Spoliation of evidence: a double-edged sword.

• Author: Rockenbach, Bard D.
• Position: Florida law

Spoliation of evidence, which is sometimes referred to as "spoliation" or "destruction of evidence," is a B cause of action which holds someone liable for negligently or intentionally destroying material which is needed as evidence in litigation. Since 1990, it has been a very powerful tool in the arsenal of litigants and has forced some strange rules upon defendants or potential defendants. This article examines the origins of the cause of action, and offers an analysis of its status today and a discussion of a new limitation which has been imposed upon it.

The Origin of Spoliation

An initial case concerning lost patient records gave Florida courts a chance to analyze a claim for "negligent failure to preserve evidence." (1) The court recognized the new tort had existed in other states and asked the threshold question "whether there is a duty owed to the plaintiff by the defendant which the law recognizes." (2) It found the existence of the duty in the statutes at the time which required a hospital to maintain records of patients and produce them upon request. The plaintiff was found to have stated a cause of action for "negligent failure to preserve evidence" because she alleged that she could not prove her cause of action against the doctor practicing at the hospital. Central to this analysis was the time-honored discussion of the elements of negligence: 1) existence of a duty; 2) breach of that duty; and 3) damages caused by the breach. The claim against the doctor fit very well into the analysis of any other negligence case since there was a clear duty created by statute and a breach of that duty by the loss of the records. Although the court recognized a new cause of action, it did not have to make new law to recognize spoliation.

Since then, however, spoliation has undergone many changes and, in some respects, has been broadened. It now has two distinct "varieties" and the requirement of a duty has been made more vague.

Different Varieties of Spoliation

From the case of Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1985), evolved two distinct "varieties" of spoliation 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 distinctions and applications, especially when considering precedent.

First, a claim for spoliation 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, the court treats the loss or destruction of evidence as a discovery violation pursuant to Fla. R. Civ. P. 1.380. (3) 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) possible abuse if the evidence is not excluded. (4) In some instances, the court 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. (5)

The second use of spoliation is as a separate cause of action. It must be distinguished from the discovery sanction of spoliation, as it usually involves different parties. In the cases discussed above, for instance, some evidence was lost by an expert for 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 spoliation of evidence might be brought by...