A recurring issue for many trial attorneys is spoliation, which occurs when evidence is altered, stolen or has become otherwise unavailable. Often, the effects of spoliation cannot be reversed or remedied by the use of alternate evidence. Given the unique obstacles that arise when a party is deprived of evidence, the New York courts have had to decide what remedies are warranted in order to compensate the aggrieved party.
Duty
In order to determine if a remedy is appropriate, the courts require a duty to preserve the evidence that is unavailable. A duty can be established by law or by virtue of the relationship between the parties. Specifically, the courts will ask if the alleged spoliator is a party to the action in which the evidence is needed. In addition, the courts will ascertain if the aggrieved party made an actual effort to preserve the evidence either by reaching out to the spoliator, the court or any other party to ensure the preservation of the evidence sought.
