July 31, 2015 Practice Points

The Importance of Pre-Litigation Preservation of Evidence

Preserve evidence or be subject to sanctions.

By Jennifer Braster

The case of Quraishi v. Port Authority of N.Y. demonstrates the importance of pre-litigation preservation of evidence and making sure both counsel and the client have a correct understanding of the client’s preservation measures to avoid claims of spoliation. Quraishi v. Port Authority of N.Y., Case No. 13 Civ. 2706(NRB), 2015 WL 3815011 (S.D.N.Y. June 17, 2015).

In Quraishi, a woman slipped on what appeared to be a brown liquid substance at the Port Authority in New York and sued for damages sustained in that slip in fall. The plaintiff sent an evidence-preservation letter 35 days after the accident requesting that the defendants preserve video footage of the entire day. In discovery, the defendants produced a 48-minute video showing the accident. During a discovery conference, defense counsel stated that his client informed him that the surveillance tapes looped over after 30 days and that this footage was the only footage saved. The plaintiff then deposed the individual who defense counsel stated had provided this information. That individual denied any knowledge of who made the video, how far back surveillance tapes could be kept, and whether additional footage existed. The defendants also claimed no knowledge of who preserved the footage or who operated the surveillance system on the day of the accident in response to written discovery. The defendants did state in response to written discovery that the surveillance systems could save at least 60 days of video footage, not 30 days, meaning that the footage would not have been destroyed at the time plaintiff sent the evidence-preservation letter.

The plaintiff filed a motion for sanctions, accusing the defendants of spoliation. A party seeking spoliation sanctions must establish three elements: (1) The party with control over the evidence had an obligation to preserve the evidence at the time it was destroyed; (2) the party had a “culpable state of mind” when it was destroyed; and (3) the evidence was relevant.  

With respect to the first element, the court found that the defendants had a duty to preserve at the time of the accident, as courts have routinely found a defendant is put on notice when a serious accident occurs on its property. The question was then posed as to whether saving the 48 minutes of footage was sufficient. The court answered that question in the negative as the plaintiff had sent an evidence-preservation letter and the footage saved showed nothing as to how the liquid got on the floor, how long it had been there, and if any of defendant employees had seen it.

Turning to the second and third elements, the court found that the defendants’ failure to undertake any effort to preserve additional footage from the day of the accident was grossly negligent. A showing of gross negligence in and of itself may be sufficient to support a finding of relevance, i.e., that the evidence destroyed was unfavorable to that party, without any extrinsic evidence showing relevance. Accordingly, the court stated that it would “instruct jurors that they may, but are not required to, find that additional surveillance footage would have shown that the brown liquid existed on the ground for a sufficient period of time for defendants to have discovered and cleaned or otherwise remedied it.”

This case exemplifies why clients (and attorneys) need to take their evidence-preservation duties seriously. The defendants ignored an evidence-preservation letter and provided inaccurate information to their own attorneys regarding the footage and what their evidence-retention policies were. The defendants then gave contradictory information regarding the footage during discovery. As a result, the court found that the defendants’ conduct warranted sanctions. The case serves as a reminder to undertake the necessary measures to preserve evidence or be subject to sanctions.

Jennifer Braster, Naylor & Braster, Las Vegas, NV

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