Skip to Main Content
Services Talent Knowledge
Site Search
Menu

Alert

Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

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.

Subscribe

Click here to sign up for alerts, blog posts, and firm news.

Featured Media

Alerts

NYS Governor Hochul's Budget Places the Future of the CDPAP RFO in Doubt

Alerts

Website Accessibility Lawsuits: Mizrahi Kroub LLP, Attorneys for Serial Tester Plaintiffs, Now Targeting Businesses in New York State Court

Alerts

NYS Governor Hochul Vetoes Proposed Grieving Families Act

Alerts

New Notification Requirements for Industrial Development Agencies

Alerts

HHS OCR Bulletin: Health Care Providers' Websites and Apps Could Contain HIPAA-Noncompliant Tracking Technologies

Alerts

EPA Finalizes Waters of the United States Rule

This site uses cookies to give you the best experience possible on our site and in some cases direct advertisements to you based upon your use of our site.

By clicking [I agree], you are agreeing to our use of cookies. For information on what cookies we use and how to manage our use of cookies, please visit our Privacy Statement.

I AgreeOpt-Out