Deconstructing damages for destruction of evidence: Martino eradicates the first-party tort of spoliation of evidence.

• Author: Starks, Michael D.
• Position: Florida

Spoliation, or destruction of evidence, (1) has been performed on evidence of all types--paper records, electronic records, hard drives, and mechanical devices. (2) Spoliation can be negligent, intentional, or in bad faith, and can be committed by plaintiffs, defendants, or third parties such as governmental entities or insurance companies. The remedy for spoliation can be various sanctions, adverse inferences, rebuttable presumptions, or tort damages. The duty to preserve evidence flouted by the spoliator can arise from a court order, a discovery request, a statute or administrative regulation, a contract, and perhaps common law. This article discusses the most recent and most dramatic change in Florida spoliation law. On July 7, 2005, in the case of Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005), the Florida Supreme Court reversed two decades of Florida precedent by holding there is no longer a "first-party" tort cause of action for spoliation of evidence. The rationale of the Florida Supreme Court was that sanctions, an adverse inference, and a rebuttable presumption of negligence were sufficient to remedy past and deter future spoliation by defendants. This article examines the Martino decision, what Martino did and did not do, and the ramifications of the decision for the Florida practitioner in Florida's state and federal courts.

Third District Creates New Florida Spoliation Tort and the Spoliation Presumption in Two Different Opinions

Spoliation of evidence burst onto Florida's legal landscape in 1984 as an independent tort claim with the Third District Court of Appeal's opinion of Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984), disapproved of by Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005). (3) In Bondu, the Third District Court of Appeal relied on two California cases which had recognized the "third-party" tort of spoliation of evidence, (4) occurring when evidence was destroyed by a third party, and not a party to the underlying lawsuit. The Third District expanded those California cases to create Florida's negligent spoliation tort in the "first-party" context. The Third District reasoned that

[i]f ... an action for failure to preserve evidence or destruction of evidence lies against a party who has no connection to the lost prospective litigation, then, a fortiori, an action should lie against a defendant which, as here, stands to benefit by the fact that the prospect of successful litigation against it has disappeared along with the crucial evidence. (5)

The Florida Supreme Court did not review Bondu. (6)

On the same day the Third District decided Bondu, it also decided Valcin v. Public Health Trust, 473 So. 2d 1297 (Fla. 3d DCA 1984), quashed in part and aff'd in part, 507 So. 2d 596 (Fla. 1987). (7) The Third District in Valcin did not address tort remedies for spoliation as it did in Bondu. Instead, the Third District in Valcin applied evidentiary presumptions to remedy alleged spoliation, holding that if the finder of fact found the defendant's spoliation to have been merely negligent, then a rebuttable presumption of negligence applied. If the spoliation were found to be intentional, then an irrebuttable presumption of negligence arose. (8)

Upon review of Valcin, the Florida Supreme Court approved of the Third District's rebuttable presumption of negligence when faced with negligent spoliation, with some clarifications. (9) However, the Florida Supreme Court in Valcin quashed the Third District's irrebuttable presumption to remedy intentional spoliation, holding that an irrebuttable presumption would violate due process and short circuit the jury's role unnecessarily. Instead, the Valcin court held that an adverse inference and sanctions under Florida Rule of Civil Procedure 1.380(b)(2) were available for intentional spoliation, and that a rebuttable presumption of negligence was available for negligent spoliation by defendants.

The Third District followed Bondu with Continental Ins. Co. v. Herman, 576 So. 2d 313 (Fla. 3d DCA 1990), in which it identified the six elements of a negligent spoliation tort claim: 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. Other Florida district courts of appeal followed Bondu and Herman, particularly the Fourth District Court of Appeal. (10)

Second and Fourth Districts Disagree with Third District

The tide began to turn on January 29, 2003, with the Fourth District Court of Appeal's reversal of positions on the existence of the spoliation tort in Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003), approved, 908 So. 2d 342 (Fla. 2005). The Fourth District held that, "[d]espite the decision in Bondu, having now squarely confronted the issue, we side with those courts that have held that an independent cause of action for spoliation of evidence is unnecessary and will not lie where the alleged spoliator and the defendant in the underlying litigation are one and the same." (11) The Fourth District in Martino noted that the California Supreme Court itself decided in 1998 to renounce the lower California court's recognition of the intentional tort of spoliation in the first-party context (upon which Bondu had relied). (12) The Fourth District found persuasive the California Supreme Court's reasoning that the existence of "the adverse inferences and the myriad of other available sanctions adequately remedy the wrong suffered by the plaintiff as the result of the loss of the evidence," as well as the California high court's concerns about the various pitfalls of the tort. The Fourth District pointed out that the Florida rules governing attorneys prohibit tampering with evidence, and noted that any number of sanctions are available to the wronged plaintiff, including adverse inferences and presumptions. (13) The Fourth District certified conflict with the Third District's Bondu opinion.

Not quite two months later, on March 12, 2003, in Jost v. Lakeland Regional Medical Center, Inc., 844 So. 2d 656 (Fla. 2d DCA 2003), rev. dism., 888 So. 2d 622 (Fla. 2004), the Second District Court of Appeal "aligned" itself with the Fourth District's Martino opinion and renounced the tort of spoliation when it is the defendant in the underlying action who is accused of spoliating. (14)

Florida Supreme Court Sides with the Fourth District

The Florida Supreme Court granted review of Martino and Jost, and consolidated the cases for purposes of oral argument, which it heard on April 6, 2004. (15) The Jost case settled after oral argument, and the appeal was dismissed. (16) But 15 months after oral argument, the Florida Supreme Court approved the Fourth District's holding in Martino and held that there was no longer a tort cause of action for first-party spoliation in Florida. Thus, 20 years after Bondu established spoliation tort damages in the first-party context, the Florida Supreme Court disapproved of Bondu and held that Valcin's rule-based and evidentiary-based methods of handling intentional and negligent spoliation were the preferable way to handle spoliation by "first-party" defendants. (17)

Martino Analyzed Under Four Different Rubrics

Conceptually, spoliation can rear its head in a myriad of factual circumstances. Therefore, for the purposes of fully explaining the Martino decision, it is necessary to analyze spoliation in a "big picture" way. Accordingly, spoliation needs to be analyzed under four interrelated axes or rubrics: Remedy (sanctions or tort damages); identity (plaintiff, defendant or third-party spoliator); culpability (intentional, negligent, or bad faith); and duty (is one required for a remedy, and if so, what is the source of the duty?). The Martino decision affects all of these aspects of Florida spoliation law in some manner, directly or indirectly.

* Remedy--There are basically two types of remedies for spoliation --sanctions or tort damages. As for sanctions, in addition to remedies available pursuant to Florida Rule of Civil Procedure 1.380, (18) "[c]hief among these sanctions are the adverse evidentiary inferences and adverse presumptions." (19) In fact, the concept of spoliation began as an evidentiary presumption to punish a defendant for disposal or concealment of evidence. (20) While it destroyed the first-party spoliation tort, the Florida Supreme Court's Martino decision reaffirmed its earlier decision in Valcin v. Public Health Trust, 507 So. 2d 596 (Fla. 1987), holding that sanctions under Rule 1.380(b)(2) of the Florida Rules of Civil Procedure and adverse inferences, or evidentiary presumptions, were the appropriate ways to handle spoliation by a defendant. (21) The Florida Supreme Court, therefore, in no way approved of spoliation, and indeed in Martino was arguably signaling to lower courts to be bolder in applying Rule 1.380(b)(2) sanctions, Valcin's adverse inferences and presumptions in appropriate cases.

For the Florida practitioner in federal court, the issue of "remedy" has been a little simpler, in that there is no "federal" tort of spoliation. (22) Therefore, unless state tort law applies to the case, (23) the federal court is limited to sanctions as the sole remedy for spoliation. This is not, however, a weak remedy, as the federal courts can sanction "bad faith"...