The Penalties For Destroying or Losing Critical Evidence Under NY Law

As noted in our blog about Apple's breach of contract, infringement and unfair competition claim against Psystar, there appear to be important misconceptions about the consequences, or the lack thereof, for destroying or losing important evidence in a civil litigation context, whether it be in a breach of contract or infringement matter (as in Apple's case), or in a dangerous/defective products or garden-variety personal injury accident case.

As a threshold matter, it bears mention that the destruction or loss of evidence is referred to in legal terms as "spoliation." Under this doctrine, the court is charged with the responsibility of leveling the playing field, and to restore balance between the party that lost the evidence and each party's need for that evidence. Consequently, the court will look at several factors before determining what penalty, if any, should be issued. These factors include the following:

• How critical is this evidence to the case?
• Under what circumstances was the evidence lost or destroyed? Was it done deliberately or accidentally?
• What measures, if any, were undertaken to safeguard this evidence? By whom was it spoliated?
• At what point in time was the evidence spoliated? Was it before or after litigation was foreseeable?

Although New York's courts have traditionally been reluctant to outright dismiss the claims or defenses of a party that lost evidence, the courts have, over the last decade, shown an increasing willingness to do so if a party lost the evidence when litigation was anticipated and the other side who seeks the evidence has been irreparably prejudiced by the loss of that evidence. Other less severe, albeit heavy, sanctions that the courts have employed include precluding the party who lost the evidence from pursuing any claims or defenses based on that evidence, or instructing the trial jury that they may infer that the spoliated evidence would have undercut that party's claims or defenses.


Long Island, New York trial lawyer Jonathan Cooper represents small businesses and individuals in breach of contract, breach of fiduciary duty, commercial litigation, personal injury and defective products cases in Nassau, Queens, Brooklyn, Bronx, New York City, Suffolk and Westchester. In order to schedule a free consultation with Mr. Cooper, please contact his main office located in Cedarhurst, Long Island at 516.791.5700.

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