome of the motion. Conclusion 25 is
material because Netburn used it to claim some documents sought in Plaintiffs spoliation motion
were produced by Defendant in discovery and were not favorable to Plaintif’s claims. [See Dkt #
132 pg 10, Dkt # 132]
xxxi. Objection 26) Plaintiff objects to the following conclusion by the magistrate
judge
Conclusion #26: “Plaintiff has not established that the physical timesheets and SR 70s
she seeks were lost or destroyed.” [See Dkt # 132 pg 8]
Plaintiff objects to conclusion 26 as clearly erroneous because it is false and contrary to
evidence in the record. In her spoliation motion Plaintiff sought “Ms. Humphreys' missing time
sheets, time and leave request forms, and time leave records…..time sheets, time and leave
request forms, and time and leave records for employees in plaintiff's department, including
Michal Ambrose, Victor Duran, Freda Fried, Echo Song and Che Yu), Plaintiff's Supervisor
(Nash Dunlap), Nash's Supervisor (Sanford Operowsky), HR (Elizabeth Rivera & Matthew
Driscoll), & Gouverneur EEO Officer (Luz Nazario).” [See Dkt # 101 pg 2-3]. And in her
spoliation motion reply, Plaintiff said/claimed:
Plaintiff worked for Defendant from July 1st 2013 thru May 22nd 2015 [See
Dkt # 37]. Physical Timesheets were submitted to Defendant once a week
according to Nash Dunlap [See Nash Deposition at Exhibit 28 pg 7 (Also
known as Dkt #115-15 pg 7) ]. HHC’s electronic records [See Exhibit 14 (Also
known as Dkt # 115-1)] Defendant submitted to Plaintiff are also only showing
Plaintiff’s attendance times for July 1st 2013 to April 26th 2015. The electronic
records HHC submitted to Plaintiff are not showing attendance times for all
dates of Plaintiff’s employment. [See Dkt #113 pg 54-55]
Time and leave records such as timesheets and SR70s were evidence responsive to
Plaintiff’s Request For Production Numbers #2, 12, 18, 19, 21, 31, 37, 41, 42, 44 [See Exhibit 1
(also known as Dkt #114-1) ]. However, Defendant did not list any page nor exhibit numbers in

its discovery response to those questions which is the same as producing nothing [See Exhibit 2
(also known as Dkt #114-2)]. In their spoliation motion reply, Defendant admits it has not
produced Plaintiff’s time and leave request forms (SR70s) nor Plaintiff’s physical timesheets
[See Dkt #107, 108, 108-16]. Department employee time and leave records such as timesheets
and SR70s would have been evidence responsive to Plaintiff’s Request For Production Numbers
#2, 31, 37, 41, 42, 44 [See Exhibit 1 (also known as Dkt #114-1)]. However, Defendant did not
list any page nor exhibit numbers in its discovery response to those questions which is the same
as producing nothing [See Exhibit 2 (also known as Dkt #114-2]. In their spoliation reply
motion, Defendant admits it has not produced the department employees time and leave request
forms (SR70s) nor physical timesheets [See Dkt #107, 108, 108-16]. [See Dkt #113, Dkt #113
pgs 19-20]
Federal Rule of Civil Procedure 37(a) expressly provides that an evasive or incomplete
disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.
Defendant sent some of the electronic timesheets to her after she filed her spoliation motion. [See
Dkt #113 pg 57, 52, 51-58, 6-7]
There is also other evidence in the record that timesheets & SR70s were lost or destroyed.
In Dkt #108-18 ¶¶ 15-16, Defendant admits it submitted electronic timesheets to Plaintiff after
the date Plaintiff filed her spoliation motion. [See Dkt #108-18 ¶¶ 15-16]. Mark Ferguson,
Defendant’s counsel, testified in April 2021 that records requested by Plaintiff which Defendant
has not provided include SR 70 forms requesting leave by plaintiff and her co-workers. [See Dkt
# 108 pg 9].
In its spoliation motion reply, Defendant admits it did not produce 10 of the “outstanding
categories of documents” including timesheets and personnel files. [See Dkt # 107 pg 9]. On pg

7 of her opinion, Netburn equates non-production with destruction of evidence. [See Dkt # 132
pg 7].
In their spoliation motion reply, Defendant admits it did not produce SR70s. [Dkt #107
pg 18, & Dkt # 107].
On page 25 of its spoliation motion reply, Defendant says the “the SR 70s are not in
plaintiff’s possession” [See Dkt #107 pg 25]
.In its spoliation motion reply, Defendant claims it did not produce “hardcopies” of
Plaintiff’s timesheets nor “hardcopies” of her coworkers timesheets. [See Dkt #107 pg 13, & Dkt
# 107].
In its spoliation motion reply and/or its supporting documentation, Defendant admits it
submitted some electronic timesheets to Plaintiff after she filed her spoliation motion [See Dkt
#108-18 ¶¶ 15-16, Dkt #108 ¶32, Dkt# 107 pg 9, Dkt #107]
Plaintiff also objects to conclusion 26 as clearly erroneous because there is no evidence in
the record to support this conclusion.
Conclusion 26 is Material
Conclusion 26 is material because it affects the outcome of the motion: Netburn used it to
deny Plaintiff sanctions in her spoliation motion and to claim Plaintiff has not established that
the physical timesheets and SR 70s she seeks were lost or destroyed.
xxxii. Objection 27) Plaintiff objects to the following conclusion by the magistrate
judge
Conclusion #27: “In the absence of evidence that the timesheets and SR 70s were lost or
destroyed, spoliation sanctions are not appropriate.” [See Dkt # 132 pg 9]

Plaintiff objects to conclusion 27 as clearly erroneous because it is false and contrary to
evidence in the record. There is evidence in the record that Plaintiff’s timesheets were lost or
destroyed. In Dkt #108-18 ¶¶ 15-16, Defendant admits it submitted some electronic timesheets
to Plaintiff after the date Plaintiff filed her spoliation motion. [See Dkt #108-18 ¶¶ 15-16]
In its spoliation motion reply and/or its supporting documentation, Defendant admits it
submitted some electronic timesheets to Plaintiff after she filed her spoliation motion [See Dkt
#108-18 ¶¶ 15-16, Dkt #108 ¶32, Dkt# 107 pg 9, Dkt #107]
Mark Ferguson, Defendant’s counsel, testified in April 2021 that records requested by
Plaintiff which Defendant has not provided include SR 70 forms requesting leave by plaintiff and
her co-workers. [See Dkt # 108 pg 9]
In its spoliation motion reply, Defendant admits it did not produce 10 of the “outstanding
categories of documents” including timesheets and personnel files. [See Dkt # 107 pg 9]. On pg
7 of her opinion, Netburn equates non-production with destruction of evidence. [See Dkt # 132
pg 7].
In their spoliation reply, Defendant admits it did not produce SR70s. [Dkt #107 pg 18, &
Dkt # 107]
On page 25 of its spoliation motion reply, Defendant says the “the SR 70s are not in
plaintiff’s possession” [See Dkt #107 pg 25]
In its spoliation motion reply, Defendant claims it did not produce “hardcopies” of
Plaintiff’s timesheets nor “hardcopies” of her coworkers timesheets. [See Dkt #107 pg 13, & Dkt
# 107]
In her spoliation motion reply, Plaintiff said/claimed:
Time and leave records such as timesheets and SR70s were evidence
responsive to Plaintiff’s Request For Production Numbers #2, 12, 18, 19, 21,

31, 37, 41, 42, 44 [See Exhibit 1 (also known as Dkt #114-1) ]. However,
Defendant did not list any page nor exhibit numbers in its discovery response
to those questions which is the same as producing nothing [See Exhibit 2 (also
known as Dkt #114-2)]. In their spoliation motion reply, Defendant admits it
has not produced Plaintiff’s time and leave request forms (SR70s) nor
Plaintiff’s physical timesheets [See Dkt #107, 108, 108-16]. [See Dkt # 113].
Federal Rule of Civil Procedure 37(a) expressly provides that an evasive or
incomplete disclosure, answer, or response must be treated as a failure to
disclose, answer, or respond………………………. Department employee time
and leave records such as timesheets and SR70s would have been evidence
responsive to Plaintiff’s Request For Production Numbers #2, 31, 37, 41, 42,
44 [See Exhibit 1]. However, Defendant did not list any page nor exhibit
numbers in its discovery response to those questions which is the same as
producing nothing [See Exhibit 2]. In their spoliation reply motion, Defendant
admits it has not produced the department employees time and leave request
forms (SR70s) nor physical timesheets [See Dkt #107, 108, 108-16]. [See Dkt
#113 pgs 19-20]

Conclusion 27 is Material
Conclusion 27 is material because it affects the outcome of the motion. Conclusion 27 is
material because Netburn used it to deny Plaintiff sanctions in her spoliation motion and to claim
plaintiff did not establish physical timesheets and SR70s were lost or destroyed in her spoliation
claim [See Dkt # 132 pg 9]
xxxiii. Objection 28) Plaintiff objects to the following conclusion by the
magistrate judge
Conclusion #28: “Plaintiff did not inform defendant that she believed the productions
were incomplete until August 2020, a year after the initial production” [Dkt #132 pg 12]
Plaintiff objects to conclusion 28 as clearly erroneous because it is false and
contradictory to evidence in the record like Dkt # 108-3 pgs 2-3 (& Exhibit 4: August 2020 is not
a year after initial production. Dkt # 108-3 pgs 2-3 (& Exhibit 4), is an email in the record from
Plaintiff’s counsel to Defendant’s counsel dated 9/30/2019 which says:

“Unfortunately, I have not yet received any discovery from Defendant, and the
CD you described has not arrived. However, I look forward to receiving the
information you described as soon as possible so that Defendant's depositions
may be scheduled. As soon as the material is received, I will provide Plaintiff's
documents. I will provide you with deposition notices shortly.” [Dkt # 108-3
pg 2 thru pg 3, Exhibit 4]
Conclusion 28 is Material
Conclusion 28 is material because it affects the outcome of the motion. Conclusion 28 is
material because: Netburn used it to determine if and when documents sought in Plaintiff’s
spoliation motion were produced by Defendant [See Dkt # 132 pg 12]; it implies documents
were produced by Defendant in August 2019 when in reality that did not occur [See Dkt #108-3
pg 2-3]; and as mentioned above it is clearly erroneous.
xxxiv. Objection 29) Plaintiff objects to the following conclusion by the
magistrate judge
Conclusion #29: “Plaintiff argues that she is entitled to attorney’s fees and costs for the
documents provided by defendant in its supplemental production to plaintiff after she filed her
motion for spoliation.” [Dkt #132 pg 12]
An attorney, as well as a party, who acts in bad faith may be ordered to pay the attorney’s
fees of the opposing party. In Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-767 (1980).
Plaintiff is only objecting to conclusion 29 as clearly erroneous because it is inaccurate.
In Dkt #101, Plaintiff requested the following relief for all the documents sought in her
spoliation motion:
“(1) find HHC engaged in spoliation and (2) enter default judgment against
HHC or, alternatively, require mandatory adverse inference jury instructions at
trial. In particular, the jury should be instructed to infer that Ms. Humphreys
performed admirably at her job, that HHC manufactured or doctored false
performance evaluations saying otherwise, that Ms. Humphreys was
performing the correct duties according to her job description, and that Ms.
Humphreys' FMLA leave application was whole and complete. In addition –

and importantly – given the willful loss of information, this Court should infer
that Ms. Humphreys has identified properly her comparators. Ms. Humphreys
further requests this Court (3) prohibit HHC from presenting arguments or
evidence regarding lost evidence and reasons for lost evidence at trial; (4)
award her attorney's fees and costs associated with this motion or, if default
judgment is entered, for the full case; and (5) grant such further relief that it
deems appropriate.” [See Dkt # 101 pg 8].
Conclusion 29 is Material
Conclusion 29 is material because it affects the outcome of the motion. Conclusion 29 is
material because: Netburn used it to determine what relief was sought by Plaintiff in her
spoliation motion [See Dkt # 132 pg 12]; and it implies Plaintiff is only requesting attorney’s
fees and cost for the documents Defendant submitted after Plaintiff's spoliation motion was filed
when in reality that is not true. [See Dkt #108-3 pg 2-3].
ii. The Defendant had a duty to preserve evidence
"The obligation to preserve evidence arises when the party has notice that the evidence is
relevant to litigation or when a party should have known that the evidence may be relevant to
future litigation." Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001). "Identifying
the boundaries of the duty to preserve involves two related inquiries: when does the duty to
preserve attach, and what evidence must be preserved?" Zubulake v. UBS Warburg LLC, 220
F.R.D. 212, 216 (S.D.N.Y. 2003).
In the instant action, the Defendant submitted half the docs to Plaintiff after Plaintiff filed
the spoliation motion and after the close of discovery. They did not submit the other half. As
already identified above, the documents were pertinent to the prosecution of the case.

CONCLUSION

In sum, Plaintiff avers that the Magistrate erred in its opinion as asserted above. Plaintiff
therefore moves this Court respectfully to set aside the said opinion. Plaintiff further prays this

By:
Signature
______________________
[ENTER NAME]

Court grants any other order it deems just.
Respectfully submitted,

CERTIFICATE OF SERVICE

I hereby certify that on [ENTER DATE], I filed the foregoing with the clerk of the
court using the CM/ECF system which sent the notification of filing to the Defendant and
all counsel of record.

By: Signature
[ENTER NAME]

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