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Florida Fifth DCA rules that Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation

On April 26, 2019, in Shamrock-Shamrock, Inc. v. Remark, No. 5D18-1987, the Florida Fifth DCA affirmed a trial court’s summary judgment in favor of the defendant who had been sued by the plaintiff for spoliation of evidence that the plaintiff wished to use in other litigation against a third party. The defendant was a member of the Daytona Beach Planning Board when the Board upheld the Daytona Beach Zoning Department’s denial of the plaintiff’s rezoning request.  The plaintiff subsequently sued the City and the Planning Board and served a subpoena duces tecum on the defendant to obtain relevant records regarding the rezoning request.  The defendant testified in deposition that she had destroyed her old computer in 2011 (prior to the issuance of the subpoena duces tecum but after the issuance of the first notice of deposition).  The plaintiff subsequently filed the instant case, alleging that the defendant intentionally or negligently destroyed the computer. The trial court then granted the defendant’s summary judgment motion, concluding that the defendant had no statutory or contractual duty to preserve the evidence.  The Fifth DCA observed that Florida courts have recognized an independent cause of action for spoliation of evidence against third parties that accrues when a person or entity, though not a party to the underlying action causing the plaintiff's injuries or damages, loses, misplaces, or destroys evidence critical to that action.1 See, e.g., Gayer v. Fine Line Constr. & Elec., Inc., 970 So. 2d 424 (Fla. 4th DCA 2007) (holding that special employer had duty under workers' compensation law to preserve evidence for injured laborer's claim against third-party tortfeasor based on section 440.39(7), Fla. Stat.).  The Court further noted that to establish a spoliation cause of action, the plaintiff must prove each of the following six elements: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.  After distinguishing various cases raised by the plaintiff, the Fifth DCA concluded that no Florida courts have yet recognized a common law duty for third-party preservation of evidence based on the knowledge or foreseeability of litigation.