New York state courts are increasingly turning to federal Zubulake standards when confronted with spoliation of electronic evidence issues. However, in dealing with garden variety spoliation of evidence scenarios, not involving ESI, New York courts have generally engineered their own solutions without turning to federal common law for guidance. We previously addressed how New York courts address ESI spoliation.
Pursuant to the common law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned. There may be circumstances where the destruction is so egregious that the offending party’s pleading may be stricken where no other remedy will achieve a fundamentally fair outcome.
In their article, “Remedies for Spoliation of Evidence,” published in the New York Law Journal on March 27, 2012, Plaintiff lawyers Robert S. Kelner and Gail S. Kelner provide a good overview of how state courts address spoliation of evidence and the circumstances under which a court will impose the “ultimate sanction.”
Unlike some states, New York does not recognize an independent tort claim for third-party negligent spoliation of evidence. In a 2007 Court of Appeals case, Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773 (2007), the City of New York was under a court order to preserve an impounded vehicle so that the cause of a vehicular fire could be determined by forensic analysis. Due to negligence, the City of New York failed to preserve the vehicle. Despite this negligent destruction, the court declined to establish an independent tort of spoliation of evidence, pursuant to which a tort action against the City of New York might have been pursued. In declining to establish a spoliation tort, the court explained that there was “no way of ascertaining to what extent the proof would have benefited either the plaintiff or defendant in the underlying lawsuit and it is therefore impossible to identify which party, if any, was actually harmed.” Applying this logic, the Ortega court stated that an independent cause of action was not viable because it would recognize a claim that, by definition, could not be proved without resort to speculation. However, speculative the damages that might have resulted from spoliation in Ortega, New York courts have not hesitated to levy sanctions when a party has destroyed evidence.
New York courts have been willing to strike an offending party’s pleading when it can be shown that a party destroyed key evidence which deprived the adversary of its ability to prove its claim or defense. The court may also, in its discretion, apply any number of remedies short of striking the pleading. These remedies include an “adverse inference” (where the jury is instructed that it may infer that the missing evidence, if available, would tend to inculpate the spoliating party), or preclusion of testimony at trial. Generally, in crafting an appropriate sanction, the trial court will consider two factors first and foremost: (1) whether the destruction was willful; and (2) the resultant prejudice. Prior to bringing a spoliation issue to the court's attention, the practitioner should document by every means possible the intentional nature, if appropriate, of the spoliation at issue through investigation and discovery.