Understanding Spoliation Of Evidence
Wednesday, June 27, 2001
General Session on Advanced Trial Skills
AFTL 2001 Annual Convention
The Breakers Palm Beach
Ira H. Leesfield
2350 South Dixie Highway
Miami, Florida 33133
Spoliation of evidence generally refers to the destruction, loss, or alteration of evidence. It is common knowledge that our civil justice system is premised on the role of a fact finder, whether it be judge or jury, in evaluating evidence and rendering a decision based on the weight of the evidence presented in a case. Clearly, the single most important aspect of any claim or defense is evidence. A litigant, in order to be successful, must prove or defend its case with evidence. When evidence is destroyed, lost, or altered, the ramifications for the aggrieved party can be detrimental. Without evidence it becomes virtually impossible to prove or defend a case. For this reason, and in interest of maintaining the judicial integrity of our civil justice systems, various courts and jurisdictions have established common law and rules for dealing with the spoliation of evidence.
The rules, laws, and means of dealing with the loss, destruction, or alteration of evidence frequently varies between jurisdictions and courts depending on who spoliated the evidence. For instance, courts are more inclined to sanction parties to an action when they are responsible for the spoliation of the evidence rather than when a non-party spoliates the evidence. However, an interesting problem that this presents, which will be discussed in detail in Part IV, is what remedy is available to an innocent party who is the victim of a non-party's spoliation of evidence when that evidence was crucial and dispositive of his or her cause of action or defense. If the evidence has been destroyed and the plaintiff cannot prove its case, or the defendant defend its case, should they be punished due to the non-parties destruction of the evidence? Florida common law provides an answer and a remedy to this question which we will discuss in Part IV.
In addition to the issue of whether the spoliator was a party or non-party to the cause of action, the decision of how to deal with the spoliation of evidence frequently revolves around whether the evidence was destroyed intentionally in "bad faith" or accidentally. It would make sense that the ramification should be more significant where "bad faith" is involved in the spoliation of evidence. The issue of bad faith will be discussed throughout this presentation.
Underlying all of these factors is of course the significance of the evidence that was spoliated. The loss, destruction, or alteration of evidence that is dispositive of a claim is clearly more egregious than the spoliation of evidence that is merely supportive of a claim.
This presentation will focus on the law as it pertains to spoliation of evidence in Florida with the goal of providing the reader with a detailed understanding and source of information on spoliation of evidence in Florida.II. Florida Law
In the interest of justice, Florida courts have recognized the importance of preventing the improper loss, destruction, or alteration of evidence. The most effective means of preventing spoliation of evidence is establishing an effective deterrent. As such, Florida law authorizes courts to impose sanctions against parties responsible for the spoliation of evidence. These sanction include: striking pleadings, entering defaults on the issue of liability, exclusion of expert testimony, the imposition of evidentiary presumptions and adverse inferences, and even dismissals of claims. The theory behind the imposition of sanctions is that the aggrieved party should not suffer without remedy due to another party's intentional or negligent actions.
The first credited decision in the State of Florida dealing with spoliation of evidence is the Third District Court of Appeal's decision in DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983). 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.(1)
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 the table saw'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(2):
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."
A. Standards for the Imposition of Sanctions: "Bad Faith"
While the Third District has imposed sanctions absent bad faith, the Fourth District has been reluctant to impose sanctions without a showing that the evidence which was lost or destroyed was destroyed in bad faith and that the evidence was essential to the case.(3)
The Fourth District enumerated the factors to consider before imposing sanctions for spoliation of evidence in Federal Insurance Co. v. Allister, 622 So. 2d 1348, 1351 (Fla. 4th DCA 1993). The court set forth five factors to consider: "(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." Citing, Lewis v. Darce Towing Company, Inc., 94 F.R.D. 262 (W.D. La. 1982).
In Federal Insurance, the plaintiff brought an action against the manufacturer of an electric garage door opener system, alleging that it was defective and caused a fire that damaged his residence. The plaintiff's expert accidentally discarded a part of the product alleged to be defective, resulting in the granting of a motion in limine which left plaintiff without the means to prove its case. The court then granted defendant's motion for a summary judgment as the plaintiff had to admit that it couldn't prove its case without the evidence. The Fourth District reversed the dismissal of the claim, holding that since the loss of this evidence, so far as the record shows, was inadvertent and not for improper purpose, and since there is insufficient prejudice demonstrated, this sanction, which was the equivalent of a dismissal, was not warranted. However, the court still opined that sanctions were appropriate and recommended that the plaintiff be barred from presenting any evidence from its expert that examined the garage door opener. The court recognized this as a harsh penalty, but not as harsh as barring any and all evidence relating to the garage door opener. Furthermore, the court stated that it was, after all, plaintiff's expert who was negligent.
However, Florida courts have held that where the evidence was so essential to the party's case that it could not proceed without it, the element of "bad faith" is irrelevant to an imposition of sanctions. For instance, in DePuy, the court noted: "Whether the prosthesis 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 prosthesis, [defendants] are now accountable for the ramifications of their act." 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(4):
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.
This is not to say that bad faith is unimportant under Florida 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."(5)III. Pre-Suit Spoliation
The vast majority of cases involving spoliation of evidence involve the loss, destruction, or alteration of evidence in the pre-suit stages of the case. However, the fact that litigation has not formally commenced does not free a party from liability. In fact, the first element of an independent cause of action for spoliation of evidence (discussed in detail in Part IV), is "the existence of a potential civil action." Continental Insurance Co. v. Herman, 576 So. 2d 313 (Fla. 3d DCA 1990).
For instance, in Miller v. Allstate Insurance Company, 573 So. 2d 24 (Fla. 3d DCA 1990), the plaintiff was severely injured in an automobile accident when the accelerator of his car allegedly stuck. The plaintiff filed a claim with his own insurer. The insurer requested possession of the automobile to evaluate the claim. The plaintiff granted the request pursuant to an agreement that the insurer would preserve the car "as is," thus allowing plaintiff to have an expert inspect the car for a pending product liability action. Somehow, the insurer subsequently disassembled and destroyed the car before the plaintiff could have it inspected and bring a claim for product liability against the manufacturer. In holding that the plaintiff was entitled to bring an independent cause of action for spoliation of evidence, the court stated that "a prospective civil action in a products liability case is a valuable 'probable expectancy' that the court must protect" from interference."IV. Cause of Action for Spoliation of Evidence
Florida is one of only a handful of states that recognizes an independent tort for spoliation of evidence. There are only a few reported decisions on a cause of action for spoliation of evidence. Of those reported decisions, all have been issued by either the Third or the Fourth District Court of Appeal. The first reported decision adopting an independent tort for spoilation of evidence was issued by the Third District Court of Appeal in Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984). In that case, Mr. Bondu, was admitted to Cedars of Lebanon Hospital requiring a triple bypass surgery. During the administration of anesthesia he suffered cardiac arrest and subsequently passed away. Plaintiff brought a medical malpractice action alleging negligent hiring and supervision of the anesthesiologists and improper administration of anesthesia. Discovery revealed that anesthesiology records had been made, but were nowhere to be found. With no record of what occurred, and thus no expert testimony to establish malpractice, summary judgment was entered for the defendants. On appeal, the plaintiff sought to amend the original complaint to add a cause of action for the negligent loss of the records. Relying on the California decisions Williams v. California, 34 Cal.3d 18, 192 Cal. Rptr. 233, 664 P.2d 137 (1983) and Smith v. Superior Court, 151 Cal.App. 3d 491, 198 Cal. Rptr. 829 (1984), the appellate court held that if the defendant hospital owed a requisite duty to the plaintiff to preserve the evidence and failed to preserve said evidence, there can exist an independent action for the spoliation of evidence. The court implied that the plaintiff must first initiate the underlying lawsuit, and receive an adverse final judgment before filing an action for spoliation of evidence. This issue was addressed six years later in the next Florida case discussing spoliation of evidence.
In 1990, the Third District Court of Appeal held in Miller v. Insurance Co., 573 So. 2d 24 (Fla. 3d DCA 1990), that a plaintiff who brings an action for spoliation of evidence need not first initiate an underlying lawsuit and receive an adverse final judgment due to the inability to prove the case prior to filing a cause of action for spoliation of evidence. [NO, NEW law, Yoder v. Kuvin, 785 So. 2d 679 (Fla. 3d DCA 2001) (Where a viable means exists to pursue the underlying products liability claim, that cause of action must be pursued prior to, or together with, the spoliation of evidence claim). Miller involved an alleged design defect in the plaintiff's car which caused a car wreck. The plaintiff informed her insurance company, the defendant, that she wanted to preserve the vehicle in order to bring a products liability claim against the manufacturer. The defendant, however, sold the car to a salvage yard where it was disassembled and disposed. The plaintiff sued the defendant for spoliation of evidence. At issue on appeal was whether the defendant owed a duty to preserve the evidence. In holding that the defendant owed the plaintiff a duty to preserve the evidence, the court, citing Smith, 151 Cal.App. 3d at 502, held that "a prospective civil action in a products liability case is a valuable 'probably expectancy' that the court must protect" from interference, and that the defendant had interfered with the plaintiff's opportunity to prove her lawsuit. Worth noting was the court's discussion of the appellees claim that damages should not be awarded because of the impossibility of establishing damages within a reasonable degree of certainty. The court stated that despite the uncertainty, when the difficulty in establishing damages is caused by the defendant, he should bear the risk of uncertainty that his own wrong created and the inability to establish damages within a reasonable degree of certainty is o bar to plaintiff's claim.
On the same day that Miller was decided, the Third District also decided Continental Insurance Co., v. Herman, 576 So. 2d 313 (Fla. 3d DCA 1990). Continental is notable for the fact that it represented the first case in the nation to enumerate the elements of a cause of action for spoliation of evidence. Continental, involved a uninsured motorist claim by a plaintiff injured in an automobile accident. The plaintiff demanded an arbitration hearing and requested that the defendant preserve the vehicle for its expert to examine. The defendant agreed, however, the vehicle was subsequently destroyed prior to the plaintiff's expert having an opportunity to examine the vehicle. Nevertheless, the plaintiff was awarded $860,000 in damages as a result of the arbitration hearing. The plaintiff then filed an action against her insurer, the defendant, for negligent spoliation of evidence. At issue on appeal was whether the arbitration award barred the plaintiff from recovering on the spoliation claim. Before deciding the issue, the court delineated the elements of the claim.(6) The court held that the elements of a cause of action for negligent destruction of evidence 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. In the instant case, the court held that as a result of the arbitration award, the plaintiff was not significantly impaired by the destruction of the evidence and thus had she could not maintain an action for spoliation of evidence.
The Fourth District Court of Appeal first addressed the independent cause of action for negligent spoliation of evidence in Brown v. City of Delray Beach, 652 So. 2d 1150 (Fla. 4th DCA 1995). In Brown, the plaintiff was severely injured when he was struck by a car while riding his bicycle. Evidence was seized and secured by the police. The plaintiff requested that the City preserve the evidence for a future civil action against the driver, however, the evidence was lost or destroyed. The plaintiff subsequently brought a cause of action for spoliation of evidence. The City moved for summary judgment arguing (1) that it had no duty to the plaintiff to preserve the evidence, and (2) that it was protected by sovereign immunity. In holding that the plaintiff could maintain an action for spoliation of evidence, the court held that the City's agreement with the plaintiff to preserve the evidence created a duty to preserve the evidence and further constituted an exception to its sovereign immunity.(7) With respect to the issue of sovereign immunity, the court specifically held that "a special relationship between an individual and a governmental agency may give rise to a duty of care owed to that individual, thereby creating an exception to the governmental entity's sovereign immunity even for functions that are otherwise considered discretionary."
The most recent cases upholding a cause of action for spoliation of evidence both appeared in the Fourth District. See St. Mary's Hospital, Inc. v. Brinson, 685 so. 2d 33 (Fla. 4th DCA 1996); DiGiulio v. Prudential, 710 So. 2d 3 (Fla. 4th DCA 1998).V. Conclusion
Despite the availability of the various sanctions discussed within and the independent cause of action for spoliation of evidence, rarely will a claim or defense be fully compensated when evidence has been destroyed. For this reason, litigants should be cognizant of the danger of the loss, destruction, or alteration of evidence. It is our firms practice, in every claim involving evidence that is vital to our case that is or may wind up in the possession of another party, to immediately send correspondence requesting that the evidence be preserved in an unaltered state and warning that failure to do so will subject the wrongdoer to a cause of action for spoliation and/or sanctions. However, in some instances, this alone is not sufficient. It is in those instances that we must turn to the courts to provide remedy to our clients.
1. James T. Sparkman and John W. Reis, "Spoliated Evidence: Better than the Real Thing?" Fla. Bar J (July/August 1997).
2. Id. at 22.
3. Id. at 23.
4. Id. at 24.
6. Stefan Rubin, " Tort Reform: A Call for Florida to Scale Back its Independent Tort for the Spoliation of Evidence," Fla. L.Rev., p.346, 362 (April 1999).