Streamlining and modernizing Florida's pre-litigation preservation standard: modern technology demands a modern solution.

• Author: Hamilton, William F.

Florida law on the pre-litigation duty to preserve evidence is unclear, and precedent antedating the prevalence of electronically stored information (ESI) is conflicting and inconsistent. (1) Florida precedent often muddles and confuses basic principles and rarely confronts the phenomenon of ESI--most precedent involves the failure to preserve physical evidence, such as objects and paper. The Florida Rules of Civil Procedure (2) and the Florida Statutes provide little guidance on the duty to preserve ESI in anticipation of litigation. (3) This article attempts to bring some order to the chaos.

Florida's confusing law on the pre-litigation duty to preserve relevant evidence derives from a fundamental misconception --that the duty to preserve is an element of a quasi tort claim held by the aggrieved party. In fact, the duty to preserve relevant evidence runs to the court. The destruction of evidence strikes the heart of the judicial process and the court's truth-seeking function:

What heretofore usually has been implicit--but seldom stated--in opinions concerning spoliation is that, with the exception of a few jurisdictions that consider spoliation to be an actionable tort, the duty to preserve evidence relevant to litigation of a claim is a duty owed to the court, not to a party's adversary. (4)

Whether occurring before or during litigation, the wrongful failure to preserve relevant evidence offends the dignity of the court, impairs the integrity of the judicial process, and diminishes the legitimacy of judgments. As explained in Tramel v. Bass, 672 So. 2d 78, 84 (Fla. 1st DCA 1996), the seriousness of the offense warrants a severe sanction to vindicate the judicial process, such as an adverse inference and the striking of pleadings: "The intentional destruction or alteration of evidence undermines the integrity of the judicial process and, accordingly, may warrant imposition of the most severe sanction of dismissal of a claim or defense, the striking of pleadings, or entry of a default." (5) The destruction of evidence is such a grave offense that counsel and litigants may face additional sanctions including a fine and disbarment.

In Florida, conflicting precedent and the failure to clearly recognize a pre-litigation preservation duty has numerous debilitating consequences. Litigants risk the loss of relevant data and the imposition of sanctions. Courts struggle to avoid a miscarriage of justice. When documentary evidence existed primarily in paper and other tangible forms, the lack of a clearly articulated pre-litigation preservation duty--i.e., a duty simply to avoid intentional destruction of evidence--caused mischief of a limited scope. However, ESI is now the principal form of documentary evidence and brings the problem into full relief. ESI is both voluminous and easily altered, modified, and deleted. Computer systems are configured to routinely change and delete ESI through automatic processes and internal "cleansing" to enhance computer performance.

Without affirmative intervention, parties will likely lose important ESI. (6) Although the necessary scope and exact moment of preservation is debatable, (7) as is the range and the severity of sanctions, this article contends that Florida should, at the very least, uniformly recognize a pre-litigation preservation duty. Once such a duty is recognized, our courts can begin (with the guidance of persuasive federal authority) to navigate the knotty problems of preservation timing, scope, culpability, and remedies. (8) This is an important and necessary first step toward modernizing Florida law.

Absent a clear recognition of the pre-litigation preservation duty, Florida courts must apply awkward, result-driven logic and artfully ignore frequently cited precedent holding that Florida lacks a pre-litigation duty to preserve relevant evidence. And absent a framework permitting a nuanced analysis of the prospect of litigation, the burden preservation, and the principles of proportionality, courts employ an ad hoc analysis dependant on salient, case-specific facts to reach the right conclusion. A court might reach the right result, but with flawed reasoning, which creates further confusion in our preservation jurisprudence. (8)

Federal Law and the Advent of ESI

As electronic documents became increasingly prevalent, groups of federal and state practitioners began to recognize the need to establish standards and "best practices" for the preservation and production of ESI. (9) One group, which later formed the Sedona Conference, (10) began an industry-wide dialogue on key electronic discovery principles, including ESI preservation. (11) At the turn of the century, disputes over ESI and helpful guidance on resolving those disputes were rare. (12) However, with the collapse of Enron and Arthur Andersen, the enactment of Sarbanes-Oxley, (13) and the unrelenting 21st century data deluge, the importance of handling ESI in a "defensible manner" became increasingly paramount. (14)

The Sedona Conference recognized that "the way in which information is created, stored and managed in digital environments is inherently and fundamentally different from the way in which that is done in the paper world." (15) Prevailing principles governing physical objects and paper provide, at best, an awkward guidepost. (16)

U.S. District Judge Shira Scheindlin led the charge through several opinions in Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003). (17) As Judge Scheindlin recognized, the premise of the Federal Rules of Civil Procedure --notice pleading followed by vigorous and expansive discovery--"hit a roadblock" with the advent of ESI. (18) ESI expanded exponentially the scope of discoverable information and the cost of preserving and producing that information: "The more information there is to discover, the more expensive it is to discover all the relevant information until, in the end, 'discovery is not just about uncovering the truth, but also about how much of the truth the parties can afford to disinter.'" (19) Zubulake provided a "textbook example" of the need for balance and the need for guidance beyond the federal rules. (20)

Ultimately, Zubulake establishes a ubiquitously cited federal pre-litigation preservation standard. "The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation." (21) Zubulake also provides a framework for whose documents must be retained, what documents must be retained, and when courts should shift the cost of retention and production. Although this standard (like most legal standards) can present difficult questions in practice (e.g., What is the scope of relevant evidence?), (22) the standard nonetheless provides a modern and nuanced framework for preserving ESI in federal litigation.

Pre-litigation Preservation in Florida

Under Florida law, a party cannot intentionally destroy, mutilate, alter, or conceal evidence. (23) In other words, a party must avoid "spoliation." (24) A court will impose a sanction for spoliation only after determining (25) "(1) whether the evidence existed at one time, (2) whether the spoliator had a duty to preserve the evidence, and (3) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense." (26)

The key question in applying this standard is whether a duty to preserve exists. Florida courts often vacillate here. Some hold that only a contract, a statute, or a discovery request triggers the duty to preserve. (27) Others seem to hold that, absent a contractual or a statutory duty, a party possesses no duty to preserve evidence before litigation begins--and, thus, courts are seemingly mesmerized by logic suggesting that the filing of the complaint (rather than the anticipation of litigation) is a momentous demarcation that alters the analysis. (28) And yet others recognize a pre-suit obligation to...