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No Duty To Protect Data from Unpredictable Act of Nature

Posted on July 24th, 2017

unpredictable destructionIn Kohan v. Nehmadi, Docket No. 104259/11, Supreme Court, New York County, June 6, 2017, a New York state lower court considered Plaintiff’s motion for spoliation sanctions after Defendant claimed that it irretrievably lost hard copy documents in Hurricane Sandy, and that it separately lost data on a hard drive containing electronic data due to a sprinkler burst that caused flooding in its office.

Regarding the data destruction during Hurricane Sandy, Plaintiffs contend that Defendants did not do enough to preserve the documents and data, and that they should have already had scanned the hard copy documents and preserved the documents electronically given that the litigation had commenced 18 months before Hurricane Sandy. The court disagreed, finding no existing case law that imposes a duty to scan hard copy documents to prevent an unpredictable act of nature from destroying evidence.

Regarding the electronic data lost when a sprinkler system flooded a basement and a hard drive contained therein, the court first noted that Plaintiffs had questioned the veracity of the story, and found that the destruction by a sprinkler malfunction may have been negligent.

Plaintiffs sought to strike Defendant’s answer as a sanction, but the court declined to do so regarding the hard copy documents lost in Hurricane Sandy.  Regarding the electronic data lost due to the sprinkler flooding, the court held that it would be premature to award sanctions, instead ordering Plaintiffs to have a computer forensics expert determine if it could retrieve any data from the hard drive before the court would consider spoliation sanctions.

ILS – Plaintiff Electronic Discovery Experts

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