Squitieri v. City of New York, 248 A.D.2d 201, 203 (1st Dept. 1998); see also Conderman v. Rochester Gas & Elec. Corp., 180 Misc.2d 8, 12 (Monroe Co. 1998) (recognizing New York’s adoption of the “spoliator beware” standard).
As the First Department routinely holds, it is the effect of spoliation on the moving party’s ability to litigate its case that is controlling:
Squitieri v. City of New York, supra, 248 A.D.2d at 203.
In another example, the First Department upheld the Supreme Court’s order granting defendants’ motion to dismiss because plaintiffs had willfully discarded audio tapes of meetings. Sage Realty Corp. v. Proskauer Rose LLP, 275 A.D.2d 11 (1st Dept. 2000). In that case, the court held that dismissal was appropriate because plaintiffs willfully discarded the tapes after their duty to preserve was triggered; plaintiffs had a procedure for recording the meetings and even produced some of the tapes; and the destruction severely prejudiced defendants because the substance of the tapes would have revealed whether defendants gave plaintiffs bad legal advice, the substance of plaintiffs’ claims. Id. at 13. In that case, plaintiffs would have been better off if it had not made the audio tapes at all.
Notice and Prejudice Are Key Factors
The threshold factor as to whether spoliation sanctions are warranted at all is whether the alleged spoliator was on notice of the litigation at the time the evidence was destroyed, thereby creating a duty to preserve evidence. Hennessey v. Restaurant Associates Inc., 25 A.D.3d 340 (1st Dept. 2006); Monteiro v. R.D. Werner Co. Inc., 301 A.D.2d 636 (3rd Dept. 2003) (“neither the fact that the plaintiff was gravely injured nor that the Occupational Safety and Health Administration conducted an investigation at the work site the following day put the City on notice of future litigation or a need to preserve the scaffold.”)
If, on the other hand, the alleged spoliator was on notice of the (potential or actual) litigation, sanctions may be, but will not necessarily be, imposed. Kirschen v. Marino, 16 A.D.3d 555, 556 (2d Dept. 2005) (holding that defendants did not demonstrate “severe prejudice” because they had access to photographs of the apartment pre-renovation and, as former tenants, defendants could testify as to the condition of the premises).
Similarly, in a plaintiff homeowner’s claim against a defendant termite exterminator, the court held that spoliation sanctions were not warranted where plaintiff discarded the wood allegedly damaged by termites because severe prejudice was not shown. Popfinger v. Terinix Intern Co. Ltd. Partnership, 251 A.D.2d 564 (2d Dept. 1998).
A review of spoliation law in New York thus indicates that, for anything other than intentional destruction of evidence, where a moving party does not suffer severe or substantial prejudice, particularly where other evidence establishing the same facts exist, spoliation sanctions are not warranted.
What Sanctions May Be Appropriate?
CPLR 3126 provides that “[i]f any party . . . willfully [emphasis added] fails to disclose information which the court finds ought to have been disclosed,” the court may order sanctions, including an order prohibiting the disobedient party from using certain evidence to refute the other party’s claims or defenses. See State Univ. Construction Fund v. Turner Construction Co., 181 A.D.2d 353, (3d Dept. 1992); Strelov v. Hertz Corp., 171 A.D.2d 420 (1st Dept. 1991).
“New York courts therefore possess broad discretion to provide proportionate relief to the party deprived of the lost evidence, such as precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action.” Ortega v. City of New York, 9 N.Y.3d 69, 76 (N.Y. 2007).
The type of sanction appropriate in any given case, therefore, will be case- and fact-specific and lie within the sound discretion of the trial judge, and the ideal outcome will be a sanction (if any) appropriate to restore balance to the parties.
If the foregoing is accepted, the logic of the previously cited cases becomes apparent, as a sanction will be warranted where the movant is prejudiced, but no sanction will be appropriate if the movant is not prejudiced.
A. Adverse Inference. An adverse inference, the efficacy of which is difficult to ascertain, is the most appropriate sanction where the non-moving party itself is relying on evidence other than that which is no longer available and which is equally available to the movant. That the movant prefers to have the spoliated evidence is not enough and should never be the deciding factor for a court considering a spoliation motion.
“However, a less drastic sanction than dismissal of the responsible party’s pleading may be imposed where the loss does not deprive the non-responsible party of the means of establishing his or her claim or defense.” Marro v. St. Vincent’s Hosp., 294 A.D.2d 341 (2d Dept. 2002) (holding that dismissal of plaintiff’s claim was inappropriate where plaintiff had destroyed the motorcycle that was the subject of his complaint because additional evidence existed permitting defendants to mount their defenses, including eyewitnesses, photographs, and an ambulance report).
In the foregoing case, would the defendants have wished to have the motorcycle entered into evidence for their expert to analyze? Of course. Can the defendants’ expert base her testimony on other evidence, including eyewitness accounts, business records and photographs? Of course. Hence, dismissal was inappropriate there, as it would not have restored the balance but, instead, provided a disproportionate result. In cases where other evidence is available and particularly those where plaintiff is relying on the same evidence, sanctions seem inappropriate.
Even where a party willfully destroys evidence despite unequivocally being on notice of potential litigation, courts will not impose the most severe sanction of dismissing a case when there is other evidence available to the parties.
For instance, one court held that dismissal was inappropriate where a plaintiff tennis player who was injured when his foot became entangled in a tennis net alleged that defendant, the facility that operated and maintained the tennis courts, spoliated evidence by destroying the net before trial, despite plaintiff’s clear request to preserve it. Koehler v. Midtown Athletic Club, LLP, 55 A.D.3d 1444 (4th Dept. 2008). In that case, the Appellate Division held that the Supreme Court had abused its discretion by striking defendant’s answer and modified the lower court’s order to provide for an adverse inference against defendant, reasoning that plaintiff could rely on his own testimony as well as photographs of the damaged net to prove his case. Id.
The Fourth Department likewise held that a lower court had abused its discretion in striking a defendant’s answer, even though the defendant sold the fork lift that allegedly caused plaintiff’s damages before plaintiff could examine it. Carroway Luxury Homes, LLC v. Integra Supply Corp., 52 A.D.3d 1187, 1188-89 (4th Dept. 2008) (holding that striking defendant’s answer was inappropriate because discovery was not complete at that point, and thus, it was premature to decide what level of prejudice had been suffered by plaintiff).
It is safe to say that even where evidence is willfully destroyed, if no substantial prejudice ensues, the most severe sanction a movant is likely to achieve will be an adverse inference.
B. Dismissal of a Pleading. Where a party has spoliated evidence resulting in severe prejudice, New York courts have imposed sanctions including summary judgment or dismissal of the action.
Older cases have dismissed claims even where the spoliator only acted negligently. See Mudge, Rose, et al. v. Penguin Air Conditioning Corp., 221 A.D.2d 243 (1st Dept. 1995) (dismissal warranted where plaintiff negligently lost key piece of evidence); Squitieri, 669 N.Y.S.2d at 589 (dismissal of third-party defective design claim warranted where third-party plaintiff spoliated evidence); DiDomenico C&S Aeromatik Supplies Inc., 252 A.D.2d 41 (2d Dept. 1998) (“[w]here, as here, one party has destroyed critical physical proof, such that its opponents are ‘prejudicially bereft of appropriate means to [either present or] confront a claim with incisive evidence’ the spoliator’s pleading is properly stricken in order to obviate a trial that is ‘based on rank swearing contests.’”)
However, more recent cases have suggested that dismissal is normally only appropriate if a movant demonstrates willfulness or bad faith. Weber v. Harley Davidson Motor Co. Inc., 871 N.Y.S.2d 698 (2d Dept. 2009) (holding that, in plaintiff’s action alleging personal injuries caused by a circuit breaker component of a motorcycle, where defendant manufacturer destroyed circuit breaker, striking defendant’s answer was inappropriate because defendant’s conduct was not “willful, contumacious or in bad faith”).
A First Department case has gone as far as stating that, normally, a pleading will only be stricken as a spoliation sanction if the movant demonstrates “deceit.” Melcher v. Apollo Medical Fund Management LLC, 52 A.D.3d 244 (1st Dept. 2008). At the very least, because the negligence versus intentional factor is so critical and so closely tied to whether a party is, in fact, severely prejudiced by the spoliation, a movant should not be entitled to extreme sanctions until the close of discovery. “Whether the destruction of evidence was intentional or merely negligent presents an issue for the trier of fact, and plaintiff failed to establish that without the evidence he would be unable to prove his case.” Id.
Evaluating Prejudice and Penalty
While the factors of whether a party had a duty to preserve evidence at the time of destruction, and intentional versus negligent/innocent spoliation, are fairly straightforward, the critical variable for courts seems to be prejudice. In cases where the movant demonstrates extreme prejudice, for example where there were no witnesses and no photos, and the only piece of evidence that could prove a movant’s claims was destroyed by the spoliator, sanctions are warranted. But the case law is less clear about which levels of prejudice require what types of sanctions.
For example, courts are more likely to award spoliation sanctions if the claim is wholly based on the condition of the missing evidence, as in a products liability suit where the allegedly defective product was lost or destroyed, because in those scenarios the missing evidence is fundamental to the claims and highly prejudicial to the movant. See Kirkland v. New York City Housing Authority, 236 A.D.2d 170, 173-76 (1st Dept. 1997) (dismissing claim based on defective stove where plaintiff negligently destroyed the stove that was the subject of plaintiff’s action).
However, in claims not based upon defective design, the absence of the product itself is not so obviously prejudicial. For example, if a plaintiff is claiming property damage due to a defendant’s negligence, the testimony of eyewitnesses or the existence of alternative evidence such as photographs or reports detailing the damage, may suffice. See discussion of Marro v. St. Vincent’s Hosp., supra.
In any event, it seems clear that the relevant factors, including the level of culpability (intentional conduct versus negligence) and prejudice are issues of fact that must be determined through depositions and discovery, and the level of prejudice will be partially if not wholly dependent upon what type of other evidence is available. For who is to say that without the half-eaten apple a party will be unable to prove that there was, indeed, a worm at its core? And, conversely, who is to say that, even if the half eaten apple containing the worm red handed was available, the moving party could prove the worm was the legal cause? The testimony of the witness, photographs, and reports may be enough, or even more crucial, to proving the claim.
The case law is clear that an accurate finding of prejudice resulting from the absence of one piece of evidence is rarely possible until all of the evidence is in. Thus, a movant seeking spoliation sanctions, especially dismissal, is wise to delay its motion until after the close of discovery.
Michael S. O’Reilly is a partner, and Christopher W. Radcliffe is an associate, in the New York office of Gibbons.
