
Admissibility of Evidence - Spoliation - Unfavorable Inference - Preclusion
It is a principle of law that a party's intentional destruction of written evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction.[1]
New York courts have articulated this rule as follows: “[W]here it appears that a party has destroyed an instrument or document, the presumption arises that if it had been produced it would have been against his interest or in some essential particulars unfavorable to his claims under it. Contra spoliatorem omnia presumuntur. ...The inference is that the purpose of the party in destroying it was fraudulent.”‘ [2]
The current common law rule in New York is that the deliberate destruction of written evidence gives rise to the inference that the matter destroyed or mutilated was unfavorable to the spoliator. The presumption does not arise from the mere destruction of documents. It must appear that the destruction was intentional and that the documents were written evidence relevant to the issues on trial. [3] This unfavorable presumption does not dispense with the necessity of the other party introducing some other evidence of its contents, and showing that the documents destroyed were relevant to the case. [4]
In S.B. v. U.B., [5] the Supreme Court extended the Spoliation doctrine to matrimonial actions and granted discovery sanctions for Spoliation of evidence in custody litigation. The mother filed an Order to Show Cause seeking to modify the father’s visitation to supervised visitation, based on allegations made by mother's sister, S., that when she was ten (10) years old, the father sexually abused her and that the abuse continued for a period of three (3) years. The sister submitted two affidavits that contained these allegations and the mother submitted heavily redacted excerpts of her sister's childhood diary to her Order to Show Cause. S. stated that she was asked by mother's counsel to provide him with diary entries relating to the father's abuse and upon reviewing the diary she was embarrassed by the private childhood thoughts that it contained. After reviewing the diary, S. instead provided heavily redacted excerpts of her diary to mother's counsel. S. stated that since providing the excerpts of her diary to the mother's counsel, she "decided that [she] did not want anyone else to review it”, that she "discarded it in the trash”, and that she no longer possessed the diary. Supreme Court held that as she submitted the excerpts of the diary, the mother was the party responsible for preserving it, and should have taken steps to ensure the diary's preservation. The Court found that destruction of the diary severely prejudiced to the father and directed that the plaintiff-mother and the witness S. were precluded from testifying as to the existence, or contents, of the diary at any hearing.
[1] 2 John Henry Wigmore, Evidence in Trials at Common Law § 291 (James H. Chadbourn rev.1979).
[2] Armour v Gaffey, 30 AD 121, 125-26 (3d Dept 1898) affd, 165 NY 630, 59 NE 1118 (1901) (citing Joannes‘v. Bennett, 5 Allen, 169, 172.)
[3] In re Eno's Will, 196 AD 131, 163 (1st Dept 1921) (citing Fowler v. Martin, 1 T. & C. 377; affd., 56 N. Y. 676; Prince, Richardson on Evidence, §3-141 (Farrell, Ed., 1998)
[4] In re Eno's Will, 196 AD 131, 163 (1st Dept 1921)
[5] 38 Misc. 3d 487, 953 N.Y.S.2d 831 (Sup. Ct., 2012)
It is a principle of law that a party's intentional destruction of written evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction.[1]
New York courts have articulated this rule as follows: “[W]here it appears that a party has destroyed an instrument or document, the presumption arises that if it had been produced it would have been against his interest or in some essential particulars unfavorable to his claims under it. Contra spoliatorem omnia presumuntur. ...The inference is that the purpose of the party in destroying it was fraudulent.”‘ [2]
The current common law rule in New York is that the deliberate destruction of written evidence gives rise to the inference that the matter destroyed or mutilated was unfavorable to the spoliator. The presumption does not arise from the mere destruction of documents. It must appear that the destruction was intentional and that the documents were written evidence relevant to the issues on trial. [3] This unfavorable presumption does not dispense with the necessity of the other party introducing some other evidence of its contents, and showing that the documents destroyed were relevant to the case. [4]
In S.B. v. U.B., [5] the Supreme Court extended the Spoliation doctrine to matrimonial actions and granted discovery sanctions for Spoliation of evidence in custody litigation. The mother filed an Order to Show Cause seeking to modify the father’s visitation to supervised visitation, based on allegations made by mother's sister, S., that when she was ten (10) years old, the father sexually abused her and that the abuse continued for a period of three (3) years. The sister submitted two affidavits that contained these allegations and the mother submitted heavily redacted excerpts of her sister's childhood diary to her Order to Show Cause. S. stated that she was asked by mother's counsel to provide him with diary entries relating to the father's abuse and upon reviewing the diary she was embarrassed by the private childhood thoughts that it contained. After reviewing the diary, S. instead provided heavily redacted excerpts of her diary to mother's counsel. S. stated that since providing the excerpts of her diary to the mother's counsel, she "decided that [she] did not want anyone else to review it”, that she "discarded it in the trash”, and that she no longer possessed the diary. Supreme Court held that as she submitted the excerpts of the diary, the mother was the party responsible for preserving it, and should have taken steps to ensure the diary's preservation. The Court found that destruction of the diary severely prejudiced to the father and directed that the plaintiff-mother and the witness S. were precluded from testifying as to the existence, or contents, of the diary at any hearing.
[1] 2 John Henry Wigmore, Evidence in Trials at Common Law § 291 (James H. Chadbourn rev.1979).
[2] Armour v Gaffey, 30 AD 121, 125-26 (3d Dept 1898) affd, 165 NY 630, 59 NE 1118 (1901) (citing Joannes‘v. Bennett, 5 Allen, 169, 172.)
[3] In re Eno's Will, 196 AD 131, 163 (1st Dept 1921) (citing Fowler v. Martin, 1 T. & C. 377; affd., 56 N. Y. 676; Prince, Richardson on Evidence, §3-141 (Farrell, Ed., 1998)
[4] In re Eno's Will, 196 AD 131, 163 (1st Dept 1921)
[5] 38 Misc. 3d 487, 953 N.Y.S.2d 831 (Sup. Ct., 2012)
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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