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First Department Finds that Loss of a Personal Journal Results in Adverse Inference Charge Due to Spoliation of Evidence

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  • Posted on: Dec 2 2022

By Jonathan H. Freiberger

This Blog has previously discussed the discovery process and its relationship to the spoliation of evidence. [See, e.g., [here], [here], [here] and [here].]

Briefly stated, and as summarized from prior articles, in order for litigants to fully prosecute and defend lawsuits, the CPLR permits “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof….”  CPLR 3101.  In order to further the goal of “full disclosure” litigants have a duty to preserve information that may be “material and necessary” to the prosecution or defense of claims in an action.  When information that ought to have been, but was not, preserved it is known as spoliation.  Thus, spoliation “refers to evidence which is destroyed or substantially altered.”  Gilliam v. Uni Holdings, 201 A.D.3d 83, 86 (1st Dep’t 2021) (citation omitted).“Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned.”  Dagro Assoc. I, LLC v. Chevron USA, 206 A.D.3d 793, 794 (2nd Dep’t 2022); see also, Slezak v. Nassau Country Club, 200 A.D.3d 734 (2nd Dep’t 2021) (citations and internal quotations marks omitted).

A party seeking sanctions for the spoliation of evidence “must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense.”  Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543, 547 (2015) (citations and internal quotation marks omitted).  Where the destruction of evidence is intentional or willful, “the relevancy of the destroyed documents is presumed”.  Id. (citation omitted).  Where evidence is negligently destroyed, however, “the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party’s claim or defense.”  Id. (citation omitted).  “The nature and severity of the sanction for spoliation depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of evidence, and the degree of prejudice to the opposing party.”  Delmur, Inc. v. School Const’n Auth., 174 A.D.3d 784, 786 (2nd Dep’t 2019) (Citation, internal quotation marks and brackets omitted.)  Among others, sanctions for spoliation include striking of pleadings or adverse inference charges.  Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 140 A.D.3d 2 (1st Dep’t 2016).

On November 29, 2022, the Appellate Division, First Department, decided Clarke v. Povella, a case involving spoliation of evidence.  The plaintiff in Clarke was injured when struck by a motor vehicle.  [Eds. Note: the facts were obtained from the record on appeal in the Clarke matter – available on the Court’s NYSCEF system.]  As a result of the accident, plaintiff alleged that she suffered from anxiety and mental anguish.  Plaintiff testified at deposition that, at her psychologist’s suggestion, she wrote about these feelings in a journal.  Defense counsel made several unsuccessful requests over a two-year period that the journal be produced.  Ultimately, plaintiff responded to the requests by indicating that the journal could no longer be located due to a recent move.

Defendant moved for spoliation sanctions as a result of plaintiff’s failure to produce the relevant entries for her journal.  Supreme court denied the motion and defendant appealed.  The First Department “unanimously modified, on the law and in the exercise of discretion, to grant the motion to the extent of imposing an adverse inference charge at trial” and, in so doing, stated:

Spoliation sanctions are warranted under the circumstances here. Plaintiff was under an obligation to preserve her journal once defendants made a demand for it at her deposition, and her subsequent failure to take steps to preserve it, along with her vague accounts of when and how she had lost it, supports a finding that she was grossly negligent, giving rise to an inference that the journal would have been relevant to her claim for emotional and psychological damages. Nevertheless, the extreme sanctions of dismissal of the complaint or preclusion are unwarranted, in view of the fact that plaintiff had provided authorizations for records of her psychological treatment and testified extensively to her emotional and psychological state. Rather, we find that an adverse inference charge at trial is sufficient and appropriate.

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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