Wade Clark Mulcahy LLP

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 because the evidence was lost or destroyed does not always mean that the spoliating 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) was in possession of the allegedly offending party; (3) that the offending party had an obligation to preserve it at the time of spoliation; and (4) that the offending 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 pursuant to their standard business practices, such as auto-deleting surveillance video after 30 days 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. The decedent was a patient at a nursing and therapy center where she suffered two falls. The first fall was caught on camera in November 2013, but automatically overwritten two weeks later. Plaintiff was discharged to her home in 2014 and died in 2015. The lawsuit in this case was not filed until November 2016, almost exactly three years later. The Plaintiff sought sanctions from the nursing home for this, but the Court denied them, 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.

In short, if you don’t have reason to think you’ll be getting sued anytime soon, you should be able to get rid of those old papers or property you no longer need.