By Nicholas Papain, Esq.
NewYorkInjuryNews.com — The outcome of a trial depends on the strength of the evidence presented by the parties. In America’s civil justice system, juries and, in some cases, judges are assigned the task of evaluating this evidence, and then reaching their own conclusions about the merits of the claims and defenses at issue. What happens, however, when important evidence cannot be considered because it was lost or destroyed, either intentionally or through neglect, before trial?
Parties to a lawsuit have an obligation to preserve evidence that is relevant to their claims and defenses. The failure to preserve evidence is known as “spoliation.” When judges are presented with reports of spoliation, they are often requested to develop a solution to address the harm or “prejudice” a party’s loss of evidence brings to its adversary’s case. These remedies can range from a special instruction to a jury, advising that it may draw unfavorable inferences against the party responsible for the loss of evidence, to the severe sanction of striking a party’s complaint or answer, literally the foundations of any civil lawsuit. The consequences of such a remedy are significant. The striking of a complaint will result in the dismissal of a case. The striking of an answer all but ensures victory for the plaintiff, the party bringing the lawsuit.
Spoliation sanctions are not imposed without justification. A “party seeking a sanction such as… dismissal is required to demonstrate that a litigant, intentionally or negligently, dispose[d] of crucial items of evidence … before the adversary ha[d] an opportunity to inspect them.” Kirschen v. Marino, 792 N.Y.S.2d 171, 172 (2nd Dept. 2005). The complaining party, too, must demonstrate the negative effect the destruction of evidence has had on its case. For example, the striking of an answer may be justified where a party destroys critical physical evidence such that its opponents are “‘prejudicially bereft of appropriate means to either present or confront a claim with incisive evidence.” Hilfiger v. Commonwealth Trucking, Inc., 751 N.Y.S.2d 446, 447 (1st Dept. 2002) Put another way, where “the lost item is the ‘key’ evidence in the case, the proper sanction is to strike the pleading of the responsible party.” Marro v. St. Vincent’s Hospital, 742 N.Y.S.2d. 327 (2nd Dept. 2002)
In a recent lawsuit brought by 36 deliverymen against a chain of New York City restaurants for denial of minimum wage and overtime pay, the Court chose to view the defendants’ apparent loss or destruction of work and hour records unfavorably.
The workers needed to establish, at trial, that they had worked many hours and completed many deliveries without required compensation. Although the deliverymen were permitted to give testimony about working long shifts and being underpaid, such an evidentiary presentation was far from ideal.The workers had completed only rudimentary education in their native China, did not speak English, and had to testify through a translator. Business records that could have corroborated their hours, substantiating their claims for back pay, were never created. In addition, the restaurants admitted to the actual destruction of delivery records. The absence of the hour and delivery records made the workers’ burden at trial more difficult because they were asking the Court to take them, literally, at their word. The Court assessed the impact of the missing evidence, and set out to fashion a remedy.
Surviving records, the Court noted, documented deliveries during slow business times, evidence that served to reduce the employers’ liability for outstanding wages. Information damaging to the restaurants, like the number of deliveries during busy periods of operation, was simply not contained in the available documents. “In this case defendants failed to keep records of hours or pay. Indeed, as noted, they deliberately destroyed data reflecting deliveries, which could also have provided some concrete guidance as to the hours worked by the deliverymen…” Ke v. Saigon Grill , 0017 WL 1046, 3 ) (S.D.N.Y.,2008) The Court then determined how the loss of the records should be treated at trial: “Under these circumstances, we may, and do, infer that the destroyed records…were likely to have shown still much more activity than the few preserved records, which date from the heart of August, a time when many New Yorkers are away on vacation.”
The Court made the presumption that the missing records would have contained evidence favorable to the plaintiffs. This determination almost certainly entered into the Court’s final decision. The Court entered judgment in favor of the deliveryman, awarding them a total of $4.6 million dollars.
