Spoliated Evidence: Better than the Real Thing?
All too often, a party is faced with the fact that certain key evidence has been destroyed, altered, or simply lost. This is commonly referred to as “spoliation” of evidence. Although the spoliated evidence may at first frustrate the party who desired it, the spoliation can actually benefit that party through the imposition of sanctions, evidentiary presumptions, or even a separate cause of action for spoliation of evidence against the spoliator. This article will explore the powerful effect of lost items in litigation and will discuss the standards for imposing sanctions under both state court decisions and federal court decisions in Florida.
Sanctions for Spoliation of Evidence: Overview
Florida state courts have consistently held that sanctions are appropriate when spoliation occurs. The sanctions may include the striking of pleadings, the entering of a default on the issue of liability, exclusion of expert testimony, the imposition of an evidentiary presumption, and even the dismissal of a claim.1
The Third District’s decision in DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983), is generally credited as the first Florida state court case to impose sanctions for spoliation of evidence. In DePuy, the court held that the trial judge did not err in striking a defendant’s affirmative defenses after the defendant returned the plaintiff’s crucial piece of evidence, a defective hip prosthesis, with the fracture site missing. The defense had performed an electron microscope examination on the fracture site, which the plaintiff had not yet performed. The defendant’s lack of bad faith in losing the evidence was held to be irrelevant.
The principles announced in DePuy were expanded in Rockwell International Corp. v. Menzies, 561 So. 2d 677 (Fla. 3d DCA 1990). In Rockwell, the Third District, citing DePuy, affirmed an order striking a table saw manufacturer’s answer and affirmative defenses and entered a default because of the destruction and loss of two bolts attached to another manufacturer’s motor. The bolts were hacked off by the table saw manufacturer’s experts in the course of an inspection of the table saw because they could not otherwise remove the other manufacturer’s motor. When the defendant’s experts reinstalled the original motor, they installed replacement bolts but failed to retain the two original, hacked-off bolts. There was no evidence that this was done in bad faith. The rationale for affirming the default was that the destruction of the two bolts made it impossible for the plaintiff to rebut the expected testimony of the manufacturer’s expert that the buyer had failed to firmly secure the bolts to the motor plate:
This court has recognized that drastic sanctions, including a default, are appropriate when a defendant who has been ordered not to destroy evidence does, in fact, alter or destroy critical physical evidence, and when the plaintiff has demonstrated an inability to proceed without such evidence. DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983). In so ruling, this court concluded that whether the defendant destroyed the evidence in “bad faith or accidentally is irrelevant.”
561 So. 2d at 679. The Third District has continued to uphold this principle.2
The Fourth District has generally held that sanctions for spoliation of evidence are appropriate, but has been reluctant to actually impose them without a showing that the evidence is essential to the case and was destroyed in bad faith.3
Relevancy of Evidence and Bad Faith in its Destruction
In Federal Insurance Co. v. Allister, 622 So. 2d 1348, 1351 (Fla. 4th DCA 1993), the Fourth District set forth five factors to consider before imposing sanctions for spoliation of evidence: “(1) whether there is prejudice; (2) whether the prejudice can be cured; (3) the practical importance of the evidence; (4) the good faith or bad faith surrounding the loss of evidence; and (5) possible abuse if the evidence is not excluded.”4
These factors can be boiled down to two: the importance of the evidence and the degree of bad faith in its destruction. The Florida state court decisions differ from the Florida federal court decisions, however, as to whether bad faith is a necessary element to imposing sanctions. Florida state court decisions generally look first to the importance of the evidence and then consider the degree of willfulness in determining the appropriate sanctions; if the documents are so essential that the party cannot proceed, willfulness or bad faith is irrelevant. Federal decisions, on the other hand, hold that willfulness is a necessary predicate to imposing sanctions and that mere negligent loss is insufficient.
Florida State Court Standards
Florida state courts have ruled that the issue of “bad faith” is irrelevant if the evidence was so essential to the party’s case that it could not proceed without it. In DePuy, for example, the court noted: “Whether the prothesis was destroyed in bad faith or accidentally is irrelevant in the present case. The evidence is unavailable for the plaintiff’s use and they have demonstrated an inability to proceed without it. . . Having lost the prothesis, [defendants] are now accountable for the ramifications of their act.” 427 So. 2d at 308.
Similarly, the Fourth District in New Hampshire Ins. Co. v. Royal Ins. Co., 559 So. 2d 102 (Fla. 4th DCA 1990), focused on the importance of the evidence rather than on whether the destruction was in bad faith:
If appellant has destroyed relevant and material information by destroying the file, and that information is so essential to the appellee’s defense that it cannot proceed without it, then the striking of appellant’s pleadings may be warranted. See DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983). Alternatively, where a party fails to produce evidence within his control, an adverse inference may be drawn that the withheld evidence would be unfavorable to the party failing to produce it. Valcin v. Public Health Trust of Dade County, 473 So. 2d 1297 (Fla. 3d DCA 1984), modified, Public Health Trust of Dade County v. Valcin, 473 So. 2d 1297 (Fla. 3d DCA 1984). Thus the court could indulge such an inference on the facts of this case. [Emphasis added.]
This is not to say that bad faith is unimportant under Florida state court law. In Metropolitan Dade County v. Bermudez, 648 So. 2d 197, 200 (Fla. 1st DCA 1994), for example, the court stated that the degree of a defendant’s willfulness in selling a wrecked vehicle as parts will affect the severity of the sanction: “Even dismissal of a claim or defense may be appropriate where there has been willful or malicious destruction of evidence,. . . but less drastic measures are ordinarily appropriate where relevant evidence was inadvertently destroyed.” The court in Bermudez thus instructed the lower court as follows:
If the judge of compensation claims concludes that the County deliberately deprived the other side—and so the tribunal—of access to this evidence as part of its effort to establish the seat belt defense, striking the defense or excluding the County’s witnesses would not be too severe a sanction. If the judge of compensation claims concludes that the County did not act willfully, consideration should be given to whether the County’s negligence would have prevented access if claimant’s counsel had requested production more promptly; whether the claimant can fairly meet the testimony of [the expert witness], using photographs or the testimony of others at the scene, without having conducted an examination of the vehicle; and whether the prejudice to the claimant, if any, may be cured by some less drastic means than disallowing [the expert’s] testimony.
648 So. 2d at 647-48.
Additionally, in Federal Insurance Co. v. Allister, 622 So. 2d 1348 (Fla. 4th DCA 1993), the court considered the fact that the plaintiff’s loss of a garage door opener was not intentional in reversing the sanctions imposed by the lower court. In Allister, the allegedly defective garage door opener, which the defendant claimed was crucial to its defense in a products liability action, was lost while in the plaintiff’s expert’s custody. In holding that the trial court erred in precluding the plaintiff from presenting any evidence regarding the garage door opener, the court reasoned that the loss of the garage door opener was inadvertent and not for improper purpose, the prejudice caused to the defendant was insufficient because other evidence was available, and the preclusion of any evidence regarding the garage door opener was tantamount to a dismissal of the action. However, the court suggested that other sanctions might be appropriate, such as:
Precluding any testimony from the expert who lost the evidence, and/or instructing the jury that the manufacturer was entitled to an inference that the lost evidence was not defective would also be within the court’s discretion. In short, the court should make an attempt to fashion a solution to this problem which is less than the ultimate sanction of dismissal, but will still give the manufacturer a fair trial.
622 So. 2d at 1352.
Furthermore, in Hernandez v. Pino, 482 So. 2d 450 (Fla. 3d DCA 1986), the court considered the fact that there was no proof of bad faith in holding that summary judgment was an improper sanction for the plaintiffs’ loss of x-rays, which the defendant dentist had released to the plaintiffs for inspection, especially where the defendant dentist had already examined the x-rays in his own capacity as an expert, had another expert examine the x-rays, and remained able to defend against the claim for negligent dental treatment:
Ordinarily where a party in possession loses or destroys crucial record evidence a burden is imposed on that party to prove that the loss or destruction was not in bad faith. See § 90.954 (1983); Valcin v. Public Health Trust of Dade County, 473 So. 2d 1297 (Fla. 3d DCA 1984). In this case plaintiff was given no opportunity to show that ordinary negligence rather than mischief was behind the disappearance of the X-rays; thus a summary judgment on that ground alone was premature. Assuming that the X-rays were not intentionally made unavailable, the next inquiry would be whether [defendant] will be unable to mount a defense without them.
482 So. 2d at 452.5
In addition to imposing discovery or pleading sanctions, the Florida Supreme Court in Public Health Trust of Dade County v. Valcin, set forth certain criteria for imposing evidentiary presumptions in the event of negligent or intentional destruction of hospital records, as follows: 1) If the hospital is unable to produce the records, the plaintiff must establish that the absence of the records hinders the plaintiff’s ability to establish a prima facie case; 2) if the plaintiff meets that burden, a presumption of liability arises and the burden of proof shifts to the hospital to prove the nonexistence of the fact presumed; and 3) when evidence rebutting such presumption is introduced, the presumption does not automatically disappear and is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case. The court did not require the destruction to be intentional; mere negligence was sufficient.6 H owever, if the spoliation was intentional, the court left the door open to further sanctions: “[A] wide range of sanctions is available to the trial court under Florida Rule of Civil Procedure 1.380(b)(2).”
Federal Court Standards
Bad faith is generally a prerequisite to the imposition of sanctions in federal court.7 In Stanton v. National R.R. Passenger Corp., 849 F. Supp. 1524 (M.D. Ala. 1994), the plaintiff sought denial of the defendant railroad company’s motion for summary judgment, arguing that because the defendant lost its “speed or computer tape” an adverse inference of speeding should be imposed. In denying the motion for summary judgment, the court agreed that issues of fact remained in view of the lost tape, but instructed the plaintiff that it must prove the defendant exercised bad faith before adverse inferences can be drawn against the defendant:
In Vick v. Texas Employment Comm’n, 514 F.2d 734, 737 (5th Cir. 1975), the former Fifth Circuit upheld a trial court’s finding for the defendant employment commission in a sex discrimination case despite the fact that records relevant to the plaintiff’s employment had been destroyed by the commission’s personnel prior to trial. In so ruling, the court explained that, in the absence of a finding that the employment commission had acted in bad faith, no adverse inference as to the probative value of the destroyed documents was called for. The commission’s records on the plaintiff were destroyed before trial pursuant to the commission’s regulations governing disposal of inactive records. See Lewy v. Remington Arms Co., 836 F.2d 1104, 1111 (8th Cir. 1988) (records destroyed pursuant to policy). The court recognized that “[t]he adverse inference to be drawn from destruction of records is predicated on bad conduct of the defendant. Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough, for it does not sustain an inference of consciousness of a weak case.”
849 F. Supp. at 1528 (emphasis added).8
Additionally, in Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107 (S.D. Fla. 1987), the court applied three elements necessary to justify defaulting the defendant for destruction of documents, with “bad faith” as the primary element:
The court must make the following findings: (1) that Defendant acted willfully or in bad faith; (2) that Plaintiff was prejudiced by Defendant’s conduct; and (3) that lesser sanctions would not serve the punishment-and-deterrence goals set forth in National Hockey League [ v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S. Ct. 2778, 2781, 49 L.Ed.2d 746 (1976)] and its progeny.
116 F.R.D. at 131.9
Nearly all of the Florida cases involve evidence that was spoliated during the pendency of an action. However, none of the cases state that the defendant is exonerated from the effects of spoliation of evidence by virtue of the fact that no suit has yet been instituted. In fact, the first element to establish the tort of negligent spoliation of evidence is “the existence of a potential civil action.” Continental Insurance Co. v. Herman, 576 So. 2d 313 (Fla. 3d DCA 1990) (emphasis added).
Other jurisdictions have stated that sanctions may be appropriate for documents destroyed by a party on notice of “potential litigation”:
Sanctions may be imposed against a litigant who is on notice that documents and information in its possession are relevant to litigation, or potential litigation, or are reasonably calculated to lead to the discovery of admissible evidence, and destroys such documents and information. While a litigant is under no duty to keep or retain every document in its possession once a complaint is filed, it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request.
William T. Thompson Co. v. General Nutrition Corp., Inc., 593 F. Supp. 1443, 1455 (D.C. Cal. 1984) (striking defendant GNC’s answer and entering default in one of two consolidated cases and dismissing plaintiff GNC’s complaint in the other case) (emphasis added.)
Additionally, courts have rejected the argument that discovery sanctions can only be imposed if there was a specific discovery request or court order directed toward the destroyed information. The court has inherent power to impose sanctions even in the absence of a discovery request or court order, as long as the party had notice of a legal duty to preserve the evidence:
Conduct of the kind which ordinarily would be sanctionable under Rule 37, [Fed.R.Civ.P.] but fall outside the express terms of the rule, can be sanctioned by proper exercise of this Court’s inherent powers.. . . Defendant destroyed records for which it was on notice that it had a legal duty to preserve, and that duty is imposed, in part, to ensure that those records are available for litigation of a discrimination charge.
Equal Employment Opportunity Commission v. Jacksonville Shipyards, Inc., 690 F. Supp. 995, 997-98 (M.D. Fla. 1988).
Thus a trial court should have discretion to impose sanctions when the party who destroyed the evidence knew or should have known that the evidence would be relevant to a potential civil action, regardless of the fact that no action has been instituted, unless the evidence had been made available to the other party before suit.
Destruction by Third Parties
Parties frequently are faced with evidence that has been destroyed by a nonparty. The question then becomes whether sanctions or an evidentiary presumption can be imposed against a party for the nonparty’s actions. Courts have, for example, refused to impose sanctions when the evidence was lost by a party’s former law firm, but not by the party himself.10 On the other hand, sanctions have been imposed when the destruction of evidence was committed by the defendant’s experts, rather than the defendant itself.11
The issue of a named party’s legal responsibility for lost evidence generally will depend on the degree to which the spoliator was acting under the direction or control of the party. For example, in William T. Thompson Co., the District Court of California held that a company cannot merely assert that it did not have control over the actions or inaction of the persons who destroyed or failed to preserve the relevant documents or information, if the company knew that the information was relevant to pending litigation and could have instructed those persons to preserve the information. The defendant in that case had argued that it was not responsible for the actions of its individual employees in failing to preserve computer tapes of purchase, sale, and inventory information because “it never had a formal or written document retention or preservation policy” and the practices of retention and destruction “were left up to individual GNC departments, and sometimes individual employees, for their decision.” 593 F. Supp. at 1448. The court rejected that argument, stating:
GNC could have preserved and retained on computer tape or disc all of the purchase, sale and inventory information and data which was on the now-destroyed records described in Findings 7 and 9 above without undue burden. GNC admits that it already possesses a computer tape and disc library of over 2,000 tapes. The information contained on those remaining library tapes, however, cannot replicate the documents destroyed by GNC.. . . GNC did not instruct its employees to preserve the records set forth in Finding 7 and 9 above, or make any other efforts reasonably calculated to ensure that those records would be preserved, following the inception of this litigation. As a result of GNC’s omission to take steps necessary to ensure the preservation of such records, they were destroyed by GNC employees.
593 F. Supp. at 1447 (emphasis added).
On the other hand, in King v. National Security Fire and Casualty, 656 So. 2d 1335 (Fla. 4th DCA 1995), the court held that it was error in an insurance bad faith action to impose an evidentiary presumption in favor of a defendant/insurer and against the individual plaintiff/insured for the destruction of telephone message slips by the law firm whom the insured hired to represent him to settle with the insurer. Because the law firm was not a party to the action, the message slips were deemed not in the “control” of any party. Thus the destruction of the plaintiff’s law firm’s telephone message slips was not imputable to the individual.
Similarly, in Stevenson v. Stevenson, 661 So. 2d 367 (Fla. 4th DCA 1995), the court declined to impose a presumption against a former wife in an action brought by the former husband to enforce a proposed modification to the parties’ marital settlement agreement. Even though the original modified agreement, which “disappeared under questionable circumstances,” would have been unfavorable to the former wife, “it has not been proven conclusively that [former wife] is responsible for its disappearance.”
Cause of Action for Spoliation of Evidence
Florida is one of only about six states that recognize a cause of action for spoliation of evidence.12 The case of Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984), first recognized a cause of action in Florida for negligent spoliation of evidence, although the court refused to allow the plaintiff to amend her malpractice complaint to include the spoliation claim on the ground that it did not relate back to the underlying negligence action.
After Bondu, courts have allowed such claims where a party can show the following 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 in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the ability to prove the lawsuit, and (6) damages.
Continental Insurance Co. v. Herman, 576 So. 2d 313 (Fla. 3d DCA 1990).
In Herman, the court in applying these elements to the plaintiff’s claim against an uninsured motorist insurer for destruction of her wrecked automobile, held that dismissal of the claim was proper because the plaintiff had already received an $860,000 award in an arbitration proceeding and the car’s destruction did not significantly impair her ability to succeed in the underlying personal injury action.13
Before bringing a spoliation suit, the party damaged by the lost evidence must first file suit against the party who caused the original injury; otherwise, the spoliation suit may be subject to dismissal because the injured party will not be able to prove the inability to recover damages against the primary tortfeasor. In Miller v. Allstate Ins. Co., 650 So. 2d 671 (Fla. 3d DCA 1995), for example, a plaintiff injured in an automobile accident brought a breach of contract action against the insurance company that had failed to preserve the wrecked automobile despite having entered into an agreement to do so for expert inspection. The plaintiff alleged that the destruction of the evidence denied her the opportunity to maintain a products liability action against the manufacturer. In upholding the lower court’s granting of the defendant’s motion for directed verdict, the court held that in order to bring an action for spoliation of evidence, the plaintiff must also bring a products liability action prior to or together with the spoliation of evidence claim. The court then added,
Even in a products liability setting where evidence has been lost, the primary wrongdoer is the manufacturer of the defective product. The person who lost the evidence has created problems of proof for the plaintiff, but the entire liability should not shift from the manufacturer to the person who lost the evidence unless the loss of evidence has so fatally impaired the products liability claim that to bring a products liability action would be frivolous.
650 So. 2d at 674. It is not necessary, however, that the underlying suit be brought to final judgment before maintaining the spoliation suit.14
A claim for negligent destruction does not require a showing that the plaintiff would have succeeded in the underlying lawsuit if the evidence had not been destroyed, but does require a showing that the destruction of evidence “cost [plaintiff] an opportunity to prove [plaintiff’s] lawsuit.” Brown v. City of Delray Beach, 652 So. 2d 1150 (Fla. 4th DCA 1995) (quoting Miller v. Allstate Ins. Co., 573 So. 2d 24, 31 (Fla. 3d DCA 1990)).
In determining whether to impose sanctions or evidentiary presumptions for spoliation of evidence, Florida state courts generally require the trial court to consider whether the spoliation 1) impairs the party from presenting its case or its defense to the case, and 2) was committed willfully or inadvertently. If the evidence is so essential that the party cannot proceed without it, bad faith is irrelevant and need not be considered in state court actions, but is required in federal court actions. In either court system, the imposition of sanctions and presumptions for lost or destroyed evidence can, in some circumstances, provide an even greater advantage than the actual evidence itself had such evidence been available.
1 See DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d D.C.A. 1983) (affirming trial court’s striking of defendant’s answer and affirmative defenses for returning plaintiff’s prosthesis with a crucial piece missing); accord Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629 (Fla. 3d D.C.A. 1995) (affirming entry of default against defendant who manufactured allegedly defective ladder for discarding ladder, regardless of lack of evidence that destruction was willful); Metropolitan Dade County v. Bermudez, 648 So. 2d 197 (Fla. 1st D.C.A. 1994) (“Even dismissal of a claim or defense may be appropriate where there has been willful malicious destruction of relevant evidence,. . . but less drastic measures are ordinarily appropriate where relevant evidence was inadvertently destroyed”); Rockwell International Corp. v. Menzies, 561 So. 2d 677 (Fla. 3d D.C.A. 1990) (defendant/manufacturer’s destruction and loss of two bolts attached to table saw and motor justified striking manufacturer’s pleadings and entering default on liability, even though nothing indicated manufacturer’s bad faith in failing to comply with court order not to alter or destroy saw during inspection, where plaintiff was unable to proceed without the lost evidence); cf. Federal Insurance Co. v. Allister, 622 So. 2d 1348 (Fla. 4th D.C.A. 1993) (inadvertent loss by plaintiff’s expert of part of allegedly defective garage door opener system did not sufficiently prejudice manufacturer to warrant exclusion of any evidence regarding system, which was equivalent of dismissal of plaintiff’s claims); New Hampshire Ins. Co. v. Royal Ins. Co., 559 So. 2d 102 (Fla. 4th D.C.A. 1990) (striking of pleadings may be appropriate sanction “[i]f appellant has destroyed relevant and material information by destroying the file, and that information is so essential to the appellee’s defense that it cannot proceed without it”); Hernandez v. Pino, 482 So. 2d 450 (Fla. 3d D.C.A. 1986) (summary judgment improper sanction for plaintiff’s loss of x-rays, which defendant dentist had released to plaintiffs, where defendant, who had already examined the x-rays in his own capacity as an expert and had another expert examine the x-rays, remained able to defend against claim for negligent dental treatment).
2 E.g., Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629 (Fla. 3d D.C.A. 1995).
3 See, e.g. , Federal Ins. Co. v. Allister, 622 So. 2d 1348 (Fla. 4th D.C.A. 1993) (reversing trial court’s order preventing plaintiff from presenting any evidence regarding a garage door opener which plaintiff’s expert had lost, because the loss of the garage door opener was inadvertent and defendant had other means of establishing its non-negligence); cf. New Hampshire Ins. Co. v. Royal Ins. Co., 559 So. 2d 102 (Fla. 4th D.C.A. 1990) (reversing lower court’s order striking party’s pleadings for responding to discovery request by stating that the requested documents had been destroyed; because party had in fact submitted a response to the discovery, albeit one that the appellee did not like, it was error to sanction the party for “failure to comply”). See also Stevenson v. Stevenson, 661 So. 2d 367 (Fla. 4th D.C.A. 1995) (affirming trial court’s refusal to impose presumption that an original modification agreement to a marital settlement agreement, lost under “questionable” circumstances, would have been unfavorable to the former).
4 C iting Lewis v. Darce Towing Co., Inc., 94 F.R.D. 262 (W.D. La. 1982)); accord Metropolitan Dade County v. Bermudez, 648 So. 2d 197 (Fla. 1st D.C.A. 1994) (“What sanctions are appropriate when a party fails to preserve evidence in its custody depends on the willfulness or bad faith, if any, of the party responsible for the loss of the evidence, the extent of prejudice suffered by the other party or parties, and what is required to cure the prejudice.”).
5 Accord Rockwell International Corp. v. Menzies, 561 So. 2d 677 (Fla. 3d D.C.A. 1990) (“The absence of bad faith, however, did not preclude the trial court from imposing these sanctions here.”).
6 The supreme court opinion modified the Third District’s holding in Valcin v. Public Health Trust of Dade County, 473 So. 2d 1297 (Fla. 3d D.C.A. 1984), that the absence of surgical records, which a hospital is required to maintain by law, created a rebuttable presumption if the hospital was merely negligent in losing the evidence, but created a “conclusive, irrebuttable presumption” of negligence if the hospital deliberately destroyed the documents. The Florida Supreme Court, while accepting the general principle that a presumption should be created in the event of spoliation of evidence, quashed as unconstitutional the Third District’s holding with regard to the establishment of a conclusive, irrebuttable presumption in the event of deliberate spoliation of evidence. Instead, the court stated that if the spoliation was merely negligent, then a presumption of liability arises, which presumption may be rebutted if the hospital puts forth evidence of its non-negligence.
7 Vick v. Texas Employment Comm’n, 514 F.2d 734 (5th Cir. 1975); Stanton v. National R.R. Passenger Corp., 849 F. Supp. 1524 (M.D. Ala. 1994); Equal Employment Opportunity Commission v. Jacksonville Shipyards, Inc., 690 F. Supp. 995 (M.D. Fla. 1988).
8 See also Equal Employment Opportunity Commission v. Jacksonville Shipyards, Inc., 690 F. Supp. 995 (M.D. Fla. 1988) (“Although the court believes that failure to ensure the preservation of records after receiving official notice is ‘willful’ behavior, the law of this Circuit demands a greater record of intransigence to justify the default sanction.”).
9 Accord Helmac Products Corp. v. Roth (Plastics) Corp., 814 F. Supp. 560 (E.D. Mich. 1992) (citing Telectron with approval); Independent Petrochemical Corp. v. Aetna Cas. & Sur. Co., 654 F. Supp. 1334 (D.D.C. 1986) (“[N]on-retention of such relevant documents must be a willful act, meaning deliberate obstructionist behavior.”). See also Stanton v. National RR Passenger Corp., 849 F. Supp. 1524 (M.D. Ala. 1994) (“Mere negligence is not enough, for it does not sustain an inference of consciousness of a weak case.”) (quoting Lewy v. Remington Arms Co., 836 F.2d 1104, 1111 (8th Cir. 1988), as cited in Vick v. Texas Employment Comm’n, 514 F.2d 734, 737 (5th Cir. 1975)).
10 King v. National Security Fire and Casualty, 656 So. 2d 1335 (Fla. 4th D.C.A. 1995).
11 Federal Ins. Co. v. Allister, 622 So. 2d 1348 (Fla. 4th D.C.A. 1993); Rockwell International Corp. v. Menzies, 561 So. 2d 677 (Fla. 3d D.C.A. 1990); DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d D.C.A. 1983).
12 See Scott Katz & Ann Marie Muscaro, Spoliage of Evidence — Crimes, Sanctions, Inferences, and Torts, 2 9
Tort & Ins. L. J. 51, 53 (1993).
13 See also St. Mary’s Hospital, Inc. v. Brinson, 685 So. 2d 33 (Fla. 4th D.C.A. 1996) (recognizing cause of action against hospital for spoliation of evidence based upon hospital’s failure to preserve halothane vaporizer used in anaesthesia machine during infant’s surgery, thus impairing plaintiff’s ability to proceed against manufacturer of unit and other responsible agents); Miller v. Allstate, 573 So. 2d 24 (Fla. 3d D.C.A. 1990), rev. denied, 581 So. 2d 1307 (Fla. 1991) (recognizing a breach of contract action for destruction of evidence needed in products liability case: “Whether the cause of action should be pursued in contract or tort is not dictated by the character of the act giving rise to the injury, but instead, it is the character of the duty breached which determines which cause of action should be maintained.”).
14 St. Mary’s Hospital v. Brinson, 685 So. 2d 33 (Fla. 4th D.C.A. 1996); Miller, 573 So. 2d at 28 n.7.
James T. Sparkman , a partner in the Miami office of Sparkman, Robb, Mason & Ginsburg, P.A., is a board-certified civil trial lawyer. He received his B.S. in 1976 and his masters degree in 1978 from the University of Tennessee. Mr. Sparkman received his J.D. from Nova University in 1983.
John W. Reis , an associate at Sparkman Robb, received his A.B. from Duke University in 1988 and his J.D., cum laude, from the University of Miami in 1992.