Court Prohibits Defendant From Using The Terms “Stray” And “Handful” To Describe The Number Of Allegedly Fraudulent Telemarketing Calls As Punishment For Destroying Evidence

Posted: September 3, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Trial, Spoliation

Court Prohibits Defendant From Using The Terms “Stray” And “Handful” To Describe The Number Of Allegedly Fraudulent Telemarketing Calls As Punishment For Destroying Evidence

On July 8, 2025, Justice Andrea Masley clarified an earlier decision imposing sanctions for spoliation that included prohibiting a defendant from using the terms “stray” and “handful” during trial to describe the number of allegedly fraudulent telemarketing calls. In Earthlink, LLC v. Charter Communications Operating LLC, Index No. 654332/2020, Charter Communications was found to have destroyed evidence including recordings of calls that its call center employees made to Earthlink customers, allegedly falsely informing those customers that Earthlink was out of business. In response to a motion for reargument, the Court clarified that it would allow Charter Communications to use the terms “stray” and “handful” during closing argument but would not allow it to use them during presentation of evidence to the jury. The Court explained:

Such statements are not evidence. . . . It is for the trier of fact to decide whether Earthlink’s evidence is sufficient to establish a campaign or whether Charter’s evidence is otherwise. However, the court is concerned that Charter states that “it has no need to use these precise terms.” To be clear, Charter may not use these precise terms nor any other terms like these two examples. Should Charter use any terms about the numerosity of the relevant Earthlink call recordings, Charter should expect to be sanctioned. Earthlink has no such recordings because Charter destroyed them. Charter cannot now benefit from such destruction.

The attorneys at Schlam Stone & Dolan have extensive experience managing pre-trial and trial proceedings. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.