Commercial Division Blog
Destroyed Evidence Presumed Relevant When it is Intentionally Deleted
On October 5, 2017, the First Department issued a decision in Zacharius v. Kensington Publishing Corp., 2017 NY Slip Op. 06995, holding that evidence is presumed to be relevant when it is intentionally destroyed, explaining:
Spoliation sanctions were providently granted. The record demonstrated that plaintiff was in control of her own email account; was aware, as an attorney, of her obligation to preserve it at the time it was destroyed, with or without service of defendants' litigation hold notice upon her, since she commenced the action; and had a culpable state of mind, as she admitted that she intentionally deleted well over 3,000 emails during the pendency of the action. Destroyed evidence is automatically presumed relevant to the spoliator's claims when it is intentionally deleted. While plaintiff asserted that she only intentionally deleted irrelevant emails, her own emails evidenced intentional deletion of thousands of emails, and defendants recovered at least one email that was pertinent to the allegations in the complaint.
Under the circumstances, the 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. While plaintiff's actions were intentional, defendants were not entirely bereft of evidence tending to establish its position.
(Internal quotations and citations omitted) (emphasis added).