The art and science of a spoliation motion requires counsel to marshal one’s evidence in an attempt to achieve the highest level of “sanction” possible, appreciating that it is generally unlikely that a court would grant the ultimate sanction of dismissing a party’s pleading. In three recent trial court cases, in crafting the appropriate sanction, courts have had to balance one party’s clear and admitted wrongful conduct, often involving the failure to preserve emails,1 with the prejudice actually suffered by the moving party in order to achieve a result that appropriately “punishes” the infractor and awards the wronged party with a proportionate remedy.

In two cases, United States Merchant Marine Academy Alumni Assoc. and Foundation v. Hicks2 and Crocker C. v. Anne R.,3 the misconduct was so severe that the courts found that a negative inference and/or the production of the opposing party’s computers were mandated. In Crocker, which involved the installation of spyware by a husband that apparently resulted in the husband being able to read his wife’s privileged communications with her counsel, the court reserved the right to impose harsher sanctions, depending on the results of the forensic computer inspection, including the preclusion of evidence. In Zacharius v. Kensington Publ.,4 where the misconduct was not as extreme and with far less prejudice suffered by the moving party, the motion court imposed the sanction of ordering the payment of the attorney fees and costs incurred by defendants in reviewing plaintiff’s emails as well as the attorney fees and costs incurred by defendants in preparing their spoliation motion.

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