Recently, the New York Supreme Court, Appellate Division, First Department considered whether to adopt and apply the Zubulake standard for the spoliation of electronically-stored information (“ESI”) to a claim for spoliation of an audiotape recording or whether existing New York spoliation doctrine was sufficient. Strong v. City of New York involved a June 30, 2009, accident in which an NYPD vehicle collided with another vehicle, jumped the sidewalk curb and struck five pedestrians, including plaintiff, Kevin Strong. Within 30 days of the accident, three plaintiffs commenced personal injury actions and these were consolidated for trial. On September 21, 2009, less than 90 days after the accident, the City joined issue and interposed the “emergency operation” defense, claiming the police officer’s vehicle was an authorized emergency vehicle engaged in an emergency operation at the time of the accident and, therefore, the City could only be held liable if the officer had acted with reckless disregard for the safety of others.
During discovery, plaintiffs requested the audiotapes of the transmission upon which the officer allegedly relied to justify his proceeding in an emergency fashion. The City failed to produce the audiotapes, claiming audiotapes are maintained for 180 days and then deleted and would have been deleted in the normal course of business 180 days after the June 30, 2009 accident. As a sanction for the City’s spoliation of this evidence, the trial court initially precluded the City from introducing testimony as to the contents of the audio recording, but later modified and vacated portions of its order. Plaintiff appealed the modified order.
The First Department held that “negligent erasure of audiotapes can certainly give rise to the imposition of spoliation sanctions under New York’s common-law spoliation doctrine, if the alleged spoliator was on notice that the audiotapes might be needed for future litigation.” (internal citation omitted). The Appeals Court rejected the City’s argument that it was not on notice that the audiotapes would be needed for litigation because plaintiff had filed his notice of claim and the City had raised the emergency doctrine defense well within the 180 days before the City’s automatic deletion period. The Court noted that the First Department had previously adopted the Zubulake standard requiring a party who reasonably anticipates litigation to suspend its routine document retention/destruction policy and put in place a litigation hold in cases involving ESI and had also extended this standard to some cases involving the spoliation of non-electronic discovery. Although the Court found the Zubulake standard useful, it ultimately determined that New York law fully addressed the obligation to preserve the audiotapes and, therefore, it was unnecessary to rely upon the Zubulake standard here.
The Court held that the appropriate sanction was preclusion of any testimony concerning the contents of the destroyed audiotape and noted that an adverse inference charge may be appropriate as well, while also holding that precluding any evidence that would establish the City’s emergency doctrine defense would be excessive. Thus, even though the Court did not ultimately utilize the Zubulake framework here, this decision is interesting because it involved a court examining the application of the Zubulake standard outside its traditional context and imposed sanctions that likely mirror those that might have been levied had the Court elected to employ that standard.