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March 15, 2021

NYS Appellate Court Affirms Sanctions for Negligent Removal of Online Post

In a recent decision, the New York State Appellate Division, Third Department, affirmed that an adverse inference charge was within the trial court’s discretion when the plaintiff deleted an internet blog post, relevant to the defense, which he had an obligation to preserve.

In Joseph Bruno v. Peak Resorts, Inc., et al., plaintiff Bruno initiated a personal injury action following an injury he sustained while skiing at a ski resort owned and operated by the defendants. Following the accident, Bruno posted a comment on a blog about the ski trail conditions at the time of his accident, but subsequently deleted the comment prior to commencing suit but after retaining counsel. Bruno did not disclose evidence of the post during the course of documentary discovery and, at the time of his deposition, denied making or deleting such online posts. The defendants discovered Bruno’s falsehood and moved for dismissal for spoliation of evidence pursuant to CPLR § 3126.

The trial court granted the defendants’ request for relief, finding that Bruno had failed to provide “accurate representations” of his online posts. Rather than the requested dismissal, the court imposed an adverse inference charge against Bruno at trial, only to be avoided if he provided the deleted comment. Bruno appealed the decision arguing that he did not intend to withhold or destroy evidence and that he had disclosed other social media posts, thus the court abused its discretion in imposing such a sanction.

On appeal, the Third Department affirmed that sanctions were warranted because plaintiff Bruno had an obligation to preserve the now-deleted blog comments; the negligent deletion was done with a culpable state of mind; and the comment was relevant to the defendants’ defenses.

The appellate court also found that the imposition of an adverse inference charge was within the lower court’s discretion, taking into account the plaintiff’s dishonesty during discovery while noting that the charge would be tailored prior to trial and possibly avoided if Bruno retrieved and disclosed the deleted comment.

Accordingly, potential litigants must be cognizant that the intentional or negligent removal of an online post may result in sanctions including the striking of a pleading or an adverse inference at trial. As online and social media posts continue to increase, it is necessary for all counsel prior to suit to advise their clients and their adversaries’ clients of the obligation to preserve any and all evidence, including online and social media posts.

If you have any questions regarding the content of this alert, please contact Amanda Miller, associate, at amiller@barclaydamon.com, or another member of the firm’s Torts & Products Liability Defense Practice Area.

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