And, finally, they ask -- along with preclusion --
That monetary fines be imposed in profusion.
The Court, however, must now be objective
Because sanctions imposed are always elective
As a judicial measure they're not taken lightly --
Imposed only sparingly, fairly and rightly.
In the instant case the horse has not bolted;
The status quo has merely been jolted.
With Mesis deposed, his notes readily available
His memory processes are clearly assailable.
The lawyers have failed to brief the concern
As to what, if anything, the jury might learn
About Mesis' notes -- be they paper or taped;
Be they celluloid, crumpled, or curiously shaped.
Counsel fail to acknowledge the rules of admission
Which ever have governed evidential submissions.
As such, thus, and therefore, and ergo, and hence,
The Court cannot presently rule for defense.
Was this spoliation?
Or a calculated ruse
Designed to obstruct, to mislead, and confuse
The Court and the jury in their search for what's true?
Or was it maybe an innocent simple snafu?
The Court is not satisfied that perfidious antics
(Rhyme is not easy -- excuse the semantics)
Are afoot and affecting the within litigation --
Not the most monumental in the courts of the nation.
Therefore, the Court is now forced to conclude
That, with all of the parties' submissions reviewed,
Insufficient showing has thus far been made
That Mesis, the investigator, intentionally strayed
From the 'sacrosanct' rule that the tapes be preserved
And then, in discovery, appropriately served
Upon the defendants deserving of same.
These are the longstanding rules of the game.
But sometimes the Court is asked to decide
If a party has intentionally plotted to hide
Relevant evidence the other side needs
To disprove allegations of civil misdeeds.
In this case the issue has arisen, though sadly,
Because defendants contend they've been treated so badly;
And seek all these sanctions in retaliation
For plaintiff's allegedly planned spoliation.
The Court, on this record, cannot properly find
That plaintiff and Mesis were each of a mind
To destroy the recorded detections, though gone,
Which in Mesis' affidavits in essence live on.
That Mesis shall testify, the Court does not doubt
And the truth, by the jury, shall be fully made out.
The jury will know if there's something to hide;
Accordingly, motion for sanctions DENIED.
So, on with the case, although sans the recorder;
Attached can be found an appropriate Order.
NICHOLAS H. POLITAN
Dated: August 15, 1996
THIS MATTER comes before the Court on defendants' motion to dismiss and/or for sanctions for plaintiff's failure to preserve certain cassette recordings allegedly pivotal to defendants' defenses; and the Court having fully reviewed the parties' submissions and having decided the matter on the papers without oral argument pursuant to Fed.R.Civ.P. 78; and for good cause shown as set forth in the accompanying Opinion;
IT IS on this 15th day of August, 1996,
ORDERED that defendants' motion be and the same hereby is DENIED.
NICHOLAS H. POLITAN