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New York Appellate Division: No Dismissal for Loss of ESI Stored for 7 Years in a Safe

Last week, the Fourth Judicial Department of the Appellate Division of the New York State Supreme Court issued a decision, Miller v. Miller, No. 761 CA 20-00203, 2020 N.Y. App. Div. LEXIS 8153 (4th Dep't Dec. 23, 2020), ruling on the Defendant's appeal of an order denying its motion for summary judgment on some claims in the complaint. The Defendant was the employer of a man who harassed the Plaintiff and her husband, after the Plaintiff ended her relationship with him. The husband also worked for the Defendant, Moog, Inc.. The Plaintiff's complaint listed causes of action for negligent supervision and retention, and breach of fiduciary duty for which summary judgment motions were denied.

The Defendant argued that the lower court abused its discretion in not dismissing the Plaintiff's complaint for spoliation of evidence. Email data for the accounts of the Plaintiff and her husband was stored on a hard drive that was later found not to function. While the Fourth Department acknowledged that a claim could be dismissed on the ground of spoliation even where there was not intentional destruction of evidence, it observed that prejudice would have to be shown that the negligent destruction of ESI deprived the Defendant of a means of proving her defense. No abuse of discretion was found:

"Although the relevant hard drives appear to have been negligently forgotten in a safe in the law firm of plaintiff's attorney for approximately seven years, there does not appear to be a dispute that the hard drives of plaintiff and her husband were imaged by a vendor for the purpose of preservation. There is no allegation or evidence that plaintiff or her counsel tampered with those hard drives. Further, defendant failed to offer any evidence to support its assertion that the absence of access to 'native electronic files' due to the loss of information on the inoperable hard drive substantially prejudiced, much less precluded, its ability to mount a defense in this action. The court therefore did not abuse its discretion in refusing to dismiss the amended complaint as a spoliation sanction." Id. at *9.

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