The CSI effect: forensic evidence and construction law.

As demonstrated by the popularity of CBS's television show CSI: Crime Scene Investigation, the intriguing field of forensic science is capturing the attention of many across the nation. Beyond entertainment and education, however, forensics plays a very real and crucial role in civil investigations, using technology to investigate and establish facts in the civil courts. Evidence that illustrates wrongdoing, negligence and malfeasance through photographs, detailed reports, and testing can mean the difference between an adverse judgment and a complete discharge from liability. Every detail can help tell a story. Whether the detail is a stress fracture of an improperly driven pile, an email or a letter, the challenge is to preserve the evidence for later interpretation and examination. The intentional or negligent destruction or significant alteration of such evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation, is called spoliation [Black's Law Dictionary (8th ed. 2004)].

The Scope of the Duty to Preserve

The scope of a party's duty to preserve evidence remains unsettled, but many courts have articulated a test whereby a party must preserve all evidence they know or have reason to know is (i) relevant to a pending action, (ii) reasonably calculated to lead to the discovery of admissible evidence, (iii) reasonably likely to be requested in discovery, and/or (iv) the subject of a pending discovery request. See Zubulake v. UBS Warburg LLC, No. 02 Cir. 1243, 2003 WL 22410619, *3 (SDNY Oct. 22, 2003). Courts in many jurisdictions, however, have done little to flesh out the meaning of each prong of this test.

Deterring Spoliation: In order to deter spoliation, courts have fashioned sanctions to be imposed against the spoliating party. These sanctions range from jury instructions that imply that the spoliated evidence would have been damaging to the spoliating party, to completely barring any testimony by the spoliating party's experts, effectively resulting in an adverse finding against that party. More recently, however, the spoliation of evidence has resulted in the ability to assert an independent cause of action in tort.

Independent Cause of Action: A little over two years ago, the New York Court of Appeals in MetLife Auto & Home v. Joe Basil Chevrolet, Inc. refused to recognize an independent cause of action for negligent spoliation. Historically, New York Courts have not recognized an independent cause of action and, in many instances, spoliation of evidence in New York has gone unpunished. "The [New York] Supreme Court has [had] broad discretion in determining the appropriate sanction for spoliation of evidence," De Los Santos v. Polanco, 21 A.D.2d 397 (2nd Dept. 2005) and, until earlier this year, has refused to allow affirmative causes of action against a spoliating party.

In February 2006, in a well-articulated opinion in Ortega v. City of New York, 11 Misc. 3d 848, 809 N.Y.S.2d 884 (Kings Cty. Sup. Ct. 2006), Justice Martin Soloman of the New York Supreme Court recognized an independent cause of action sounding in tort for spoliation. In Ortega, the plaintiffs were severely burned when their vehicle inexplicably caught fire while traveling down a parkway. Following the accident, the vehicle was towed away by an agent of the City of New York. When the plaintiff's attorney attempted to inspect the car, he was denied access to the vehicle. An order was issued by the Court ordering the City of New York to preserve the vehicle and to permit the plaintiff's representatives access for photographing and inspection. Despite this order, the vehicle was sold as scrap and crushed. The plaintiffs commenced an action for spoliation of evidence and contempt stating that their inability to perform a physical inspection of the vehicle was a "fatal obstacle" in determining the cause of the fire. In its analysis, the Ortega Court recognized the wide range of situations which spoliation covers--"from the routine purging of records that might have some bearing on a distant lawsuit ... to the deliberate destruction of evidence known to be essential ..." Id. at 892. Notwithstanding the apparent broad application that an independent cause of action would encompass, the Court opined that where the Plaintiff can establish that the spoliator had a legal or contractual duty to refrain from spoliation, tort liability can arise. Justice Soloman stated that even an unintentional and negligent violation of the duty to preserve evidence will support a cause of action for spoliation where the requirements of duty and the evidence of damages can be proven. Ultimately, the Court's decision leaves open the possibility for future causes of action and liability in New York as a result of spoliation of evidence.

BY LEIGH ERIN SCHMELTZ, ESQ. ZETLIN & DE CHIARA LLP