In Luzuriaga v. FDR Servs. Corp., 2020 NY Slip Op 07185 (2d. Dep’t 2020), the Appellate Division, Second Department of the New York State Supreme Court recently affirmed a lower decision to grant a defendant’s request for an adverse inference charge after the plaintiff’s wife “accidently” deleted or spoliated 39 out of 271 photographs from the plaintiff’s phone.  The photographs had been the subject of an earlier document request and were relevant to the dispute.  This case serves as a stark warning to litigants both about the fragility of electronic data and the need to preserve such data in litigation.

Plaintiff sued to recover damages for personal injuries, alleging that he was injured when a vehicle owned and operated by the defendant struck his vehicle. At plaintiff’s deposition he was asked to preserve 271 images on his cell phone that depicted his post-accident activities. In response to a follow-up discovery demand, plaintiff only produced 232 photographs and later admitted that the remaining photos had inadvertently been deleted after he lent his phone to his wife. Defendant then moved for an adverse inference charge against the plaintiff for the spoliation of the 39 missing photographs and the court granted the motion.  On appeal the Second Department ruled that the defendants demonstrated that the plaintiff had an obligation to preserve the photographs, negligently failed to do so, and those photos were relevant to the defendant’s defense on the issue of damages.   A jury would therefore be instructed that they were allowed to infer that the missing images would have been harmful to Plaintiff’s case.

Under the New York Pattern Jury Instructions an adverse inference charge is one form of sanction for a party’s failure to produce physical evidence. Such penalty may be imposed on a party who, on notice that evidence may be needed for litigation, intentionally or negligently disposes of relevant evidence before an adversary has an opportunity to inspect it. The Court noted that a party seeking spoliation sanctions must show that the “evidence was destroyed with a culpable state of mind.”  If the disposal was negligent, (i.e. accidental), then the party seeking the spoliation sanction bears the burden of proof that the destroyed evidence was relevant to the party’s claim or defense. If the court determines that the destruction of evidence was intentional, relevance can be presumed.

This case highlights the importance of the preservation of information on personal devices.  Counsel should also be aware that smartphones, tablets, laptops and other devices that have cellular service or operate on WiFi may embed metadata in photo and video files.  This data can be accessed to show where and when an image was recorded, which may be as important as the image itself.  Counsel should therefore take care in preserving electronic images and should demand that files be produced with metadata where time and location are relevant.

An adverse inference charge, where the court invites the jury to infer that a party destroyed evidence to keep it from the fact finders’ eyes can be very damaging to a party’s credibility at trial.  While it is important to remember that the Courts of New York retain significant discretion in determining what sanctions to impose for spoliation of evidence, this case supports an argument that an adverse inference is the appropriate sanction.

In the world of high quality images at your fingertips and live streams on social media, all of this information is almost certainly available and relevant in cases where damages are being litigated. Early intervention, to preserve images and related metadata and prompt discovery demands protect party interests.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.