SPOLIATION OF EVIDENCE
Print Article- Posted on: Oct 7 2022
By Jonathan H. Freiberger
Section 3101 of the CPLR provides that, in general, “there should be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” by, inter alia, a party and its representatives. “Material and necessary” is “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406 (1968) (citation omitted). The CPLR provides many mechanisms by which litigants may obtain information from parties to the litigation or third-parties. Indeed, as recognized by the Allen Court, the exchange of “material and necessary” information is an important part of litigation.
Thus, in order for the discovery process to be meaningful, and for the purposes of discovery to be furthered, individuals or entities that are involved, or anticipate being involved, in litigation have a duty preserve “material and necessary” information. When information is not preserved when it ought to have been, it is known as “spoliation”. [Eds. Note: the duty to preserver and spoliation have been addressed in this Blog [here], [here] and [here].] 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).
When sanctions are sought for spoliation, a party “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 a trier of fact could find that the evidence would support that claim or defense.” Phelps-Vachier v. Genovese Drug Stores, Inc., 207 A.D.3d 582, 583 (2nd Dep’t 2022) (citations and internal quotation marks omitted); Teodoro v. C.W Brown, Inc., 200 A.D.3d 999, 1000 (2nd Dep’t 2021). “A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence.” Phelps-Vachier, 207 A.D.3d at 583. However, when spoliation is based on negligence the party seeking a spoliation sanction is required to “establish that the destroyed evidence was relevant to the party’s claim or defense.” Phelps-Vachier, 207 A.D.3d at 584 (citations and internal quotation marks omitted).
Sanctions for spoliation include, but are not limited to, striking pleadings and negative inferences and “Supreme Court is empowered with broad discretion in determining the appropriate sanction”. Phelps-Vachier, 207 A.D.3d at 584 (citations and internal quotation marks omitted).
Phelps-Vachier is a slip and fall case in which plaintiff’s counsel sent a notice to preserve three hours of video surveillance footage to the defendants. However, only thirty-five minutes, beginning twelve seconds before the accident, was preserved. Defendants opposed plaintiff’s spoliation motion pursuant to CPLR 3126 “on the grounds that their failure to preserve the requested footage was inadvertent and the absence of such footage did not deprive the plaintiff of the ability to prove her case.” Supreme court and the Second Department agreed, although the Appellate Division denied the motion without prejudice to renewal upon the completion of discovery.
Slezak was a personal injury action in which plaintiff fell down stairs due to buckling carpeting. On two occasions, plaintiff failed to avail herself of defendants’ offer to inspect the stairs before the carpeting was removed and replaced. After plaintiff was advised of the removal, she made a spoliation motion, which was denied. The Appellate Division affirmed holding that “the plaintiff failed to demonstrate that the removal of the subject carpeting was willful or contumacious, or that the loss compromised the plaintiff’s ability to prove her case.” Slezak, 200 A.D.3d at 734 (citations omitted).
While spoliation often relates to documents and inanimate objects, the Court in Gilliam was faced with a spoliation motion because the personal injury plaintiff (complaining of a back injury) had corrective spine surgery prior to her IME. “Supreme Court denied defendant’s motion to dismiss but sanctioned plaintiff by precluding her ‘from offering any evidence regarding an injury or surgery to her L4-L5 disc or recovering any damages for said injury or surgery’”, finding that plaintiff was required to keep “body parts in an intact state available to all parties for review”. To support its decision, supreme court relied on “other trial court decisions and held that a plaintiff who submits to non-emergency and non-life-threatening surgery prior to a court-ordered physical examination has committed spoliation of evidence.” (Citations and internal quotation marks omitted.) The First Department disagreed, determinig that supreme court decisions so holding same “should not be followed”, and held that “the condition of one’s body is not the type of evidence that is subject to a spoliation analysis.” [Eds. Note: the Gilliam court noted that spoliation analysis has long been applied to a party’s destruction of inanimate evidence and cited to a litany of illustrative cases with the type of inanimate object that was the subject of each case.]
The Appellate Division, Second Department, addressed these issues in its October 5, 2022, decision in Matthews v. Geothermal Energy Options, LLC. Matthews is a breach of contract case related to the installation of a geothermal HVAC system. When plaintiff failed to release payment funds due to the souring of the parties’ relationship, the previously installed system components were removed by defendant’s employees. Plaintiff then commenced a breach of contract action in which he moved for an order striking defendant’s pleading based on the removal of the HVAC system components. The Appellate Division affirmed the denial of that motion, holding that:
Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to strike the defendants’ pleadings as a sanction for spoliation of evidence. The plaintiff failed to establish that the defendants possessed an obligation to preserve, in anticipation of litigation, the GHVAC component parts that had been installed on the plaintiff’s property. Moreover, although the value of the GHVAC component parts that were installed on the plaintiff’s property is potentially relevant to this litigation, the plaintiff further failed to demonstrate that examination of the particular GHVAC component parts that were installed is necessary to prosecute this action against the [parties]. Accordingly, the sanction of striking the defendants’ pleadings was not warranted in this case. [Citations omitted.]
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.
