Abstract

As the digital space expands and data proliferates, so too do the opportunities for destruction or material alteration of evidence in pending litigation. This practice is known as the spoliation of evidence. Experts have discussed “deliberate obstructionism” to be a common practice, with even some incentives to alter evidence pending trial. Courts have increasingly dealt with complex cases involving electronically stored information (ESI), increasing the risk of intentional or unintentional evidence loss or deletion. New York State has sought to rectify this spoliation issue through civil remedies instead of a separate, punitive cause of action. Understandably, New York State’s legislative approach to this modern evidentiary issue does not cover the gambit of evidence spoliation, specifically when the evidence is destroyed in the early stages of a dispute, prior to any formal litigation. New York State’s patchwork of civil procedure remedies, local court rules, and common law decisions has created inconsistent guidance and results, leaving litigants without secure measures of preserving evidence for trial. 
This Note proposes to address the gaps in New York State’s approach to rectifying the spoliation of evidence. Beginning with a historical analysis of spoliation liability in New York, this Note examines courts’ broad discretion in imposing procedural sanctions in spoliation issues, highlighting case law to illustrate the judiciary’s treatment of the issue. The Note also evaluates the strength and weaknesses of New York’s current approach, discussing the lack of a culpability analysis in third-party spoliation that leaves litigants without adequate recourse. Finally, this Note presents reform aimed at modernizing the current approach, addressing third-party spoliation, assigning duties for pre-litigation preservation, and the unique challenges brought by ESI. No matter how far technology goes, it must answer the call when litigants wish to be heard.

Keywords: #SpoliationOfEvidence, #ElectronicDiscovery, #ESIPreservation, #NewYorkLaw, #CPLR3126