Litigation: When A Party´s Chances At Trial Are Hurt By Lost Evidence

Author:Mr Neville Leslie
Profession:Arnstein & Lehr

Under Florida law, spoliation of evidence can lead to: 1) a cause of action in tort for either the intentional or negligent loss of evidence; 2) a defense to recovery; 3) the basis for a negative evidentiary inference or presumption; and 4) sanctions.

From a defense perspective, spoliation is a rapidly growing area of the law because if the defendant did not spoliate the evidence, it can act as a complete bar to a recovery by the plaintiff. In that regard, the court may dismiss the case on the grounds that the defendant is deprived of the opportunity to adequately defend itself absent the spoliated evidence. Alternatively, it may strike the plaintiff's pleadings as a sanction if he/she is the spoliating party.

From the plaintiff's perspective, if the defendant or a third-party is the spoliating party, it can lead to a simple cause of action — or to the imposition of sanctions so severe that it can obviate the need for the trial of a complex product liability lawsuit.

A spoliation cause of action arises when it is alleged that a crucial piece of evidence is unavailable at the time of trial due to action or inaction by one or the other of the parties.

In this context, the doctrine of spoliation has been invoked by injured plaintiffs against: 1) the manufacturer and/or seller of an allegedly defective product, and/or 2) a third party when that third party has destroyed the subject product. Florida courts generally have ruled that the issue of bad faith is irrelevant to this cause of action.

For example, in Miller v. Allstate Ins. Co., a 1990 3rd District Court of Appeal case, and Continental Ins. Co. v. Herman, a 1991 3rd DCA case, the courts defined the elements for a cause of action for spoliation as follows: 1) the 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 of the ability to prove the lawsuit; 5) a causal relationship between the evidence's destruction and the inability to prove the lawsuit; and 6) damages.

Is bad faith necessary?

But other courts have held that bad faith on the part of the spoliating party is a necessary inquiry.

Recently, there has been a limitation placed on the spoliation claim. In Martino v. Walmart Stores, Inc., a 2003 4th DCA case, the court restricted the ability to maintain spoliation as a separate cause of action. The court held that "an independent cause of action for spoliation...

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