Destroying Or Withholding Of Evidence May Harm Your Case, Even If You Aren’t Officially Sanctioned

Courts nationwide consider destruction of evidence, commonly referred to as spoliation, as a very serious matter and are swift to penalize those who destroy or withhold relevant evidence, and to impose the harshest of sanctions of those who intentionally destroy evidence. A party seeking sanctions for destruction of evidence must generally establish (1) that the party that had control over the evidence had an obligation to preserve the evidence at the time that it was destroyed; (2) that the evidence was destroyed with a culpable state of mind, which means that the party destroyed the evidence knowingly or negligently; and (3) that the destroyed evidence was relevant to the party's claim or defense. Often, a finding that a party destroyed evidence will result in the court instructing the jury that it must or should draw an adverse inference against the offending party and assume that the destroyed evidence would have harmed the offending party's case. In most cases, that means game over for the offending party.

Recent decisions in the Second Circuit, however, demonstrate that a party accused of destroying or withholding relevant evidence may suffer a similar near fatal blow even when they have not been officially sanctioned for spoliation and even where the court has not made specific findings that a party's conduct warranted the imposition of an adverse inference sanction. The trend started in Mali v. Fed. Insur. Co., 720 F.3d 387 (2d Cir. 2013) where the Second Circuit held that the Connecticut District Court did not err when it permitted the jury to draw its own adverse inference when evidence surfaced during trial that the plaintiff may have withheld relevant evidence during discovery. In Mali, an insured plaintiff sued her insurance company when it refused to make payments for damage that she alleged that she suffered when a remodeled barn full of expensive personal property was destroyed by fire. The insurer requested photographs of the interior of the barn, including photographs of the second floor, where items worth hundreds of thousands of dollars were allegedly located. The insured responded that she had no pictures of the second floor of the barn, but a witness called in support of the plaintiff's claim testified that she had seen pictures of the second floor. The plaintiff rebutted the witness's testimony, testified that she did not have photographs of the second floor, and that the witness had been provided with pictures of the...