Spoliation sanctions need to be proportionate to the offense and counsel should take care not to overreach in its demand. Then the sanction, if granted, needs to be definite and have “teeth” in order to be effective and have a meaningful effect. Counsel should consider crafting the proposed specific relief and not leave it to the court to craft its own adverse order. In the end, if spoliation is sought on an inadequate record, it will be denied. However, if there still remains a “smell” to the “spoliation” facts, as discussed below, courts have creative options in their arsenal.

In Brandsway Hospitality v. Delshah Capital, 173 A.D.3d 457 (1st Dept. 2019), the First Department affirmed the motion court ordering that an information technology expert examine the issue of email deletion and retrieval before ruling on spoliation. A detailed affidavit specifying what the motion court wanted explained to it was required in Kohl v. Trans High, 2019 N.Y. Misc. LEXIS 5613 (Sup. Ct. N.Y. Co. Oct. 15, 2019), before spoliation would be considered. If granted spoliation sanctions need to be proportional and motion courts in ABL Advisor v. Patriot Credit Co., 2019 N.Y. Misc. LEXIS 4826 (Sup. Ct. N.Y. Co. Sept. 3, 2019), and in Dantzig v. ORIX AM Holdings, 2019 N.Y. Misc. LEXIS 5464 (Sup. Ct. N.Y. Co. Oct. 4, 2019), refused to dismiss a pleading and/or issue a preclusion order due to spoliation, but, instead, set out in detail the adverse inference it would issue so the parties would not have to wait for trial to learn it for the first time, and would have the opportunity early on to appreciate the significance of the precise adverse inference.

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