tend to envision someone intentionally destroying evidence so
as to get rid of it quickly to cover
something up. However, in New York State, the law concerning spoliation has been extended to the non-intentional destruction of evidence. In fact, under New York law, spoliation sanctions can
be imposed even where a litigant
negligently disposes of crucial items of evidence before the adverse party has an opportunity to inspect them.
One court recently dismissed a plaintiff's case where the plaintiff alleged property damage but failed to produce, or preserve, the property that the plaintiff was claiming was damaged. Plaintiff's counsel never informed the defendant or the Court, until it was too late, that the damaged property that was the subject of the lawsuit had been disposed of. The plaintiff did not offer any explanation for why the property was destroyed, and there was no evidence to show the
plaintiff's actions were intentional. So, one may wonder,
then why was the case dismissed? The Court ruled that even if the plaintiff failed to preserve the property because of mere negligence, he had to know that the allegedly damaged property was integral to the prosecution of his action when he filed the lawsuit and did not need to wait for a discovery request from the defendant to know that crucial evidence should have been preserved.
While dismissal of a case is extreme, one of the more common, but still very damaging spoliation sanctions,
is when a court precludes certain evidence or testimony
to be introduced at the time of trial. Very recently a
court precluded a plaintiff from offering key documents
into evidence at trial which consisted of hard copies of
printed computer files because the plaintiff disposed of
a computer that contained the actual electronic files.
In that case, the plaintiff, a diamond dealer, alleged
that the defendant, its broker, never intended to pay
for diamonds it acquired from the plaintiff. The plaintiff
claimed that the computer subsequently "broke" and, accordingly, threw it away. While plaintiff's bookkeeper
testified that the electronic files were deleted and plaintiff produced hard copies of non-deleted files, the disposal of the computer prevented the defendant from conducting a forensic examination of the hard drive to locate other discoverable "metadata." As a result, the court precluded the use of these documents altogether, as well as the bookkeeper's testimony that he was never told to preserve electronic data.
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