In this day of ubiquitous surveillance cameras, businesses should be proactive in maintaining footage in the event of incidents on premises. Sanctions for spoliation of such evidence are unpredictable and can be devastating to a defense.

In the personal injury action Giuliano v. 666 Old Country Road, LLC and Sutton & Edwards Management, LLC. a plaintiff moved to strike a defendant’s answer on the basis of its “intentional or negligent” spoliation of evidence. Apparently Sutton inadvertently failed to preserve video footage of the plaintiff’s fall.

At trial, the court granted plaintiff’s motion and struck Sutton’s answer as a sanction for spoliation of evidence. In a somewhat contradictory decision, the 2nd Department reversed in part. The appellate court noted that the trial judge has “broad discretion in determining sanctions for spoliation of evidence” and found that Sutton did in fact destroy the video footage in question. However, the 2nd Department found that because the plaintiff was still able to prosecute her claim without the footage, a stricken answer was not warranted. The court held, notwithstanding that choice of sanctions is within the trial judge’s discretion, that under the circumstances in that case, an adverse inference charge was more appropriate.

The salient point here is the unpredictability of the sanctions a Court may hand down for spoliation of evidence. If a party “intentionally or negligently disposed of critical evidence, and fatally compromised the movant’s ability to prove a claim or defense,” the sanction may range from no sanction at all to a stricken answer and preclusion of a liability defense.

Thanks to Brian Gibbons for his contribution.

For more information, contact Denise Fontana Ricci at .