No Notice, Proceed With Destroying The Tape (NY)
In Tanner v. Bethpage, the infant-plaintiff tripped over a metal chain while running during gym class. The accident occurred in April of 2015 but the plaintiff did not commence an action against the school district until January 2016 and did not send a letter to the school asking that they preserve any surveillance video until August of 2016. At the time of its deposition, the school testified that there was no surveillance footage because it was auto-erased 30 days after the accident. The plaintiff moved to sanction the defendant for spoliation of evidence, arguing that the school should be precluded from offering any evidence at the time of trial and that the plaintiff should, thus, prevail on its liability claims. The lower court denied the motion and plaintiff appealed.
The Second Department held that a party will be sanctioned for destroying evidence, such as surveillance videos, if the party had an obligation to preserve the evidence at the time it was destroyed, acted culpably when destroying the evidence, and the evidence was relevant to the plaintiff’s action. The Appellate Division further stated that, without litigation being commenced or without a notice of the claim being served, a party cannot be sanctioned if the evidence is destroyed in good faith and pursuant to normal business practices. Given that the plaintiff did not commence a suit until almost eight months after her accident and did not send a preservation letter to the school prior to that date, the Court held that there was no evidence that the school intentionally or negligently allowed the video to be erased.
Frequently, our clients have surveillance cameras on their property or in their businesses. Typical cameras auto-erase videos every 30 days. Accordingly, our clients rarely maintain videos of accidents that they knew nothing about until being served with litigation papers months, or years later. When counsel for plaintiffs threaten to move to sanction our clients, we can confidently report that such threats are empty, absent direct notice to our clients that an accident occurred and that preserving such a video was required of them.
Thanks to Georgia Coats for her contribution to this post. Please email Vito A. Pinto with any questions.