Typically, we think about spoliation and its utility at trial — specifically, the impact of an adverse inference instruction. The issue in Hamilton v. Mount Sinai Hospital, 2007 U.S. Dist. LEXIS 85593 (S.D.N.Y. Nov. 21, 2007), was the impact of the spoliation inference at summary judgment. Magistrate Judge Gabriel W. Gorenstein summarized Second Circuit law as follows:

1. "[T]he destruction of evidence, standing alone, is [not] enough to allow a party who has produced no evidence -- or utterly inadequate evidence -- in support of a given claim to survive summary judgment on that claim." [Quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)), cert. denied, 534 U.S. 891 (2001).]

2. “Where spoliation is raised in the context of a summary judgment, ... the party raising it can use spoliation to survive an otherwise meritorious motion only where that party has provided ‘some (not insubstantial) evidence" to support its claim.’”

3. Moreover, “spoliation can allow a party with otherwise insufficient evidence to surmount the summary judgment hurdle only in ‘borderline’ cases.” [Citing Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107-12 (2d Cir. 2001)]

Held, the present case is not “borderline” because “ the evidence provided by plaintiffs in support of their claim ...is insubstantial. Thus, even a finding of spoliation [which the court found unpersuasive] ... would not allow plaintiffs' case to proceed.” Recommended resolution: summary judgment for defendant.