Spoilation.

Practice point: Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.

Student note: Recognizing that striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness. Precluding a party from presenting evidence at trial is also a drastic sanction which generally requires a showing that a party's lack of cooperation with discovery was willful, deliberate, or contumacious. Less severe sanctions for spoliation of evidence are appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her defense or case.

Case: Jennings v. Orange Regional Med. Ctr., NY Slip Op 00064 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Notices of claim.