In O’Brien v Peter Marino Architect, PLLC, the plaintiff alleged that certain discriminatory statements were made by an employee of Peter Marino Architect, PLLC, whom also employed plaintiff. Defendant moved for spoliation sanctions on the ground that Plaintiff had created a timeline of events involving the claims in the case, saved it on his neighbor’s computer, which included some 67 versions (based upon the document’s metadata), but only produced one version in discovery.
First, the Supreme Court, New York County identified the standard under such a claim as follows:
“Under the common law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” (McDonnell v. Sandaro Realty, Inc., 165 AD3d 1094, 1095; see Morales v. City of New York, 130 AD3d 792, 793). “A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (Golan v. North Shore-Long Is. Jewish Health Sys. Inc., 147 AD3d 1031,1032).
Then, the court held that plaintiff’s conduct was not sanctionable, nor that plaintiff had a culpable state of mind:
defendants state that from the metadata collected from Waldron’s (plaintiff’s neighbor’s) [*3]computer shows that there were at least 67 different versions of plaintiff’s written statement, suggesting that plaintiff edited and deleted other versions of such statement. Plaintiff testified at her deposition that there was at least one other version of the statement printed from her neighbor’s computer, and that she is now unaware of where that printed copy may be. Assuming plaintiff lost or destroyed any other version of her prepared statement, the court fails to comprehend how such an item can be presumed to constitute “key evidence.” What defendants seek here is plaintiff’s thought process as she came to a final decision on what her statement should contain. While we are in a high-technological era, where our electronic devices have the ability to track our thought processes before we finalize them, those ponderings should hardly be treated as key evidence — the loss of which invites spoliation sanctions. Moreover, defendants have not shown this court that plaintiff possessed the culpable mental state necessary to support a finding of sanctionable spoliation. Defendants’ motion for spoliation sanctions is denied.