Spoliation of Evidence and Non-Party Witnesses.

• Author: Glassman, Gary M.
• Position: Florida, California

Florida courts have recognized a cause of action for spoliation of evidence against third parties that arises when a person, though not a party to the underlying litigation, causes damage to the plaintiff when the non-party loses, misplaces, or destroys evidence critical to the case. (1) The Fifth District Court of Appeal decision in Shamrock-Shamrock, Inc. v. Remark, 271 So. 3d 1200 (Fla. 5th DCA 2019), addresses the issue of when the non-party witness owes a duty to preserve evidence for the litigation.

Tracey Remark had a history of service to the city of Daytona Beach. From January 2009 until September 2013 she was an appointed member of the city's planning board. Shamrock-Shamrock, LLC, was the owner of waterfront property located in Daytona Beach that it intended to develop for use as a hotel and marina.

Prior to joining the board, Remark sent a letter to each board member, voicing her opposition to the rezoning of the property. In 2009, as a board member, Remark voted against Shamrock's re-zoning request. The project came to a halt and Shamrock sued the city in 2009. (2) Remark was not a party to the underlying action.

Shamrock's attorneys noticed Remark for a deposition multiple times. In the sixth amended notice, Shamrock's attorneys, for the first time, attached a subpoena duces tecum, requesting documents relevant to the action.

Remark, by her own election and admission, was not technologically invested. Her sole electronic device was a 1998 Dell desktop computer on which she stored only personal matters, none of which related to her position on the board. (3) At her deposition, she testified she had disposed of the computer before the sixth notice of deposition duces tecum.

The underlying case was settled between Shamrock and the city, but Shamrock was not satisfied with the result. Shamrock determined that the fault was not in the stars, but with Remark, insisting that Remark had documents on her Dell desktop that would have supported its case against the city. (4) Shamrock filed suit against Remark for two causes of action, intentional and negligent spoliation of evidence.

The Law of Evidence Spoliation

An action for spoliation in Florida has its origin in two California cases, Williams v. California, 664 P.2d 137 (1983), and Smith v. Superior Court, 151 Cal. App. 3d 491 (1984). Relying upon the two California decisions, the tort was first welcomed in Florida in Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984), rev. denied, 484 So. 2d 7 (Fla. 1986), disapproved of by Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005). The plaintiff in Bondu sued an anesthesiologist for negligence for causing a cardiac arrest and the hospital for, among other things, negligently and intentionally failing to provide the surgical records necessary to establish the plaintiff's medical malpractice action under F.S. [section]395.202, and interference with plaintiff's right of action by purposely losing and/or destroying the medical records. (5) The trial court entered judgment on the pleadings on the two counts against the hospital. (6) The hospital maintained that the records were lost. (7) Without the records, summary judgment was entered on behalf of all defendants on the remaining counts. (8) The plaintiff then brought a separate action arguing a negligent and intentional tort for failing to preserve the evidence that caused the loss of the medical malpractice case. (9) The second suit was dismissed by the trial court on the defense of res judicata, and the plaintiff appealed. (10)

On appeal, the Third District Court of Appeal reversed the trial court's ruling. (11) The Third DCA reviewed the traditional elements of negligence and focused on whether the hospital owed a "duty" to the plaintiff to preserve the evidence. (12) Relying upon F.S. [section]395.202 and Fla. Admin. Code Ch. 10D-28.59, the Third DCA held that the hospital owed a duty to the plaintiff to make and maintain medical and surgical records. (13) The duty was breached when the hospital failed to produce the records, and the breach caused damages to the plaintiff in the underlying medical negligence lawsuit. (14)

On the same day as Bondu, the Third DCA released its decision in Valcin v. Public Health Trust, 473 So. 2d 1297 (Fla. 3d DCA 1984), approved in part, quashed in part, 507 So. 2d 596 (Fla. 1987). There, the Third DCA, took a different approach to a claim of evidence spoliation. In Valcin, the plaintiff had a tubal ligation performed at the hospital, but a year and a half later, suffered a ruptured ectopic pregnancy nearly causing her death. (15) As the case progressed through discovery, the plaintiff learned that the hospital had either negligently or intentionally destroyed the records of her surgical procedure, thus, making it impossible for the plaintiff's expert to opine as to the negligence of the doctor performing the procedure. (16) Though it was the defendant hospital who lost the records, the trial court granted the defendant's motion for summary judgment. (17)

Recognizing that the plaintiff 's ability to prove her...