Recent Rulings Focus on Spoliation of ESI

Significant New York state court decisions have recently been rendered on the issue of spoliation of electronically stored information.

The Appellate Division, 1st Department, in Ahroner v. Israeli Discount Bank of New York,[FOOTNOTE 1] which affirmed that an adverse inference instruction under the circumstances was an appropriate sanction for ESI spoliation, set forth the standard needed to demonstrate that ESI spoliation has occurred and made clear that grossly negligent conduct may serve as a predicate for such a sanction.

In a decision in Ahroner on renewal of the underlying decision that was issued two months before the Appellate Division ruled,[FOOTNOTE 2] the motion court held that defendant at trial would have the opportunity to rebut the adverse inference.

The decisions discussed here emphasize that the "punishment must fit the crime" and that any spoliation sanction should be proportionate under the circumstances to the degree of mens rea of the offending party. This means taking into account the failure to comply with disclosure requests and court orders, if any; appropriate and timely notice of an obligation to preserve the ESI; and, significantly, the relevance of the ESI and "prejudice" to the moving party, which would include any negative effect on the actual prosecution or defense of an action, as well as the monetary expense of moving for a spoliation sanction.

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Source: law.com
By: Mark A. Berman