In Radiation Oncology Servs. of Cent. N.Y., P.C. v Our Lady of Lourdes Mem. Hosp., Inc., EF15-462 (June 9, 2020 NY Supreme Court, Cortland County), Plaintiff’s motion for production of litigation hold was granted after making a preliminary showing of spoliation.
The case arose from a dispute between the Plaintiff physician and Defendant hospital after the hospital suspended the physician’s clinical privileges. Plaintiff moved to compel Defendant’s litigation hold and sought sanctions based on specific instances of spoliation.
Specifically, Plaintiff identified an email between another physician at the hospital with the hospital’s CEO which included an attachment with notes summarizing a meeting that discussed the potential revocation of Plaintiff’s privileges. Defendant was unable to produce the email and the CEO of the hospital admitted to deleting the email immediately after his receipt.
Plaintiff also pointed to a second alleged instance of spoliation which consisted of another email communication involving a member of the hospital CEO’s staff in which concerns were expressed regarding the ongoing process of Plaintiff’s review. Only a printed copy of the memo was produced and Defendant was unable to produce any ESI for that document.
Based on its review of the two emails, the Court stated: “Defendants’ assertion that there has been no spoliation because hard copies containing the content of the emails have been produced is unavailing as printing paper copies of the emails and permanently deleting the associated ESI potentially deprived the emails of significant evidentiary value.” Nevertheless, “defendants could preclude production of the litigation hold by establishing, as a matter of law, at least one of the following elements for each item of destroyed evidence: (1) that they had no obligation to preserve the evidence at the time of its destruction; (2) that the evidence was destroyed through no fault or wrongdoing whatsoever, even negligence; or (3) that the missing evidence was not relevant to plaintiffs’ claims.”
Defendant did not dispute that there was an obligation to preserve and at oral argument, Defendant’s counsel conceded that the duty to preserve arose no later than when Defendant’s counsel received notice that Plaintiff intended to pursue litigation, which were prior to the two emails. Defendant also admitted that the CEO affirmatively deleted the first email. Defendant could also not exclude the possibility that the ESI for the two emails could provide evidence relevant to Plaintiff’s claims.
Accordingly, the Court granted Plaintiff’s motion and ordered Defendants to produce the litigation hold in order to afford the parties an opportunity to litigate the issue of spoliation sanctions.