In Pegasus Aviation I v. Varig Logistica S.A,1 the Court of Appeals held that a party seeking sanctions for spoliation of evidence must show that the party controlling 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” (meaning intentionally; with gross negligence or ordinary negligence2); and that the evidence was relevant to the party’s claim or defense.3 The latter two requirements are mostly factual, but the first requirement (the duty to preserve) is imposed by law. Where does this legal obligation to preserve evidence come from?
In addition to CPLR 3126, which allows for penalties for willfully failing to disclose “information which the court finds ought to have been disclosed,” it appears that all parties to civil cases have an implicit duty to refrain from spoliation and obstructing the truth-seeking process, and the courts have inherent power to police this responsibility. Voom HD Holdings v. Echostar Satellite, a First Department opinion cited in Pegasus, supports this responsibility in the electronic evidence context, and applies the “litigation hold” standards and procedures first clearly articulated in the now widely-followed Zubulake case.4
