October 10, 2017

The custodian of a record destroying or altering it so as to make it unavailable for use in litigation may result in sanctions being imposed of the custodian

The custodian of a record destroying or altering it so as to make it unavailable for use in litigation may result in sanctions being imposed of the custodian
Zacharius v Kensington Publ. Corp., 2017 NY Slip Op 06995, Appellate Division, First Department 

Spoliation is the destruction or alteration of a document that makes it unavailable for use as evidence in a legal proceeding. Further, spoliation is presumed to be damaging to the spoliator's interest with respect to proving his or her claims or his or her defenses when it is intentionally changed, modified, deleted or destroyed.

In Matter of Klikocki (NYS Department of Corrections, Mount McGregor), 216 AD2d 808, the Appellate Division decided that evidence Klikocki claimed would be helpful in his defense in a disciplinary action that the employer had destroyed had not been destroyed in an effort to conceal something but rather occurred in accordance with the normal procedure concerning the retention or destruction of certain records after they had been retained for a specified period of time.

In contrast, in Zacharius [Plaintiff] Supreme Court's granted Kensington's [Defendant]  motion for spoliation sanctions to the extent of directing Plaintiff to pay the attorneys' fees and costs incurred by Defendants in reviewing Plaintiff's e-mail account and in preparing the motion seeking sanctions for spoliation. Supreme Court's ruling was unanimously affirmed by the Appellate Division, with costs.

The Appellate Division held that the spoliation sanctions imposed by Supreme Court  were providently granted as the record demonstrated that Plaintiff, an attorney, was in control of the email account at issue; was aware of Plaintiff's obligation to preserve it at the time it was destroyed, with or without service of Defendants' litigation hold notice as Plaintiff [1] had commenced the action; and [2] had a "culpable state of mind," demonstrated by admitted to having intentionally deleted well over 3,000 emails during the pendency of the action.

In the words of the Appellate Division, "Destroyed evidence is automatically presumed 'relevant' to the spoliator's claims when it is intentionally deleted." The court noted that although Plaintiff asserted only "irrelevant emails" were deleted, Plaintiff's own emails "evidenced intentional deletion of thousands of emails" and Defendants recovered at least one email that was pertinent to the allegations in Plaintiff's complaint.

Under the circumstances, said the Appellate Division, Supreme Court "providently exercised its discretion in limiting the sanction against Plaintiff to costs and attorneys' fees, rather than the "drastic remedy" of striking Plaintiff's complaint as the Defendants were "not entirely bereft of evidence tending to establish [its] position."

Another element to consider: Is the custodian of the record required by law to retain the record for a minimum period of time?

For example, EEOC regulation implementing Title VII [42 USC 2000e-8(c)] requires “every employer ... subject to this subchapter” to “(1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, [and] (2) preserve such records for [two years].”

In Byrnie v Town of Cromwell Board of Education, CA2, 243 F.3d 93, Judge Rosemary S. Pooler said that “where, as here, a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination action.” As the Byrnie decision demonstrates, an employer's failure to retain these records for the statutory minimum period required may become a critical element in the course of litigation.

The decision is posted on the Internet at: