League of Women Voters of Fla. v. Detzner: the Florida Supreme Court's hidden pre-litigation e-discovery preservation mandate.

• Author: Artigliere, Ralph
• Position: Cover story

The Florida Supreme Court in League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015), reviewed and disapproved the 2012 Florida Legislature's redistricting process and resulting map apportioning Florida's 27 congressional districts. Holding that the process and map were "tainted" by unconstitutional intent to favor Republican Party incumbents, the decision gained attention for its ramifications for pending elections and separation of powers. However, the case will have broader and longstanding impact in an unexpected arena--electronic discovery. Buried deep in the Detzner opinion (1) is a holding regarding evidence preservation duties that will likely eclipse the principal holding in importance to Florida's spoliation jurisprudence. (2) In Detzner, the court confirms and clarifies that a "reasonable anticipation of litigation" triggers the duty to preserve relevant evidence. (3) Before Detzner, Florida cases were inconsistent and unpredictable when determining the "trigger" for preserving relevant information. This article discusses the past and present Florida law on pre-litigation--or presuit--preservation as well as the importance and impact of Detzner.

The requirement or duty to preserve case evidence long predated the digital age and arose from a party's common law duty to avoid spoliation of relevant evidence so it would be available for use at trial. Preservation of evidence is critical to discovering the truth and achieving justice. Historically, the preservation of physical objects and paper documents presented few challenges as these objects tend to have a lifespan consistent with litigation. However, preservation is a particularly prominent issue with electronic data because electronically stored information (ESI) (4)--which exists as collections of on/off electronic charges (digital bits)--is easily lost, altered, or destroyed either deliberately, negligently, or inadvertently. Moreover, computers and computer systems are configured to delete and move digital information on very short cycles. Email, for example, is often automatically deleted from in-boxes after a few months. Preservation is "[t]he process of retaining ESI documents including document metadata, for legal purposes and includes suspension of normal document destruction policies and procedures." (5) As ESI became the principal format for storage of information, courts applied specified legal requirements for its preservation, consistent with its nature and legal importance, including metadata. (6) Preserving a ladder involved in a fall may provide important evidence in a product liability case, but emails, text messages, electronic databases, website content, and other ESI will likely yield additional relevant and important evidence, provided the ESI is properly preserved. Ideally, the ladder and the relevant ESI should both be preserved.

Following the Lead of the Federal Courts on E-Discovery

With good reason, state courts generally follow the lead of the federal e-discovery caselaw and civil procedure rules. Federal district and magistrate judges see more cases with e-discovery issues and write many more published e-discovery opinions than state court judges. The leading e-discovery rulemaking in this country occurred in the Federal Rules of Civil Procedure in 2006, before most states had e-discovery civil procedure rules. In 2012, the Florida Supreme Court amended the Florida Rules of Civil Procedure specifically addressing electronic discovery. (7) The amended rules mirrored many of the federal 2006 civil procedure amendments for good reason. When state court rules follow the lead of the federal court, the resulting advantage is relatively homogeneous rules nationwide. Moreover, Florida judges applying the Florida Rules of Civil Procedure on E-Discovery have a greater potential of finding persuasive precedent on cases of first impression in Florida when the rules are similar to federal rules and those in other states. The 2006 federal rules amendment did not specifically address ESI preservation triggers. When the federal rules of procedure were amended in 2015, preservation themes were woven into the changes, especially in the new Fed. R. Civ. P. 37(e), (8) but determination of the appropriate preservation "trigger" remains a function of federal common law.

Unfortunately, Florida's pre-litigation preservation common law before Detzner was not similar to federal common law or that of most other states. The majority common law view in state and federal courts around the nation is that presuit preservation is triggered when there is reasonable anticipation of litigation even in the absence of a legal duty to preserve arising under a statute or contract. Contrary to this majority rule, for many years, Florida common law vacillated as to whether a reasonable anticipation of litigation required affirmative presuit preservation of relevant evidence.

Gradually, a split of authority emerged. Some cases held that presuit destruction or loss of relevant evidence that should have been preserved was spoliation if litigation was reasonably anticipated. (9) Other Florida cases found that the duty to affirmatively preserve (as opposed to intentionally destroying) evidence emanated only from a statute, a contract, or a discovery request. (10) To be sure, the analysis faced by the Florida courts in these cases was complicated by the nuanced and evolving law of spoliation in Florida and around the country and the fact that Florida, until 2005, (11) recognized an independent tort of spoliation. (12) In addition to the issue of a duty to preserve, courts addressing claims of lost or destroyed evidence were balancing such factors as whether the loss was negligent or intentional, whether the lost evidence was essential to resolving material issues in the case, and whether the loss was caused by a party or third party. Regrettably, the question of the trigger for the duty of presuit preservation was mixed with other factors, causing divergent outcomes that were often result driven.

The Undercard: Florida Cases Preceding Detzner

To understand fully the potential significance of the Detzner case, one must consider the lower court cases that preceded it. Before Detzner was decided, Florida law of pre-litigation preservation of electronically stored information remained unclear and awaited further development. (13) The lack of clarity in...