
    JOE HAND PROMOTIONS, Plaintiff, v. SPORTS PAGE CAFE, INC., d/b/a Sports Page Cafe, Thomas Russo, Joseph V. Maio, 40 3rd Street Corp., d/b/a Lajas Night Club, Las Marvalillas, Inc., d/b/a Las Maravillas, Inc., Manuel Rodriguez, Beerball, Inc., d/b/a Domyon’s Courtside Pub, Richard L. Ruberto, Quinones, Inc., d/b/a Hector’s Sports Bar, Hector Quinones, United Puerto Rican Council, d/b/a United Puerto Rican Council, Virginia Martinez, Frances Velazguez, and Filomena Aponte, Defendants, United Puerto Rican Council d/b/a United Puerto Rican Council, Counter-Claimant.
    Civil Action No. 95-5109.
    United States District Court, D. New Jersey.
    Aug. 15, 1996.
    Alan Gelb, Cherry Hill, NJ, for Plaintiff.
    Walter J. Tencza, Passaic, NJ, for Defendants Beerball, Inc., t/a Domyon’s Courtside Pub; Richard L. Ruberto; Las Maravillas, Inc.; Manny Rodriguez; and Hector’s Sports Bar and Hector Quinones.
   POLITAN, District Judge.

Before the Court comes a matter of moment

Sanctions are sought in various forms

For alleged violations of discovery norms.

Defendants are asking that this Court now impose

Sanctions on plaintiff who failed to disclose

Materials they say are vital to their case,

If plaintiffs claims they must eventually face.

The matter arises from the alleged display

Of a boxing match, which plaintiff does say

The defendants screened while not bothering to pay,

Which they oughtn’t to do, but they did anyway.

The genesis happened on an April night

When plaintiff promoted a boxing fight

And transmitted it live for the usual fee

For paying subscribers to watch on T.V.

The bout was between Messrs. Holmes and McCall

Whose pugilistic talents are well-known to all.

The match evoked international attention

But the outcome herein shall go without mention.

Defendants allegedly exhibited the match

In their respective taverns for their patrons to catch.

Plaintiffs complaint is based on that section

Installed in the Code for easy inspection

Which forbids such transmissions, recorded or live:

47 U.S.C. Section 605.

Plaintiff, the promoter, is asserting his right

To receive compensation for transmitting the fight.

On the night in question plaintiff sent out

Detectives to find who was showing the bout

Without paying for the privilege as they properly ought

In the vain expectation that they wouldn’t be caught.

Investigator Mesis was among the hired legions

Who searched for non-payers in several regions.

He sought out bar-owners at many locations

To detect, if he could, ongoing violations

Of Section 605, ha, screening the fight

Without paying their dues as they ought to, of right.

On detecting a sponger at each new location

He’d vacate the premises and begin recitation

Of his recent detections on a micro-recorder

Or he’d jot down his notes — we’re not sure of the order.

He later transcribed these in legible form;

Then mislaid the cassette(s), as may well be the norm.

So his taped observations are no longer around

Be they lost or destroyed, they cannot be found,

Because Mesis transcribed and failed to preserve them

Or otherwise keep them, or hold or conserve them.

So now come defendants with their formal epistle

Seeking several sanctions, including dismissal;

Or, alternatively, they ask for a jury instruction

Adversely inferring intended destruction

Of relevant evidence; or else that the Court

Preclude any mention of the Mesis report;

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 plaintiffs 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 ease, although sans the recorder;

Attached can be found an appropriate Order.

ORDER

THIS MATTER comes before the Court on defendants’ motion to dismiss and/or for sanctions for plaintiffs 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.CivJP. 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. 
      
      . The moving defendants herein are Beerball Inc. T/A Domyon’s Courtside Pub, Richard L. Ruberto, Las Maravillas Inc., Manny Rodriguez, Hector's Sports Bar, and Hector Quinones.
     
      
      . Specifically, April 8, 1995.
     
      
      . 47 U.S.C. § 605(e)(3)(C)(i)(II) permits one injured under Section 605(a) to “recover an award of statutory damages for each violation ... in a sum not less than $1,000 or more than $10,000____” Section 605(e)(3)(C)(ii) permits enhancement of each award by as much as $100,000 per violation on a finding that it was “committed willfully and for the purpose of direct or indirect commercial advantage or private financial gain----”
     
      
      . See Exhibit A to Plaintiff's Opposition Brief, page 4, lines 10-12.
     
      
      . See Mesis’ deposition transcript, pp. 6-7.
     
      
      . Id. at page 7.
     
      
      . See Defendants' Letter Brief in Support of Motion to Dismiss, for Sanctions, for Suppressing Testimony and Evidence, and for Drawing an Adverse Inference at Trial.
     
      
      . Id. Presumably, defendants’ motion is premised upon Fed.R.Civ.P. 37. The Court notes, additionally, that the sanction of dismissal is particularly severe and ought to be employed only sparingly. See, e.g., Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988), cert. denied, 488 U.S. 1005, 109 S.Ct. 786, 102 L.Ed.2d 777 (1989). See also Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984) (listing six factors to consider in imposing sanction of dismissal).
     
      
      . See generally Rogal v. American Broadcasting Co., Inc., 74 F.3d 40 (3d Cir.1996).
     
      
      . Id.
      
     
      
      . See generally Federal Rules of Evidence.
     
      
      . Id.
      
     
      
      . Spoliation, under New Jersey law, contemplates violation of a party’s duty to preserve evidence where there is "(1) pending or probable litigation involving the defendants; (2) knowledge by the plaintiff of the existence or likelihood of litigation; (3) foreseeability of harm to the defendants, or in other words, discarding the evidence would be prejudicial to the defendants; and (4) evidence relevant to the litigation.” Hirsch v. General Motors Corp., 266 N.J.Super. 222, 250, 628 A.2d 1108 (Law Div.1993) (treating of spoliation generally). See also PBA Local No. 38 v. Woodbridge Police Dep’t, 832 F.Supp. 808, 833 n. 25 (D.N.J.1993); Viviano v. C.B.S., Inc., 251 N.J.Super. 113, 597 A.2d 543 (App.Div.1991), certif. denied, 127 N.J. 565, 606 A.2d 375 (1992).
     
      
      . The Court has decided the matter on the papers, without oral argument, pursuant to Fed.R.Civ.P. 78.
     
      
      . See Fox v. Mercedes-Benz Credit Corp., 281 N.J.Super. 476, 482, 658 A.2d 732 (App.Div.1995) (concealment or destruction of evidence must be intentional for spoliation to be found) (citing Viviano, supra, 251 N.J.Super. 113, 597 A.2d 543).
     