Wade Clark Mulcahy LLP

Generally, in an action to recover damages for personal injuries, the parties have an ongoing obligation to preserve evidence related to the litigation, e.g. the law does not allow you to either destroy or fail to safekeep evidence (with additional contexts taken into consideration). If a party were to so destroy or fail to safekeep evidence, it would be considered the ‘spoliation of evidence’; an allegation which requires establishing certain elements. So, what happens when a party alleges spoliation on their counterpart(s)? Who or what determines what is or isn’t evidence related to a litigation or whether spoliation did or did not occur?

On August 21, 2024, in Jennifer Schaum v. Glass Gardens, Inc., et al., 2024 N.Y. Slip Op. 04276, the Appellate Division, Second Department, shed light on this subject area.

In Schaum, the plaintiff, a supermarket shopper, slipped and fell on a white substance she believed to be sour cream. The next day, the plaintiff’s attorney notified the defendants’ supermarket to “preserve any and all such video recordings” of the accident. Months later, the plaintiff filed an action to recover damages for personal injuries against the defendant supermarket, and, in August 2021, the plaintiff’s attorney served their initial discovery demand requesting approximately three (3) hours of video footage prior to the slip and fall. As for the defendants’ supermarket, they preserved approximately thirty (30) minutes worth of video footage [which began approximately eight (8) minutes prior to the accident]. The plaintiff’s attorney then served a supplemental discovery demand for the same previously demanded three (3) hours of prior video footage. The defendants’ supermarket responded that there was no additional video footage beyond what they had already provided.

Pursuant CPLR § 3126, the plaintiff’s attorney moved to strike the defendants answer for the spoliation of video surveillance. The defendants’ supermarket opposed the motion arguing that their failure to preserve the unexchanged portions of the demanded video footage did not deprive the plaintiff of her ability to prove her claim. The lower Supreme Court denied the plaintiff’s motion and she appealed.

In reviewing the case, the Second Department noted that a party seeking sanctions for spoliation of evidence must show: (i) that the party with control over that evidence had an obligation to preserve it at the time of its destruction; (ii) that the evidence must have been destroyed with a culpable state of mind, of which includes ordinary negligence; and (iii), that the destroyed evidence would support a party’s claim or defense. Ultimately, the Second Department agreed with the lower Supreme Court and held that the plaintiff failed to show that the ‘destroyed’ evidence, being the non-exchanged three (3) hours prior to the accident, somehow deprived her of her ability to prove her claim.

While parties may, at times, seemingly jump at the chance to allege the spoliation of evidence, the Schaum case illustrates the value of ensuring the above elements are established before moving to do so, otherwise their efforts may be ‘spoliated.’

Thanks to William Hoffman for his contribution to this article.