The Florida Bar
www.floridabar.org
The Florida Bar Journal
May, 2014 Volume 88, No. 5
Streamlining and Modernizing Florida’s Pre-litigation Preservation Standard: Modern Technology Demands a Modern Solution

by William F. Hamilton, Lindsay M. Saxe, and Stephanie Moncada

Page 18

Florida law on the pre-litigation duty to preserve evidence is unclear, and precedent antedating the prevalence of electronically stored information (ESI) is conflicting and inconsistent.1 Florida precedent often muddles and confuses basic principles and rarely confronts the phenomenon of ESI — most precedent involves the failure to preserve physical evidence, such as objects and paper. The Florida Rules of Civil Procedure2 and the Florida Statutes provide little guidance on the duty to preserve ESI in anticipation of litigation.3 This article attempts to bring some order to the chaos.

Florida’s confusing law on the pre-litigation duty to preserve relevant evidence derives from a fundamental misconception — that the duty to preserve is an element of a quasi tort claim held by the aggrieved party. In fact, the duty to preserve relevant evidence runs to the court. The destruction of evidence strikes the heart of the judicial process and the court’s truth-seeking function:

What heretofore usually has been implicit — but seldom stated — in opinions concerning spoliation is that, with the exception of a few jurisdictions that consider spoliation to be an actionable tort, the duty to preserve evidence relevant to litigation of a claim is a duty owed to the court, not to a party’s adversary. 4

Whether occurring before or during litigation, the wrongful failure to preserve relevant evidence offends the dignity of the court, impairs the integrity of the judicial process, and diminishes the legitimacy of judgments. As explained in Tramel v. Bass, 672 So. 2d 78, 84 (Fla. 1st DCA 1996), the seriousness of the offense warrants a severe sanction to vindicate the judicial process, such as an adverse inference and the striking of pleadings: “The intentional destruction or alteration of evidence undermines the integrity of the judicial process and, accordingly, may warrant imposition of the most severe sanction of dismissal of a claim or defense, the striking of pleadings, or entry of a default.”5 The destruction of evidence is such a grave offense that counsel and litigants may face additional sanctions including a fine and disbarment.

In Florida, conflicting precedent and the failure to clearly recognize a pre-litigation preservation duty has numerous debilitating consequences. Litigants risk the loss of relevant data and the imposition of sanctions. Courts struggle to avoid a miscarriage of justice. When documentary evidence existed primarily in paper and other tangible forms, the lack of a clearly articulated pre-litigation preservation duty — i.e., a duty simply to avoid intentional destruction of evidence — caused mischief of a limited scope. However, ESI is now the principal form of documentary evidence and brings the problem into full relief. ESI is both voluminous and easily altered, modified, and deleted. Computer systems are configured to routinely change and delete ESI through automatic processes and internal “cleansing” to enhance computer performance.

Without affirmative intervention, parties will likely lose important ESI.6 Although the necessary scope and exact moment of preservation is debatable,7 as is the range and the severity of sanctions, this article contends that Florida should, at the very least, uniformly recognize a pre-litigation preservation duty. Once such a duty is recognized, our courts can begin (with the guidance of persuasive federal authority) to navigate the knotty problems of preservation timing, scope, culpability, and remedies.8 This is an important and necessary first step toward modernizing Florida law.

Absent a clear recognition of the pre-litigation preservation duty, Florida courts must apply awkward, result-driven logic and artfully ignore frequently cited precedent holding that Florida lacks a pre-litigation duty to preserve relevant evidence. And absent a framework permitting a nuanced analysis of the prospect of litigation, the burden preservation, and the principles of proportionality, courts employ an ad hoc analysis dependant on salient, case-specific facts to reach the right conclusion. A court might reach the right result, but with flawed reasoning, which creates further confusion in our preservation jurisprudence.8

Federal Law and the Advent of ESI
As electronic documents became increasingly prevalent, groups of federal and state practitioners began to recognize the need to establish standards and “best practices” for the preservation and production of ESI.9 One group, which later formed the Sedona Conference,10 began an industry-wide dialogue on key electronic discovery principles, including ESI preservation.11 At the turn of the century, disputes over ESI and helpful guidance on resolving those disputes were rare.12 However, with the collapse of Enron and Arthur Andersen, the enactment of Sarbanes-Oxley,13 and the unrelenting 21st century data deluge, the importance of handling ESI in a “defensible manner” became increasingly paramount.14

The Sedona Conference recognized that “the way in which information is created, stored and managed in digital environments is inherently and fundamentally different from the way in which that is done in the paper world.”15 Prevailing principles governing physical objects and paper provide, at best, an awkward guidepost.16

U.S. District Judge Shira Scheindlin led the charge through several opinions in Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003).17 As Judge Scheindlin recognized, the premise of the Federal Rules of Civil Procedure — notice pleading followed by vigorous and expansive discovery — “hit a roadblock” with the advent of ESI.18 ESI expanded exponentially the scope of discoverable information and the cost of preserving and producing that information: “The more information there is to discover, the more expensive it is to discover all the relevant information until, in the end, ‘discovery is not just about uncovering the truth, but also about how much of the truth the parties can afford to disinter.’”19 Zubulake provided a “textbook example” of the need for balance and the need for guidance beyond the federal rules.20

Ultimately, Zubulake establishes a ubiquitously cited federal pre-litigation preservation standard. “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”21 Zubulake also provides a framework for whose documents must be retained, what documents must be retained, and when courts should shift the cost of retention and production. Although this standard (like most legal standards) can present difficult questions in practice (e.g., What is the scope of relevant evidence?),22 the standard nonetheless provides a modern and nuanced framework for preserving ESI in federal litigation.

Pre-litigation Preservation in Florida
Under Florida law, a party cannot intentionally destroy, mutilate, alter, or conceal evidence.23 In other words, a party must avoid “spoliation.”24 A court will impose a sanction for spoliation only after determining25 “(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.”26

The key question in applying this standard is whether a duty to preserve exists. Florida courts often vacillate here. Some hold that only a contract, a statute, or a discovery request triggers the duty to preserve.27 Others seem to hold that, absent a contractual or a statutory duty, a party possesses no duty to preserve evidence before litigation begins — and, thus, courts are seemingly mesmerized by logic suggesting that the filing of the complaint (rather than the anticipation of litigation) is a momentous demarcation that alters the analysis.28 And yet others recognize a pre-suit obligation to preserve evidence, albeit only if both the potential claim and the relevance of the evidence are reasonably foreseeable to the party controlling the evidence before the litigation begins.29 How did this stark divergence in opinion happen?

In part, the confusion arises from Florida’s early treatment of spoliation as an independent tort. Spoliation by a party to a lawsuit is different from a tort, yet Florida courts treat these claims similarly.30 Party spoliation primarily offends the judicial process; the primary problem is not a tort-like harm to the opposition. Although Florida no longer recognizes an independent cause of action for the spoliation of evidence,31 our courts are burdened by the legacy of viewing spoliation as a tort.

For example, in Royal & Sunalliance v. Lauderdale Marine Center, 877 So. 2d 843 (Fla. 4th DCA 2004), a fire partially burned a yacht.32 The fire inspector collected debris from the fire, stored the debris in barrels, and, sometime thereafter, the contents of the barrels were destroyed.33 The court dismissed Royal’s spoliation claim and held that the Lauderdale Marine Center had no common law duty to preserve evidence in anticipation of litigation.34

Similarly, in Gayer v. Fine Line Constr. and Electric Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007) (quoting Flagstar Cos. v. Cole-Ehlinger, 909 So. 2d 320, 322-23 (Fla. 4th DCA 2005)), the court wrote:

Generally, to establish a claim for spoliation, the plaintiff must prove six elements: “(1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment and the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.”

Gayer concludes that no common law preservation duty exists if litigation is reasonably anticipated but that a statutory preservation duty existed under the unusual facts of the case. Even though the court arguably reached the right result, precedent such as Gayer perpetuates a flawed standard. If common sense demands preservation, as in Gayer, courts find extrinsic facts to create an exception to the “no duty” jurisprudence. This result-driven analysis is very dangerous. The clear cases escape the “no duty” precedent and usually reach the right result, but the less clear cases requiring a more sophisticated analysis typically fall victim to the simple but flawed requirement of a statute, contract, or demand letter.35

We recognize the difficulty in preserving relevant evidence when litigation is reasonably foreseeable — the inherent breadth of “relevance,” the volume of ESI, the multitude of locations, and the variety of electronic artifacts. “[D]ay-to-day business activities contain innumerable possibilities for future litigation, including employment, product liability, business, and regulatory litigation.”36 Perhaps this is why some courts are more inclined to find a preservation duty only after a lawsuit begins. But the intent of this article is not to suggest that the answer is easy or that the challenges facing clients, lawyers, and judges are small. Rather, the purpose is to suggest that we deal with these issues honestly, forthrightly, and sensibly. Florida must adopt a workable and uniform pre-litigation preservation standard that allows a balance between foreseeability, burden, proportionality, and to changes in technology and information storage.

If the preservation analysis begins with a firm grasp of the principle that spoliation of evidence is a species of fraud on the court37 and duty to the tribunal,38 Florida courts can stop reasoning from a weak foundation. The preservation duty derives from the solemn command that parties, lawyers, and judges respect the court’s integrity and uphold the legitimacy of the judicial process. The hard work of preservation should not be the lever of poor jurisprudence.

Florida Must Modernize Preservation Law
Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389 (Fla. 2d DCA 2012), is a good example of Florida’s struggle with the “no pre-litigation preservation duty” precedent. A customer suffered injuries after a slip-and-fall in the defendant’s store. Within a week of the incident, the customer communicated several times with the defendant’s insurer.39 Because the insurer failed to settle the customer’s claim, the customer sued.40 A few months later, the customer requested production of the defendant’s electronic surveillance videos.41 In discovery, the customer learned that the defendant’s surveillance cameras recycle videos older than 60 days.42 The defendant maintained no standard procedure for preserving videos.43 The storeowner claimed he never thought to interrupt the automatic deletion and to preserve the relevant videos because, according to the defendant, no one asked him to.44

At trial, the customer requested jury instructions adverse to the defendant. Specifically, the customer requested jury instructions 1) that the videos would have been unfavorable to the defendant, and 2) that the jury could draw an adverse inference from the defendant’s negligent failure to preserve the videos. The trial court denied both requests.45

On appeal, the Second District Court of Appeal affirmed the trial court’s decision. The court found that the defendant possessed no pre-litigation duty to preserve because the plaintiff (among other things) failed to request preservation of the surveillance videos.46 At the same time, the court explained that “in the absence of a written request to preserve such evidence, as long as a plaintiff’s claim is reasonably foreseeable, a formal request to preserve the evidence is not required.”47 The court concluded that the customer’s lawsuit was not reasonably foreseeable, despite the customer’s prompt claim with the defendant’s insurer.48 Ultimately, “uncertainties regarding video technology” and considerations of fairness tipped the balance in favor of the defendant.49

Despite the questionable outcome of the case, Osmulski identified a fundamental principle of preservation — a party must preserve relevant evidence if litigation is reasonably foreseeable. Although Osmulski seems to suggest that a written preservation request is integral to the defendant’s duty to preserve, the plaintiff ultimately loses in Osmulski on reasonable foreseeability. A defendant cannot possibly possess carte blanche to destroy evidence simply because the plaintiff failed to request preservation of evidence unknown to the plaintiff. Osmulski reasoned that a party must preserve relevant evidence, such as electronically stored digital videos, when litigation is reasonably foreseeable. Thus, Osmulski appears to align Florida with established federal preservation law.50

Other Florida courts have also recognized the reasonable foreseeability standard that is necessary to protect the judicial process.51 For example, Am. Hospitality Mgmt Co. v. Hettinger, 904 So. 2d 547, 549 (Fla. 4th DCA 2005), holds that “a defendant could be charged with a duty to preserve evidence when [the defendant] could reasonably have foreseen the claim.” In Hettinger, the defendant destroyed evidence (a ladder) within hours after a repairman fell from the ladder on the defendant’s premises.52 Although the defendant argued that neither a legal nor a contractual duty to preserve attached anytime before destruction of the ladder, Hettinger finds that, based on the plaintiff’s allegations, a jury “could reasonably conclude that [the ladder’s] unavailability was something other than fortuitous.”53

The facts and allegations in Hettinger suggest that the defendant’s destruction of the ladder was intentional. Thus, at first glance, Hettinger appears inapplicable to ESI — unless a party intentionally destroys ESI, e.g., by manually deleting emails. However, intentional destruction assumes many forms. Computers are designed and configured to delete, reorganize, move, and alter ESI to promote efficient operation. Allowing a computer to continue this pre-programmed process qualifies as intentional destruction.

In other words, if an email server is configured to delete emails after 30 days, the failure to disable that automatic deletion process is the same as intentionally, manually deleting the emails on day 29. Thus, parties must affirmatively act to preserve relevant ESI when litigation is reasonable foreseeable. A party cannot create a process that destroys information and fail to suspend that destruction when the electronic information scheduled for destruction appears relevant to anticipated litigation.

In 1996, the Fourth District Court of Appeal recognized a cause of action for the spoliation of evidence in St. Mary’s Hospital v. Brinson, 685 So. 2d 33 (Fla. 4th DCA 1996).54 In Brinson, a 19-month-old infant was admitted to St. Mary’s hospital to undergo a surgery for a drooping eyelid.55 The infant required life support and died 10 days later after receiving increased amounts of anesthesia.56

Sometime after her death (and before litigation began), the vaporizer’s manufacturer disassembled the vaporizer used in the anesthesia machine during her surgery. The Fourth District Court of Appeal held that the hospital had a duty to preserve the vaporizer because the hospital “knew of the potential civil claim against the vaporizer’s manufacturer” and, thus, recognized plaintiff’s cause of action for spoliation of evidence.57

Judge Gunther tried to explain in Royal & Sunalliance that Brinson established no duty to preserve evidence when litigation is anticipated.58 However, that is precisely what Brinson did when Brinson recognized plaintiff’s cause of action for spoliation of evidence. The Brinsons’ sole claim was that St. Mary’s hospital knew of the potential civil claim against the vaporizer’s manufacturer and based on this claim, the court recognized the hospital’s duty to preserve evidence and the Brinsons’ cause of action for the spoliation of evidence.59

Similarly, the Fourth District Court of Appeal in yet another case dodged the issue and reversed a directed verdict for the defendant in Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1092 (Fla. 4th DCA 2001). In Hagopian, the plaintiff sustained injuries after a glass soda bottle exploded and fell off of a shelf near the plaintiff’s feet.60 The plaintiff’s attorney notified Publix of the plaintiff’s claim but did not request that Publix save the bottle parts. The bottle parts were discarded and Publix admitted to not preserving the bottle.

The court held that the manager’s preparation of an incident report and Publix’s refusal to give a copy to the plaintiff on work product grounds was evidence of Publix’s anticipation of litigation.61 This evidence created Publix’s duty to preserve the bottle before suit was filed.62 Furthermore, the court held that plaintiff’s ability to proceed against Publix was hampered because “neither side could furnish any kind of definitive explanation of the incident” without the bottle parts.63

Conclusion
As illustrated in Osmulski and Hettinger, Florida’s pre-litigation duty to preserve relevant evidence is alive, if not well. Stuck in an immature and flawed jurisprudence, our state courts appear hesitant to clearly articulate and apply the pre-litigation preservation duty. However, courts cannot tolerate the wrongful destruction of relevant evidence if litigation is reasonably foreseeable. By so doing, courts undermine the foundation of the legal system and destroy public confidence in our judicial process, which depends on the evidence.

ESI heightens the urgency of this cause. ESI is quickly becoming the principal locus of the litigation truth-seeking process. We are surrounded by an exponentially expanding plethora of nearly contemporaneously created emails, tweets, social media, Instagram uploads, documents, GPS reports, and text messages detailing our thoughts, actions, and communications. Tampering with such evidence when litigation is anticipated and imminent cannot be condoned or tolerated. More importantly, clients and counsel must take affirmative steps to preserve this evidence when litigation is reasonably anticipated.

Florida jurisprudence cannot turn a blind eye to pre-litigation preservation of evidence. As shown in Osmulski and Hettinger, Florida is finally beginning to articulate the fundamental principles of preservation that underlie the integrity of the judicial process already established in federal courts. No party may destroy evidence with impunity — regardless of whether the destruction occurs during litigation or in anticipation of litigation.

Of course, pre-litigation preservation creates tough questions. What is reasonable anticipation? What is the scope of preservation? Do proportionality principles govern preservation? When are sanctions appropriate? Should sanctions seek ground leveling or should sanctions be dispositive? What level of willfulness and culpability is required to trigger the harshest sanctions? With the help of decades of federal precedent, Florida courts can answer these questions rather than avoiding them through fact-driven rules and exceptions. Our jurisprudence and judicial process demand nothing less.

1 See, e.g., Osmulski v. Oldsmar Fine Wine, 93 So. 3d 389, 393 (Fla. 2d DCA 2012); Royal & Sunalliance v. Lauderdale Marine Center, 877 So. 2d 843, 845 (Fla. 4th DCA 2004).

2 In 2012, Florida adopted rules pertaining to discovery of ESI, effective September 1, 2012. In re Amendments to the Florida Rules of Civil Procedure — Electronic Discovery, 95 So. 3d 76 (Fla. 2012). The amended Florida Rules of Civil Procedure in large part follow the Federal Rules of Civil Procedure and provide protection for a party from the undue burden of ESI discovery. The Sedona Conference is reviewing whether to amend the federal rules to ameliorate the burden, cost, and inefficiencies of preservation of electronically stored information and the difficulty of determining what is reasonably required to be preserved.

3 Ralph Artigliere, William Hamilton, Ralph Losey, Comment as to Amendments to the Rules of Civil Procedure Related to Electronic Discovery, In re: Amendments to the Florida Rules of Civil Procedure — Electronic Discovery, Case No. 11-1542 (Fla. 2011), available at http://www.law.fsu.edu/library/flsupct/sc11-1542/11-1542CommentsArtigliere.pdf.

4 Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 525 (D. Md. 2010) (J. Grimm).

5 Tramel v. Bass, 672 So. 2d 78, 84 (Fla. 1st DCA 1996) (citing Metro. Dade Cnty. v. Bermudez, 648 So. 2d 197, 200 (Fla. 1st DCA 1994)).

6 Ralph Artigliere, William Hamilton, Ralph Losey, Comment as to Amendments to the Rules of Civil Procedure Related to Electronic Discovery, In re: Amendments to the Florida Rules of Civil Procedure — Electronic Discovery, Case No. 11-1542 at 1-2 (Fla. 2011), available at http://www.law.fsu.edu/library/flsupct/sc11-1542/11-1542CommentsArtigliere.pdf.

7 Proportionality ensures that the burden of production in discovery does not outweigh its benefit in light of the value of the case. Proportionality is recognized in Florida at common law and in the Florida Rules of Civil Procedure, effective September 1, 2012. See Alvarez, v. Cooper Tire & Rubber Co., 75 So. 3d 789, 795 (Fla. 4th DCA 2011); Chrysler Corp. v. Miller, 450 So. 2d 330, 331 (Fla. 4th DCA 1984); Fla. R. Civ. P. 1.280(d)(2)(ii) (Court may limit discovery of electronically stored information where “the burden or expense of the discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”).

8 Currently proposed changes to the Federal Rules of Civil Procedure pertaining to e-discovery, particularly the proposed amendments to Rule 37(e), offer a sanctions framework based on culpability and prejudice and list some factors that a court may consider in evaluating a failure to preserve. The ultimate fate and form of these proposed changes is an open question; however, this is precisely the debate that Florida needs. The national challenge is to articulate parameters of reasonable pre-litigation preservation in terms of scope, cost, burden, culpability, and remedies. Florida cannot join this important debate until our jurisprudence unequivocally recognizes the fundamental duty and obligation of pre-litigation preservation. For more information and to view public comments to the proposed federal rules changes, see U.S. Courts, Proposed Amendments Published for Public Comment, http://www.uscourts.gov/RulesAndPolicies/rules/proposed-amendments.aspx; and U.S. Courts, Advisory Committee on Civil Rules (April 2014), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2014-04.pdf.

8 Spoliation and the failure to preserve evidence are prominent and controversial issues in Florida and nationally, especially with increasing prevalence of ESI. See, e.g., Interim Report on Preservation and Spoliation of the New York State Bar Association’s Special Committee on Discovery and Case Management in Federal Litigation (July 28, 2011) (hereinafter referred to as “Interim Report”), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/DallasMiniConf_Comments/New%20York%20Bar%20Association.pdf .

9 Sedona Conference, Sedona Conference J. (Fall 2003).

10 The Sedona Conference is a non-profit research and educational institute dedicated to the advanced study of law and policy. Through the financial support of members, the Sedona Conference sponsors conferences at which judges, lawyers, and experts discuss important issues of law and policy. See About Us: Who We Are, How We Achieve Our Mission, available at https://thesedonaconference.org/aboutus.

11 Sedona Conference, Sedona Conference J. (Fall 2003).

12 Id.

13 Pub. L. No. 107-204 (116 Stat. 745).

14 Sedona Conference, Sedona Conference J. (Fall 2003).

15 Id.

16 Id.

17 See also Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003); Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280 (S.D.N.Y. 2003).

18 Zubulake, 217 F.R.D. at 311-12.

19 Id. (quoting Rowe Entm’t, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 423 (S.D.N.Y. 2002)).

20 Id. at 311-312, 315-16.

21 Zubulake, 220 F.R.D. at 216 (quoting Fujitsu Ltd. v. Federal Exp.Corp., 247 F.R.D. 423, 436 (2d Cir. 2001).

22 Judge Paul W. Grimm et al., Proportionality in the Post-Hoc Analysis of Pre-litigation Preservation Decisions, 37 U. Balt. L. Rev. 381, 395-97 (2008).

23 Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006) (quoting Black’s Law Dictionary 1437 (8th ed. 2004)).

24 However, some courts define spoliation as the “negligent” failure to preserve evidence. See Miller v. Allstate Ins. Co., 573 So. 2d 24, 26 (Fla. 3d DCA 1990). The Fourth District has followed the Third District. Brown v. City of Delray Beach, 652 So. 2d 1150 (Fla. 4th DCA 1995); St. Mary’s Hosp., Inc. v. Brinson, 685 So. 2d 33 (Fla. 4th DCA 1996); DiGiulio v. Prudential Prop. and Cas. Ins. Co., 710 So. 2d 3 (Fla. 4th DCA 1998), rev. denied, 725 So. 2d 1109 (Fla. 1998).

25 Golden Yachts, 920 So. 2d at 781.

26 Id. (emphasis added) (citing Jordan ex rel. Shealey v. Masters, 821 So. 2d 342, 347 (Fla. 4th DCA 2002)). In other words, a party must suffer case-ending prejudice to obtain a sanction for spoliation. No reason to apply sanctions exists if no harm results from the spoliation. Reed v. Alpha Prof’l Tools, 975 So. 2d 1202,1204 (Fla. 2d DCA 2008). See also Fleury v. Biomet, Inc., 865 So. 2d 537, 540 (Fla. 2d DCA 2003) (holding that where the spoliation was inadvertent and resulted in no prejudice, there was no basis for sanctions); Rosario v. Miami-Dade Cnty., 490 F. Supp. 2d 1213, 1226 (S.D. Fla. 2007); Pub. Health Trust of Dade Cnty. v. Valcin, 507 So. 2d 596, 599 (Fla. 1987) (holding that a rebuttable presumption should not be imposed unless the absence of the spoliated evidence “hinders [the plaintiff’s] ability to establish a prima facie case”); Reed, 975 So. 2d at 1204 (Dismissal of a case as a spoliation sanction is appropriate when the aggrieved party is left with a “complete inability to defend, not the inability to defend completely.” The court in Reed noted that “[s]poliation is not a strict liability concept — ‘lose the evidence, lose the case.’” The goal of the court in spoliation cases is to ensure that the nonspoliator does not bear an unfair burden.).

27 Royal & Sunalliance v. Lauderdale Marine Center, 877 So. 2d 843, 845 (4th DCA 2004).

28 Id. (“We find Royal’s argument that there was a common law duty to preserve the evidence in anticipation of litigation to be without merit.”); Gayer v. Fine Line Constr. & Electric, Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007) (“Because a duty to preserve evidence does not exist at common law, the duty must originate either in a contract, a statute, or a discovery request.”); Golden Yachts, 920 So. 2d at 781 (internal citations omitted) (holding that although no adverse presumption could lie where a spoliator was not duty-bound to preserve evidence, that nevertheless “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”); but see Pa. Lumberman’s Mut. Ins. Co. v. Fla. Power & Light Co., 724 So. 2d 629, 630 (Fla. 3d DCA 1998) (neither rejecting nor accepting the argument that there might be “some type of common law duty to preserve [evidence] after being notified of possible legal action”). See also In re Elec. Mach. Enters., Inc., 416 B.R. 801, 873 (M.D. Fla. 2009) (“The majority of Florida courts have held that there is no common law duty to preserve evidence before litigation has commenced”).

29 See Osmulski, 93 So. 3d at 393 (citing Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So. 2d 547, 549 (Fla. 4th DCA 2005)) (finding that if evidence is within the defendant’s control, the defendant possesses “a duty to preserve evidence where it could reasonably have foreseen the [plaintiff’s] claim.”).

30 See St. Mary’s Hosp., Inc., 685 So. 2d at 35 (allowing plaintiffs to proceed on an action for the spoliation of evidence and consolidating the spoliation and negligence actions).

31 Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005) (overruling Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984)).

32 Royal & Sunalliance, 877 So. 2d at 844.

33 Id. at 845.

34 Id. at 846.

35 See Palmas y Bambu, S.A.. v. E.I. Dupont De Nemours & Co., 881 So. 2d 565, 579 (Fla. 3d DCA 2004) (recognizing plaintiff’s duty to preserve evidence based on its knowledge of litigation); see also Royal & Sunalliance, 877 So. 2d at 845 (concluding that no common law duty exists to preserve evidence when litigation is merely anticipated but recognizing that a duty can arise by contract, statute, or a properly served discovery request).

36 Maria P. Crist, Preserving the Duty to Preserve: The Increasing Vulnerability of Electronic Information, 58 S.C. L. Rev. 7, 18 (2006).

37 Tramel, 672 So. 2d at 84.

38 Victor Stanley, Inc., 269 F.R.D. at 525.

39 Osmulski, 93 So. 3d at 391.

40 Id.

41 Id. at 391-92

42 Id. at 391.

43 Id.

44 Id. at 392.

45 Id.

46 Id. at 392-93.

47 Id.

48 Id. at 393.

49 Id.

50 See Zubulake, 220 F.R.D. at 216-17 (finding that the duty to preserve attaches “when a party should have known that the evidence may be relevant to future litigation”); In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1068 (N.D. Cal. 2006).

51 Additionally, in Golden Yachts, 920 So. 2d 777, the plaintiff suffered an injury while aboard a boat owned by the defendant. Approximately 10 days after the incident, the plaintiff’s counsel requested in writing that the owner preserve the boat cradle. A year after the lawsuit began, both the boat cradle and the photographs of the cradle and other debris were gone. The trial court allowed an adverse inference jury instruction and admitted evidence of the loss of the boat cradle evidence. The owner appealed and argued that the trial court erred in allowing both a jury instruction and evidence of loss.

On review, Golden Yachts affirms. Specifically, as Golden Yachts (internal citations omitted) explains: “Unlike an adverse presumption instruction, where the court must find the spoliator was duty-bound to preserve the evidence, an adverse inference may arise in any situation [in which] potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence.” Thus, because the evidence existed, because the owner last possessed the evidence, because the owner had notice of the need to preserve, because the owner failed to preserve, and because the lack of evidence hindered the proof of claims, an adverse inference instruction was warranted.

52 Am. Hospitality Mgmt., 904 So. 2d at 548.

53 Id. at 549.

54 St. Mary’s Hosp., 685 So. 2d at 35 (adopting the Third District’s characterization of the spoliation of evidence elements).

55 Id. at 34.

56 Id.

57 Id.

58 Royal & Sunalliance, 877 So. 2d at 846.

59 St. Mary’s Hosp., 685 So. 2d at 34.

60 Hagopian, 788 So. 2d at 1089.

61 Id. at 1090.

62 Id.

63 Id. at 1092 (explaining that if the expert had the bottle pieces, “he would be better able to determine fault for the bottle explosion”).


William F. Hamilton is the executive director the UF Law E-Discovery Project at the University of Florida Levin College of Law. He is also the provost of Bryan University and the National E-discovery partner for Quarles & Brady LLP.

Lindsay M. Saxe is an attorney in the commercial litigation group of Quarles & Brady LLP and a former law clerk for U.S. District Judge Steven D. Merryday. She graduated magna cum laude from University of Florida’s Levin College of Law in 2009.

Stephanie Moncada is the editor-in-chief of the University of Florida Journal of Law and Public Policy. She is the executive director assistant of the UF Law E-Discovery Project and the intramural chair of the University of Florida Trial Team.

The authors thank the International Center for Automated Information (ICAIR) at the University of Florida Levin College of Law  for funding research related to this article.

The authors also thank Judge Ralph Artigliere, Thomas Y. Allman, and Kevin D. Johnson for providing keen insight, critical comments, and valuable guidance on early drafts of this article, even though not necessarily agreeing with the authors’ opinions.

[Revised: 05-27-2014]