Key Takeaway
Court denies missing document charge when plaintiff fails to prove accident scene photographs existed or moved to compel their production during discovery.
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.
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).”
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.
