Prior to the onset of electronic data saved in native file format, paper documentation in large banker boxes ruled the discovery process for physical evidence. This has completely changed in the last 10 to 15 years, as electronic files in native format are now commonly requested and produced in civil litigation. This presents a slew of challenges and issues of first impression for courts across the country.
One such court recently grappled with the application of traditional spoliation sanctions with the new wave of technology in an interim order from the Supreme Court of the State of New York, County of New York Part 58, QK Healthcare, Inc. v. Forest Laboratories, Index No. 117407/09 (May 13, 2013). The court discussed that under the traditional law, “[w]hen a party alters, loses or destroys key evidence before it can be examined by the other party’s expert, the court should dismiss the pleadings of the party responsible for the spoliation,” citing Squiteri v. City of New York, 248 A.D.2d 201, 202 (1st Dept. 19980).
However, the court recognized accidental destruction of email and other electronic evidence may necessitate lesser remedies for spoliation. “Electronic discovery raises a series of issues that were never envisioned…and are not faced in traditional paper discovery.” Id. Noting that the First Department in New York has clarified the standard for electronic data spoliation, the court then turns to that standard:
- The party in control of the evidence has a duty to preserve it;
- The records or data was destroyed with a culpable state of mind;
- The destroyed evidence was “relevant” to the moving party’s claim or defense.
Those seem like straightforward elements for courts to consider, but when you dig deeper, a new slew of issues arise. When does the duty to preserve arise? What constitutes a culpable state of mind—mere negligence, or does it require something more? How does a moving party prove that destroyed evidence never produced was relevant to a claim or defense? Our discussion of QK Healthcare and the application of the case facts will continue in our next blog.