There is always a risk of evidence being spoliated in a case. Things can be unwittingly misplaced in the least severe case or intentionally destroyed in the most severe. However, just becausetheevidencewas lost ordestroyed does not always mean that thespoliating party is liable for sanctions. While a court does have generally wide discretion to award sanctions, in order to warrant it, a party must show: (1) that the evidence sought was key to that party’s claim/defense; (2)wasinpossessionoftheallegedlyoffendingparty; (3) that the offending party hadanobligation to preserveit at thetime ofspoliation; and (4) that theoffending party had the requisite state of mind, which includes ordinary negligence. Generally, if the offending party does not have knowledge of a pending or to-be-filed litigation and gets rid of the evidence pursuanttotheirstandardbusinesspractices,suchasauto-deletingsurveillancevideoafter30days or shredding papers after the requisite number of years it had to be held, then they will not be sanctioned.
This was the case in DeVeerdonk v. North Westchester Restorative Therapy and Nursing Center. Thedecedent was apatient at anursing and therapy center where she suffered two falls. The first fall was caught on camera in November 2013, but automaticallyoverwrittentwoweekslater.Plaintiffwasdischargedtoherhomein2014anddied in 2015. The lawsuit in this case was not filed until November 2016, almost exactly three years later.ThePlaintiff sought sanctionsfromthenursinghomeforthis,buttheCourtdeniedthem, finding that at the time the footage was automatically deleted, the nursing home lacked the requisite notice to preserve the footage to warrant awarding Plaintiff sanctions. The Second Department agreed with the trial court and upheld the denial.
Inshort,ifyoudon’thavereasontothinkyou’llbegettingsuedanytimesoon,youshould be able to get rid of those old papers or property you no longer need.