Does a party to litigation have a common law duty to preserve evidence in Florida?

“Spoliation is defined as ‘[t]he destruction, or significant and meaningful alteration of [evidence],’…or ‘the failure to preserve property for another’s use as evidence in pending’ or reasonably foreseeable litigation.” Landry v. Charlotte Motor Cars, LLC, 226 So. 3d 1053, 1057 (Fla. 2d DCA 2017) (quoting Vega v. CSCS Int'l, N.V., 795 So. 2d 164, 167 (Fla. 3d DCA 2001)). A question that comes up frequently when litigating in Florida is whether a party to litigation has a common law duty to preserve evidence. In short, the answer is no. While there is no common law duty to preserve evidence, such a duty can be imposed by contract, statute, or a properly served discovery request. This article reviews the general Florida law relating to a litigant’s duty to preserve evidence.

Common Law is defined as “[t]he body of law derived from judicial decisions, rather than from statutes or constitutions.” Common Law Definition, Black's Law Dictionary (11th ed. 2019).

A Party’s Duty To Preserve

In order for there to be a finding of spoliation, “the court must [first] determine whether: (1) the evidence existed at one time, (2) the spoliator had a duty to preserve the evidence, and (3) the evidence was crucial to an opposing party['s] being able to prove its prima facie case or a defense.” Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 392 (Fla. 2d DCA 2012) (emphasis added).

No Common Law Duty To Preserve Evidence Exists

In Royal & Sunalliance, the Fourth District noted “[a] duty to preserve evidence can arise by contract, by statute, or by a properly served discovery request (after a lawsuit has already been filed).” Id. at 845 (quoting Silhan v. Allstate Ins. Co., 236 F. Supp 2d 1303, 1309 (N.D. Fla. 2002)). Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843 (Fla. 4th DCA 2004). The Royal & Sunalliance Court ultimately ruled that there is no common law duty to preserve evidence in anticipation of litigation. Id. at 846. The Fourth District also addressed prior decisions rendered by the court in St. Mary’s Hospital, Inc. v. Brinson, 685 So. 2d 33 (Fla. 4th DCA 1996) and Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001), and refuted that these cases established a common law duty to preserve evidence. The Fourth District reasoned that the courts in both of these prior cases did not rely on the second prong of the spoliation test regarding a duty to preserve, and in fact relied on other portions of the spoliation test when rendering their opinions.

The Second District Court in Osmulski v. Oldstar Fine Wine, Inc., 93 So. 3d 389 (Fla. 2d DCA 2012) ruled in line with the Fourth District Court’s decision in Royal & Sunalliance, and also found no common duty to preserve existed.

Similarly, the Third District Court has ruled in line with the Fourth District Court’s decision and in Pena v. Bi-Lo Holdings, LLC, 304 So. 3d 1254, 1257 (Fla. 3d DCA 2020), ruled “…a duty to preserve evidence does not exist at common law, the duty must originate in a contract, statute, or a discovery request.”.

Repercussions For A Party Failing To Preserve Evidence

When a party to a case is charged with spoliation, the available remedies are limited to “discovery sanctions and a rebuttable presumption of negligence for the underlying tort.” Martino, et. al. v. Wal-Mart Stores, Inc, 908 So. 2d 342 (Fla. 2005).

Comment

Although no common law duty to preserve evidence exists, a party who has alleged that its adversary’s duty to preserve evidence arose under a contract, a statute, or its duty to respond to a proper discovery request may ask the trial court to include Florida Standard Jury Instruction 301.11

(“Failure to Maintain Evidence or Keep a Record”) among the instructions to be given to the jury. Florida Standard Jury Instruction 301.11(a) (“Adverse Inference”) instructs the jury as to its right (but not its obligation) to draw an adverse inference from a party’s failure to preserve evidence. Irrespective of the lack of a duty to preserve evidence under the common law, given the fact that such a duty can arise under a contract, a statute, or in response to an adversary’s discovery demands, and given that the potential price for a breach of that duty is an adverse inference jury instruction, it is recommended that one should err on the side of caution and ensure evidence preservation.