All too often, a party is faced with the fact that certain key evidence has been destroyed, altered, or simply lost. This is commonly referred to as "spoliation" of evidence. Although the spoliated evidence may at first frustrate the party who desired it, the spoliation can actually benefit that party through the imposition of sanctions, evidentiary presumptions, or even a separate cause of action for spoliation of evidence against the spoliator. This article will explore the powerful effect of lost items in litigation and will discuss the standards for imposing sanctions under both state court decisions and federal court decisions in Florida.
Sanctions for Spoliation of Evidence: Overview
Florida state courts have consistently held that sanctions are appropriate when spoliation occurs. The sanctions may include the striking of pleadings, the entering of a default on the issue of liability, exclusion of expert testimony, the imposition of an evidentiary presumption, and even the dismissal of a claim.
The Third District's decision in DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983), is generally credited as the first Florida state court case to impose sanctions for spoliation of evidence. 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.
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 another manufacturer'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:
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."
561 So. 2d at 679. The Third District has continued to uphold this principle.
The Fourth District has generally held that sanctions for spoliation of evidence are appropriate, but has been reluctant to actually impose them without a showing that the evidence is essential to the case and was destroyed in bad faith.
Relevancy of Evidence and Bad Faith in its Destruction
In Federal Insurance Co. v. Allister, 622 So. 2d 1348, 1351 (Fla. 4th DCA 1993), the Fourth District set forth five factors to consider before imposing sanctions for spoliation of evidence: "(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."
These factors can be boiled down to two: the importance of the evidence and the degree of bad faith in its destruction. The Florida state court decisions differ from the Florida federal court decisions, however, as to whether bad faith is a necessary element to imposing sanctions. Florida state court decisions generally look first to the importance of the evidence and then consider the degree of willfulness in determining the appropriate sanctions; if the documents are so essential that the party cannot proceed, willfulness or bad faith is irrelevant. Federal decisions, on the other hand, hold that willfulness is a necessary predicate to imposing sanctions and that mere negligent loss is insufficient.
Florida State Court Standards
Florida state courts have ruled that the issue of "bad faith" is irrelevant if the evidence was so essential to the party's case that it could not proceed without it. In DePuy, for example, the court noted: "Whether the prothesis 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 prothesis, [defendants] are now accountable for the ramifications of their act." 427 So. 2d at 308.
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:
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 Rust of Dade County, 473 So. 2d 1297 (Fla. 3d DCA 1984), modified, Public Health Rust 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. [Emphasis added.]
This is not to say that bad faith is unimportant under Florida state court 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." The court in Bermudez thus instructed the lower court as follows:
If the judge of compensation claims concludes that the County deliberately deprived the other side--and so the tribunal--of access to this evidence as part of its effort to establish the seat belt defense, striking the defense or excluding the County's witnesses would not be too severe a sanction. If the judge of compensation claims concludes that the County did not act willfully, consideration should be given to whether the County's negligence would have prevented access if claimant's counsel had requested production more promptly; whether the claimant can fairly meet the testimony of [the expert witness], using photographs or the testimony of others at the scene, without having conducted an examination of the vehicle; and whether the prejudice to the...