In Simons v. Petrarch LLC and Hicham Aboutaam, 2017 NY Slip Op 30457(U) (NY Sup. Ct. NY Cty. March 1, 2017) (J. Hagler), a sexual harassment case, the court applied spoliation sanctions on plaintiff. This case is instructive as to the obligations of litigants generally, and in sexual harassment cases in particular, to preserve evidence. Failure to comply with such obligations can, as it did here, have serious consequences.
Here, defendants moved for spoliation sanctions arising from, inter alia, plaintiff’s alleged destruction of a computer (on which she claimed to have kept a log of the alleged harassment); plaintiff’s discarding of handwritten notes; and selective retention of allegedly incriminating text messages.
The law, as summarized by the court:
Under the common-law doctrine of spoliation, “[w]hen a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned [internal quotation marks and citation omitted]. . . .” Denoyelles v Gallagher, 40 AD3d 1027, 1027 (2d Dept 2007); see also Squitieri v City of New York, 248 AD2d 201, 202-203 (1st Dept. 1998) (Spoliation occurs “[w]hen a party alters, loses or destroys key evidence before it can be examined by the other party’s expert” and spoliation sanctions “are not limited to cases where the evidence was destroyed willfully or in bad faith, since a party’s negligent loss of evidence can be just as fatal to the other party’s ability to present a defense”). On their motion for spoliation sanctions for the destruction of electronic evidence, defendants must establish: “(1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a `culpable state of mind,’; and finally, (3) the destroyed evidence was relevant to the moving party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense.” “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents [internal quotation marks and citation omitted].” VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d at 41. The Court explained that a reasonable anticipation of litigation can arise, in pertinent part, when a party “seriously contemplates initiating litigation, or when it takes specific actions to commence litigation [internal quotation marks and citation omitted].
Applying the law, Judge Hagler held that spoliation sanctions were (at least in part) warranted in this case.
Notably, it rejected plaintiff’s argument that the preservation duty did not actually arise until she began her lawsuit:
According to plaintiff, although she took down a Log, made secret recordings, captured incriminating text messages and discussed potential litigation with a co-worker, none of this was done in anticipation of litigation. Plaintiff argues that her duty to preserve evidence was not triggered until she commenced litigation. However, this argument is unavailing. Simply because plaintiff did not actually retain counsel until August 2013 does not mean that she did not reasonably anticipate litigation prior to this date.
According to plaintiff, she started a Log of harassing incidents in 2009, but not in anticipation of litigation. Then, in 2010, plaintiff is recorded saying that, if Aboutaam fires her, she will sue him. Even if plaintiff had not been reasonably anticipating litigation in 2010, she was clearly anticipating litigation in November 2011 as she took specific actions to commence litigation.
The court concluded that defendants “satisfied the first element of the spoliation analysis as plaintiff had control over her computer and had an obligation to preserve it at the time it was destroyed.”
Defendants also satisfied the second element of the spoliation analysis (that plaintiff’s computer was destroyed with a “culpable state of mind”), noting that “[p]rior to the destruction of the computer, plaintiff was given notice of her obligation to preserve all records, including electronic ones” and concluding that “regardless of whether or not the disposal was willful or intentional, in the very least, the disposal constituted gross negligence.”
The court reached the same conclusion with respect to plaintiff’s discarded phones and providing of selective screen shots of text messages:
The analysis of plaintiff’s phones parallels that of the discarded computer and electronically stored Log of harassment. Similar to the above, plaintiff had a duty to preserve her phones and complete text messages which were in her control. Even if she negligently discarded them, text messages on the phones and the screen shots are undisputedly relevant to her claims, as plaintiff reiterates that these text messages were contemporaneous with the alleged harassment.
Plaintiff concedes that she selectively saved screen shots of text messages that she believed would support her claims. She then deleted the text messages and threw away the phones. As a result, there is no way for defendants to analyze the phones to retrieve the complete text messages from the screen shots and determine the context or whether it had been altered.
Ultimately, while the court declined to dismiss plaintiff’s complaint, it held (inter alia) that defendants were entitled to an “adverse inference” jury charge.