On March 22, 2023, Justice Crane of the New York County Commercial Division issued a decision in NW Media Holdings Corp. v. IBT Media Inc., 2023 NY Slip Op. 30875(U), holding that accessing and destroying data gives rise to a claim for conversion, not trespass to chattel, explaining:
Choi first moves to dismiss the claim for trespass to chattels on the basis that the allegations within the complaint, if anything, allege conversion rather than trespass to chattels. Choi is correct. In order to state a cause of action for trespass to chattels, a plaintiff must allege (1) intent, (2) physical interference with (3) possession (4) resulting in harm. A plaintiff must show that the condition, quality, or value of the chattel was diminished as a result of the defendant’s actions or that the plaintiff was deprived of use of the chattel for a substantial time.
A cause of action for trespass to chattels overlaps with a claim for conversion. However, the two causes of action are distinct. Allegations that the defendant merely interfered with the plaintiff’s property are properly construed as an action to recover for trespass, while allegations of destruction or taking of the property amount to a claim for conversion.
Plaintiffs contend that allegations of destruction of data suffice to state a claim for trespass to chattels in addition to their claim for conversion. However, Plaintiffs cite no appellate authority in support of this proposition. Instead, they rely on New York state trial court and federal court orders. Meanwhile, a review of these cases actually sharpens the distinction between the two causes of action in situations involving electronic data. Accordingly, trespass to chattels in the context of electronic data often include interference that causes damage to computer systems or involves the sending of unsolicited content. Plaintiffs do cite cases in which trespass to chattels claims have proceeded involving the mere deletion of data. Rather, these cases also involved interference with physical devices containing that data. Unlike in these cases, Plaintiffs have not alleged that Choi interfered with the Workspace in such a way that impinged its functioning, that Choi inserted unwanted data or that Choi deleted data directly off of Plaintiffs’ own devices. Rather, the allegations in this Complaint are simply that Choi deleted 1.8 terabytes’ worth of data off of the Workspace to the complete deprivation of Plaintiffs’ access. If anything, that is a cause of action for conversion, not trespass to chattels.
(Internal quotations and citations omitted).