The Missing Document Charge in New York: Proving the Document Existed Before Seeking an Adverse Inference

In personal injury litigation, parties often seek missing document charges when they believe the opposing side has failed to preserve or produce relevant evidence. These charges allow the jury to draw negative inferences against the party that failed to maintain important documents or evidence. However, obtaining such a charge requires more than mere speculation that documents might have existed.

The burden falls on the requesting party to establish two key elements: first, that the documents actually existed, and second, that proper discovery procedures were followed to obtain them. Courts are particularly careful about granting missing document charges because they can significantly impact jury deliberations and case outcomes.

This evidentiary standard applies across various types of documentation in personal injury cases, from business records to police reports. The discovery process provides specific mechanisms for compelling document production, and parties must utilize these procedures to preserve their right to seek missing document charges later at trial.

The Decision in Knight

Jason Tenenbaum’s Analysis:

Knight v M & M Sanitation Corp., 2014 NY Slip Op 07631 (2d Dept. 2014)

This serious injury trial was problem for Plaintiff on may accounts. But there was discussion on a missing document charge for the failure to obtain photographs:

“Although there was testimony that McCarron took pictures at the accident scene with a disposable camera, the plaintiff failed to establish that any photographs of the accident scene existed, or that he moved to compel their production during discovery (see McGloin v Golbi, 49 AD3d 610; Crespo v New York City Hous. Auth., 222 AD2d 300).”

Adverse Inference Charges: How the Doctrine Works

The missing document charge is a cousin of the better-known missing witness charge. Both are adverse inference instructions: they permit (but do not require) the jury to infer that evidence within a party’s control, and unaccountably not produced, would have been unfavorable to that party. Because the instruction invites the jury to fill an evidentiary gap with suspicion, New York courts police the foundation for it carefully.

For a missing document charge, the foundational showing generally requires the requesting party to demonstrate that the document actually exists (or existed), that it is or was within the opponent’s control, that it would be relevant and non-cumulative, and — critically — that the requesting party actually pursued it through discovery. Knight illustrates how the first and last of those elements operate in practice.

Existence cannot rest on speculation. In Knight, there was trial testimony that a witness took pictures at the accident scene with a disposable camera. That might sound like proof that photographs existed. The Second Department held it was not enough: testimony that someone took pictures does not establish that developed, retrievable photographs of the accident scene ever came into being or remained in the defendant’s possession. The line between “someone snapped a camera” and “the defendant is withholding photographs” must be bridged with proof, not inference stacked on inference.

Discovery diligence is a prerequisite. The plaintiff also never moved to compel production of the photographs during discovery. New York’s disclosure devices — document demands under CPLR 3120 and motions to compel under CPLR 3124 — exist precisely so that disputes about whether evidence exists get resolved before trial. A party who sleeps on those remedies cannot show up at the charge conference and ask the court to let the jury punish the adversary for non-production. The charge is a backstop for parties who used the discovery process and were stonewalled, not a substitute for using it.

Why This Matters at Trial

For plaintiffs’ counsel, Knight is a checklist item: if deposition testimony reveals that photographs, reports, recordings, or records may exist, serve a targeted demand immediately, and if production is not forthcoming, move to compel and get the dispute resolved on the record. That paper trail is what converts a hunch about missing evidence into a viable adverse inference request — and its absence is what courts cite when denying one.

For defendants, the decision is a reminder that loose trial testimony about evidence that was never produced does not automatically open the door to a damaging instruction. The objection writes itself where the proponent never established existence and never pursued the item in discovery.

The stakes are real. An adverse inference charge tells the jury, with the court’s imprimatur, that a party may be hiding something. In a closely contested serious injury trial, that instruction can move a verdict. Courts therefore insist on the full foundation before giving it — and Knight shows what happens when the foundation is missing.

Key Takeaway

The court’s decision in Knight demonstrates that testimony alone suggesting someone took photographs is insufficient to warrant a missing document charge. Plaintiffs must affirmatively prove that specific documents existed and follow proper discovery procedures to compel their production. Without meeting these foundational requirements, courts will not allow juries to draw negative inferences against defendants for failing to preserve or produce evidence.

Related Resources

• The missing witness charge — the companion adverse inference doctrine for absent witnesses
• Pre-existing injuries in New York personal injury cases — our cluster hub on the evidentiary battles that decide injury trials
• The firm’s Legal Encyclopedia — doctrinal guides to New York evidence and procedure
• Long Island car accident lawyer — how we litigate motor vehicle injury trials like this one