The plaintiff or defendant in your case destroyed a piece of evidence you deem essential to your case. You liken the spoliation to Arthur Andersen shredding documents for Enron and seek the ultimate sanction of dismissal of the case (plaintiff's spoliation) or striking the answer (defendant's spoliation). New York courts have a different idea, though.
In a recent New York Appellate Division, First Department appeal -- Clarke v Povella -- the spoliation was substantial. In Clarke, the plaintiff commenced a lawsuit against defendants concerning a motor-vehicle/pedestrian accident. The plaintiff alleged emotional and psychological injuries from the accident.
Through the plaintiff's deposition, the defendants learned that the plaintiff kept a private journal. At the deposition, the defendant requested production of the journal. The plaintiff's attorney apparently did not move for a protective order to quash the demand. The plaintiff allegedly claimed she lost the journal, giving vague reasons why she did not preserve the journal once the defendant requested production of it.
The First Department concluded that the defendant's demand for the journal was not beyond the scope of disclosure, disagreeing with the trial court. The First Department reasoned that the journal was discoverable material even though it contained private information, noting that the plaintiff put her emotional and psychological state at issue and the journal could shed light on those allegations.
Notably, the First Department cited to the New York Court of Appeals' decision in Forman v Henkin, which discussed discovery as it applied to social media and, in particular, Facebook. Citing Forman, the First Department noted that the defendants were not required to meet any special threshold burden to maintain the journal. The Court's point being that New York's discovery rules are broad and material will be subject to discovery where there is a showing that it is likely to lead to "material and necessary" information.
The First Department held that spoliation sanctions were warranted because the plaintiff had an obligation to preserve the journal once the defendants demanded it during the plaintiff's deposition; the Court stated that the plaintiff was grossly negligent in failing to preserve the journal. Nevertheless, the Court concluded that an adverse inference jury charge was more appropriate -- i.e., a charge that the contents of the journal likely would have been relevant to the plaintiff's emotional and psychological claims. Choosing to not impose the ultimate sanction, the Court reasoned that the defendants had access to information on her psychological health through authorizations to the plaintiff's psychological treatment. The Court also reasoned that the plaintiff testified about her psychological health at her deposition.
The lesson in Clarke is an attorney should immediately move for a protective order when he or she deems a discovery request is beyond the scope of discovery. For a non-spoliating party, you can surely ask for the ultimate sanction but know that the court will make all efforts to fashion a remedy that punishes the spoliating party and still allows the case to be decided on the merits.
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