Spoliation of Evidence: A Double-Edged Sword
Spoliation of evidence, which is sometimes referred to as “spoilation” or “destruction of evidence,” is a cause of action which holds someone liable for negligently or intentionally destroying material which is needed as evidence in litigation. Since 1990, it has been a very powerful tool in the arsenal of litigants and has forced some strange rules upon defendants or potential defendants. This article examines the origins of the cause of action, and offers an analysis of its status today and a discussion of a new limitation which has been imposed upon it.
The Origin of Spoliation
An initial case concerning lost patient records gave Florida courts a chance to analyze a claim for “negligent failure to preserve evidence.”1 The court recognized the new tort had existed in other states and asked the threshold question “whether there is a duty owed to the plaintiff by the defendant which the law recognizes.”2 It found the existence of the duty in the statutes at the time which required a hospital to maintain records of patients and produce them upon request. The plaintiff was found to have stated a cause of action for “negligent failure to preserve evidence” because she alleged that she could not prove her cause of action against the doctor practicing at the hospital. Central to this analysis was the time-honored discussion of the elements of negligence: 1) existence of a duty; 2) breach of that duty; and 3) damages caused by the breach. The claim against the doctor fit very well into the analysis of any other negligence case since there was a clear duty created by statute and a breach of that duty by the loss of the records. Although the court recognized a new cause of action, it did not have to make new law to recognize spoliation.
Since then, however, spoliation has undergone many changes and, in some respects, has been broadened. It now has two distinct “varieties” and the requirement of a duty has been made more vague.
Different Varieties of Spoliation
From the case of Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1985), evolved two distinct “varieties” of spoliation of evidence claims. Although they are the same when one compares the elements of the claim, they are applied to different cases in different ways with different results. It is important to recognize the distinctions and applications, especially when considering precedent.
First, a claim for spoliation of evidence may be used in the form of a discovery violation against an opponent in litigation. This happens when, during litigation, a party is in control of evidence crucial to his adversary and then loses or destroys the evidence. In that situation, the court treats the loss or destruction of evidence as a discovery violation pursuant to Fla. R. Civ. P. 1.380.3 The failure to produce the evidence is then subject to a sanction, the choice of which is widely discretionary with the trial court. The trial court may consider 1) whether there is prejudice to the opposing party; 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 the evidence; and 5) possible abuse if the evidence is not excluded.4 In some instances, the court may determine that the violation deserves the harshest sanction possible, dismissal or striking of defenses, while in others the court may fashion some other remedy.5
The second use of spoliation is as a separate cause of action. It must be distinguished from the discovery sanction of spoliation, as it usually involves different parties. In the cases discussed above, for instance, some evidence was lost by an expert for one of the parties. That loss may result in a discovery sanction against the party for the negligence of its expert. In the second type of claim, a cause of action for spoliation of evidence might be brought by the party sanctioned against the person who destroyed or lost the evidence. The claim would be that the expert’s negligence prevented the party from defending itself. The damages could also be the discovery sanction itself, if the sanction was less than a total dismissal of the plaintiff’s claim or a default against the defendant. A cause of action for spoliation of evidence lies against any person who has a duty to preserve evidence but fails to do so, and destroys or “significantly impairs” another person’s cause of action against a third party.
Elements of a Claim for Spoliation
The cause of action of spoliation of evidence was originally brought against insurance companies. Initial cases, such as Miller v. Allstate Insurance Company, 573 So. 2d 24 (Fla. 3d DCA 1990), rev. denied, 581 So.2d 1307 (Fla. 1991), and Continental Insurance Company v. Herman, 576 So. 2d 313 (Fla. 3d DCA 1990), rev. denied, 598 So. 2d 76 (Fla. 1991), imposed the duty to preserve evidence upon an insurance company based upon the insurance contract. The court in Miller held that the elements of the cause of action are: 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 inability to prove the lawsuit, and 6) damages. Since Allstate had promised to preserve the insured’s vehicle for use in a claim against the manufacturer, the insured had a valid cause of action for spoliation of evidence when the vehicle was destroyed.
Since then, the types of situations in which the cause of action has been applied appear to have been limitless. In any situation where a duty to preserve evidence could be proven through a contract or statute, spoliation was sure to be used. For instance, the duty to preserve evidence has arisen from the workers’ compensation statutes and given an employee a cause of action against his employer outside of the exclusivity of workers’ compensation if the employer’s destruction of evidence has destroyed the employee’s ability to pursue a third party tort claim.6 Every party to litigation also has an affirmative duty to preserve evidence which is the subject of a duly served discovery request.7 The duty to preserve evidence has even been held to be created by the promise to do so by a person, unaccompanied by consideration for the promise.8
Broadened Definition of “Duty”
In one case, however, the existence of a duty to preserve evidence was presumed to exist without any discussion of the legal basis for the duty. St. Mary’s Hospital, Inc. v. Brinson, 685 So. 2d 33 (Fla. 4th DCA 1996). In Brinson, the court apparently recognized a new duty to preserve evidence that did not require a contract or statute to create the duty. In that case, the plaintiff alleged that St. Mary’s was negligent in the treatment of Brinson’s decedent during surgery and that a vaporizer used to provide anesthesia malfunctioned and caused her death. Brinson filed two complaints. The first complaint was against the manufacturer of the vaporizer and the treating doctors for negligence. A second complaint for spoliation of evidence was filed when the plaintiff discovered that St. Mary’s allowed the vaporizer to be dismantled shortly after the surgery. The plaintiff alleged that “because St. Mary’s knew of a potential civil claim against the vaporizer’s manufacturer, it had a duty to preserve the vaporizer.”
In its decision, the district court adopted the elements of spoliation set forth in Miller and then approved the striking of St. Mary’s pleadings as a sanction for discovery violations. It then approved the entry of a directed verdict in favor of Brinson on the spoliation claim. Many attorneys have taken the decision in Brinson to mean that a duty to preserve evidence is created when a person knows that a claim for personal injuries may exist against any person or business. If someone knows that a claim may exist, then, according to Brinson, that person has a duty to maintain evidence that may be useful to the litigants of that claim. This interpretation of Brinson was recently recognized by the Fourth District Court of Appeal in Hagopian v. Publix Supermarkets, Inc.,788 So. 2d 1088 (Fla. 4th D.C.A. June 10, 2001).9
The decision in Brinson, if understood to have recognized such a duty, is a radical departure from the decisions involving spoliation of evidence which came before it. In every other decision, the existence of a duty to preserve evidence arose out of a statute, out of a contractual relationship between the parties, or was a duty imposed by the court due to the person’s involvement in actual ongoing litigation. The duty recognized in Brinson, by contrast, imposes upon every person who knows about the happening of an accident the duty to preserve any material, product, or device in that person’s possession which may possibly be necessary to some future litigation. The decision does not require that the litigation actually be pending.
As was written in a recent dissenting opinion by Judge Griffin in Torres, the notion that there is no duty to preserve evidence is “apparently controversial.” Torres v. Matsushita Elec. Corp., 762 So. 2d 1014, 1022 (Fla. 5th DCA 2000) (Griffin, J. dissenting). In that decision, the Fifth District Court of Appeal held that the plaintiff’s failure to preserve evidence before a products liability claim was filed warranted the dismissal of her claim against the manufacturer. In her dissent, Judge Griffin argued that there is no law requiring a person to preserve evidence, only a law preventing one party from using information obtained while it was in possession of evidence that the party later destroyed. The decision of the majority, she wrote, created a rule that one party is entitled to the preservation of evidence by another.
Brinson, Hogopian, and Torres recognize a rule that anyone who knows of a potential claim is responsible for keeping safe all evidence necessary to that claim. The cases differ, however, because Brinson involves the loss of evidence by a nonparty whereas Torres involves the loss of evidence by a party. As such, it is the rule created by Brinson which has the greater impact on society. recognizing a duty based upon the mere knowledge of a potential lawsuit, Brinson expands the scope of spoliation. In order to be protected from a spoliation claim, people who are potential witnesses to a potential claim must understand the law, know what cause of action the eventual plaintiff might bring, and then keep the evidence necessary safe at his or her own expense. Otherwise, the witness risks being made a defendant. Insurers should either never repair automobiles involved in accidents, or repair them only after photographing and documenting the damage and then saving the repaired parts. This duty might also prohibit a grocery store from changing its floor in the area of a slip and fall accident or, perhaps, to refrain from refinishing it. Moreover, the duty to maintain all of this evidence would theoretically exist until the statute of limitations expired, even though the people responsible for maintaining the evidence would have no knowledge of any event that may have tolled the statute of limitations.
This new rule places the cost and inconvenience of preparing and preserving a claim for civil litigation upon society as a whole, rather than upon the individuals who have an interest in preparing the claim or defense, and preserving the evidence related to it. Instead of imposing a duty upon every person in society, however, the better rule should be to only recognize duties to preserve evidence on the part of nonparties when such duties are created by statute, contract, or promise, or when the destruction of evidence comes during the pendency of litigation. The courts should clearly state that there is no duty on the part of nonparties to preserve evidence except under those circumstances.
Insurance Coverage for Spoliation of Evidence
A recent development may limit the cause of action for spoliation. In Norris v. Colony Insurance, 760 So. 2d 1010 (Fla. 4th DCA 2000), the Fourth District Court of Appeal held that there is no insurance coverage for a claim for spoliation of evidence under a commercial general liability policy (CGL). That decision was relied upon by the Third District Court of Appeal to reach the same conclusion a few months later.10 The reasoning comes from the fact that spoliation of evidence is a claim to recover the value of an intangible right: a cause of action. Most, if not all, CGL policies provide coverage only for personal injuries and property damage and define “property damage” to be “tangible property” only. Since a claim for spoliation is a claim for intangible property, such policies will provide no insurance coverage.
This is also true of homeowners insurance policies which contain a similar definition. Although automobile liability insurance policies do not always have a similar definition, the added requirement in automobile policies that the loss be caused by the “use, operation or maintenance of a motor vehicle” would generally prevent coverage for spoliation of evidence. Therefore, when it comes to a cause of action for spoliation of evidence, there is very little possibility that there will be insurance coverage for the claim. Where there is no coverage, most people will not pursue the claim.
Of course, the lack of insurance coverage probably will have no effect on spoliation of evidence as a discovery sanction. In that case, the insurer that must eventually pay the loss will find it harder to defend the claim if key evidence has been lost or destroyed by its insured. Insurance companies may decide that it is better to find and maintain evidence themselves rather than leave it to the insured who has little financial stake in the preservation of evidence. Failure to do so on the part of an insurer may soon lead to a new type of claim for insurer bad faith.
The claim for spoliation of evidence can be very useful to the litigator where there is a clear contractual or statutory duty to preserve the evidence on the part of the party who destroyed it. In addition, the claim continues to have importance where the loss of evidence is by one of the parties during litigation. In situations where evidence is destroyed by a nonparty before a lawsuit is filed, and when there is no statute, promise, or agreement to preserve the evidence, no cause of action should exist unless the destruction was purposeful with the intent of preventing the filing of a claim. No person or business should be forced to store and protect evidence simply because it may be needed by someone else in litigation someday. Any injured person who intends to pursue litigation to recover damages should have the responsibility of protecting his own cause of action. The same rule should apply to anyone who feels that they may need evidence for the defense of a claim.
1 Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d D.C.A. 1985).
2 Bondu, 473 So. 2d at 1312.
3 Federal Insurance Company v. Allister Manufacturing Company, 622 So. 2d 1348 (Fla. 4th D.C.A. 1993).
4 Id.; Lewis v. Darce Towing Company, 94 F.R.D. 262 (W.D. La. 1982).
5 New Hampshire Insurance Company v. Royal Insurance Company, 559 So. 2d 102 (Fla. 4th D.C.A. 1990) (striking of pleadings unwarranted); Depuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d D.C.A. 1983) (striking of pleadings warranted); Valcin v. Public Health Trust of Dade County, 473 So. 2d 1297 (Fla. 3d D.C.A. 1984), modified, Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987) (sanction of legal inference or presumption against party losing evidence).
6 Builder’s Square, Inc. v. Shaw, 755 So. 2d 721 (Fla. 4th D.C.A. 1999).
7 Strasser v. Yalamanchi, 2001 WL 195056, 16 Fla. L. Weekly D605 (Fla. 4th D.C.A. 2001); Figgie International v. Alderman, 698 So. 2d 563 (Fla. 3d D.C.A. 1997).
8 DiGuilio v. Prudential Property and Casualty Insurance Company, 710 So. 2d 3 (Fla. 4th D.C.A. 1998). This duty would be considered a contractual creation with promissory estoppel supplying the missing element of consideration.
9 Unlike Miller, the Publix store in this case did not promise the plaintiff that it would save the leftover pieces of a Sprite bottle which exploded. An attorney for the plaintiff simply sent Publix a letter notifying it of a potential claim against Coca-Cola.
10 Lincoln Ins. Co. v. Home Emergency Services, Inc., 2001 WL 37808 (Fla. 3d D.C.A. 2001).
Bard D. Rockenbachis a shareholder in the West Palm Beach firm of Sellars, Marion & Bachi, P.A. His practice includes trial and appellate cases involving insurance, tort, contract, and commercial litigation. Mr. Rockenbach is board certified in appellate practice.