Deletion of Radio Transmissions Results in Sanctions in NYPD Car Accident Case

In Strong v. City of New York, the Appellate Division, First Department recently held that sanctions were appropriate in light of the NYPD’s deletion of audio recordings preceding a car accident allegedly initiated by an NYPD driver.

Plaintiff and others were injured when an NYPD vehicle “collided with a vehicle operated by defendant Geraldo Falcon, mounted a nearby sidewalk, and struck five pedestrians, including plaintiffs.”

The City asserted the “emergency operation” defense, i.e., that the NYPD driver’s car “was an authorized emergency vehicle engaged in an emergency operation at the time of the accident” such that “the City could only be held liable if [the NYPD driver] acted with reckless disregard for the safety of others.”

After learning that the City intended to assert the emergency defense, plaintiff sought “audiotapes of the alleged emergency being responded to at the time of the accident, and the radio dispatcher calls and call logs for the emergency operation and accident.”

The City introduced an affidavit of a police communication technician stating that communications between the NYPD driver involved in the accident and his commanding officer would have resulted in a radio run audio recording, which would have been maintained for 180 days and then deleted.

In addressing whether sanctions arising from the City’s failure to prevent the automatic erasure of radio run audio recordings after 180 days constituted spoliation, the court noted that sanctions may be applicable “where the destruction of evidence was negligent rather than willful”, and that

the negligent erasure of audiotapes can certainly give rise to the imposition of spoliation sanctions under New York’s common-law spoliation doctrine, if the alleged spoliator was “on notice that the [audiotapes] might be needed for future litigation”.

The court determined that the City was on notice of the audio recording’s necessity to the instant litigation:

We reject the City’s assertion that it was not on notice that the recording might be needed for future litigation before it was erased. The City was placed on notice of plaintiffs’ claim and its own claimed affirmative defense within the 180 days after the recording was made, by (1) the filing of plaintiff Strong’s notice of claim, (2) the evidence given at his 50-h hearing, and (3) if nothing else, by the City’s service of its answer to the Strong complaint on September 21, 2009, in which it actually raised the emergency doctrine defense, making any evidence tending to establish that defense highly relevant. The City therefore had the obligation to take steps to prevent the automatic erasure of any audio recording from that incident, and its failure to do so constituted spoliation.

In addition, plaintiffs established that the Police Department, the presumptive custodian of those records, received notice even before the City could be brought into the action, through the order to show cause served on the Police Department by Strong’s former lawyer, seeking copies of radio dispatch calls and reports relating to the accident. Although the affirmation of service of the order to show cause was not attached with the other attachments to Strong’s May 31, 2011 motion, his counsel explained, without dispute, that a copy of the affirmation of service, included in the record, was handed up to the court and counsel on the calendar date. And, while the order to show cause was ultimately withdrawn, service of it gave the Police Department notice that plaintiffs might need the type of audio recording at issue here.

Therefore, the court concluded that “plaintiffs’ spoliation claim can be fully addressed under New York’s common-law spoliation doctrine.”

The court declined to apply the federal standard for electronically-stored information (ESI) as articulated in the seminal Zubulake v. UBS Warburg cases (and as adopted by the First Department in Voom v. EchoStar), since the discovery at issue is not ESI:

We nevertheless conclude that reliance on the federal standard is unnecessary in this context. Zubulake interpreted federal rules and earlier federal case law to adapt those rules to the context of ESI discovery. However, the erasure of, and the obligation to preserve, relevant audiotapes and videotapes, can be, and has been, fully addressed without reference to the federal rules and standards.

Having determined that sanctions were appropriate by reference to New York’s common law spoliation doctrine, the court then considered the appropriate sanction to impose.

It declined to order impose the sanction advocated by plaintiff, namely, “that the City’s emergency operation defense should be stricken or, alternatively, that the City should be precluded from offering any evidence in support of the defense.”

Striking defendant’s pleading, as well as preclusion, were too harsh:

Nothing in the record supports an inference that the erasure of the audio recording sought here was willful or in bad faith such as would justify the striking of a pleading.

Preclusion, also a relatively severe sanction, is appropriate where “the defendants destroyed essential physical evidence leaving the plaintiff without appropriate means to confront a claim with incisive evidence”. Here, the radio run audio recording is not key to the proof of plaintiff’s case in chief, although, depending on its contents, it could have been relevant either to prove or help disprove defendant’s emergency operation defense. Plaintiffs’ inability to establish whether the missing evidence would have been helpful to them cannot serve to support the City’s opposition to sanctions, since that inability is the City’s fault, not plaintiffs’.

The City’s emergency operation defense can still be challenged through examination of the officers involved and their commanding officer. We therefore conclude that the preclusion of any evidence that establishes the defense would be excessive

The court ultimately determined that the most appropriate sanction was preventing the City from introducing testimony as to the contents of the audio recording.  It also found that “[i]f warranted, an adverse inference charge at trial may be an appropriate additional sanction”.

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