Claimant's motion for spoilation sanctions denied. Prior protective order prevented disclosure of nominally modified PAS Manual, and claimant did not demonstrate that prior version would have been discoverable. That branch seeking sanctions due to alleged editing of prejudicial portion of video denied without prejudice because claimant's submission was unsworn and was unaccompanied by a copy of the challenged video.
|Claimant short name:||EDWARDS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||MARK EDWARDS, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Glenn C. King, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 10, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges that he was assaulted by correction officers at Clinton Correctional Facility (CF) on July 30, 2013. Claimant moves for sanctions due to the alleged spoliation of evidence. Defendant opposes the motion.
Claimant seeks sanctions for the spoliation of a Personal Alarm System (PAS) Manual that was in effect on the date of the alleged assault and the spoliation of video footage that was allegedly deleted from a DVD that was provided to claimant during discovery. The imposition of sanctions for the spoliation of evidence involves the exercise of broad judicial discretion (see Ortega v City of New York, 9 NY3d 69, 76 ). Severe sanctions such as striking a pleading or issuing an order of preclusion is reserved for the most egregious of situations, such as where it is demonstrated that the evidence is unavailable due to deliberate or contumacious conduct (see Denoyelles v Gallagher, 40 AD3d 1027 [2d Dept 2007]; O'Connor v Syracuse Univ., 66 AD3d 1187, 1191 [3d Dept 2009], lv dismissed 14 NY3d 766 ; Osterhoudt v Wal-Mart Stores, 273 AD2d 673, 674-675 [3d Dept 2000]), or where a claim or defense is fatally compromised because the unavailability of evidence leaves a party unable to bear its binder of proof (see Hotel 57 LLC v Harvard Maintenance, Inc., 29 AD3d 462 [1st Dept 2006]; Baglio v St. John's Queens Hosp., 303 AD2d 341, 342-343 [2d Dept 2003]; cf. Mylonas v Town of Brookhaven, 305 AD2d 561 [2d Dept 2003]; Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621, 621-622 [2d Dept 2001]). It matters not whether the spoliation was intentional or negligent; rather, the nature of the sanction should relate to the degree to which the moving party has been prejudiced by the loss of the evidence (see Denoyelles v Gallagher, 40 AD3d at 1027; Baglio v St. John's Queens Hosp., 303 AD2d at 342; Chiu Ping Chung v Caravan Coach Co., 285 AD2d at 621-622).
As an initial matter, that branch of claimant's motion seeking spoliation sanctions for the destruction of the PAS Manual will be denied. A prior decision and order of this Court granted defendant's motion for a protective order denying disclosure of the PAS Manual that claimant had requested in discovery on the ground that its disclosure could compromise safety and security (see Edwards v State of New York, UID No. 2017-038-551 [Ct Cl, DeBow, J., July 17, 2017]). In support of defendant's motion for the protective order, Earl Bell, First Deputy Superintendent of Clinton CF, averred that the version of the PAS Manual that was in effect on July 30, 2013 (the date of the alleged assault) could not be located despite a diligent search and that the PAS Manual had received minor revisions, and defendant submitted a newer version of the PAS Manual for in camera review. Claimant moves for sanctions for the spoliation of the PAS Manual that was in effect on July 30, 2013, arguing that a litigation hold should have been issued to prevent the destruction of that document. Defendant responds that a grant of sanctions for the spoliation of the evidence would be inappropriate due to the Court's granting of defendant's motion for a protective order. It is axiomatic that spoliation sanctions are reserved only for those instances where one party destroys relevant evidence that a party would otherwise be entitled to receive in the course of discovery. Inasmuch as the prior order of the Court has precluded disclosure of the nominally updated PAS Manual, and claimant has not argued that the prior version would be discoverable, the imposition of sanctions would be inappropriate and unwarranted.
In an unsworn submission, claimant asserts that in June 2015, defendant produced a video recording on a DVD that edited out "material events which were recorded showing clearly that defendants were abusing claimant while he was severely injured, handcuffed behind his back and offered no provocation" (Edwards Submission, ¶ 11). Claimant asserts that defendant "knowingly destroyed the video evidence without good cause" because the evidence was detrimental to its defense (id., ¶¶ 13,14). Claimant did not submit a copy of the DVD due to "prison constraints," but noted that he would forward the DVD to the Court if necessary.
Notwithstanding that defendant has not made any arguments in opposition to claimant's claim of spoliation, claimant's submission is unsworn and lacks evidentiary value. Further, claimant has failed to submit a copy of the DVD recording at issue, thus denying defendant opportunity to view the challenged DVD and to respond to claimant's arguments.
Accordingly, it is
ORDERED, that that branch of claimant's motion number M-90903 seeking sanctions for the spoliation of the PAS Manual is DENIED; and it is further
ORDERED, that that branch of claimant's motion number M-90903 seeking sanctions for the alleged spoliation of the video produced to claimant in June 2015 on a DVD is DENIED without prejudice.
January 10, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 123656, filed December 13, 2013;
(2) Decision and Order in Edwards v State of New York, UID No. 2017-038-551 (Ct Cl, DeBow,
J., July 17, 2017);
(3) Notice of Motion, with Undated Submission of Mark Edwards (with Attachments) and
Memorandum of Law, filed July 20, 2017;
(4) Affirmation of Glenn C. King, AAG, dated August 30, 2017;
(5) Objection of Mark Edwards to Defendant's Affirmation, filed September 18, 2017.