OrthoTec, LLC v. HealthpointCapital, LLC
OrthoTec, LLC v. HealthpointCapital, LLC
106 A.D.3d 472 (N.Y. App. Div. 2013)
May 9, 2013
Schweitzer, Melvin L., Justice
Summary
In an extraordinarily pithy decision, the appellate division
affirmed a decision to deny defendants’ motion for spoliation sanctions because
the spoliation did not deprive defendants of their ability to defend against
the claim. The “zone of preservation
duty” only encompassed documents drafted after plaintiff began seriously
contemplating initiating litigation.
Without further explanation, the court held that evidence of plaintiff’s
preservation practices was inadequate to show the degree of plaintiff’s
culpability.
ORTHOTEC, LLC, Respondent,
v.
HEALTHPOINTCAPITAL, LLC, et al., Appellants, et al., Defendant
v.
HEALTHPOINTCAPITAL, LLC, et al., Appellants, et al., Defendant
10044N, 601377/08
Supreme Court, Appellate Division, First Department, New York
May 09, 2013
Counsel
DLA Piper LLP (US), New York (Colleen M. Carey of counsel), for Appellants.Browne George Ross LLP, Los Angeles, CA (Peter W. Ross of the bar of the State of California, admitted pro hac vice of counsel), for Respondent.
Panel members:
Schweitzer, Melvin L.,
Andrias, Richard T.,
Saxe, David B.,
Freedman, Helen E.,
Roman, David J.
Schweitzer, Melvin L., Justice
Opinion
**422 *472 Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered October 2, 2012, which denied defendants' *473 motion for spoliation sanctions, unanimously affirmed, without costs.
The motion court properly denied defendants' motion to strike the cause of action for intentional interference with economic advantage as a sanction for spoliation since the spoliation did not deprive defendants of their ability to defend against the claim (see Suazo v. Linden Plaza Assoc., L.P., 102 A.D.3d 570, 958 N.Y.S.2d 389 [1st Dept. 2013]; see also Melcher v. Apollo Med. Fund Mgt. L.L.C., 105 A.D.3d 15, 959 N.Y.S.2d 133 [1st Dept. 2013] ). With respect to any other spoliation sanction, the court properly found that the “zone of the preservation duty” encompasses only documents drafted subsequent to 2008, when plaintiff began seriously contemplating initiating this litigation (see VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 939 N.Y.S.2d 321 [1st Dept. 2012] ), and that the evidence of plaintiff's preservation and collection of any such documents is inadequate to show the degree of its culpability (see Melcher, 105 A.D.3d at 23, 959 N.Y.S.2d 133).
ANDRIAS, J.P., SAXE, FREEDMAN, ROMÁN, JJ., concur.