League of Women Voters of Fla. v. Detzner: The Florida Supreme Court’s Hidden Pre-Litigation E-Discovery Preservation Mandate
The Florida Supreme Court in League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015), reviewed and disapproved the 2012 Florida Legislature’s redistricting process and resulting map apportioning Florida’s 27 congressional districts. Holding that the process and map were “tainted” by unconstitutional intent to favor Republican Party incumbents, the decision gained attention for its ramifications for pending elections and separation of powers. However, the case will have broader and longstanding impact in an unexpected arena — electronic discovery. Buried deep in the Detzner opinion1 is a holding regarding evidence preservation duties that will likely eclipse the principal holding in importance to Florida’s spoliation jurisprudence.2 In Detzner, the court confirms and clarifies that a “reasonable anticipation of litigation” triggers the duty to preserve relevant evidence.3 Before Detzner, Florida cases were inconsistent and unpredictable when determining the “trigger” for preserving relevant information. This article discusses the past and present Florida law on pre-litigation — or presuit — preservation as well as the importance and impact of Detzner.
The requirement or duty to preserve case evidence long predated the digital age and arose from a party’s common law duty to avoid spoliation of relevant evidence so it would be available for use at trial. Preservation of evidence is critical to discovering the truth and achieving justice. Historically, the preservation of physical objects and paper documents presented few challenges as these objects tend to have a lifespan consistent with litigation. However, preservation is a particularly prominent issue with electronic data because electronically stored information (ESI)4 — which exists as collections of on/off electronic charges (digital bits) — is easily lost, altered, or destroyed either deliberately, negligently, or inadvertently. Moreover, computers and computer systems are configured to delete and move digital information on very short cycles. Email, for example, is often automatically deleted from in-boxes after a few months. Preservation is “[t]he process of retaining ESI documents including document metadata, for legal purposes and includes suspension of normal document destruction policies and procedures.”5 As ESI became the principal format for storage of information, courts applied specified legal requirements for its preservation, consistent with its nature and legal importance, including metadata.6 Preserving a ladder involved in a fall may provide important evidence in a product liability case, but emails, text messages, electronic databases, website content, and other ESI will likely yield additional relevant and important evidence, provided the ESI is properly preserved. Ideally, the ladder and the relevant ESI should both be preserved.
Following the Lead of the Federal Courts on E-Discovery
With good reason, state courts generally follow the lead of the federal e-discovery caselaw and civil procedure rules. Federal district and magistrate judges see more cases with e-discovery issues and write many more published e-discovery opinions than state court judges. The leading e-discovery rulemaking in this country occurred in the Federal Rules of Civil Procedure in 2006, before most states had e-discovery civil procedure rules. In 2012, the Florida Supreme Court amended the Florida Rules of Civil Procedure specifically addressing electronic discovery.7 The amended rules mirrored many of the federal 2006 civil procedure amendments for good reason. When state court rules follow the lead of the federal court, the resulting advantage is relatively homogeneous rules nationwide. Moreover, Florida judges applying the Florida Rules of Civil Procedure on E-Discovery have a greater potential of finding persuasive precedent on cases of first impression in Florida when the rules are similar to federal rules and those in other states. The 2006 federal rules amendment did not specifically address ESI preservation triggers. When the federal rules of procedure were amended in 2015, preservation themes were woven into the changes, especially in the new Fed. R. Civ. P. 37(e),8 but determination of the appropriate preservation “trigger” remains a function of federal common law.
Unfortunately, Florida’s pre-litigation preservation common law before Detzner was not similar to federal common law or that of most other states. The majority common law view in state and federal courts around the nation is that presuit preservation is triggered when there is reasonable anticipation of litigation even in the absence of a legal duty to preserve arising under a statute or contract. Contrary to this majority rule, for many years, Florida common law vacillated as to whether a reasonable anticipation of litigation required affirmative presuit preservation of relevant evidence.
Gradually, a split of authority emerged. Some cases held that presuit destruction or loss of relevant evidence that should have been preserved was spoliation if litigation was reasonably anticipated.9 Other Florida cases found that the duty to affirmatively preserve (as opposed to intentionally destroying) evidence emanated only from a statute, a contract, or a discovery request.10 To be sure, the analysis faced by the Florida courts in these cases was complicated by the nuanced and evolving law of spoliation in Florida and around the country and the fact that Florida, until 2005,11 recognized an independent tort of spoliation.12 In addition to the issue of a duty to preserve, courts addressing claims of lost or destroyed evidence were balancing such factors as whether the loss was negligent or intentional, whether the lost evidence was essential to resolving material issues in the case, and whether the loss was caused by a party or third party. Regrettably, the question of the trigger for the duty of presuit preservation was mixed with other factors, causing divergent outcomes that were often result driven.
The Undercard: Florida Cases Preceding Detzner
To understand fully the potential significance of the Detzner case, one must consider the lower court cases that preceded it. Before Detzner was decided, Florida law of pre-litigation preservation of electronically stored information remained unclear and awaited further development.13 The lack of clarity in Florida decisions on presuit preservation led to confusing outcomes in Florida state courts14 and in federal courts15 trying to apply Florida’s law of preservation. The issue yielded a fair share of scholarly comment.16 Florida courts were in basic agreement that a duty to preserve is required to hold a party accountable for spoliation based upon a failure to preserve evidence.17 The divergence in the cases, while not clearly articulated in every opinion, was whether there is or should be a presuit duty to preserve relevant information when litigation is reasonably anticipated in the absence of a contractual or statutory duty to preserve.18
A case that took the issue head on was Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA 2004), in which the Fourth District Court of Appeal held that a “duty to preserve evidence can arise by contract, by statute, or by a properly served discovery request (after a lawsuit has already been filed).” In Royal & Sunalliance, the defendants failed to preserve debris from a fire that fire inspectors collected and placed in barrels. The appellants cited the earlier cases of Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001), and St. Mary’s Hosp. v. Brinson, 685 So. 2d 33 (Fla. 4th DCA 1996), for the proposition that evidence must be preserved in anticipation of litigation; but the Royal & Sunalliance opinion states that neither Hagopian nor Brinson established a common law duty to preserve evidence in anticipation of litigation.19 Having interpreted and clarified one of its own decisions and having distinguished the Brinson case, the court in Royal & Sunalliance found “the argument that there was a common law duty to preserve the evidence in anticipation of litigation to be without merit.”20
As definitive as the case sounded, the Royal & Sunalliance case apparently did not put the issue of the trigger for preservation to rest, even in its own court. Less than a year after the Royal & Sunalliance case was decided, the Fourth District Court held in Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So. 2d 547 (Fla. 4th DCA 2005), that “a defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim.”21 Inexplicably, the appellate court decision relies on the Hagopian decision to support that holding22 without referring to Royal & Sunalliance. It does not explain why the same court held less than a year previously that Hagopian does not stand for that same proposition.23 Hettiger involved the failure to preserve a ladder on which a worker was injured.24 T he destruction of debris from a fire in Royal & Sunalliance does not pose a distinction worthy of a contradictory holding. While the opinion in Hettiger followed the well-reasoned view of the majority of courts in the country on preservation trigger, perhaps stating a reason for setting a different course from the panel of judges in the Royal & Sunalliance case would have clarified the muddy waters then and there.
The difficulty of applying the checkered Florida caselaw is perhaps best exemplified in Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389 (Fla. 2d DCA 2012), in which the Second District Court of Appeal examined Florida cases that applied a reasonable anticipation of litigation standard for the presuit duty to preserve. It held that there was no duty to preserve video data in the absence of a preservation request from the plaintiff.25 Osmulski involved a defendant premises owner who possessed and destroyed a surveillance video of an accident that occurred on the premises after the owner admittedly watched the video of the incident. The plaintiff contended that she needed the video for the case and that litigation was reasonably anticipated when the video was destroyed. The trial judge refused to give a spoliation jury instruction because there was no duty to preserve in the absence of a statutory requirement or a written request for the video by the plaintiff.
The appellate court cited Golden Yachts, Inc. v. Hall, 920 So. 2d 777 (Fla. 4th DCA 2006), and Hettiger and said that Hettiger “clearly states that where a defendant has evidence within its control, it can ‘be charged with a duty to preserve evidence where it could reasonably have foreseen the [plaintiff’s] claim.’”26 However, the opinion went on to hold that, in the case of video surveillance evidence, “it would not be fair to businesses or homeowners to require them to preserve video evidence in the absence of a written request to do so.”27 In dicta, the court stated that a written request to preserve and failure to do so would have justified a spoliation instruction. In holding that there was no duty to preserve in the absence of a written request by the injured party, the issue of trigger to preserve in anticipation of litigation became murkier still.
The court apparently believed that the breach of a presuit preservation duty would have required a finding of spoliation — a determination that the court was not willing to make. However, rather than appearing to nullify presuit preservation duties in general, the court could have reached the same result by finding that the loss of the video was not prejudicial or that the ESI (digital video surveillance) was too tangential or ephemeral to require preservation under the circumstances of this case.
Indeed, the court’s conclusion that the video should have been preserved if a request had been made only reinforces the conclusion that the court believed a pre-litigation preservation duty in fact existed, but did not extend to the ESI at issue, the digital video. If there was no pre-litigation duty to preserve, then how could a mere letter from the plaintiff’s counsel create such a duty de novo? In other words, the court translated a scope problem into a timing problem.
The Main Event: Detzner
Fortunately, the Florida Supreme Court in Detzner had better facts to work with and directly addressed whether there was a presuit duty to preserve the legislature’s communications involving their redistricting efforts. The Supreme Court28 held that trial Judge Terry Lewis was justified in drawing an adverse inference against the legislature in adjudicating the challengers’ claim of unconstitutional partisan intent. Judge Lewis found that the legislature “systematically deleted almost all of their e-mails and other documentation relating to redistricting.”29
The Supreme Court found that the legislature did so despite knowledge that litigation over the constitutionality of its redistricting plan was inevitable.30 Having concluded that there was a reasonable anticipation of litigation, the court turned to the issue of whether a legal duty31 to preserve was required. The court did recognize that “the [l]egislature had no specific policy requiring it to preserve communications.”32 Further, the court did not take issue with Judge Lewis’ finding that absent litigation there was “no legal duty on the part of the [l]egislature to preserve these records.”33 However, the court turned quickly to a rationale that would require retention of the evidence: reasonable anticipation of litigation.
“Although the [l]egislature’s failure to preserve records apparently did not violate a specific rule of legislative procedure regarding records retention — even though at least some of these records likely did have sufficient legal significance to have warranted their retention — Florida courts have, in any event, found a duty to preserve evidence in other circumstances when a party should reasonably foresee litigation. See Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So. 2d 547, 549 (Fla. 4th DCA 2005) (noting holdings that ‘a defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim’).”34
The opinion is not limited to the narrow set of circumstances involving only an adverse inference for evidence that was intentionally discarded or destroyed. As the court explained further:
“Even in the absence of a legal duty, though, the spoliation of evidence results in an adverse inference against the party that discarded or destroyed the evidence. As this [c]ourt explained in Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346 (Fla. 2005), Florida courts may impose sanctions, including striking pleadings, against a party that intentionally lost, misplaced, or destroyed evidence, and a jury could infer under such circumstances that the evidence would have contained indications of liability. If the evidence was negligently destroyed, a rebuttable presumption of liability may arise. Id. at 347. In other words, as recognized by the Fourth District Court of Appeal, ‘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.’ Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006) (quoting Martino v. Wal-Mart Stores, Inc. , 835 So. 2d 1251, 1257 (Fla. 4th DCA 2003), approved, 908 So. 2d 342); see also Nationwide Lift Trucks, Inc. v. Smith, 832 So. 2d 824, 826 (Fla. 4th DCA 2002) (stating that ‘[c]ases in which evidence has been destroyed, either inadvertently or intentionally, are discovery violations’ that may be subject to sanctions).”35
The court did not specifically overrule or disapprove the cases that require a statute, contract, or discovery request. However, the authorities that the court drew upon and the breadth of the opinion clearly states that a duty to preserve relevant information arises when a party reasonably foresees litigation.
The Implications of Detzner
The issue of whether a preservation duty has been triggered should be a threshold determination for the court without complication from other spoliation factors, such as prejudice, degree of culpability, preservation scope, and proportionality. The reason is simple: Those who may ultimately be charged with spoliation should know clearly and unequivocally when the preservation duty is triggered, especially considering the growing prevalence and importance of electronically stored evidence and the necessity to promptly issue and implement legal holds. Now Florida, as in federal court and most states, requires preservation of relevant evidence, electronic or otherwise, when litigation is reasonably anticipated, in addition to when preservation is required by a statute, a contract, or a discovery request.
Florida law on the presuit preservation trigger is now aligned with the federal courts and an overwhelming majority of state jurisdictions. Detzner eliminates any lingering inconsistency in Florida’s spoliation jurisprudence.
1 Detzner, 172 So. 3d at 390-94.
2 As to the outcome of the case, the Supreme Court affirmed the trial court’s factual findings and ultimate determination that the redistricting process and resulting map were “taint[ed]” by unconstitutional intent to favor the Republican Party and incumbents and ordered that the affected legislative districts be redrawn. Id. at 416.
3 The court held that there is a duty to preserve evidence “when a party should reasonably foresee litigation.” Id. at 391.
4 “Electronically stored information” or “ESI” has become a term of art in federal and Florida rules and caselaw. ESI intentionally encompasses a broad spectrum of information that is stored in any electronic or electromagnetic medium. See Artigliere & Hamilton, LexisNexis Practice Guide Florida E-Discovery and Evidence, Ch. 2, §2.06 (definition of electronically stored information). The Sedona Conference Glossary defines ESI as follows: “As referenced in the United States Federal Rules of Civil Procedure, information that is stored electronically, regardless of the media or whether it is in the original format in which it was created, as opposed to stored in hard copy ( i.e. , on paper).” See The Sedona Conference Glossary: E-Discovery & Digital Information Management
(4th ed. 2014).
5 T he Sedona Conference Glossary at 15, n. 4.
6 Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). “The scope of a party’s preservation obligation can be described as follows: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes ( e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy. On the other hand, if backup tapes are accessible ( i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold.” The term “litigation hold” or “legal hold” became a legal term of art as expressed in Zubulake and many other cases. According to The Sedona Conference Glossary, “A legal hold is a communication issued as a result of current or reasonably anticipated litigation, audit, government investigation or other such matter that suspends the normal disposition or processing of records. Legal holds may encompass procedures affecting data that is accessible as well as data that is not reasonably accessible. The specific communication to business or IT organizations may also be called a hold, preservation order, suspension order, freeze notice, hold order, litigation hold, or hold notice.”
The Sedona Conference Glossary at 26, n. 4. See The Sedona Conference Commentary on Legal Holds (Sept. 2010), available at http://www.thesedonaconference.org/download-pub/470; Artigliere & Hamilton, LexisNexis Practice Guide Florida E-Discovery and Evidence, Ch. 5, §5.05 (Initial Procedures in E-Discovery and the Preservation of Evidence in Florida State Court).
7 In re Amendments to the Fla. Rules of Civ. Procedure — Electronic Discovery, 95 So. 3d 76 (Fla. 2012).
8 The amendments to Fed. R. Civ. P. 37(e) deal with sanctions for failure to preserve ESI specifically. New Rule 37(e) replaces the 2006 rule and authorizes and specifies measures a court may employ if information that should have been preserved is lost as well as the findings necessary to justify these measures. Committee Notes on Rules — 2015 Amendment, Fed. R. Civ. P. 37.
9 See Golden Yachts, Inc. v. Hall, 920 So. 2d 777 (Fla. 4th DCA 2006) (wood and hardware not preserved by defendant despite request to do so from plaintiff); Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So. 2d 547, 549 (Fla. 4th DCA 2005) (defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim); Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001) (preparation of an incident report on the date of the accident, together with a refusal to give a copy of the report to appellant based upon work product grounds, evidenced anticipation of litigation); St. Mary’s Hosp. v. Brinson, 685 So. 2d 33 (Fla. 4th DCA 1996) (“[A] prospective civil action…is a valuable ‘probable expectancy’ that the court must protect from interference.”).
10 See Gayer v. Fine Line Constr. & Elec., Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007); Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA 2004); Eugene Strasser, M.D., P.A. v. Bose Yalamanchi, M.D., P.A. , 783 So. 2d 1087; 1093 (Fla. 4th DCA 2001); Figgie Int’l v. Alderman, 698 So. 2d 563, 567 (Fla. 3d DCA 1997).
11 The first-party tort of spoliation that had existed for a couple decades in Florida state court was eliminated in Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005).
12 For a thorough discussion of the convoluted evolution of spoliation law in Florida, see Michael D. Starks, Deconstructing Damages for Destruction of Evidence: Martino Eradicates the First-Party Tort of Spoliation of Evidence, 80 Fla. B. J. 36 (2006); Robert D. Peltz, The Necessity of Redefining Spoliation of Evidence Remedies in Florida, 29 Fla. St. U. L. Rev. 1289 (2002). See also Artigliere & Hamilton, LexisNexis Practice Guide Florida E-Discovery and Evidence, Ch. 5, §5.05 (Initial Procedures in E-Discovery and the Preservation of Evidence in Florida State Court) (LexisNexis Matthew Bender 2015).
13 See Hamilton, Saxe & Moncada, Streamlining and Modernizing Florida’s Pre-litigation Preservation Standard: Modern Technology Demands a Modern Solution, 88 Fla. B. J. 18 (May 2014). The two currents of Florida’s pre- Detzner preservation law can be seen to derive from whether preservation is viewed primarily as a duty owed to the court and the integrity of the judicial process or whether preservation is a party-related duty that arises in the discovery process. Id. at 18.
14 Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389 (Fla. 2d DCA 2012).
15 Compare Nelson v. Amica Mut. Ins. Co., 2015 U.S. Dist. LEXIS 96769 at *4-5 (M.D. Fla. July 24, 2015) (holding that it is undisputed under Florida law that a duty to preserve evidence can arise by contract, by statute, or by a properly served discovery request after a lawsuit has already been filed; but there may be additional circumstances from which a duty may arise if a party is on notice that documents or tangible items may be relevant or discoverable in pending or imminent litigation) and Floeter v. City of Orlando, 2007 U.S. Dist. LEXIS 9527 (M.D. Fla. Feb. 9, 2007) (same) with Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1309 (N.D. Fla. 2002) (duty to preserve evidence can arise by contract, by statute, or by a properly served discovery request after a lawsuit has already been filed).
16 Hamilton, Saxe, & Moncada, Streamlining and Modernizing Florida’s Pre-litigation Preservation Standard, 88 Fla. B. J. at 33-34; Starks, Deconstructing Damages for Destruction of Evidence: Martino Eradicates the First-Party Tort of Spoliation of Evidence, 80 Fla. B. J. 36 at 41; Peltz, The Necessity of Redefining Spoliation of Evidence Remedies in Florida, 29 Fla. St. U. L. Rev. at 1334-36.
17 Osmulski, 93 So. 3d at 392, citing Golden Yachts, Inc. v. Hall, 920 So. 2d 777 (Fla. 4th DCA 2006).
18 The dichotomy in Florida presuit preservation law has been addressed in past and recent articles calling for the need for clarity. Hamilton, Saxe & Moncada, Streamlining and Modernizing Florida’s Pre-litigation Preservation Standard, 88 Fla. Bar J. 18; Peltz, The Necessity of Redefining Spoliation of Evidence Remedies in Florida, 29 Fla. St. U. L. Rev. at 1334-36. One commentator stated that “the issue of the existence vel non of a presuit common law duty to preserve evidence is one that needs to be resolved by Florida’s highest court.” Starks, Deconstructing Damages for Destruction of Evidence, 80 Fla. B. J. at 41.
19 Royal & Sunalliance, 877 So. 2d at 845-46 (“[N]either Hagopian nor Brinson establishes a duty to preserve evidence when litigation is merely anticipated.”). In a specially concurring opinion, Judge Klein takes the above mentioned Peltz law review article to task, stating that “the article has misconstrued our decision [in Hagopian ]…, leading a federal court to also misinterpret it [in Silhan ].”
20 Royal & Sunalliance, 877 So. 2d at 846.
21 Hettiger, 904 So. 2d at 549.
23 Compare Royal & Sunalliance, 877 So. 2d at 845-46 with Hettiger, 904 So. 2d at 549.
24 Hettiger, 904 So. 2d at 547.
25 Osmulski, 93 So. 3d at 395.
26 Id. at 393.
28 Trial Judge Terry Lewis’ decision was certified by the First District Court of Appeal for direct review by the Florida Supreme Court.
29 Detzner, 172 So. 3d at 390.
30 Id. The court noted that the legislature openly stated for many years that litigation was going to occur; it informed the trial court that litigation was coming; and it retained some benign documentation, but not its email communications among legislators and staff or with outside consultants. Id.
31 The authors presume that the Supreme Court and Judge Lewis considered a “legal duty” to be one derived from a statutory or contractual obligation. To be sure, a few sentences later in the opinion, the duty to preserve is imposed when a party reasonably foresees litigation. This would seem to be a legal duty, though it may be more accurately described as a “common law duty.”
33 Id. at 391. Judge Lewis’ full statement on legal duty was: “There was no legal duty on the part of the [l]egislature to preserve these records, but you have to wonder why they didn’t. Litigation over their plans was ‘a moral certainty,’ as their lawyers put it earlier in this case, and intent would be a key issue in any challenge.”
Ralph Artigliere graduated with honors from the U.S. Military Academy at West Point and high honors from University of Florida law school. After 24 years as a civil trial lawyer and seven years as a circuit judge in the 10th Judicial Circuit in Bartow, Judge Artigliere is now retired from the bench but continues to teach judges and lawyers and to write on the law, and in particular eDiscovery and civil procedure. He is the chair of the Sedona Conference Annual Program on Cooperation and Negotiation in eDiscovery and was The Florida Bar’s 2006 Hoeveler Award recipient for judicial professionalism.
Gill Freeman recently retired from the 11th Judicial Circuit Court where she served from 1997 to 2016. She is the former dean of the Court System’s Advanced Judicial College and has extensive experience teaching judicial courses. Judge Freeman is an active member of Working Group 1 of The Sedona Conference, Electronic Document Retention and Production. She is presently working as a mediator, arbitrator, and special master with JAMS ADR in Miami.
William Hamilton is the executive director of the University of Florida Levin College of Law’s Electronic Discovery Project, and the co-author with Ralph Artigliere of the LexisNexis Practice Guide Florida E-Discovery and Evidence . Hamilton has taught electronic discovery at the University of Florida Levin College of Law for the past decade and is the former electronic discovery partner for his national law firm. He is widely published and is a speaker on electronic discovery and litigation.