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Winter 2015
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Preservation of Evidence
By: Donald Greiwe
In any civil dispute that might lead to litigation, the preservation of relevant evidence is paramount. Today, however, many types of information – including all forms of communication, pictures, and video – are kept in electronic form. This kind of electronically stored information is easy to modify or delete, and can often be subject to routine data purges that serve to save data space and maintenance costs. As a result of this shift to digital recordkeeping and storage, the possibility of relevant evidence being lost or destroyed has increased. Further complicating the issue, Florida courts have not yet established a consistent rule regarding whether or when a party has a pre-litigation duty to preserve evidence, especially evidence that would otherwise be destroyed by routine data maintenance procedures. Given this rapidly evolving technological and legal landscape, plaintiffs and lawyers alike must be proactive in order to ensure an opposing party preserves all relevant evidence or alternatively, when relevant evidence is destroyed, obtain appropriate sanctions against the culpable party if spoliation of evidence has occurred.
Before a court imposes sanctions for spoliation of evidence, “the court must answer three threshold questions: 1) whether the evidence existed at one time, 2) whether the spoliator had a duty to preserve the evidence, and 3) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense.”1
Not surprisingly, the issue of spoliation often hinges on the second question: whether the spoliator had a duty to preserve the evidence. Unfortunately, Florida courts have not used a consistent standard in determining when the duty to preserve attaches. Some courts have found that “the duty to preserve evidence can [only] arise by contract, by statute, or by a properly served discovery request (after a lawsuit has already been filed),” explicitly rejecting the argument that there is a common law duty to preserve relevant evidence in anticipation of litigation.2 Others, however, have held that a “defendant can be charged with a duty to preserve evidence where it could reasonably have foreseen the plaintiff’s claim.”3 While the Supreme Court of Florida has noted that some lower courts recognize a pre-litigation duty to preserve evidence, it has not yet provided clear guidance regarding this issue. Given this uncertainty, how can a plaintiff best assert a duty to preserve evidence on a potential defendant before filing suit?
In Osmulski v. Oldsmar, the plaintiff in a slip-and-fall action sought sanctions because the defendant had allowed video surveillance footage to be destroyed prior to suit in the routine course of business, despite the plaintiff having filed claims with defendant’s insurance company. The Second DCA, finding for the defendant, noted that while a written request to preserve relevant evidence is not always necessary for a party to have a duty to preserve evidence in the face of reasonably foreseeable litigation, had the plaintiff served the defendant with a written request before the video was destroyed, such a duty would have existed.4 Therefore, in order to put the opposing party on notice, a written request should be sent at the earliest opportunity, directing the opposing party to preserve the specific items you believe would be relevant to your claim. If the opposing party still fails to preserve the evidence and the dispute proceeds to litigation, the Court will then have a clear record demonstrating that the defendant was both aware that litigation was foreseeable, and that relevant evidence should be preserved at that point.
If the court finds that the opposing party had no legal duty to preserve evidence that it destroyed, are you out of luck? Not necessarily – the Supreme Court of Florida has affirmed the issuance of an adverse inference jury instruction despite finding that no legal duty to preserve the destroyed evidence existed, explaining, “the adverse inference concept is not based on a strict legal ‘duty’ to preserve evidence. Rather, an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence.”5
Notably, if the court determines that a party did have a duty to preserve evidence and failed to do so, the court may impose harsher penalties. If the defendant negligently lost the evidence which it had a duty to preserve, Florida courts have imposed a rebuttable presumption of negligence for the underlying tort.6 If the defendant intentionally lost, misplaced, or destroyed the evidence, Florida trial courts may impose sanctions under Florida Rule of Civil Procedure 1.380(b)(2)7 and “a jury could well infer from such a finding that the records contained indications of negligence.”8 Note, however, that the court will only impose these penalties if, in addition to determining the defendant had a duty to preserve evidence, it also finds that the evidence existed at one time and the evidence was critical to the plaintiff’s ability to prove his prima facie case.9
Failure to preserve relevant evidence can have a critical effect on any civil dispute. While nothing can ensure that the other party retains all evidence relevant to your case, serving them with a written request for preservation of evidence at the earliest opportunity can help ensure that if relevant evidence is lost, the onus falls on the opposition, and not you.
If you have any questions regarding this issue, please feel free to contact Donald Greiwe at dgreiwe@dgfirm.com.
1Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006).
2Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA 2004); see also Gayer v. Fine Line Constr. & Electric, Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007).
3Osmulski v. Oldsmar Fine Wine, Inc. 93 So. 3d 389, 393 (Fla. 2d DCA 2012) (internal quotations omitted) (citing American Hospitality Management Co. of Minnesota v. Hettiger, 904 So. 2d 547 (Fla. 4th DCA 2005).
4Osmulski at 392-93.
5Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251, 1257 (Fla. 4th DCA 2003), approved, 908 So. 2d 342 (Fla. 2005).
6 Pub. Health Trust of Dade County v. Valcin, 507 So. 2d 596, 600 (Fla. 1987).
7“[T]he court in which the action is pending may make any of the following orders:
(A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.
(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.
(D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule.
(E) When a party has failed to comply with an order under rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows the inability to produce the person for examination.
Instead of any of the foregoing orders or in addition to them, the court shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys' fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” Fla. R. Civ. P. 1.380(b)(2).
8 Martino, 908 So. 2d at 346-47 (Fla. 2005) (quoting Valcin, 507 So. 2d at 599 (Fla. 1987))
9Golden Yachts, Inc., 920 So. 2d at 781.
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