By Michael Hoenig - New York Law
Journal - October 21, 2013
Assume a New
York Police Department (NYPD) vehicle collides with another car,
mounts a curb and strikes five pedestrians who sue New York City
for their injuries. Assume further that the city defends by
interposing the defense of the "emergency doctrine," claiming
that the NYPD vehicle was an authorized emergency vehicle
engaged in an emergency operation at the time of the accident.
Such a defense would render the city liable only if the NYPD
driver acted with "reckless disregard for the safety of others."
Later, however, the plaintiffs find out that audiotapes and
"radio run audio recordings" containing relevant information
related to the alleged police emergency were not retained
because such tapes are routinely maintained only for 180 days
and then deleted.
Can the plaintiffs
invoke "spoliation" sanctions for the automatic destruction of a
recorded radio run that could have either confirmed or called
into question the city's "emergency operation" defense under
Vehicle and Traffic Law §114-b, 1103 and 1104? If the answer is
"yes," what legal standard of spoliation should the court apply
to a destroyed audiotape of a radio communication?
traditional common law spoliation standard apply or should the
so-called Zubulake standard regarding spoliation of
discoverable electronically stored information (ESI) govern?
Further, where the destruction of the evidentiary material is
not caused by a willful failure to disclose, what should the
appropriate sanction be? Should the city's pleading of an
emergency operation defense be struck? Or, should a limited
preclusion be imposed, say perhaps, merely preventing the city
from introducing testimony as to the contents of the audio
recording? How about an "adverse inference" charge to the jury
The foregoing are
questions asked and answered by New York's Appellate Division,
First Department, in its "hot off the press" ruling in
Strong v. City of N.Y.1
Issued on Oct. 15, the decision declines to apply the federal
Zubulake spoliation standard applicable to ESI when the
evidentiary material destroyed is a non-ESI audio recording. New
York's common law rule regarding spoliation of evidence is
sufficient and "reliance on the federal standard is unnecessary
in this context."2 The Zubulake IV decision by
U.S. Southern District of New York Judge Shira A. Scheindlin
ruled that "[o]nce a party reasonably anticipates litigation, it
must suspend its routine document retention/destruction policy
and put in place a litigation hold" to preserve evidence.3
Our Sept. 9 column reported on Scheindlin's Aug. 15 Sekisui
ruling imposing sanctions for deletion of e-mail files.4
As to cases
involving ESI discovery, the First Department had adopted the
Zubulake IV spoliation rule in a number of relatively recent
decisions of which, perhaps, the VOOM ruling is the most
memorable because of its name.5 The First
Department's application of the federal Zubulake standard
to e-discovery is based on its "usefulness" in that it "provides
litigants with sufficient certainty as to the nature of their
obligations in the electronic discovery context and when those
obligations are triggered."6 Also, as the court in
VOOM observed, Zubulake "is harmonious with New York
precedent in the traditional discovery context," an area that
"did not need greater certainty or clarification."7
Department did comment on the fact that a few recent First
Department decisions quote the Zubulake or VOOM
formulation in cases not involving ESI evidence, thus seeming to
employ the federal standard for spoliation of non-electronic
evidence as well. Two of those cases involved surveillance
videos that were destroyed or automatically recorded over while
a third case involved disposal of an entire computer.8
Nevertheless, in Strong the First Department now
clarifies and "conclude[s] that reliance on the federal standard
is unnecessary in this context. Zubulake interpreted
federal rules and earlier federal case law to adapt those rules
to the context of ESI discovery." When the spoliation involves
"the erasure of, and the obligation to preserve, relevant
audiotapes and videotapes," however, such conduct "can be, and
has been, fully addressed without reference to the federal rules
And what are those
state common law standards regarding non-ESI spoliation? When
the destruction of evidence does not involve refusal to comply
with a discovery order or a willful failure to disclose (the
latter scenarios would instead be governed by CPLR 3126), then
common law spoliation sanctions can be imposed not only for
willful destruction of evidence but also for negligent
spoliation. The First Department clarifies that merely negligent
destruction may be penalized despite language in some New York
cases that only willful, deliberate or contumacious destruction
warrants spoliation sanctions.10 Indeed, said the
First Department in Strong, "This Court has, on many
occasions, authorized the imposition of sanctions where the
destruction of evidence was negligent rather than willful."
The court recalled
that its "earliest" New York cases involving negligent
spoliation concerned destruction of allegedly defective
equipment. Thus, in Squitieri v. City of N.Y.,11
the city was sued by a sanitation worker injured by carbon
monoxide poisoning caused by a defective street sweeping
vehicle. The city disposed of the vehicle while the case was
ongoing. Years later, the city impleaded the vehicle
manufacturer but the third-party claim was dismissed because
"the absence of the sweeper would prevent [the manufacturer]
from countering the design defect claim with evidence that the
city's misuse, alteration, or poor maintenance of this
particular sweeper was a proximate cause of Squitieri's
injuries." The court held that dismissal and preclusion
sanctions are not limited to willful or bad faith destruction
"since a party's negligent loss of evidence can be just as fatal
to the other party's ability to present a defense."12
that negligent erasure of audiotapes can "certainly" give rise
to sanctions, the question then becomes whether the spoliator
was "on notice that the [audiotapes] might be needed for future
litigation."13 In Strong, the city was placed
on notice of plaintiffs' claim and its own claimed affirmative
defense of emergency within the 180 days after the recording was
made. The city, therefore, "had the obligation to take steps to
prevent the automatic erasure of any audio recording from that
incident, and its failure to do so constituted spoliation." The
court proceeded to focus on what the sanction should be.
Plaintiffs urged that the emergency defense be stricken. But the
court concluded that a lesser sanction would be appropriate.
The striking of a
pleading is a severe punishment. So is outright preclusion of
offering any evidence in support of the defense. Preclusion
would be appropriate where "defendants destroyed essential
physical evidence leaving the plaintiff without appropriate
means to confront a claim with incisive evidence." Here,
however, the radio run audio recording is "not key" to the proof
of plaintiff's case in chief, although, depending on its
contents, "it could have been relevant either to prove or help
disprove defendant's emergency operation defense." Yet,
plaintiffs can still challenge the city's emergency defense
through examination of the police officers involved and their
commanding officer. Thus full preclusion of any evidence that
establishes the defense "would be excessive." What would be
appropriate, however, is "preventing the City from introducing
testimony as to the contents of the audio recording." Further,
if warranted, an "adverse inference charge at trial may be an
appropriate additional sanction."14
In "bullet" form,
the new Strong decision teaches or confirms that: (1) The
Zubulake IV federal spoliation standard applies to
discoverable ESI materials; (2) Once a party reasonably
anticipates litigation, it must issue a litigation hold and
suspend its routine document destruction (ESI) policy; (3)
Non-ESI evidence destruction is governed by state common law
spoliation rules—unless the destruction is caused by refusal to
comply with a discovery order or a willful failure to disclose,
in which case CPLR 3126 would govern; (4) Spoliation sanctions
can be awarded for merely negligent destruction; (5)
Non-retention of evidentiary materials such as videos and audio
recordings when the spoliator is on notice that they might be
needed for future litigation can be penalized; (6) Merely
negligent non-retention or destruction of evidence, when one is
on notice it might be needed in future litigation, can result in
a range of sanctions, such as the striking of the spoliator's
pleading, preclusion of evidence and/or the giving of an adverse
inference jury instruction (among other potential sanctions).
is a member of Herzfeld & Rubin.
1. 2013 NY Slip Op
06655 (1st Dept., Oct. 15, 2013). See B. Pierson, "City
Sanctioned for Destruction of Police Radio Call Recordings,"
New York Law Journal, Oct. 16, 2013, p. 1.
2. Id., Slip Op at
3. Zubulake v.
UBS Warburg, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (Zubulake
IV). See M. Hoenig, "Appellate
Division Embraces Federal ESI Standards," NYLJ, March
12, 2012, p. 3 (discussing the Zubulake factors and New
York decisions adopting them).
4. M. Hoenig, "Penalties
Awarded for Wrongful Deletion of Emails," NYLJ, Sept.
9, 2013, p. 3.
5. U.S. Bank v.
GreenPoint Mtge. Funding, 94 AD3d 58 (1st Dept. 2012);
VOOM HD Holdings v. EchoStar Satellite, 93 AD3d 33 (1st
Dept. 2012); Tener v. Cremer, 89 AD3d 75 (1st Dept.
2011); Ahroner v. Israel Discount Bank of N.Y., 79 AD 3d
481 (1st Dept. 2010).
6. Strong v.
City of N.Y., NY Slip Op 06655, at p. 8 (citing and quoting
from VOOM, 93 AD 3d at 36).
7. Id., Slip Op at
8. Id., Slip Op at
p. 8 (citing N.Y. City Housing Auth. v. Pro Quest Sec.,
108 AD3d 471 (1st Dept. 2013) (part of surveillance video
destroyed); Suazo v. Linden Plaza Assoc., 102 AD 3d 570,
571 (1st Dept. 2013) (surveillance of video automatically
recorded over); Harry Weiss v. Moskowitz, 106 AD 3d 668,
669 (1st Dept. 2013) (entire computer disposed of)).
9. Id., Slip Op at
10. The court
cites as an example Kerman v. Martin Friedman, C.P.A., 21
AD 3d 997, 999 (2d Dept. 2005).
11. 248 AD 2d 201
(1st Dep't 1998).
Id., at 203.
NY Slip Op 06655, at p. 7 (citing case law).
14. Id., Slip Op at p. 9.
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