Two cases in two different New York courts hit the same topic this past week: The evidence had been lost or destroyed. But if you thought that a couple hundred years of jurisprudence would have long resolved and standardized how these things are handled, you would be mistaken.
Case 1 takes place in federal court, where a musician used YouTube to offer up a $1M reward for his lost/stolen laptop. The artist, Ryan Leslie, claimed it had valuable intellectual property on it, that being unreleased songs, and he was desperate for its return. And he got the laptop back.
But despite getting it back, Leslie didn’t want to pay, claiming that the hard drive was damaged and the intellectual property that was on it couldn’t be accessed.
But he had an even bigger problem then wrestling with his attempt to renege on his promise. And that problem was that he gave the laptop to the manufacturer to obtain the information, and the manufacturer then wiped the hard drive clean. Oops. Was the information actually there or not?
This is the crux of the legal argument, as quoted from the decision:
A party has an obligation to preserve evidence when “the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”
Leslie was on notice that the information on the hard drive may be relevant to future litigation and, as a result, had an obligation to preserve that information.
So what is the standard in federal court for a sanction against the party that loses or destroys the evidence? Is it intentional destruction of evidence? Bad faith? Mere negligence? In the Second Circuit, the answer is, “it depends.” Decisions are made on a case by case basis according to the Second Circuit. And in this case, trial judge Judge Harold Baer found that because “the hard drive was destroyed when litigation was all but certain, I find that Leslie and his team were at least negligent in their handling of the hard drive.”
While the judge was asked by the plaintiff to grant summary judgment — an automatic win without a trial — he opted instead to give an adverse inference to the jury. They would be told, as a matter of law, that Leslie had possession of the hard drive and could assume litigation would follow based on the facts. The jury could, in other words, assume the worst.
And with that, the jury came back a few days ago with a $1M verdict.
Switch now to case 2, this time in state court. In Staten Island, a medical malpractice case is being waged over administration of the drug Plavix. The problem? Staten Island University Hospital has lost (or deep-sixed?) the critical “Medication Discharge Reconciliation Form” that would contain the information that was needed. As per Judge Joseph Maltese, sitting in the trial court:
[O]ut of the entire medical record concerning the plaintiff, the June 21, 2011 “Medication Discharge Reconciliation Form” is missing.
Oops, again. But while the standard may be loose in federal court as to what to do in this situation (the discretionary case-by-case basis described above) it is not in state court. Judge Maltese pointed out that the hospital knocked itself out with a single punch:
“It is well settled that when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.” Here, the crux of the plaintiff’s case is the defendant hospital’s failure to prescribe the proper medication upon her release on June 21, 2011. While this court is sympathetic to the defendant hospital’s contention that it has diligently searched for the record, it does not change the fact that after nearly a year of searching it has not been found. Staten Island University Hospital has been negligent in maintaining the plaintiff’s file, which it had a duty to maintain for six years from the date of discharge.
For the non-lawyers in the crowd, striking a pleading means an automatic win. It’s what the plaintiff wanted in the laptop case, but the judge declined to give opting for a lesser sanction.
Two different cases on spoliation, one state, one federal. The results are the same (plaintiff wins). But the way each one got there is different (one case given to the jury with a negative inference and the other taken out of the jury’s hands and decided as a matter of law).
Hey, I found it interesting. Your mileage may vary.
I am puzzled by the conclusion that the Staten Island judge reached in the medical malpractice case. As a matter of practice, a copy of the “Medication Discharge Reconciliation Form” is given to the patient. In fact, the plaintiff in this case claims that her form was silent about Plavix. If she based her affidavit on a copy of her form, then she couldn’t have asked for spoliation sanctions because she had it, and it wasn’t missing. In contrast, if she didn’t have a copy of her form and the hospital didn’t have the original either, how is this spoliation when both parties, at some point, had the same document, but no longer have it?
Thanks for pointing out this case on your blog.
I wondered the same thing, but forms given to patients are often illegible and possibly lost. The difference, of course, is that the patient isn’t under any legal duty to preserve. Patients are, after all, often sick and elderly while hospitals have record retention systems and laws to follow. As the judge points out, that duty to preserve exists for six years.
If a patient thought litigation was likely and then shredded a document, however, I suspect that s/he would face the music in some fashion. That is a situation we saw in the first case with Ryan Leslie and the hard drive.
Reads like great possible input for a bar exam. Thanks!
I think it is interesting too. Nothwithstanding these cases, I’m often surprised at how little the court is outraged by painfully negligent spoliation of evidence. I’ve had cases with spoliation I thought rose to the level of a first degree felony and the court does not share my outrage. (Then again, it could be me.)
This is an interesting area of the law as it relates to criminal cases as well. It is not unusual for law enforcement to conveniently lose or fail to preserve critical evidence favoring the defense. As a criminal defense attorney I have gotten multiple serious criminal cases thrown out for those reasons, but it is always an uphill battle and a very good record must be presented. You have to make it so that the judge really has little choice but to act.