New York Appellate Division: Spoliation Requires Culpable State of Mind


This past Friday, the Fourth Department of the New York State Appellate Division issued a decision affirming a lower court decision declining to impose sanctions against the Defendants for spoliation and granting the Defendants' motion for summary judgment. See, American Recycling & Mfg. Co., Inc. v. Kemp, 961 CA 17-01988, 2018 N.Y. App. Div. LEXIS 6624 (4th Dep't Oct. 5, 2018).

The Court upheld the summary judgment decision in this case, which concerned the alleged breach of a confidentiality agreement, because the Plaintiff did not present a triable issue of fact as to whether or not a Defendant divulged confidential information.

The Fourth Department's opinion stated that the Plaintiffs had the burden of showing that the Defendants possessed an obligation to preserve the email evidence in question, destroyed it with a culpable state of mind, and that the evidence was relevant to a claim or defense. The Fourth Department followed the precedent set by the New York Court of Appeals in Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 N.Y.3d 543 (2015). Emails destroyed by the Defendants were deleted before they receive notice from the Plaintiffs that this evidence might be needed in future litigation. The New York Supreme Court did not abuse its discretion in declining to impose sanctions.


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