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WhatsApp With Your Spoliation of Important Cell Phone Information

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  • Posted on: Mar 17 2023

By Jonathan H. Freiberger

This Blog has frequently addressed the interplay between document discovery in litigation and the repercussions resulting from the spoliation of evidence.  [See, e.g., [here], [here], [here], [here] and [here].]  “Spoliation” refers to evidence that is “destroyed” “substantially altered” or “lost”.  See, e.g., Gilliam v. Uni Holdings, 201 A.D.3d 83, 86 (1st Dep’t 2021); Dagro Assoc. I, LLC v. Chevron USA, 206 A.D.3d 793, 794 (2nd Dep’t 2022).

Briefly stated, and as summarized from prior articles, to fully prepare for trial, 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.  “Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned.”  Dagro, 206 A.D.3d at 794; 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 March 14, 2023, the Appellate Division, First Department, decided RCSUS Inc. v. SGM Socher, Inc., in which the Court affirmed supreme court’s grant of plaintiff’s motion for an adverse inference due to spoliation of evidence on a cell phone. The First Department explained:

After this case was commenced, and despite oral instruction from counsel to maintain relevant documents, defendant Yosef Greenwald gave his assistant his iPhone, which he had used regularly for business communications. His assistant then, by sending messages of her own, overwrote his WhatsApp communications with plaintiffs’ sales representative concerning matters of central relevance to this case. The communications proved to be irretrievable. Accordingly, the motion court acted properly in granting the adverse inference precluding defendants from contesting that the payments defendants made to plaintiffs’ former sales representative during the periods when WhatsApp chats had been deleted, were commission payments made for diverted sales that would have gone to plaintiffs but for defendants’ actions. In light of the adverse inference, the court properly granted plaintiffs summary judgment as to liability on their unfair competition claim.


Folks rely heavily on cell phones and other electronic devices when conducting their personal and professional business.  Accordingly, a significant amount of information is stored on these electronic devices.  Exacerbating the potential for unintentional spoliation is heavy reliance on electronic storage of information simultaneously with the increasingly accepted view that paper files are a thing of the past.  Individuals and entities should consider such steps as are necessary to ensure that electronic information is retained and accessible from multiple sources so that, in the event of litigation, penalties are not assessed due to spoliation.  Obviously, storage and retention issues solutions will have no impact on intentional spoliation.

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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