Friday, December 17, 2010

Sanction For Destruction of Electronic Evidence

In 3824N & Jacob Ahroner v. Israel Discount Bank of New York, the defendant was ordered by the trial court to preserve defendant Bastante's hard drive. One day before plaintiff's forensic expert was supposed to review the hard drive, plaintiff was informed that the drive had been erased. As a spoliation sanction against defendant the trial court granted plaintiff: (i) an adverse inference charge at trial; (ii) costs to reimburse plaintiff for the amount paid to the forensic expert; and (iii) attorneys' fees. On appeal, the First Department affirmed. To establish that a spoliation sanction for the destruction of electronic evidence is warranted, it must be shown that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with "a culpable state of mind," and (3) the destroyed evidence was "relevant" to the moving party's claim or defense. "A 'culpable state of mind,' for purposes of a spoliation inference, includes ordinary negligence" (citing Zubulake v. UBS Warburg, LLC, 220 FRD 212, 220 [SDNY 2003]).

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