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Spoliation of Evidence: A Kinder, Gentler Sanction

January 16, 2013

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In today’s technological world, video surveillance is becoming more and more common. However, many security systems delete footage after a preset interval like thirty-days.  After a deletion is discovered, a plaintiff will likely move for sanctions on the grounds that there was “spoliation” of evidence. Plaintiffs typically ask for the defendant's answer to be stricken, but will be satisfied with the lesser sanction of excluding the damning footage at trial.
As the<em>J<a href="">ennings v Orange Regional Med. Ctr</a>  </em>suggests, courts should find that, in most cases, preclusion is too harsh a sanction. Rather, the appropriate penalty may be an adverse inference jury charge at trial, which gives defense counsel the opportunity to offer an explanation for the destruction or argue that the “missing” footage is not relevant or necessary for the jury to decide plaintiff’s case.
In <em>Jennings</em>, the plaintiff was assaulted at the defendant’s medical facility. Despite having received an immediate written demand for the footage, the hospital did not preserve the videotape footage. The plaintiff then sued the hospital alleging inadequate supervision and requested the production of the video footage during discovery. The defendant admitted its mistake and the plaintiff moved to strike the defendant's answer. The Supreme Court partially granted plaintiff’s motion and precluded the defendant from introducing evidence at trial that the alleged perpetrator was properly supervised at the time of the incident.
The Second Department reduced the sanction from outright preclusion to a adverse inference jury charge. The Appellate Division held that plaintiff did not demonstrate that she was left "prejudicially bereft" of the means of prosecuting her claim. Thus, the lesser sanction of an adverse inference/missing evidence jury charge was appropriate because plaintiff was not deprived of the ability to establish her case. The Appellate Division reasoned that plaintiff could still testify about how and where the incident occurred and subpoena other individuals who may have witnessed the incident.
Where a party fails to preserve video footage after an accident, Courts may impose sanctions based on the spoliation of evidence. To avoid the harsh penalty of preclusion or worse, an attorney must establish that the evidence is available through other means (i.e. eye witnesses are available). If so, the defense may avoid the striking of its defense or preclusion of the video footage and be forced to deal with the more manageable sanction of an adverse inference/missing evidence jury charge.
Thanks to Bill Kirrane for his contribution to this post. If you have any questions, please email Paul at <a href="mailto:"></a>.


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