In a legal malpractice action, plaintiffs alleged their trial attorneys in the personal injury action failed to inform them about a $12 million settlement offer made shortly before the $3.7 million verdict. Defendants-attorneys alleged the plaintiffs were informed of the offer, which was provided in writing, and plaintiffs rejected it. During the deposition of plaintiff-wife (Mrs. Doviak), she was handed the written offer. The plaintiffs argued that handing the offer to Mrs. Doviak constituted spoliation of evidence, because the document could have been tested for fingerprints, and the absence of her fingerprints would have demonstrated she was never provided with the written offer during the trial. The Second Department determined the criteria for spoliation of evidence had not been met:
“The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense” … . “[T]he Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” and may, “under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation” … . This Court will substitute its judgment for that of the Supreme Court only if that court’s discretion was improvidently exercised … .
Here, the record supports the Supreme Court’s conclusion that the plaintiffs failed to demonstrate that the defendants intentionally or negligently destroyed fingerprint evidence which was critical to their case. The plaintiffs failed to demonstrate that they requested that the offer document be tested for fingerprints, or that it be preserved for forensic testing prior to Mrs. Doviak’s deposition, or otherwise informed the defendants of their desire to conduct fingerprint analysis. The plaintiffs’ boilerplate demand during discovery that they be permitted to examine original documents on request does not satisfy this requirement, nor is it reasonable to contend that the defendants should have anticipated the plaintiffs’ desire for forensic testing of the offer document … . Thus, the plaintiffs failed to demonstrate that, in handing the original document to Mrs. Doviak at her deposition, the defendants intentionally or negligently destroyed potential forensic evidence … . In any event, the plaintiffs failed to demonstrate that, by failing to preserve the offer document for forensic testing, the defendants had fatally compromised the plaintiffs’ ability to prove their claims … . Doviak v Finkelstein & Partners, LLP, 2016 NY Slip Op 01636, 2nd Dept 3-9-16
NEGLIGENCE (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)/EVIDENCE (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)/SPOLIATION (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)