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  • D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro Commercial - Other (Other) document preview
  • D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro Commercial - Other (Other) document preview
  • D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro Commercial - Other (Other) document preview
  • D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro Commercial - Other (Other) document preview
						
                                

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FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 t YORK, COUNTY OF NEW YORK 603732/2007 D & R GLOBAL SELECTIONS, S.L. HON. MANUEL MENDEZ Plaintiff, IAS PART 13 -against- MEMORANDUM OF LAW IN OPPOSITION DEFENDANT" S MOTION AND IN SUPPORT BODEGA OLEGARIO FALCON PINEIRO, PLAINTIFF'S CROSS-MOTION FOR SANCTI UNDER CPLR 3126 AND FOR EXTENSION DEADLINES UNDER CPLR 2004 2005 Defendant. Plaintiff submits this Memorandum of Law: (1)ln opposition to Defendants motion to (a) dismiss the action on forum non-convenience grounds or in the alternative (b) to bar Plaintiff's use of the videotape of Defendant's deposition at trial;and (2) In support of Plaintiff's Cross Motion, for the relief therein set forth. In November 2007, Plaintiff sued Defendant in this Court for breach of contract, quantum meruit, unjust enrichment, and an accounting. The complaint asserts that Defendant was obligated to pay commissions to Plaintiff on any wine sold by Defendant to its New York distributor, Kobrand Corp., which Plaintiff had procured for Defendant, and that Defendant 1 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 failed to do so, and cut Defendant off or about May 2007. After Defendant did not answer the complaint or otherwise appear, Plaintiff obtained a default judgment in June 2008. Defendant subsequently moved to vacate the default judgment and dismiss the action for lack of personal and subject matter jurisdiction which was denied by this Court. On appeal, the Appellate Division First Department reversed, vacated the default judgment, but also held that there were issues of fact about whether the court had personal jurisdiction over Defendant under the long-arm jurisdiction statute. Defendant then moved for summary judgment based on lack of personal and subject matter jurisdiction. This Court denied the motion, citing the Appellate Division's order. Defendant again appealed and the Appellate Division reversed, holding that Defendant was not subject to personal jurisdiction under CPLR 302 (a) (1). Itfound that "Defendant's visits to New here," York to promote its wine constitute the transaction of business but that "there is no substantial nexus between plaintiff's claim for unpaid commissions in connection with the sales of that wine, pursuant to an agreement made and performed wholly in Spain, and those promotional activities". Upon Plaintiff's motion, the Court of Appeals granted Plaintiff leave to Appeal. On June 8, 2017, the Court of Appeals reversed the Appellate Division's Order and held that summary judgment in favor of Defendant should be denied. 2 2 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 On or about December 14, 2017, Defendant filed the instant motion, seeking dismissal of the action on forum non conveniens grounds as well as alternatively, exclusion of the videotapes of Defendant's deposition at trial. Before this Court, Plaintiff now requests that Defendant's motion be denied in itsentirety. In its Cross-Motion, Plaintiff also requests sanctions for Defendant's destruction of potentially relevant evidence in the form of telephone records and the negligent loss of emails. Plaintiff further requests in itsCross-Motion that the Court retroactively extend the time to exchange deposition tapes and to permit Plaintiff to seek additional invoices from Kobrand Corp., beyond those deadlines set in the Court's April 8, 2015 Compliance Conference Order. II.ARGUMENT A. Opposition to Defendant's Motion 1. Forum Non Conveniens a. Defendant is barred from arguing Forum Non Conveniens due to collateral estoppel Defendant previously advanced a Forum Non Conveniens argument, in itsappeal of the August 21, 2013 Order of this Court before the Appellate Division First Department. While the issue of forum non conveniens had actually not been before this Court and was improperly only brought up by Defendant on appeal, Defendant is nevertheless now precluded from arguing Forum Non Conveniens again. 3 3 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 The doctrine of collateral estoppel bars a party from re-litigating in a subsequent action or proceeding on an issue which was clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same, Ryan v New York Tel. .,.6262 Co., NY2d 494, 500 (1984), Chiara v Town of New Castle, 61 AD3d 915 (2nd Dept. 2009). By definition, collateral estoppel, or issue preclusion, does not bar the litigation of issues which were not previously raised. Itwill, however, foreclose issues which were necessarily decided in the first action, litigated or not, Chisholm-Ryder Co. v Sommer & Sommer, 78 AD2d 143, 144 (4th Dept. 1980) Here, Defendant's forum non conveniens argument was included in the 2014 appeal of this Court's August 26, 2013 Order. The appeal was decided in favor of Defendant by Order of the Appellate Division dated May 14, 2015. Even though Defendant's appeal was not successful based on forum non conveniens, this issue must be deemed necessarily decided by the Appellate Division when it issued its May 14, 2015 Order. Therefore, itis respectfully argued that collateral estoppel now prevents Defendant from rehashing the previously decided forum non conveniens argument before this Court. b. Defendant's arguments fail to make the showing required for dismissal on the grounds of Forum Non Conveniens The foregoing notwithstanding, itis clear that Defendant failsto show why this case should be dismissed on the basis of Forum Non Conveniens. 4 4 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 Whether to dismiss in favor of another forum is leftto the sound discretion of the Shin- court, Etsu Chemical Co., .Ltd Ltd. v.3033 3033 ICICI Bank, 9 AD3d 171, 175-176 (1st Dept 2004). However, a court reviewing a motion to dismiss for forum non conveniens should begin with the assumption that the plaintiff's choice of forum will stand unless the defendant meets the burden of demonstrating that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court. The defendant bears a heavy burden to convince the court that dismissal iswarranted. A defendant must make a clear showing of facts which either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience, which may be shown to be slight or nonexistent, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own administrative and legal problems. TeeVee Toons, Inc. v. Gerhard Schubert GmbH, 2002 U.S. Dist. LEXIS 5546 (SDNY 2002). Defendant's motion utterly fails in making such a showing. Courts have emphasized that the Forum Non Conveniens rule rests upon justice, fairness and convenience, see Islamic Republic of Iran v Pahlavi, 62 NY2d 474 (1984). Itis a flexible rule that is based upon the facts and circumstances of each case, Martin v Mieth, 35 N.Y.2d 414, 418 (1974). Among the factors to be considered, such as the burden on the New York courts, the potential hardship to the defendant, the unavailability of an alternative forum in which plaintiff may bring suit and the residence of the parties, no one factor is controlling, Islamic Republic of Iran v Pahlavi, supra. 5 5 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 In the present case, the facts and circumstances do not weigh in favor of dismissal. The factual claims brought forward by Defendant's motion are largely incorrect and do not support dismissal of this case on forum non conveniens grounds. No alternate forum available One of the factors in considering dismissal on the grounds of forum non conveniens iswhether another more convenient forum isactually available, in which the plaintiff may obtain redress, Banco Ambrosiano v. Artoc Bank, 62 N.Y.2d 65 (1984) . Courts have ruled that a defendant must be able to show that an "adequate alternative forum exists," Goldberq v. UBS AG, 660 F. Supp. 2d 410, 420 (E.D.N.Y. 2009) citing Iraqorri v. United Technologies 274 Corp., ., F. 3d 65 at 73 (2nd Cir.20001). While such a forum need not be exactly the same as the original one, it needs to fulfillcertain elements to be adequate: A forum in which defendants are amenable to service of process and which permits litigation of the dispute is generally adequate. Such a forum may nevertheless be inadequate if it does not permit the reasonably prompt adjudication of a dispute, ifthe forum is not presently available, or ifthe forum provides a remedy so clearly unsatisfactory or inadequate that it istantamount to no remedy at all,Abdullahi v. Pfizer, Inc., 562 F.3d 163, 189 (2d Cir.2009). In Varkonyi v S. A. Empresa De Viacao Airea Rio Grandense, 22 N.Y.2d 333 (1968), the Court of Appeals held that since there were special circumstances in the case, particularly the absence 6 6 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 of any other forum in which both of the moving defendants could be joined, the Appellate Division erred in dismissing the action on forum non conveniens without taking these special circumstances into account when exercising itsdiscretion. See also Taylor v. Interstate Motor Frqt. Sys., 309 N.Y. 633 (1956): where the respective statutes of limitations had expired in all of the jurisdictions that could have served as an alernate forum, the Court of Appeals found that this constituted special and unusual circumstances that must be given adequate consideration. Here, as the Affidavit of Spanish Counsel Cuatrecasas, Gonçalves Pereira S.L.P., annexed to the Affirmation in Support of Cross-Motion and in Opposition, explains in detail, that Plaintiff is most likely barred from litigating the case in Spain at this point, due to the applicable Statute of Limitations. While in Hanwha Life Ins. v. UBS.AGAG, 2015 NY Slip Op. 03452 (1st Dept. 2015), the Appellate Division held that Korea is an adequate alternative forum, its limitations on discovery defendants' notwithstanding, particularly in light of representation that they will submit to its jurisdiction in the event of dismissal, this case is distinguishable. Spain is by no means an adequate alternative forum in the present case, as the applicable statute of limitations would most likely prevent Plaintiff entirely from bringing a lawsuit against Defendant. This notwithstanding, Defendant has also given no indication that itwill submit to the jurisdiction of the Spanish courts ifthe action were to be dismissed by this Court. Moreover Defendant has 7 7 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 not even made an effort to demonstrate the Spanish Statute of Limitations would not be a bar to Plaintiff'saction in Spain. Therefore, there is no alternate forum that is adequate and available where this case could be brought, if the Court were to dismiss iton grounds of Forum Non Conveniens. After having pursued this case in New York for over ten years, having succeeded on the trial court and appellate level and even before the Court of Appeals, Plaintiff would be, figuratively speaking, at the end of the road and ultimately be prevented from seeing itsday in court. Plaintiff would be severely prejudiced ifthis action was missed on the basis of Forum Non Conveniens Another factor a court must consider when weighing a Forum Non Conveniens motion is the prejudice to the plaintiff. Here, apart from the fact that litigating this case in Spain at this point would be time barred, and therefore unavailable as an alternate forum, Plaintiff would also be severely prejudiced in other ways ifthe Court was to dismiss this case and ifPlaintiff was forced to litigatethis action in Spain. The Affidavit of Spanish Counsel Cuatrecasas, Gonçalves Pereira S.L.P., annexed to the Affirmation in Support of Cross-Motion and in Opposition, sets forth the prejudice facing Plaintiff: It recites that Plaintiff would have to commence there a case from scratch, the steps that each piece of evidence obtained in this litigation would be subjected to before a Judge there would deem itadmissible, the difficulty in securing the attendance of US based witnesses, 8 8 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 as well some of the attendant costs that the Plaintiff would have to shoulder. Italso recites the difficulties in compelling the attendance of witnesses from the US in a Spanish court, and that the requirement of having to translate the hundreds of pages of documents that have been exchanged in this case will lead to considerable costs for Plaintiff. Residence of parties is a factor, but not dispositive Courts have repeatedly held that residence of the parties outside New York does not necessarily tip the scales in favor of dismissal for forum non conveniens. See Krieqer v. Glatter, 129 AD 3d ( 1st Dept. 2015): Defendant failed to meet its heavy burden of establishing that New York is an inconvenient forum and that there is no substantial nexus between New York ' and the action (CPLR 327 [a];see Kuwaiti Enq'q Group v Consortium of Intl. Consultants, LLC, 50 AD3d 599, 600 (1st Dept 2008). While all the parties and a number of plaintiffs treating healthcare providers are New Jersey residents, the balance of the relevant factors weighs in favor of a New York forum Plaintiffs' See also Meshulam v. Brill,144 A.D.2d 311 (1st Dept. 1988): residence in New Jersey and the absence of a New York witness to the accident notwithstanding, defendant has failed in his burden to show that New York is any less convenient a forum than Pennsylvania for either himself or plaintiffs. 9 9 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 Application of foreign law With respect to Defendant's argument that Plaintiff wants Spanish law applied to the case, it too is inaccurate (see Affirmation in Support of Cross-Motion and in Opposition, p.5). Plaintiff's counsel merely sent Defendant's counsel a notice of Plaintiff's intent to have judicial notice taken of Spanish law. The applicable provision of the CPLR, CPLR 4511 (b), refers to the taking of judicial notice of different matters, not just foreign laws. It states in relevant part as follows: Judicial notice shall be taken of matters specified in this subdivision if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. It is simply not true to state as Defendant does liberally, that a notice under CPLR 4511(b) amounts to Plaintiff wanting to have Spanish applied law to this case. However, even ifit was true, this would not lead to the automatic conclusion that the case should be dismissed. While application of foreign law is one of the factors that courts will consider in determining forum non conveniens motions, itis by no means an automatically deciding factor in favor of dismissal. See Coventry Real Estate Advisors, LLC, et al. v. Developers Diversified Realty Corp., .et al., Index No. 115559/09 (Sup. Ct. NY Co., June 25, 2010): The Court held that application of foreign law is not determinative. Since New York courts are capable of applying the law of another state, New York was not an inconvenient forum in the case. 10 10 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 c. The facts and circumstances weigh against dismissal on forum non conveniens grounds As set forth in the Affirmation in Opposition and in Support of Plaintiff's Cross-Motion, this case has been litigated in New York for 10 years. Defendant has never made any objections on the basis that New York is an inconvenient forum. There has been ample discovery, extensive motion practice, and several appellate proceedings in this litigation. Dismissin g this case to an alternate forum such as Spain, even ifsuch forum was available and adequate (which it isnot, see hereinabove), would mean that Plaintiff would have to start from scratch: as set forth above, none of the discovery responses could be used in a court in Spain, compelling US witnesses to appear would be difficult at best, and in any event quite expensive. Translating hundreds of documents would be required at great cost to Plaintiff. All of these circumstances would severely prejudice Plaintiff. In fact, even where other factors, specifically the residence of the parties, would support dismissal for forum non conveniens, itis not justifiable where substantial pretrial disclosure has been effected, see Abkco Indus. v. Lennon, 52 A.D.2d 435, 384 N.Y.S.2d 781 (1st Dept. 1976). The application of the doctrine should turn on consideration of all pertinent factors, including justice, fairness, and convenience, and not solely on the residence of one of the parties. Moreover, courts generally refuse to dismiss cases for forum non conveniens in situations where the cost burden and problems of translation of documents into foreign languages will simply fallupon the plaintiff instead of the defendant, TeeVee Toons, Inc., supra. This would be 11 11 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 the case here: ifPlaintiff had to sue Defendant in Spain, Plaintiff would be liable for the costs of document translation, in addition to the uphill procedural battle itwould face. 2. Plaintiff should not be barred from usin the videota es of Defendant's de osition Defendant's request to exclude the use of Defendant's Maria Falcon's deposition videotapes is uncompelling. As a general rule, all relevant evidence is admissible unless its admission violates some exclusionary rule, Peo le v. Thomas 2011 NY Slip Op 08448 (2011) (citations omitted). Evidence is relevant ifit has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence, Peo le v. Thomas supra The exclusions have been enumerated by the Court of Appeals as undue prejudice (Mazella v. Beols, 27 Nygd 694, 710 j2016j, confusion of the issues and misleading of the jury (~Pea le rr Santarelli, 49 NY2d 242, 250 [1980]), unreasonable delay (People v Davis, 43 NY2d 17 [1977], or unfair surprise to the opposing party (Peo le v. Nitzber, 287 NY 183, 189 [1941]). However, these concerns do not mandate exclusion of evidence; rather, they must be balanced against the probative value of the evidence, see lf'ishv. Board o Educ oCit o .N Y 76 NY2d .3.79,385 [1990]). Respectfully, none of these exceptions apply here. The videotapes are relevant evidence as they serve to augment the testimony in the written transcript of the deposition of Defendant's Maria Falcon in determining the issues in this case; specifically, whether Defendant in fact 12 12 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 terminated the agreement with Plaintiff. The videos do not create confusion and are not misleading; neither does showing them at trial cause any delay with the trial.There is also no prejudice or surprise to Defendant, as ithas had the written transcript of the deposition in its possession for over three years and is therefore familiar with the contents of Ms. Falcon's testimony. Moreover crucially, given the conflicting evidence that the Defendant has provided pertaining to Defendant's alleged termination of its relationship with Plaintiff in December 2006, to the videotapes will certainly help the trier of fact assess Defendant's credibility on this point. Defendant argues that the videotapes should be excluded because of Plaintiff's tardiness in providing copies thereof to Defendant. In itsCross-Motion, Plaintiff sufficiently accounts for the delay in submitting copies of the videotapes to Defendant's counsel; specifically, that the delay was caused by law office failure. In conclusion, there is no compelling reason why the videotapes should not be shown at trial. By the same token, Plaintiff will be prejudiced ifthe videotapes are not shown to the trier of fact. B. Plaintiff's Cross-Motion 1. Sanctions against Defendant for Spoliation of Evidence: Applicable legal standard It iswell settled under New York law that a party may be sanctioned for destroying evidence. CPLR 3126 provides in relevant part that "[i]fany party, ... refuses to obey an order for 13 13 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 disclosure or willfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: 1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or designated' 2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. Spoliation is the destruction of evidence. Under CPLR 3126, if a court finds that a party destroyed evidence that ought to have been disclosed, the court may make such orders with regard to the failure or refusal as are just, see Orteqa v City of New York, 9 NY3d 69, 76 (2007). It is well settled that spoliation of evidence be sanctioned in cases of negligent or non- may intentional destruction. Although originally defined as the intentional destruction of evidence out of a party's bad the law spoliation has been extended to the non- arising faith, concerning (15 intentional destruction of evidence, Kirkland v. NY City Hous. Auth., 236 ,236 .AD2.d AD2d 170, 173 (1 Dept. 1997).Spoliation sanctions are [...] not limited to cases where the evidence was destroyed willfully or in bad faith, since a party's negligent loss of evidence can be just as fatal to the other (15' party's ability to present a defense, Squitieri v City of New York, 248 A.D.2d 201, 203 (1 Dept. 2003). 14 14 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 The [First] Appellate Division has, on many occasions, authorized the imposition of sanctions where the destruction of evidence was negligent rather than willful, Stronq v. City of New York, 2013 NY Slip Op 06655 (1st Dept. 2015) quoting Adrian v Good Neighbor Apt. Assoc., 277 AD2d 146 (1st Dept 2000), IV dismissed96 NY2d 754 (2001; Saqe Realty Corp. .v Proskauer Rose, 275 AD2d 11 (1st Dept 2000), IV dismissed 96 NY2d 937 (2001); Squitieri v City of New York, supra. (2nd See also Biniachvili v Yeshivat Shaare Torah, 2014 Inc., ,201.4 NY Slip Op 05826, 120 AD3d 605 Dept. 2014): "Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, that party may be sanctioned under CPLR 3126. Since the Supreme Court has broad discretion in determining what, ifany, sanction should be imposed for spoliation of evidence, it may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than willfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the litigation." evidence might be needed for future litigation "A party seeking sanctions based on the spoliation of evidence must demonstrate: (1) that the party with 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 finally, (3) that the destroyed evidence was relevant to the party's claim or defense such that the trier of defense." fact could find that the evidence would support that claim or defense VOOM HD .HD Holdings LLC (1st v. EchoStar Satellite L.L.C., 93 AD3d .33., 33, 45 Dept. 2012) (citing Zubulake v. UBS Warburq LLC, 220 F.R.D. 212, 220 [S.D.NY 2003]). 15 15 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 As set forth below, the requirements for sanctions for spoliation are met in this instance where Defendant intentionally destroyed telephone records dating from a time period relevant to this litigation. a. Defendant had an obligation to preserve evidence patently relevant to this litigation The obligation to preserve relevant evidence is triggered when a party reasonably anticipates litigation, VOOM, supra at 36; Zubulake, supra at 216-217. Thereafter, the party "must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure documents." the preservation of relevant Id. See also Fujitsu Ltd. v. Fed. Exp. . .Cor Corp., .247 F.3d (2nd 423, 436 Cir. 2001): 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. Here, Defendant admits that sometime in either 2009 or 2011, itdestroyed phone records potentially relevant to this litigation. At Defendant's deposition, Defendant's Maria Falcon Oubina admitted that Defendant destroyed phone records from 2006 around 2009 (see Affirmation in Support of Cross-Motion, p. 14-15). Singing the same tune, Defendant admitted in itsSupplemental Objections and Responses to Plaintiff's Supplemental Requests dated March Response #5 (a of which is annexed to the Affirmation in support of the Cross- 27, 2014, copy Motion) that it destroyed invoices from its phone provider that covered times relevant to the litigation: "Spanish Law requires companies to retain records such as telephone, invoices [sic] and such, for 4 years. Bodega Olegario retained its telephone invoices from December 2006 and 16 16 of 24 FILED: NEW YORK COUNTY CLERK 01/12/2018 11:03 PM INDEX NO. 603732/2007 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/12/2018 2007 until 2011 whereupon it discarded such telephone records. .Bodega Bodega Olegario does not records." remember the exact date in 2011 when itdiscarded such records Clearly, by destroying potentially relevant evidence sometime in 2009 or 2011, which was: (a) parties' several years after Defendant could reasonably anticipate litigation to ensue from the dispute that started in 2006, and (b) several years after Plaintiff did in fact commence litigation against Defendant, Defendant violated itsduty to preserve evidence. In addition, Defendant's server company at the time, Todos Media, experienced technical problems that resulted in a loss of Defendant's emails on or about November 2010. There had been apparently no measures taken by Defendant for backing up the data, even though at that point in time (November 2010), Defendant had been aware of the litigation and was in fact a party to the litigation brought by Plaintiff against it. Moreover the Affidavit of Spanish Counsel Cuatrecasas, Gonçalves Pereira S.L.P., recites that even under Spanish Law, Defendant was obliged to kee