Practice point: Under the common-law doctrine, a party may be sanctioned where it negligently loses or intentionally destroys key evidence. The party seeking sanctions must demonstrate that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense. The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence. It may impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation.
Student note: The Appellate Division will substitute its judgment for that of the Supreme Court only if that court's discretion was improvidently exercised.
Case: Doviak v. Finkelstein & Partners, LLP, NY Slip Op 01636 (2d Dep't 2016)
Here is the decision.
Tomorrow's issue: Motions to dismiss for failure to prosecute.
