Opinion
99 CV 5851 (ILG)
November 5, 2001
MEMORANDUM ORDER
SUMMARY
This action concerns a "drug mule," plaintiff William Kanyi ("Kanyi"), who was caught attempting to import 51 bags of heroin into the United States on March 30, 1998. Kanyi swallowed the 51 heroin bags before boarding a flight to the United States from his home country of Ghana. Upon arriving at JFK International Airport, agents of the United States Customs Service stopped Kanyi and searched him. At that time, Kanyi admitted that he had swallowed the heroin. Kanyi was then transferred to the airport medical facility, where x-rays confirmed the presence of the bags of heroin in Kanyi's alimentary tract.
Kanyi contends that, despite the fact that he was naturally passing the bags of heroin and felt fine, the Customs officers then transported him to Mary Immaculate Hospital and forced him to undergo surgery to remove the remaining bags. The defendants, however, paint a very different picture. They contend that Kanyi was disoriented and was lapsing in and out of consciousness when he arrived at the JFK medical facility. Upon administering Narcan, a drug which counteracts the effects of heroin, Kanyi allegedly became more alert and responsive.
Accordingly, the defendants determined that at least one of the bags of heroin in Kanyi's alimentary tract had ruptured, and that immediate surgery was necessary to remove the remaining bags before they ruptured, possibly resulting in Kanyi's death. Kanyi was then transferred by ambulance to Mary Immaculate Hospital.
After arriving at the hospital, however, Kanyi, refused to consent to surgery. Meanwhile, Kanyi's urine was tested for the presence of opiates, and the test apparently came back positive. Further attempts were made to convince Kanyi to consent to surgery, but Kanyi refused. At that point, a psychiatrist was consulted (defendant Dr. Shah), who determined that Kanyi was not competent to refuse to consent. The surgery was then performed, and the remaining heroin bags were removed.
On September 22, 1999, Kanyi commenced this action against the United States, Mary Immaculate Hospital, and a number of physicians who treated Kanyi at the hospital. In his complaint, Kanyi alleges that the surgery constituted an unlawful search and seizure and/or assault and battery. Kanyi also alleges that the defendants negligently decided to perform the surgery, resulting in various injuries to Kanyi. Kanyi seeks $5 million in damages on each of his five claims.
Kanyi apparently does not contend that the surgery itself was negligent. (See infra note 6.)
Kanyi has since served two-years' imprisonment for his drug importation, and was deported to Ghana upon his release.
In the course of discovery, the parties have raised various issues before Magistrate Judge Pohorelsky, who is supervising discovery in this case. It is two of Magistrate Judge Pohorelsky's rulings which are at issue here. The first ruling concerns Kanyi's motion for an adverse inference charge, based on the defendants' allegedly improper destruction of certain items which were part of Kanyi's urinalysis test. Magistrate Judge Pohorelsky denied that motion. The second ruling concerns the government's motion to preclude Kanyi from offering an affidavit in opposition to the defendants' motions for summary judgment. According to the government, the affidavit materially differs from Kanyi's deposition testimony. The government argues that permitting Kanyi to submit such an affidavit is improper, because Kanyi waited until the defendants moved for summary judgment to change his testimony, in order to create a material factual dispute. Magistrate Judge Pohorelsky denied the government's motion. Both of these rulings have been appealed to this Court.
DISCUSSION
I. Standard of Review
With respect to a ruling of a magistrate judge on a pre-trial non-dispositive matter, a district court shall "modify or set aside any portion of the magistrate's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636 (b)(1)(A) ("A judge of the court may reconsider any [nondispositive] pretrial matter.., where it has been shown that the magistrate's order is clearly erroneous or contrary to law."). Matters involving pretrial discovery generally are considered nondispositive of the litigation and are subject to the "clearly erroneous or contrary to law standard."Thomas B. Hoar. Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). The Supreme Court has stated that a finding is "clearly erroneous" when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 394 (1948) (quoted in Derthick v. Bassett-Walker Inc., Nos. 90 Civ. 5427, 90 Civ. 7479, 90 Civ. 3845, 1992 WL 249951, at *8 (S.D.N.Y. 1992)). "[A] party seeking to overturn a discovery ruling [therefore] generally bears a heavy burden." Com-Tech Assocs. v. Computer Assocs. Int'l. Inc., 753 F. Supp. 1078, 1099 (E.D.N.Y. 1990). "Pursuant to this highly deferential standard of review, magistrates are afforded broad discretion in resolving discovery disputes and reversal is appropriate only if their discretion is abused." Lanzo v. City of N.Y., No. 96-CV-3242, 1999 WL 1007346, at *2 (E.D.N.Y. Sept. 21, 1999) (quotingDerthick, 1992 WL 249951, at *8).
II. Magistrate Judge Pohorelsky's Order Regarding Spoliation of Evidence
A. The factual and procedural background of the motion
Kanyi appeals Magistrate Judge Pohorelsky's order denying a motion for an adverse inference charge against the defendants, based on the spoliation of evidence. Specifically, the evidence involved was (1) a urinalysis test kit and (2) a copy of the test kit in a hospital logbook. The facts concerning Kanyi's motion are as follows.
Kanyi's urine was tested for opiates while he was at Mary Immaculate Hospital. According to officials at the hospital, that test involved the application of Kanyi's urine to a "test kit, " which looks like a tape cassette. (See Transcript of April 6, 2001 hearing before Hon. Viktor Pohorelsky ("Tr.") at 11-12.) The test kit screens the urine for various substances, including opiates. Once the test kit has been exposed to urine, it is considered a biohazard, and it is destroyed within 24 hours of use. (See id. at 8.) Before the test kit is destroyed, however, a "photocopy" of the test kit is made, and that photocopy is placed in a logbook maintained by the central laboratory processing the urinalysis. (See id. at 8-9.) The test results are then entered into the hospital computer system by a laboratory technician, and this information is printed out and appended to the patient's hospital records. (See id. at 9.) The computer is accessible to all hospital staff, but the logbook (which contains the photocopy of the test kit) is maintained only by the laboratory, and is not accessible by hospital staff. (See id.)
It is unclear exactly how a photocopy of the test kit is made. (See Tr. at 12.)
In this case, Kanyi's test kit was destroyed within 24 hours of the urinalysis. (See id. at 14-15.) The photocopy of the test kit, however, remained in the laboratory logbook for approximately two years. Sometime in early April 2000 — approximately seven months after this action was commenced — the logbook was destroyed, in accordance with the hospital's document retention policy. (See id. at 14.)
Upon learning that the test kit and logbook were destroyed, Kanyi filed a motion before Magistrate Judge Pohorelsky seeking an adverse inference charge from the spoliation of this evidence. Kanyi argued that the defendants knowingly, intentionally and willfully destroyed Kanyi's urinalysis test kit, as well as the photocopy of Kanyi' s test kit contained in the logbook. Kanyi further argued that the defendants were aware that both the test kit and the photocopy were relevant to this litigation, and that the defendants therefore had an obligation to safeguard these items for discovery.
Magistrate Judge Pohorelsky denied Kanyi's motion. Magistrate Judge Pohorelsky ruled that there was no reason for the defendants to know that the photocopy of the test kit was relevant to the claims raised in this action at the time the logbook was destroyed. At their depositions, each doctor who treated Kanyi testified that he relied on the test results in the computer before deciding to operate on Kanyi — none relied in any way on the test results as they existed in the test kit, or in the photocopy of the test kit contained in the logbook. (See Tr. at 21-25.) Thus, the Magistrate Judge ruled that the photocopy of the test kit would be relevant in this case only if Kanyi alleged that the doctors were somehow negligent in relying on the urinalysis results in the hospital computer, instead of checking the test kit results directly. The claims asserted in this case, however, merely concern Kanyi's lack of consent to surgery and the alleged malpractice in deciding to perform that surgery.
At oral argument before the Magistrate Judge, Kanyi's counsel abandoned the claim that the test kit itself should have been preserved. (See Tr. at 16.) Even if counsel had not abandoned this claim, an adverse inference charge would still be unwarranted. There was no reason for the defendants to know, more than a year and a half before this lawsuit was commenced, that the test kit itself — as opposed to the hospital computer's purportedly exact duplicate of the information contained therein — would be relevant to some later litigation.
The doctors apparently got these results by telephone. (See Tr. at 21-22.)
Although the claim for negligence pleaded in the complaint is asserted in broad terms, Kanyi's counsel has admitted that the negligence claim concerns the decision to perform surgery, and not the surgery itself. (See Tr. at 55.)
Furthermore, Magistrate Judge Pohorelsky credited the defendants' assertion that they were unaware of the existence of the logbook until September 2000, five months after the logbook had been destroyed. Although Magistrate Judge Pohorelsky believed that a request for production of documents served on the defendants on April 10, 2000, was broad enough (or perhaps overbroad enough) to encompass the logbook, the defendants apparently did not become aware of the logbook's existence until Kanyi specifically requested the logbook in September 2000. For this reason, Magistrate Judge Pohorelsky found that "the worst that can be said about" the destruction of the logbook in April 2000 was that it was "negligent" (Tr. at 56), which was insufficient to warrant an adverse inference charge.
B. Magistrate Judge Pohorelsky's order should be affirmed
"Where one seeks an adverse inference regarding the content of destroyed evidence, one must first show that "the party having control over the evidence.., had an obligation to preserve it at the time it was destroyed."' Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)). Such an obligation usually arises when a party "has notice that the evidence is relevant to litigation — most commonly when suit has already been filed, providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation." Kronisch, 150 F.3d at 126. When a party may be deemed to be on notice is "a function of the variable chronologies along which issues develop in a law suit."Abramowitz v. Inta-Boro Acres Inc., No. 98-CV 4139, 1999 WL 1288942, at *3 (E.D.N.Y. Nov. 16, 1999). "Thus, in one case it may be a discovery request, in another the complaint, in still another correspondence prior to the filing of a complaint, that puts a party on notice that material in its custody is, or reasonably should be considered, admissible evidence which the party has a legal duty to preserve." Id. (citingKronisch, 150 F.3d at 126).
Here, Magistrate Judge Pohorelsky ruled that the defendants were not on notice of the relevance of the test kit photocopy until after it had been destroyed. (See Tr. at 56.) This determination is neither contrary to law nor clearly erroneous. "Relevant evidence" under the Federal Rules of Evidence is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401 (emphasis added). The claims asserted in the complaint concern the defendants' decision to operate on Kanyi without his consent and the allegedly negligent decision by the defendants to operate on Kanyi. While Kanyi's medical records may be relevant to these claims, nowhere do these claims allege, or even suggest, that the defendants were negligent for relying on the test results entered into the computer at Mary Immaculate Hospital. Because it was the reliance on the computer results that formed the basis of the defendants' decision to operate, the photocopy of the test kit is simply irrelevant to the claims raised in the complaint, as Magistrate Judge Pohorelsky ruled. An adverse inference charge therefore was unwarranted. Kronisch, 150 F.3d at 126.
Furthermore, the logbook appears to have been destroyed before Kanyi served his first set of document requests on the defendants (which occurred on April 10, 2000), and Magistrate Judge Pohorelsky found that date was the earliest possible date the defendants were on notice of the logbook's relevance. Thus, Magistrate Judge Pohorelsky ruled that the defendants' destruction of the logbook was, at worst, merely negligent, and an adverse inference charge was therefore unwarranted. This finding was not clearly erroneous. The complaint's broadly pleaded claims in no way suggest that the actual test kit (or a photocopy of the test kit in the logbook) — as opposed to the hospital computer's purportedly exact duplicate of the information contained therein — would have been needed by Kanyi to support his claims. Moreover, even if those broadly pleaded claims should have put the defendants on notice of the relevance of the test kit photocopy, the logbook appears to have been destroyed in accordance with the hospital's pre-existing document retention policy, and not out of any ulterior motive. At bottom, there is simply no evidence indicating that the destruction of the logbook was due to anything worse than negligence on the part of the defendants.
The defendants are unaware of the exact date in April 2000 that the logbook was destroyed.
In addition, even if the logbook was not destroyed prior to April 10, 2000, the request for production served on that date arguably did not place the defendants on notice of the specific relevance of the logbook. Indeed, the request sought the production of "all medical records, results, x-rays, films and/or reports generated" by tests administered to Kanyi; there is no reason to believe that this request should have placed the defendants on notice that a copy of the computer printout, which likely contained an exact duplicate of the information in the logbook, would be insufficient to respond to the request. The Magistrate Judge therefore did not abuse his discretion in accepting the defendants' contention that it was not until September 2000, when Kanyi specifically requested the logbook for the first time, that the defendants first became aware of the relevance of the logbook.
In light of all these facts, and given that no evidence suggests that the test kit photocopy contained information different from that in the hospital computer, an adverse inference charge was unwarranted. See Abramowitz, 1999 WL 1288942, at *6 (adverse inference charge unwarranted where defendant was no worse than negligent in destruction of evidence, and evidence itself "could contain evidence helpful to either side, or to neither side more than the other"). Therefore, Magistrate Judge Pohorelsky's order is affirmed.
III. Magistrate Judge Pohorelsky's Order Regarding Kanyi's Affidavit
A. The factual and procedural background of the motion
Between March 16 and March 31, 2001, each of the defendants moved for summary judgment. In response, Kanyi apparently served, but did not file, an opposition to the defendants' motions, as well as a motion to amend the complaint to assert claims against two officers of the U.S. Customs Service. In support thereof, Kanyi submitted an affidavit which allegedly differs from his deposition testimony. The government therefore moved for an order precluding the submission and/or consideration of the affidavit.
The crux of the government's motion was that Kanyi should not be permitted to submit an affidavit in conflict with his deposition testimony long after discovery in this case had closed. The government argued (and now argues to this Court) that to permit Kanyi to submit such an affidavit would "frustrat[e] . . . the underlying purpose of discovery." (See September 26, 2001 letter brief from AUSA Kevan Cleary to Hon. I. Leo Glasser at 3.) In support of its argument, the government relied on Federal Rule of Civil Procedure 37(c)(1), which provides, in pertinent part:
A party that without substantial justification fails to disclose information required by Rule 26(a) or Rule 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed.
Magistrate Judge Pohorelsky denied the government's motion. The Magistrate Judge held that Rule 37(c)(1) of the Federal Rules of Civil Procedure, by its terms, relates only to (1) automatic disclosures (as required under Rule 26(a)), (2) supplementation of those disclosures (Rule 26(e)(1)), and (3) supplementation of responses to interrogatories, requests for production and requests for admission (Rule 26(e)(2)). Thus, because Rule 37(c)(1) in no way relates to affidavits or deposition testimony, preclusion of the affidavit was unwarranted. Instead, Magistrate Judge Pohorelsky stated that "the typical remedy for changes in testimony like those alleged here is impeachment by use of prior inconsistent statements . . . ." (September 14, 2001 Order at 3.)
B. Magistrate Judge Pohorelsky's order should be affirmed
Though uncited by the government in its papers to Magistrate Judge Pohorelsky, the government now directs the Court's attention to Mack v. United States for the proposition that "a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment." 814 F.2d 120, 124 (2d Cir. 1987). The Second Circuit has reaffirmed this principle on numerous occasions. See, e.g., Palazzo v. Corio, 232 F.3d 38, 43 (2d Cir. 2000) ("in opposing summary judgment, a party who has testified to a given fact in his deposition cannot create a triable issue merely by submitting his affidavit denying the fact") (citation omitted); White v. ABCO Eng'g Corp., 221 F.3d 293, 304 (2d Cir. 2000) ("it is generally accepted that a later affidavit may not supersede a prior deposition"); Thomas v. Roach, 165 F.3d 137, 144 (2d Cir. 1999); Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2d Cir. 1998); Rule v. Brine. Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (citations omitted); Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996). The purpose of this rule is to protect the usefulness of summary judgment as a tool for resolving litigation. See Perma Research Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) ("If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.").
Accord, also, Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995); Trans Orient Marine Corp. v. Star Trading Marine, Inc., 925 F.2d 566, 572-73 (2d Cir. 1991); Reisner v. General Motors Corp., 671 F.2d 91, 93 (2d Cir. 1982); Perma Research Development Co. v. Singer Co., 410 F.2d 572, 577-78 (2d Cir. 1969).
This rule is limited, however, to situations where statements in a later- submitted affidavit actually contradict the testimony in a prior deposition. Palazzo, 232 F.3d at 43 (stating that this principle "does not apply if the deposition and the later sworn statements are not actually contradictory") (citation omitted); ABCO Eng'g, 221 F.3d at 304 ("Although it is generally accepted that a later affidavit may not supersede a prior deposition, that rule only applies when the deposition and affidavit conflict."). The rule is inapplicable where "the later sworn assertion addresses an issue that was not, or was not thoroughly or clearly, explored in the deposition." Palazzo, 232 F.3d at 43 (citation omitted). Stated differently, "a material issue of fact may be revealed by [a party's] subsequent sworn testimony that amplifies or explains, but does not merely contradict, his prior testimony, especially where the party was not asked sufficiently precise questions to elicit the amplification or explanation." Langman Fabrics, 160 F.3d at 112 (quotingRule, 85 F.3d at 1011); accord Hayes, 84 F.3d at 619-20.
Here, Magistrate Judge Pohorelsky assumed arguendo that Kanyi's affidavit conflicted with his deposition testimony, and then ruled, in any event, that Rule 37 of the Federal Rules of Civil Procedure did not support the preclusion order sought by the government. (See September 14, 2001 Order at 2-3.) This determination is neither contrary to law nor clearly erroneous. As Magistrate Judge Pohorelsky correctly noted, the preclusion of evidence under Rule 37 relates only to the types of disclosures required under Rule 26. See Fed.R.Civ.P. 37(c)(1). The government has failed to cite any caselaw supporting its expansive reading of Rule 37, and the Court has failed to locate any case which supports the government's argument.
In fact, a recent decision of the United States District Court for the District of New Jersey flatly rejected the argument the government raises here. In Cannon v. Cherry Hill Toyota. Inc, 190 F.R.D. 147 (D.N.J. 1999), the defendant moved for a preclusion order under Rule 37(c)(1), arguing that such an order was appropriate because the plaintiff, at her deposition, failed to identify a witness' name and address. The court denied the motion, stating:
Defendant . . . completely ignores Rule 37(c)(1)'s express reference to Rules 26(a)
and 26(e)( 1). Rule 37(c)( 1), by its express terms, automatically imposes sanctions against a party who fails to make required disclosures under Fed.R.Civ.P. 26(a) and supplemental disclosures under Fed.R.Civ.P. 26(e)(1) by precluding that party from calling undisclosed witnesses at trial. In the 1993 amendments, a new section was added in Rule 37(c)(1) — automatic exclusion of witnesses and information that were not disclosed despite a duty to disclose under Rule 26(a) or 26 (e)(1). In large measure, this new sanction was intended to put teeth into the mandatory initial disclosure requirements added by the 1993 amendments. 8A Wright, Miller Marcus, Federal Practice and Procedure: Civil 2d § 2289.1 at 704 (West 1994) (internal quotations omitted). Defendant's "Memorandum of Law" contains no discussion whatsoever of Rule 26(a) disclosures and relies completely on Plaintiff's alleged failure to identify Mr. Roberts by last name and to provide Mr. Roberts's current address [at her deposition]. That is, Defendant does not allege anywhere that Plaintiff ignored her Rule 26(a) requirements. Therefore, Rule 37(c)(1) does not entitle Defendant to the relief it seeks. Defendant's motion for Rule 37 sanctions is legally deficient.Cannon, 190 F.R.D. at 157. Magistrate Judge Pohorelsky's order therefore stands on firm legal ground.
Furthermore, the government's reliance on Mack and related cases is misplaced. The government argues that three portions of Kanyi's affidavit contradict parts of his deposition testimony, and that the rule in Mack therefore applies. (See September 26, 2001 letter brief from AUSA Kevan Cleary to Hon. I. Leo Glasser at 4-8.) Yet none of the challenged portions of the affidavit is "inconsistent" such that preclusion of the affidavit would be proper.
The first challenged portion of Kanyi's affidavit concerns the timeline of events after Kanyi was detained at the airport. In his affidavit, Kanyi states that he was threatened with surgery to remove the remaining heroin packets before he was transported to the JFK medical facility (see September 26, 2001 letter brief from AUSA Kevan Cleary to Hon. I. Leo Glasser at 4), while in his deposition Kanyi stated that threats of surgery were not made until after he had been transported to the JFK medical facility (see id.). Although the government is correct that this portion of Kanyi's affidavit conflicts with his deposition testimony, the affidavit is nevertheless consistent with Kanyi's February 9, 2000, response to interrogatories propounded on him by the doctor defendants and the hospital. (See Kanyi's Reply Memorandum of Law dated October 11, 2001, Ex. D at 5 (stating that before being transported to the JFK medical facility, U.S. Customs agents told Kanyi, inter alia, that "you will be operated on so that we can secure the drug packets and get our evidence and exhibits").) In other words, the statements in Kanyi's affidavit are inconsistent with his deposition testimony, but consistent with his earlier interrogatory response. As the Second Circuit noted inPalazzo, consideration of the statements in the affidavit is appropriate in these circumstances because, "where [deposition] testimony is contradicted by evidence other than the deponent's subsequent affidavit,.., the concern that the proffered issue of fact is a mere `sham' is alleviated." 232 F.3d at 43-44 (citation omitted).
The second challenged portion of Kanyi's affidavit concerns Kanyi's statement that he did not pass out at the JFK medical facility. (See September 26, 2001 letter brief from AUSA Kevan Cleary to Hon. I. Leo Glasser at 5-7.) Yet the government admits that this allegedly inconsistent" portion of Kanyi's affidavit amounts to nothing more than Kanyi "embllish[ing] and elaborat[ing]" on his deposition testimony. (See id. at 7.) Simply stated, there is no inconsistency between this portion of Kanyi's affidavit and his deposition testimony; rather, this is exactly the type of "amplification" or "explanation" the Langman Fabrics court held was appropriately considered on a motion for summary judgment, and thus should not be precluded. 160 F.3d at 112 (quotingRule, 85 F.3d at 1011); accord Hayes, 84 F.3d at 619-20.
Finally, the government's argument that the third challenged portion of Kanyi's affidavit "bears no resemblance to the testimony plaintiff gave at [his] deposition" (see September 26, 2001 letter brief from AUSA Kevan Cleary to Hon. I. Leo Glasser at 8), is specious. The government does not indicate how this portion of Kanyi's affidavit contradicts his deposition testimony, and, in any event, this portion of Kanyi's affidavit appears to be nothing more than gratuitous statements by Kanyi in an attempt to arouse the Court's sympathy. (See September 26, 2001 letter brief from AUSA Kevan Cleary to Hon. I. Leo Glasser at 7 ("Imagine lying on a stretcher with both hands shackled to the railing of the stretcher and being told that no matter what you do you are going to be cut open, regardless of how much you beg and plead.");id. at 8 ("I never thought I would be punished in this fashion. I never thought I would be so dehumanized. I will never understand how one human being could do that to another.").) These are not factual assertions which might contradict Kanyi's deposition testimony.
The government also notes that the Court can preclude consideration of Kanyi's affidavit under its "inherent power to protect the administration of justice." (See September 26, 2001 letter brief from AUSA Kevan Cleary to Hon. I. Leo Glasser at 3 (quoting Penthouse Int'l. Ltd. v. Playboy Enters.. Inc., 663 F.2d 371, 386 (2d Cir. 1981)).) A preclusion order under the Court's "inherent power, " however, appears unnecessary in this case. As the Magistrate Judge correctly noted, the government can impeach Kanyi's credibility at trial by offering his inconsistent" statements to the jury. Furthermore, because the affidavit does not appear to contain the type of inconsistencies typically necessary to justify preclusion, preclusion of the affidavit "would amount to . . . an improper inquiry into [Kanyi's] credibility." Susko v. Romano's Macaroni Grill, 142 F. Supp.2d 333, 337 (E.D.N.Y. 2001).
For these reasons, Magistrate Judge Pohorelsky's order was not contrary to law or clearly erroneous. Accordingly, the order is affirmed.