SPOUSE'S SPYWARE SPRINGS SANCTIONS

C.C. v A.R., 2021 NY Slip Op 01243, Decided on March 3, 2021, Appellate Division, Second Department:

"This appeal examines the proper sanction in a matrimonial litigation where one party installed spyware on the other party's phone, invoked Fifth Amendment protections on the issue, and intentionally destroyed evidence as to what the spyware actually intercepted. The Supreme Court properly determined, under the circumstances here, that it is proper to infer that the plaintiff violated the defendant's attorney-client privilege, and that the appropriate sanction is to strike the causes of action in the complaint relating to the financial issues of the case other than child support.

The parties were married in 2008, and have two children, both born in 2009. The plaintiff commenced this action for a divorce and ancillary relief by filing a summons and complaint in October 2014.

In May 2015, the defendant moved, ex parte, by order to show cause, to direct the plaintiff to immediately turn over his computing devices for forensic imaging and analysis. The defendant introduced evidence that the plaintiff had installed spyware onto her phone, and that he had repeatedly invoked his Fifth Amendment privilege against self-incrimination when questioned about such spyware during his deposition. The Supreme Court directed the Sheriff of the City of New York to serve the order to show cause on the plaintiff and to confiscate his computing devices. The court also enjoined the plaintiff from destroying or tampering with any records related to any spyware.

The Supreme Court subsequently appointed a referee to examine the plaintiff's computing devices. Both parties hired forensic experts to assist the referee in the process.

The defendant then moved to compel the plaintiff to disclose all spyware he had purchased, alleging that her expert had found yet another spyware program on her phone, called OwnSpy. This new spyware, the defendant claimed, had a wiretapping feature and could turn her phone into an open microphone. The spyware was installed on her phone from October 10, 2014, to October 31, 2014. The defendant alleged that, the day before the plaintiff commenced this action, he had used the program to listen to her session with a psychiatrist and a meeting with her attorney.

In an interim report, the referee noted that, of the 14 computing devices that were examined, 4 of them were locked. The experts were able to open one without a password. The plaintiff claimed that he could not remember the passwords to the other 3 locked devices. The experts were able to unlock 2 of the 3 remaining devices with the help of an outside firm, but one device remained inaccessible. Based upon the experts' interim reports, the referee determined that the plaintiff did use spyware against the defendant, and that the plaintiff did intercept the defendant's confidential communications. The referee also concluded that there was no forensic evidence that the plaintiff disseminated the information to any third party, or that he intercepted or disseminated any privileged communications. However, the report noted that 1 of the locked devices contained evidence that, one day after the court order was issued to seize the plaintiff's computing devices, the plaintiff installed and executed data-wiping programs on that device. Because of this, it was impossible to determine what data, if any, was deleted and rendered unrecoverable.

The referee's final report noted that there was evidence that the plaintiff had used the spyware feature to record conversations using the defendant's phone while she was in the vicinity of her attorney's office.

The defendant then moved to hold the plaintiff in contempt for spoliation of evidence and to preclude the plaintiff from introducing any evidence at trial. The plaintiff opposed the motion. In an order dated February 5, 2018, the Supreme Court found that the plaintiff knowingly and purposefully violated the defendant's attorney-client privilege. The court also found that the plaintiff engaged in spoliation of evidence when he used data-wiping applications on his computing devices while he was obligated to preserve evidence. The court determined that the spoliation was intentional and in bad faith, and accordingly, that the relevance of the destroyed evidence was presumed. The court concluded that the plaintiff's actions "gravely prejudiced the defendant." The court determined that, because of the spoliation issues and the fact that the plaintiff repeatedly invoked his Fifth Amendment privilege against self-incrimination, the most drastic spoliation sanctions were required. Accordingly, the court, inter alia, granted that branch of the defendant's motion which was to prelude the plaintiff from introducing any evidence at trial to the extent of striking the causes of action in the complaint seeking spousal support, equitable distribution, and counsel fees.

"A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a 'culpable state of mind,' and 'that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense'" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547, quoting VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45). "Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed" (Pegasus Aviation I., Inc. v Varig Logistica S.A., 26 NY3d at 547). Here, the Supreme Court properly drew the presumption of relevance in connection with the interception by the plaintiff of privileged communications between the defendant and her attorney in view of the plaintiff's invocation of his Fifth Amendment privilege against self-incrimination when questioned about it at his deposition, his intentional destruction of electronic records, and the evidence that he had utilized spyware to record the defendant's conversations when she was in the vicinity of her attorney's office. Although this presumption is rebuttable (see VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d at 45), the plaintiff did not provide any evidence to rebut it. Further, while the striking of pleadings is a drastic remedy, the court did not improvidently exercise its discretion in striking the causes of action in the plaintiff's complaint seeking financial relief other than child support. "Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence" (Morales v City of New York, 130 AD3d 792, 793; see CPLR 3126; McDonnell v Sandaro Realty, Inc., 165 AD3d 1090, 1094-1095). "The Supreme Court is empowered with 'broad discretion in determining the appropriate sanction for spoliation of evidence'" (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 718, quoting De Los Santos v Polanco, 21 AD3d 397, 397). These sanctions can include "precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action. Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party" (Ortega v City of New York, 9 NY3d 69, 76 [citations omitted]).

Here, where the plaintiff violated the defendant's attorney-client privilege, the preclusion of documents is not an appropriate alternative sanction because the plaintiff will always be privy to any litigation strategy of the defendant that he gained through secretly intercepting her privileged communications (see Lipin v Bender, 84 NY2d 562, 572-573). As the plaintiff "chose the course of action that exacerbated the harm" (id. at 569), the defendant has been seriously compromised in defending herself in this divorce action. Accordingly, the Supreme Court providently exercised its discretion in striking the causes of action in the complaint seeking spousal support, equitable distribution, and counsel fees."

SPOLIATION

In 2009, plaintiff's truck was damaged by defendant. The action was commenced in 2010. In 2014, defendants demanded to inspect the truck. Plaintiff failed to comply and revealed in 2016 that the truck was sold. Defendants moved to strike the complaint.

Delmur, Inc. v School Constr. Auth,  2019 NY Slip Op 05764, Decided on July 24, 2019, Appellate Division, Second Department:

""Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126'" (Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 713-714, quoting Holland v W.M. Realty Mgt., Inc., 64 AD3d 627, 629). " [T]he Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence' and may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness'" (Doviak v Finkelstein & Partners, LLP, 137 AD3d 843, 846, quoting Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d 605, 606).

"The nature and severity of the sanction [for spoliation] depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of evidence, and the degree of prejudice to the opposing party" (Samaroo v Bogopa Serv. Corp., 106 AD3d at 714). " Recognizing that striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'" (Jennings v Orange Regional Med. Ctr., 102 AD3d 654, 655-656, quoting Iannucci v Rose, 8 AD3d 437, 438).

As the party seeking sanctions for spoliation, the defendants were required to demonstrate "that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim . . . such that the trier of fact could find that the evidence would support that claim" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [internal quotation marks omitted]; see Franco Belli Plumbing & Heating & Sons, Inc. v Dimino, 164 AD3d 1309, 1313; Saeed v City of New York, 156 AD3d 735, 737). "A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence" (VOOM HD Holdings LLC v EchoStar Satellite LLC, 93 AD3d 33, 45 [internal quotation marks omitted]). "Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed [evidence] is presumed. On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence was] relevant to the party's claim or defense" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d at 547-548 [citation omitted]).

Here, on their motion pursuant to CPLR 3126 to strike the complaint, the defendants sustained their burden of establishing that the plaintiff was obligated to preserve the truck at the time it was purportedly "seized and disposed" of, that the truck had been seized and disposed of before the defendants had an opportunity to inspect it, and that the truck was relevant to the litigation (see [*3]Richter v BMW of N. Am., LLC, 166 AD3d 1029, 1030). Furthermore, the defendants demonstrated that their ability to prove their defense had been significantly, if not fatally, compromised by the loss of the truck. Under the circumstances presented, the sanction of striking the complaint was appropriate (see UMS Solutions, Inc. v Biosound Esaote, Inc., 145 AD3d 831, 832-833; Diono v Meltzer, 208 AD2d 798; cf. Richter v BMW of North America, LLC, 166 AD3d at 1030; McDonnell v Sandaro Realty, Inc., 165 AD3d 1090, 1095; Neve v City of New York, 117 AD3d 1006, 1009)."

ON SPOLIATION OF EVIDENCE

Aponte v Clove Lakes Health Care & Rehabilitation Ctr., Inc. 2017 NY Slip Op 06056 Decided on August 9, 2017 Appellate Division, Second Department:

""A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [internal quotation marks omitted]; see Golan v North Shore-Long Is. Jewish Health Sys. Inc., 147 AD3d 1031, 1032). "[I]n the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices" (Bill's Feed Serv., LLC v Adams, 132 AD3d 1400, 1401 [internal quotation marks omitted]; see Golan v North Shore Long Is. Jewish Health Sys., Inc., 147 AD3d at 1033-1034; Iannucci v Rose, 8 AD3d 437, 438; cf. Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d 605, 606-607).

Here, the plaintiffs alleged that on July 13, 2013, the plaintiff Blanche Aponte was injured at the defendant's facility when a bed upon which she was lying collapsed. Approximately two years later, on March 17, 2015, the plaintiffs commenced the instant action by filing a summons and complaint. Sometime after the action was commenced, the plaintiffs demanded an inspection of the bed. However, the defendant claimed that, long before the instant action was commenced, the bed was examined by the defendant's maintenance worker, found to be fit, and reinserted into use at the defendant's facility, thereby rendering it unidentifiable. There is nothing in the record before this Court which demonstrates that the defendant had notice of the plaintiffs' claim prior to the commencement of the litigation, which was approximately two years after the accident. The plaintiffs therefore failed to establish that the defendant intentionally or negligently failed to preserve crucial evidence after being placed on notice that the evidence might be needed for future litigation (see Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d at 606; Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 714; Leevson v Bay Condos, LLC, 67 AD3d 972, 973; Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726, 727; Sloane v Costco Wholesale Corp., 49 AD3d 522, 523; Lovell v United Skates of Am., Inc., 28 AD3d 721, 721; cf. Rokach v Taback, 148 AD3d 1195, 1196)."