On July 18, 2024, Justice Bannon of the New York County Commercial Division issued a decision in Peerenboom v. Marvel Entertainment, LLC, 2024 NY Slip Op. 32473(U), holding that a non-party should not be sanctioned for failing to preserve evidence, explaining:
Marvel contends that it had no obligation to preserve evidence relevant to the Florida Action, to which it is not a party, until August 2015, when it was served with Peerenboom’s subpoena, approximately eight months after the replacement of Garcia’s computer. In support of this contention, it cites MetLife Auto & Home v Joe Basil Chevrolet, Inc., 1 NY3d 478 (2004), wherein the Court of Appeals declined to recognize a cause of action for third-party spoliation of evidence and impairment of a claim or defense as an independent tort. There, a homeowners’ insurance carrier sought to assert a cause of action for spoliation of evidence against a casualty insurance carrier for the latter’s failure to preserve a vehicle that caught fire and damaged a home. Notably, the defendant insurer had agreed to preserve the vehicle in response to an oral request for preservation from the plaintiff insurer. Nevertheless, the Court held that the defendant insurer had no duty to preserve the vehicle because no relationship existed between the plaintiff insurer and the defendant insurer that would give rise to such a duty and the plaintiff insurer made no effort to preserve the evidence by court order or written agreement or by placing its preservation request in writing or volunteering to cover the costs associated with preservation. Marvel’s argument is correct.
As in Metlife Auto, Peerenboom has no relationship of any kind with Marvel and he has not demonstrated that, prior to the service on Marvel of his subpoena in August 2015, he made any effort to preserve electronic evidence in Marvel’s possession by court order or written agreement, or by issuing a litigation hold or otherwise requesting preservation of such evidence in writing. Peerenboom attempts to distinguish the MetLife Auto by pointing out that the Florida Action, of which Marvel was aware, was pending for eight months before Garcia’s computer was replaced. However, the cases affirming the well-established proposition that a duty to preserve arises from a party’s awareness that the information in its possession is relevant to a pending or impending litigation generally concern spoliation by litigants, parties on notice of an anticipated lawsuit in which they are likely to be litigants, or non-parties put on notice by an express court order directing preservation and/or disclosure of the subject evidence. Marvel, once again, was never a party to the Florida Action, nor has Peerenboom demonstrated that there was ever any reasonable basis for Marvel, a New York based entertainment company, to anticipate becoming a party to the Florida Action, which as stated, sought damages for defamation arising from a personal dispute and events at the Palm Beach condominium where Peerenboom and Perlmutter were neighbors. As such, even assuming Marvel was aware in December 2014 that it possessed evidence relevant to that litigation, its position prior to its receipt of Peerenboom’s subpoena was substantially similar to the defendant insurer in MetLife Auto & Home v Joe Basil Chevrolet, Inc., supra. In both instances, the putative spoliator may have been aware that it possessed evidence that might be sought in a pending or future litigation that did not otherwise directly concern it but had not received a court order or litigation hold letter or any other request for preservation.
(Internal quotations and citations omitted).