Category Archives: Evidence

The First Department’s Jan. 29 ‘spoliation trifecta’

By Victor M. Metsch

Victor M. Metsch is Senior Litigation/ADR Counsel at Smith, Gambrell & Russell, LLP.  This article was originally published by ThomsonReuters.

On Jan. 29, 2013, the First Department released three decisions that addressed issues related to “spoliation” of evidence that, taken together, constitute a primer on how that Appellate Division approaches both the claims of loss, destruction or failure to preserve evidence, on the one hand, and the consequences and sanctions for the negligent or intentional failure to maintain and produce documentary and other proof, on the other.

In Alleva v. United Parcel Service, Inc., 2013 NY Slip Op 00409 “a security guard employed by defendant Pitt [Investigations, Inc.] at a UPS center, [sought] to recover for injuries he sustained when he allegedly was assaulted by defendant [Gary] Calwood, a UPS employee, while searching Calwood’s belongings.” Alleva sought, and UPS was unable to produce, its “center file” on Calwood – a file that “would document any previous disciplinary issues[.]” Continue reading