In Pegasus Aviation I, Inc. v. Varig Logistica S.A., 118 AD3d 428, 987 N.Y.S.2d 350 (1st Dep't 2014), the First Department conducted a spoliation analysis and concluded that a corporation had sufficient control over its direct subsidiary such that the corporation could be deemed to have a duty to ensure that the subsidiary's documents were preserved.

In making this determination, the First Department emphasized the nature of the relationship between the "legally and organizationally distinct entities," which included:

(1) the corporation's status as the sole shareholder of the subsidiary;

(2) the corporation's selection of the members of the subsidiary's board;

(3) the fact that the corporation's employees formulated the business strategy of the subsidiary;

(4) the corporation's admission that it could obtain documents from the subsidiary upon request. (Pegasus Aviation I, Inc., 118 AD3d at 431.)

Moreover, both the corporation and the subsidiary were parties to the action. Based on these facts, the Pegasus Aviation court concluded that the subsidiary's electronically stored information was "sufficiently under the [corporation's] practical control' to trigger a duty on their part to ensure that those materials were adequately preserved." (Id. at 431.)