2008-07-23 Negligent Destruction of Evidence Tort Makes "Appearance" in NY

In the July 16, 2008 decision in Newton v. City of New York 2008 WL 2775646 (S.D.N.Y. 2008), Judge Scheindlin states that while "New York does not recognize the tort of “third-party negligent spoliation of evidence...” [t]he courts appear to permit an action for the negligent destruction of evidence so long as the plaintiff can meet the requirements of a standard negligence action."

What this portends for negligent destruction of computer generated information claims remains to be seen. It is relatively clear that an independent cause of action for spoliation may not be brought in the 2d Circuit. That said, a negligent destruction of evidence claim, brought against a third party, involves fewer pleading elements than a spoliation claim. The most onerous pleading element in a spoliation claim is a showing that what was spoliated would have either supported the non-spoliator's claims or disproved the spoliating party's claims. Porivng that negative presents a very imposing barrier to a successful spoliation claim, although there are some decisions that support an approach that permits the actions of the spoliating party to support an inference that the spoliated evidence was supporting/damaging.

Another unanswered question is whether a negligent destruction of evidence claim can be asserted as an independent claim by a party against a party (independent of a District Court's inherent powers to sanction, or Fed. R. Civ. P. 37).