Peters v Hernandez, 142 AD3d 980, 2016 NY Slip Op 05983 (2nd Dep’t 2016)
An interesting decision from a state appellate court sets limits under the spoliation doctrine regarding the appropriate sanction for losing video evidence. Something more than negligence is needed for a court to strike a pleading when the moving party has not shown that its ability to prove the case is impaired.

In Peters v. Hernandez, plaintiff made a demand for defendant’s video evidence of the underlying incident. Defendant had such evidence but failed to comply with the demand. Defendant’s counsel admitted the video had been in its possession, but it had been lost, though the failure to produce it was only accidental and not willful, wanton or contumacious. On this the parties agreed. What was at issue was the sanction.

Defendant argued that striking a pleading was too drastic where the loss was unintentional. Plaintiff contended that even the negligent destruction merits striking the pleading, where the loss deprives the non-responsible party of the ability to prove its claim. The motion court granted plaintiff’s motion, striking the answer, and defendant appealed.

The Appellate Division, Second Department, modified the lower court’s order to direct that an adverse inference charge be given against the defendants at the trial with respect to the video recording of the incident. Imposing the sanction of striking defendant’s answer was an improvident exercise of the lower court’s discretion.

“Although the plaintiff demonstrated that the appellants negligently disposed of the video recording of the underlying incident, his ability to prove his case without that recording was not fatally compromised. Under the circumstances of this case, the appropriate sanction is to direct that an adverse inference charge be issued at trial against the appellants with respect to the unavailable recording.” Id. at 981.

Interestingly, the Court did not specify what degree of fault was needed to strike the answer when the non-responsible party does not show an inability to prove a case or a defense.

If you have questions concerning preservation of video evidence or the spoliation doctrine, contact Glenn A. Jacobson, Esq. at (212) 422-1200.