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Change Of Testimony Defeats Spoliation Motion

August 5, 2011

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In Deprado v. Planet Sushi, (Civil Court, New York County) plaintiff claimed that the “special sauce” served with her sushi contained semen. She had a sample examined by a lab, but the tests were inconclusive. The lab informed plaintiff that the sample would be discarded after six months, and neither plaintiff nor her attorney retrieved the sample. Defendant moved to dismiss the complaint based upon spoliation.
Plaintiff testified at her deposition that she destroyed or discarded all samples of the sauce. However, in an errata sheet to her deposition transcript plaintiff claimed she still had a sample in her freezer. This was sufficient to defeat the spoliation motion. The court noted that defendants can still move to dismiss if the sauce did not contain semen, and could use plaintiff’s inconsistent testimony at trial. However, the change in testimony was sufficient to defeat a spoliation motion.
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