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(Preserve) All The Evidence, Men (NY)

June 29, 2018

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Most lawyers and insurance professionals know the importance of preserving evidence when a claim is asserted against an insured.  But insureds who are not involved in litigation as a matter of course often express the displeasure of the taking the time necessary to collect and preserve all relevant information.  As the recent First  Department decision in <em><a href="">Davis v. Pathmark</a> </em>makes clear, the consequences for failing to take that time to preserve evidence, in a thorough, if not exhaustive manner, can be disastrous.
In <em>Davis</em>, the store being sued provided video surveillance footage of the plaintiff slipping and falling in the store along with 30 seconds of footage before the fall.  The problem was that the defendant deleted all other footage from that day.  According to  the trial court and the First  Department, that selective editing may have prevented the plaintiff from making its case about the origin of the liquid on the floor that caused the accident.  Thus, the court struck the defendant's answer.
It may well be that the defendant in <em>Davis </em>acted in good faith by providing what it thought was relevant evidence.  But insureds often make poor judges of what may or may not be relevant or discoverable in litigation.  <em>Davis </em>should serve as a reminder to lawyers to instruct their clients to preserve all evidence when a suit is filed and to insurance professionals to request that all information be preserved when a claim is first submitted.  Thanks to Mike Gauvin for his contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.

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