Spoliation of evidence can negatively affect a client’s case before the lawsuit is even filed. Clients should avoid the temptation to delete emails or texts, and affirmatively make certain that no documents are “routinely” deleted with litigation on the horizon, as shown in the recent decision Borough Constr. Grp. LLC v. Red Hook 160 LLC, Sup Ct, Kings County, April 5, 2022, Ruchelsman, J., Index No. 500308/19).
In Borough Constr., the underlying breach of contract suit is between various parties to a stalled construction project. During the litigation, the defendant learned that plaintiff had deleted certain text messages prior to the litigation and sought a motion for sanctions for spoliation of evidence. The Court, citing precedent, sets forth the well-established rule that “a party is under a duty to preserve evidence, even before litigation commences, once it reasonably anticipates litigation.” This is an “objective standard and requires whether a reasonable party would have expected litigation.” Threats of litigation can be sufficient. The Court then reviewed the timeline of communications between the parties for the triggering moment. Despite emails referring to potential future litigation, the Court found that the termination of the plaintiff from the work site was the moment where reasonable parties “would have surely anticipated litigation and [the] obligation to conduct a litigation hold and preserve all documents commenced.”
The plaintiff set forth various defenses to the motion, including a lack of prejudice, lack of relevance, no legal obligation, and no bad faith – all of which were rejected by the Court. Understandably, the Court found that the plaintiff cannot unilaterally decide relevance, especially concerning contemporaneous thoughts and beliefs. Common sense also defies that no text after the termination of the plaintiff might be relevant. Further, other testimony showed that there were significant text messages after the obligation accrued and that the plaintiff’s claims that there were not that many texts were not credible. The Court also noted in passing that the plaintiff was seeking the defendant’s text messages. The idea that there was no legal obligation the Court dismissed outright.
In considering why the texts were deleted, the plaintiff’s principals testified that they routinely delete text messages to free up storage space on their phones. However, this explanation was insufficient, as negligent spoliation does not vitiate the obligation. The Court, citing precedent, set forth the standard that “[w]hen considering an appropriate sanction, factors properly considered include the extent of the prejudice imposed on the party due to the missing evidence and the degree of willfulness of the spoliator.” With this in mind, the Court granted the motion and a negative inference will be presented to the jury.
In conclusion, any practitioner should regularly and routinely counsel their clients as a matter of course in a budding dispute, even if no litigation is yet filed, to keep their texts, emails, and documents, or risk a negative inference. Further, a prudent attorney also should advise their client that if have unflattering things to say about the other side, they really should not put it in writing.