Recent state court decisions have grappled with the appropriate sanction for non-willful spoliation of electronically stored information (ESI) and, as noted in Arbor Realty Funding v. Herrick, Feinstein,1 the spoliation “sanction must reflect ‘an appropriate balancing under the circumstances.’” As such, in non-willful spoliation disputes, often courts are not striking pleadings or issuing preclusion orders but instead are issuing adverse or negative inference instructions to the jury. A recent motion court decision in Auffarth v. Harold Natl. Bank,2 however, expressed concern that instructing the jury with an adverse inference was “tantamount” to giving one side a victory on an issue and thus, as an alternative, decided that it would instruct the jury with a missing document charge in the event the defendant contested a certain issue.
Often neither the mens rea of a party’s intent relating to the destruction of ESI is at issue nor is the relevance of the ESI, and thus a litigator needs to strategize carefully what sanction to seek that would achieve for its client relief commensurate with the conduct at issue, while still maintaining credibility with the court. The frustration, however, experienced by a party (and its counsel) whose ESI has been spoliated is that the issuance of a curative jury instruction may constitute “snow in the winter” as very few cases go to the jury. Thus, a court’s sanction of ordering a curative instruction often bears no real consequence to the spoliating party. Courts, no doubt, are aware of this inherent problem with spoliation sanctions and, in Arbor Realty, the First Department, after reversing the motion court’s striking of the complaint and ordering that an adverse inference charge be issued as the spoliation sanction, addressed that issue in part by expressly ruling that the “modification of the motion court’s order is without prejudice to [defendant] seeking dismissal of the complaint or other spoliation sanctions in the future, should there be further revelations making such a motion appropriate.”
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
