Getting Sanctions For Spoliation - How Much Prejudice Is Required?

By Christine McInerney, Esq. and Jon Gemma, Esq. 


Spoliation is the well-settled rule of law that allows a Court to impose sanctions on a party that fails to take the necessary steps to preserve evidence relevant to a pending litigation. A Court has broad discretion to determine if sanctions for spoliation are appropriate,1 and sanctions range from an adverse inference charge for missing evidence2 to dismissal of the spoliator's case.3

Despite this broad discretion, Courts generally agree that sanctions for spoliation should only be imposed where the missing evidence has prejudiced the claim or defense of the party moving for a finding of spoliation.4 However, there is considerable confusion and uncertainty as to what showing of prejudice is required for a party to obtain a favorable ruling on a spoliation motion. The recent decision in McRae v. Luckmann Culinary Services Inc.5 illustrates the unsettled state of the case law regarding the necessary showing of prejudice required in the context of a motion for spoliation.

McRae is a Nassau County Supreme Court decision that was decided last October. The case involved a claim for personal injuries that the plaintiff sustained when she was hit by a van.6 The plaintiff moved for sanctions based on a claim of spoliation on the basis that the defendants failed to produce a logbook that the plaintiff alleged would have established that the van was operated by defendant's employee at the time of the accident.7 The Court upheld the plaintiff's motion on the grounds that, "the defendant's destruction, or loss of the log book has clearly prejudiced the plaintiff as the log book is central to identifying the driver of the subject van and confirming whether or not the subject van was "in use" or "parked" at the time of the accident."8 The Court then imposed the harsh sanction of striking the defendant's answer as well as the defendant's affirmative defenses.9

The McRae decision is significant with regard to the prejudice element of a spoliation claim, because the Court casts doubt as to whether the missing evidence must be essential to the adversary's case in order for there to be a finding of prejudice. Indeed, the Court prefaced the language that was referenced in the proceeding paragraph with the statement that, "it is arguable whether the loss of the log book may not have deprived the plaintiff of all means of establishing its case."10

McRae appears to be a departure from recent decisions that dealt with the issue of prejudice in the context of a spoliation claim. In the last couple of years, it appeared that New York Courts were imposing a strict prejudice standard regarding missing evidence that was based on the evidence’s probative value and on a showing of its importance to the adverse party's claim or defense. This standard was set forth in the Second Department's decision in Kirschen v. Marino.11 In Kirschen, the Court unequivocally held that a sufficient showing of prejudice required an aggrieved party to establish that the missing evidence "grievously impaired" their claim or defense.12

In the decisions from 2006 that proceeded McRae, it appeared that Courts were applying the standard set forth in Kirschen when deciding the issue of prejudice on a motion for spoliation. For example, in Seymore v. Sears Roebuck,13 the Supreme Court of Onondaga County held that spoliation was not an appropriate remedy where the moving party could not establish any "evidentiary link" between missing instructions and a chair that allegedly was assembled negligently.14

In light of the decisions discussed above, McRae appears to be a departure from the principle that an evidentiary showing, that the missing evidence is vital to a party’s case, is required to satisfy the prejudice element in a spoliation claim. It should be noted that the McRae Court did consider the probative value of the missing evidence. The Court stated that the "the log book entry would have confirmed whether the subject van was, or was not, operated by an employee of the defendant, Lackmann, at the time of the incident."15 However, as was previously mentioned, the Court acknowledged that it was arguable whether the missing evidence would have assisted the plaintiff in establishing her claim.16 This language suggests that the Court was not convinced that the missing logbook was essential to the plaintiff's ability to prove her case; yet the court nonetheless awarded the harsh sanction of striking the defendant’s pleadings. Thus, when compared with prior decisions, it appears that the McRae plaintiff did not have to meet as high a threshold regarding proof of the probative value of the missing evidence.

It is evident from the McRae decision that the bad faith of the defendant in responding to plaintiff's discovery demands was a factor in the Court's imposition of spoliation sanctions. The Court stated that, "the loss of the log book, coupled with the defendant's untimely and unresponsive discovery demands" deprived the plaintiff of the means needed to prove her claim.17 There is recent precedent from the past year for granting a motion for spoliation on the basis of bad faith of the spoliator, as opposed to evidentiary showing. In Clark Equipment v. Thompson & Johnson Equipment Co.,18 the Court imposed spoliation sanctions where defendants willfully withheld accident reports and permitted the reports to be destroyed.

But what sets the McRae decision apart from the Clark Equipment decision is that in Clark Equipment the destruction of evidence was intentional and egregious.19 In McRae, there was no showing that the logbook was intentionally destroyed; the bad faith element was entirely based on defendant's failure to respond to discovery demands and not on a showing of willful destruction of evidence. Similar to the issue of probative value of the missing evidence, the McRae Court appears to have also used a lesser standard in connection with the issue of bad faith.

Whether McRae foreshadows a more lenient approach to spoliation motions has yet to be seen. For example, in State Farm Mutual Automobile Insurance Company v. AAA Bestway Tires and Services20 , a Kings County Civil Court decision that was rendered about a month and a half after McRae, the court awarded essentially the same sanction as the McRae court, striking the pleadings, based upon a finding of spoliation which resulted in prejudice on the basis of missing evidence. The Court granted the sanctions on the basis that defendants were prejudiced due to plaintiff's failure to preserve a "key piece of evidence.”21 Unlike McRae, the State Farm decision was based on the probative value of the missing evidence and not on a totality of the circumstances analysis. However, the State Farm court specifically noted that “there is an evolving rule that a spoliation is properly punished by the striking of its pleadings.”22

Despite the fact that courts previously have applied a stringent standard based on the probative value of missing evidence, McRae suggests that courts may now be applying a lesser standard in an attempt to obtain an equitable result. It is not yet clear whether the McRae decision is simply one Court's departure from a generally accepted standard, or instead is indicative of a growing willingness among New York Courts to broaden the scope of a prejudice inquiry on a motion for spoliation by applying a more flexible standard.

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[1] Dennis v. City of New York, 18 AD3d 599 (2 Dept 2005).
[1] Ifraimov v. Phoenix Industrial Gas, LLC, 4 AD3d 332 (2 Dept 2004). 
[1] Kirkland v. New York City Housing Authority, 236 AD2d 170 (1st Dept 1997.  [1] See Goldston v. TJ Max, Inc., 819 NYS2d 210 (2006)("Sanctions such as those sought here are only appropriate when a party destroys essential physical evidence and the party seeking that physical evidence is prejudicially bereft of an appropriate means to confront the other's claim or defense with incisive evidence) citing Madison Ave Caviarteria v. Hartford Steam Boiler Inspection and Ins. Co, 2 AD3d 793 (2 Dept 2003).
[1] 13 Misc3d 1238 (2006). 
[1] Id.
[1] Id.
[1] Id.
[1] Id. 
 [1] Id.
[1] 16 AD3d 555 (2 Dept 2005). 
[1] Id.(Court held that "the defendants failed to sustain their burden of demonstrating that they would be severely prejudiced by reason of missing evidence in presentation of their defense to the plaintiff's claim. 'The record does not demonstrate that the loss of the [evidence] will fatally compromise the defense . . . or leave the defendants without the means to defend the action.'" (internal citations omitted)). 
[1] 13 Misc3d 1232 (2006). 
[1] Id. 
[1] McRae, 13 Misc3d 1238 (2006). 
[1] See supra, footnote 10. 
[1] McRae, 13 Misc3d 1238 (2006). 
[1] 25 AD3d 958 (3 Dept 2006). 
[1] Id. (the Court stated that defendants had refused to comply with numerous discovery demands and willfully permitted records to be destroyed after a demand for their production had been made). 
[1] 2006 WL 3627093 (2006). 
[1] Id.
[1] Id. (citations omitted).