In Rodgers v. Rose Party Functions Corp., No. 10 CV 4780 (E.D.N.Y. Nov. 12, 2013), Chief Magistrate Judge Steven Gold granted the plaintiff an adverse inference as a sanction for the defendant’s negligent failure to preserve a key piece of evidence. Plaintiff Tiffani Rodgers was injured when she slipped on a flight of stairs on the premises of defendant Rose Castle, a catering hall. She thought her fall was caused by liquid or debris on the stairs. The hall’s security personnel called an ambulance for her, and she was taken to the hospital. Two days after the accident, Rodgers called Rose Castle seeking the defendants’ insurance information. In discovery, it emerged that a video camera on the stairway captured the plaintiff’s fall, but that the footage generally recycled every two weeks and the footage of the fall was not saved.
Judge Gold held that the defendants were negligent in failing to preserve the videotape because they should have anticipated litigation on the day of the accident, when Rodgers was rushed to the hospital in an ambulance called by the hall’s own security guard, or at the very latest, two days later when Rodgers called about the defendants’ insurance information, which made “clear that plaintiff was seeking compensation for her injuries from defendants’ insurance carrier.” Judge Gold ruled that the “culpable state of mind” requirement for spoliation sanctions is satisfied by negligent destruction of evidence, and that the plaintiff did not have to show bad faith or gross negligence. Rather, “[o]nce a duty to preserve evidence arises, any destruction of that evidence is, at a minimum, negligent,” and the destruction at that point, without more, reflects “a culpable state of mind.” Slip op. at 5.
The Court said that sanctions were therefore warranted and the Court would impose them “pursuant to its inherent powers and even absent violation of a discovery order.” Slip op. at 3. As a sanction Judge Gold granted Rodgers an adverse inference instructing the jury that it may infer that the absent videotape would have corroborated the plaintiffs’ allegations and rebutted the defendants’. The plaintiff didn’t have to present “extrinsic evidence” that the contents of the video “would have been favorable to her case,” as Judge Gold acknowledged was “generally” required. Slip op. at 5. Ouch. But don’t tell a judge in the Eastern District you weren’t warned. Any company that experiences a conceivably litigable incident had better suspend its document destruction or recycling procedures immediately.