From the case of Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3rd DCA 1985) evolved two distinct “varieties” of spoilation 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 distinction and applications, especially when considering precedent.
First, a claim for spoilation 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, Florida courts treat the loss or destruction of evidence as a discovery violation pursuant to Florida Rules of Civil Procedure 1.380. 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) the possible abuse if the evidence is not excluded. In some instances, the courts 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.
The second use of spoilation is as a separate cause of action. It must be distinguished from the discovery sanction of spoilation, as it usually involves different parties. For instance, if evidence is lost by an expert of 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 spoilation 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 for a default against the defendant. A cause of action for spoilation 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.
The elements of a cause of action for spoilation are set forth in the case of Miller v. Allstate Insurance Company, 573 So. 2d 24 (Fla. 3rd DCA 1990), rev. denied, 581 So. 2d 1307 (Fla. 1991). The court in Miller held that the elements 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.
The types of situations in which the cause of action for spoilation has been applied appear to be limitless. In any situation where a duty to preserve evidence could be proven through a contract or statute, spoilation is sure to be used. Every party to litigation has an affirmative duty to preserve evidence which is the subject of a duly served discovery request. The duty to preserve evidence has been held to be created by the promise to do so by a person, unaccompanied by consideration for the promise.
The claim for spoilation 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 non-party 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 some day. 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.
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