The common law doctrine of spoliation permits the sanctioning of a party where that party negligently loses or intentionally destroys key evidence. The burden of demonstrating that party’s intentional or negligent disposal rests with the litigant moving for sanctions, who must also demonstrate that the lost evidence was critical and the litigant’s ability to provide its claim or defense was fatally compromised as a result.
The question of what sort of sanction is appropriate was at issue in the case <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/09/Peters-v-Hernandez-2016-NY-Slip-Op-05983.pdf">Peters v. Hernandez</a></em>, in which a tavern disposed of a video recording of the incident in question. This decision is discretionary based on considerations of fundamental fairness. The court must evaluate the prejudice that resulted from the spoliation to determine whether the drastic relief of striking a party’s pleading is warranted or if a lesser sanction is more appropriate.
In <em>Peters</em>, the Appellate Divison, Second Department, found that the lower court improvidently exercised its discretion in striking the answer of the appealing defendants. While the plaintiff did demonstrate that the tavern negligently disposed of the video of the subject incident, his ability to prove his case was not fatally compromised. The Court found that the appropriate sanction would have been an adverse inference charge given to the jury at the time of trial.
Thanks to Lauren Tarangelo for her contribution.
For more information, contact Denise Fontana Ricci at <a href="mailto:firstname.lastname@example.org"><u>email@example.com</u></a>