In Ahroner v Israel Discount Bank of N.Y., the trial court granted the plaintiff an adverse inference instruction with respect to e-mails on the defendant’s erased hard drive. The Appellate Division affirmed the decision, stating that spoliation sanctions were properly granted. The evidence demonstrated that defendants controlled hard drive, were aware of their obligation to preserve it, and were subsequently directed by the court to do so. Defendants informed the court that they would comply with their obligations and would produce the hard drive for inspection by a forensic expert. However, the hard drive was erased before plaintiff was able to inspect it. Although the record was unclear as to when the hard drive was erased or whether it was preserved, the court concluded that since the drive was destroyed either intentionally or as the result of gross negligence, the court properly drew an inference as to the relevance of the e-mails stored on the drive.

Special thanks to Bill Kirrane for his contributions to this post.

http://www.nycourts.gov/reporter/3dseries/2010/2010_09013.htm