Florida Bar Journal

Spoliation of Evidence and Non-Party Witnesses

Illustration by Barbara Kelley

Florida courts have recognized a cause of action for spoliation of evidence against third parties that arises when a person, though not a party to the underlying litigation, causes damage to the plaintiff when the non-party loses, misplaces, or destroys evidence critical to the case.^[1] The Fifth District Court of Appeal decision in Shamrock-Shamrock, Inc. v. Remark, 271 So. 3d 1200 (Fla. 5th DCA 2019), addresses the issue of when the non-party witness owes a duty to preserve evidence for the litigation.

Tracey Remark had a history of service to the city of Daytona Beach. From January 2009 until September 2013 she was an appointed member of the city’s planning board. Shamrock-Shamrock, LLC, was the owner of waterfront property located in Daytona Beach that it intended to develop for use as a hotel and marina.

Prior to joining the board, Remark sent a letter to each board member, voicing her opposition to the rezoning of the property. In 2009, as a board member, Remark voted against Shamrock’s re-zoning request. The project came to a halt and Shamrock sued the city in 2009.^[2] Remark was not a party to the underlying action.

Shamrock’s attorneys noticed Remark for a deposition multiple times. In the sixth amended notice, Shamrock’s attorneys, for the first time, attached a subpoena duces tecum, requesting documents relevant to the action.

Remark, by her own election and admission, was not technologically invested. Her sole electronic device was a 1998 Dell desktop computer on which she stored only personal matters, none of which related to her position on the board.^[3] At her deposition, she testified she had disposed of the computer before the sixth notice of deposition duces tecum.

The underlying case was settled between Shamrock and the city, but Shamrock was not satisfied with the result. Shamrock determined that the fault was not in the stars, but with Remark, insisting that Remark had documents on her Dell desktop that would have supported its case against the city.^[4] Shamrock filed suit against Remark for two causes of action, intentional and negligent spoliation of evidence.

The Law of Evidence Spoliation

An action for spoliation in Florida has its origin in two California cases, Williams v. California, 664 P.2d 137 (1983), and Smith v. Superior Court, 151 Cal. App. 3d 491 (1984). Relying upon the two California decisions, the tort was first welcomed in Florida in Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984), rev. denied, 484 So. 2d 7 (Fla. 1986), disapproved of by Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005). The plaintiff in Bondu sued an anesthesiologist for negligence for causing a cardiac arrest and the hospital for, among other things, negligently and intentionally failing to provide the surgical records necessary to establish the plaintiff’s medical malpractice action under F.S. §395.202, and interference with plaintiff’s right of action by purposely losing and/or destroying the medical records.^[5] The trial court entered judgment on the pleadings on the two counts against the hospital.^[6] The hospital maintained that the records were lost.^[7] Without the records, summary judgment was entered on behalf of all defendants on the remaining counts.^[8] The plaintiff then brought a separate action arguing a negligent and intentional tort for failing to preserve the evidence that caused the loss of the medical malpractice case.^[9] The second suit was dismissed by the trial court on the defense of res judicata, and the plaintiff appealed.^[10]

On appeal, the Third District Court of Appeal reversed the trial court’s ruling.^[11] The Third DCA reviewed the traditional elements of negligence and focused on whether the hospital owed a “duty” to the plaintiff to preserve the evidence.^[12] Relying upon F.S. §395.202 and Fla. Admin. Code Ch. 10D-28.59, the Third DCA held that the hospital owed a duty to the plaintiff to make and maintain medical and surgical records.^[13] The duty was breached when the hospital failed to produce the records, and the breach caused damages to the plaintiff in the underlying medical negligence lawsuit.^[14]

On the same day as Bondu, the Third DCA released its decision in Valcin v. Public Health Trust, 473 So. 2d 1297 (Fla. 3d DCA 1984), approved in part, quashed in part, 507 So. 2d 596 (Fla. 1987). There, the Third DCA, took a different approach to a claim of evidence spoliation. In Valcin, the plaintiff had a tubal ligation performed at the hospital, but a year and a half later, suffered a ruptured ectopic pregnancy nearly causing her death.^[15] As the case progressed through discovery, the plaintiff learned that the hospital had either negligently or intentionally destroyed the records of her surgical procedure, thus, making it impossible for the plaintiff’s expert to opine as to the negligence of the doctor performing the procedure.^[16] Though it was the defendant hospital who lost the records, the trial court granted the defendant’s motion for summary judgment.^[17]

Recognizing that the plaintiff’s ability to prove her case had been substantially prejudiced by the absence of the surgical records, the Third DCA reversed and remanded to allow the fact finder to decide whether the hospital could meet its burden of proving that it did not purposefully destroy the records.^[18] On the one hand, if the hospital could show that it did not intentionally destroy the records, then a presumption would arise that the surgical procedure was negligently performed, which may be rebutted by the hospital.^[19] On the other hand, if it was found that the hospital intentionally destroyed the records, then a conclusive, irrebuttable presumption that the procedure was negligently performed would arise and judgment entered in favor of the plaintiff.^[20]

Cases following Bondu and Valcin added sustenance and maturity to spoliation claims.^[21] In 1997, Ronna Martino injured her hand when a shopping cart collapsed at a Wal-Mart store. She sued Wal-Mart in August 1999 for negligence. During discovery, Ms. Martino requested the production of the shopping cart. When Wal-Mart failed to produce the cart, she amended her complaint to include a count for spoliation. In response, Wal-Mart moved to dismiss the count, and the trial court granted the motion on the basis that Wal-Mart had no contractual or statutory duty to preserve the cart as evidence.

The case proceeded to trial, and Ms. Martino argued she was entitled to a jury instruction on the inference of negligence based on Wal-Mart’s failure to produce the evidence. The trial court rejected the jury instruction request, and instead granted a directed verdict for Wal-Mart. On appeal to the Fourth District Court of Appeal, the court affirmed the trial court’s decision, holding that no first-party cause of action for spoliation existed, and certified conflict with the Third District Court of Appeal decision in Bondu to the Florida Supreme Court.

The Florida Supreme Court in Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 344 (Fla. 2005), provided a cogent analysis of first-party spoliation and partially overturned the Third DCA’s decision in Valcin.^[22] The court approved of the presumption and sanctions, but held that no independent cause of action for first-party spoliation existed.^[23]

The Martino decision ended first-party spoliation claims, but left it to the trial courts to do what had been done in the past when evidence was lost or destroyed: utilizing adverse evidentiary inferences and imposing discovery sanctions.^[24]

Shamrock-Shamrock v. Remark

If this article addressed only first-party spoliation claims, it could end here, and normal life would resume. But it does not. Unlike the first-party spoliation cases discussed above, Remark was never a party in the underlying case. It follows that Shamrock could not make use of adverse inferences against her (or the city). And so back we go to Shamrock’s independent cause of action against Remark for third-party spoliation of evidence.^[25]

A cause of action for third-party spoliation requires six elements: 1) the existence of a potential civil cause of action; 2) a legal or contractual duty to preserve evidence that is relevant to the potential cause of action; 3) destruction of that evidence; 4) significant impairment in the ability to prove the cause of action; 5) a causal relationship between the destruction of the evidence and the inability to prove the cause of action; and 6) damages.^[26]

After discovery, the trial court was presented with competing motions for summary judgment and heard oral arguments on both. Both motions leaned heavily on element 2): whether Remark, as a non-party witness in the underlying action, had a duty to preserve evidence. After lengthy oral arguments, the trial court granted summary judgement to Remark.

In rendering its summary final judgment,^[27] the trial court held:

The second element in a spoliation case requires the plaintiff to prove that the alleged spoliator had a duty to preserve evidence which is relevant to the potential cause of action. The plaintiff must show an independent duty to preserve evidence either in a contract, by statute, or a discovery request. Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA 2004). No statutory or contractual duty to preserve evidence exists in the instant case. Therefore, Shamrock must rely on an imposed discovery duty to satisfy this element.

“[T]he duty of a litigant to preserve relevant evidence is established by the opposing party’s submission of a discovery request identifying documents of the same subject matter as those which the receiving party possesses: ‘[D]ocument production requests put the parties on notice that documents should be preserved, regardless of the spoliator’s subjective intent.’” Figgie International, Inc. v. Alderman, 698 So. 2d 563, 567 (Fla. 3d DCA 1997) (citations omitted).See also Royal & Sunalliance, 877 So. 2d at 845 (plaintiff in a spoliation case could not prevail where it did not allege a contractual or statutory duty to preserve evidence, and where it further alleged that it had served a discovery request which required the evidence to be preserved); Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1311 (N.D. Fla. 2002) (“A party does have an affirmative responsibility to preserve any items or documents that are the subject of a duly served discovery request”) (quoting Strasser v. Yalamanchi, 783 So. 2d 1087, 1093 (Fla. 4th DCA 2001)).

In the Underlying Case, it is undisputed that the original Notice of Taking Deposition and the first five amended notices did not contain a request for the production of documents or evidence. The Sixth Amended Notice, served on March 28, 2012, contained a list of items on the attached Exhibit “A” to be produced at the deposition. The Sixth Amended Notice was filed some three months after Remark disposed of the Dell laptop (desktop). On the record before this Court, assuming arguendo that the Dell laptop (desktop) had documents stored on it that were relevant to the Underlying Case, the earliest time at which Remark could have had a legal duty to preserve the Dell laptop (desktop) or its contents was the date on which she was served with the Sixth Amended Notice of Taking Deposition Duces Tecum, long after she had disposed of the computer.^[28]

After its motion for rehearing was denied, Shamrock appealed the trial court’s decision to the Fifth District Court of Appeal. In the appeal, Shamrock contended that Remark owed it a common law duty to preserve the computer evidence based upon “the foreseeability of litigation.”^[29] In other words, Remark should have known that the documents on her computer, assuming they existed, were to be saved when she was served the first notice for deposition even though it and the five successors did not contain a subpoena duces tecum requesting the production of documents.

In its arguments, Shamrock relied primarily upon the Florida Supreme Court’s decision in League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (Fla. 2015), which established a common law duty to preserve evidence.^[30] The Fifth District Court of Appeals disagreed, finding that Detzner was distinguishable.^[31] “First, Detzner was not a third-party spoliation case.”^[32] Second, the language that Shamrock relied upon in Detzner was dicta.^[33] Shamrock also relied upon American Hospitality Management Co. of Minn. v. Hettiger, 904 So. 2d 547 (Fla. 4th DCA 2005), which was equally inapplicable. Hettiger, like Detzner, discussed the obligations of a party to litigation (i.e., first-party spoliation), and the dicta discussed therein was not relevant to the court’s ultimate holding.^[34] Finally, Torres v. Matsushita Electric Corp., 762 So. 2d 1014 (Fla. 5th DCA 2000), cited by Shamrock as “instructive,” did not “analyze the duty issue at all.”^[35]

Having dispensed with Shamrock’s argument that a common law rule of foreseeability already existed, the Fifth DCA then moved to decide whether the court should establish “a common law duty for third-party preservation of evidence based on the knowledge or foreseeability of litigation.”^[36]

First, the court noted that in other jurisdictions that permitted an independent spoliation action against third parties, the overwhelming conclusion was that no common law or general law duty to preserve existed.^[37] Second, framing such a rule would be difficult, especially in concert with an individual’s right to keep or dispose of their property.^[38] Lastly, even without a common law duty to preserve, litigants may still employ various discovery devices to impose upon a third party a duty to preserve evidence.^[39] For example, the Fifth DCA noted that a “third party may be required to produce particular evidence it possesses in response to a subpoena duces tecum, which may be enforced by court orders and the sanction of contempt.”^[40]

The court concluded by refusing to grant Shamrock’s desired remedy — the establishment of a common law duty based on foreseeability of litigation.^[41] To the district court’s credit, it did not speculate as to all possible scenarios in which such a duty might arise, but held that, under the present facts, the trial court properly determined that Remark owed no duty to Shamrock, and appropriately granted summary judgment for Remark.^[42]

What’s Next

As the Remark court noted in its decision, it would be nearly impossible to adopt a broad-based rule on when a third-party witness owes a duty to preserve evidence. Taken to the extreme, such a rule would require everyone to preserve and store for years everything in their possession based on the possibility that such items may be needed in future litigation. The rule would turn us all into the most outrageous hoarders and set off an ever-increasing demand for storage facilities.

If a third-party duty to preserve is the exception rather than the norm, then what can counsel do to protect a client’s case from the non-preservation of evidence? There are a few recommendations to be considered. In pre-litigation situations, if counsel is advised that a non-party witness has relevant documents, pictures, communications, or other evidence, it is advisable to have the witness bring the evidence to your office, copy or photograph the evidence, and have the witness sign an affidavit testifying to the copy or photograph’s authenticity. Simply sending a letter or other communication to the said witness requesting he or she to “hold on” to the evidence may not suffice to create a duty to preserve, especially if significant time passes between the communication and the request asking the evidence to be produced.^[43]

Once the matter is in litigation, counsel has, of course, the ability to employ the discovery devices under Florida Rules of Civil Procedure 1.310, 1.320, and 1.351, as well as the remedies under Rule 1.380, for failing to engage in the discovery requested. Caselaw is clear that once a witness is served with a discovery request that includes the production of evidence, the witness then has a duty to preserve the evidence.^[44]

Counseling a non-party witness will likewise be spotted with potential landmines. The Rules of Professional Conduct impose a stern obligation on counsel not to obstruct or destroy evidence, nor counsel or assist another person to do any such act.^[45] Advising a non-party witness on the preservation of evidence must be done carefully, accounting for the important issue of whether a duty to preserve has been imposed on the witness by statute, contract, or discovery request. While the Remark decision makes it less likely that a duty will be imposed based on “foreseeability,” the court was clear that such duty may arise under a different set of facts.

The law on the preservation of evidence by third-party witnesses remains fluid. New and complex issues will arise, especially given the advent of social media and the increased use of photographs on cell phones and computers. Counsel on both sides need to be vigilant in obtaining third-party evidence, or they will risk missing important evidence in litigation and ultimately losing the case.