4. See S.B. v. U.B., 38 Misc.3d 487, 494-95, 953 N.Y.S.2d 831, 838 (Sup. Ct. Kings Co. Oct. 31, 2012), in which spoliation was found, and the sanction issued was preclusion of testimony as to the "existence, or contents, of the diary at any hearing." The court also stated that
a party is responsible for preserving evidence when they are on notice that it may be needed for litigation. This responsibility to preserve evidence may extend to items that are not in the possession of a party when that party negligently fails to take steps to assure its preservation…. Although [the party] and her counsel may not have had access to the un-redacted diary, [the party] was on notice, once she utilized and submitted the entries, that the un-redacted diary may be needed for litigation. As she submitted the excerpts of the diary, [the party] was the party responsible for preserving it, and should have taken steps to ensure the diary's preservation.
5. 102 A.D.2d 654, 958 N.Y.S.2d 168 (2d Dept. Jan. 9, 2013).
6. 100 A.D.3d 960, 962, 954 N.Y.S.2d 215, 217 (2d Dept. 2012).
7. 95 A.D.3d 1084, 1085-86, 944 N.Y.S.2d 313, 314-15 (2d Dept. 2012).
8. Index No. 30401/09 (Sup. Ct. Queens Co. May 12, 2011).
9. Index No. 6672/10 (Sup. Ct. Queens Co. March 29, 2012).
10. Index No. 102654/09 (Sup. Ct. N.Y. Co. Jan. 9, 2013).
11. Index No. 10214/11 (Sup. Ct. Queens Co. Dec. 17, 2012).
Mark A. Berman, a partner at commercial litigation firm Ganfer & Shore, is secretary of the e-discovery committee of the Commercial and Federal Litigation Section of the New York State Bar Association. Anne Taback, an associate, assisted in the preparation of this article.
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