Question 1

I. Spoliation Defined

Accepted Answer

Spoliation is the “intentional destruction, mutilation, alteration, or concealment of evidence, usu. a document; if proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible.” Black’s Law Dictionary (9th ed. 2009). 
“First party spoliation occurs when a party to the action lost, misplaced, or destroyed evidence.” Adamson v. R.J. Reynolds, 325 So.3d 887 (4th DCA 2021)

Question 2

II.Duty to Preserve Evidence

Accepted Answer

Duty to preserve evidence may come from statute, contract, special relationship between parties, agreement, or specific discovery request. Miller v. Allstate, 573 So.2d 24 (3rd DCA 1990); Carter v. Exide Corp., 661 So.2d 698 (La.Ct.App. 1995).
“Unlike an adverse presumption, where the court must find the spoliator was duty bound to preserve the evidence, an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence.” Golden Yachts, Inc. v. Hall, 920 So.2d 777 (4th DCA 2006). 
“Before any failure to produce material evidence may be viewed as discovery abuse, the opposing party must establish that the non-producing party had a duty to preserve the evidence in question (citations omitted). Such a duty arises only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim.” Wal-Mart v. Johnson, 106 S.W.3d 718 (Tex. 2003).
The “duty to preserve material evidence arises…when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri v. GM, 271 F.3d 583 (4th Cir. 2001); Lewy v. Remington Arms Co., 836 F.2d 1104 (8th Cir. 1988); Thompson v. General Nutrition Corp., 593 F.Supp. 1443 (C.D. Cal. 1984); Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) (court noted that defendant violated its own retention policy); Adamson v. R.J. Reynolds, 325 So.3d 887 (4th DCA 2021); Strasser v. Yalamanchi, 783 So.2d 1087 (4th DCA 2001).
Even in the absence of a legal duty, spoliation can result in an adverse inference. Adamson v. R.J. Reynolds, 325 So.3d 887 (4th DCA 2021); League of Women Voters v. Detzner, 172 So.3d 363 (Fla. 2015).
“Unlike an adverse presumption instruction, where the court must find the spoliator was duty-bound to preserve the evidence, an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence.” Golden Yachts v. Hall, 920 So.2d 777 (4th DCA 2006).
Medical providers in Florida must maintain records for 5 years after last contact with patient; public hospitals must keep records 7 years. F.S. 458.331(1)(m); Rule 64B8-09.003 FAC; Rule 64B8-10.002 FAC.
Commercial motor carrier must maintain driver’s logs for at least 6 months. 49 C.F.R. 395.8(k)(1)(2013).
Pilots must keep certain records for specified time periods. 14 C.F.R. 43.12, 61.51, 91.3(a); Zypher Aviation v. Dailey, 247 F.3d 565 fn.2 (5th Cir. 2001)
Bank effecting securities transactions must retain records for 3 years. 12 C.F.R. 344.4
Securities brokers and dealers must maintain e-mails and other communications for 3 years, and some other records for 6 years. 17 C.F.R. 240.17a-4.
Attorneys must keep client files at least 5 years after representation ends. Model Rules of Prof. Conduct 1.15(a)(2002).
Workers compensation statute, 440.39(7), imposes duty on employer to preserve evidence. Builder’s Square v. Shaw, 755 So.2d 721 (4th DCA 1999).
Duty to preserve evidence could arise from special relationship between victim of crash and city police department investigating crash. Brown v. City of Delray Beach, 652 So.2d 1150 (4th DCA 1995); No duty on part of police to record criminal transaction even when agency has means to do so. State v. Daniels, 699 So.3d 837 (4th DCA 1997); No duty by police to collect two blood samples, and no due process violation if state’s analysis consumes entire sample; to establish due process violation, defendant must prove state acted in bad faith. State v. Erwin, 686 So.2d 688 (5th DCA 1997); State is not obligated to preserve blood sample for testing by defendant. Houser v. State, 474 So.2d 1193 (1985); law enforcement has no duty to preserve breath samples in order to introduce results at trial. California v. Trombetta, 104 S.Ct. 2528 (1984); No due process violation when police fail to preserve evidence that has no apparent evidentiary value and there was no bad faith by police. Merck v. State, 664 So.2d 939 (1995); Failure by police to preserve potentially useful evidence does not constitute denial of due process unless it is shown police acted in bad faith. Arizona v. Youngblood, 488 U.S. 51 (1988).
Duty to preserve can arise from agreement. Cont’l Ins. Co. v. Herman, 576 So.2d 313 (3rd DCA 1990); Miller v. Allstate, 573 So.2d 24 (3rd DCA 1990).
Duty to preserve can arise from administrative regulations. Bondu v. Gurvich, 473 So.2d 1307 (3rd DCA 1984), disapproved of by Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005) (duty to preserve medical records).

Question 3

III.Pre-Suit Duty to Preserve Evidence

Accepted Answer

Florida recognizes a pre-suit duty to preserve evidence. While in many instances the duty to preserve evidence is based in statute or contract, many cases have found that the duty to preserve evidence attaches even outside of statute or contract. St. Mary’s Hospital, Inc. v. Brinson, 685 So. 2d 33 (4th DCA 1996). If it is known that a claim may exist, then that person has a duty to maintain evidence that may be useful to litigants of that claim. (“[A] prospective civil action is a valuable ‘probable expectancy’ that the court must protect from interference.”).
Plaintiff’s failure to preserve evidence before product liability claim was filed warranted dismissal of her claim against the manufacturer. Torres v. Matsushita Elec. Corp., 762 So. 2d 1014 (5th DCA 2000). 
Where party intentionally loses, misplaces, or destroys evidence, trial courts are to rely on sanctions found in Fla. Rule of Civil Procedure 1.380(b(2) and a jury inference of negligence from a finding of intentional destruction. Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987); Fini v. Glascoe, 936 So. 2d 52 (4th DCA 2006).

Question 4

IV.Independent Cause of Action

Accepted Answer

Florida recognizes tort cause of action for negligent failure to preserve evidence for civil litigation. Bondu v. Gurvich, 473 So.2d 1307 (3rd DCA 1984), disapproved of by Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005); Shamrock v. Remark, 271 So.3d 1200 (5th DCA 2019).
“A spoliation claim compensates the plaintiff for the loss of recovery in the underlying case due to the plaintiff’s inability to prove the case because of the lost or destroyed evidence and not for the ‘bodily injury’ actually sustained.” Shaw v. Cambridge Integrated Services Group, 888 So.2d 58 (4th DCA 2004); Yates v. Publix, 924 So.2d 832 (4th DCA 2005).
Cause of action for spoliation does not accrue until underlying claim against tortfeasor is compromised or settled. Yates v. Publix, 924 So.2d 832 (4th DCA 2005). Plaintiff is not required to first lose the underlying claim before filing spoliation claim. Miller v. Allstate, 573 So.2d 24 (3rd DCA 1990). In same dispute, court later held that, when possible, underlying claim must be brought before or together with spoliation claim. Miller v. Allsate, 650 So.2d 671 (3rd DCA 1995)
Elements of a spoliation claim are: 1) existence of potential civil action, 2) legal or contractual duty to preserve evidence relevant to the potential civil action, 3) destruction of that evidence, 4) significant impairment in ability to prove the case, 5) causal relationship between evidence destruction and inability to prove the case, and 6) damages. Flagstar v. Cole-Ehlinger, 909 So.2d 320 (4th DCA 2005); Hagopian v. Publix, 788 So.2d 1088 (4th DCA 2001); Shamrock v. Remark, 271 So.3d 1200 (5th DCA 2019); Bondu v. Gurvich, 473 So.2d 1307 (3rd DCA 1984); Cont’l Ins. Co. v. Herman, 576 So.2d 313 (3rd DCA 1990).
Plaintiffs may not simultaneously maintain both negligence and spoliation claims against the same defendant. Safeguard Mngt., Inc. v. Pinedo, 865 So.2d 672 (4th DCA 2004); Martino v. Wal-Mart, 835 So.2d 1251 (4th DCA 2003).
An “[i]ndependent cause of action for spoliation of evidence is unnecessary and will not lie where the alleged spoliator and the defendant in the underlying litigation are one and the same.” Martino v. Wal-Mart, 835 So.2d 1251 (4th DCA 2003); Jost v. Lakeland Regional Medical Ctr., 844 So.2d 656 (2nd DCA 2003).
Mississippi does not recognize cause of action for intentional spoliation of evidence. Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124 (Miss. 2002).
Spoliation claim may be brought as intentional tort or on negligence theory. Bondu v. Gurvich, 473 So.2d 1307 (3rd DCA 1984)
One who destroys evidence should bear risk of uncertainty of plaintiff’s damages, so as not to profit from his own wrongful conduct. Miller v. Allstate, 573 So.2d 24 (3rd DCA 1990).
In spoliation claim, plaintiff is not required to prove she would have won underlying case, but only that destruction deprived him of opportunity to prove claim. Brown v. City of Delray Beach, 652 So.2d 1150 (4th DCA 1995).
Where plaintiff recovers money from spoliator in underlying claim, spoliator is entitled to setoff in subsequent spoliation claim. Builder’s Square v. Shaw, 755 So.2d 721 (4th DCA 1999).
Employer is responsible for employee’s destruction of evidence. Strasser v. Yalamanchi, 783 So.2d 1087 (4th DCA 2001).
Plaintiff not required to show that prevailing in underlying case was made impossible by spoliation, only that ability to prove claim was substantially impaired. Strasser v. Yalamanchi, 783 So.2d 1087 (4th DCA 2001)

Question 5

V.Sanctions

Accepted Answer

Remedy for spoliation is sanctions. “[C]hief among these sanctions are the adverse evidentiary inferences and adverse presumptions.” Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (4th DCA 2003). 
Before imposing sanctions, court “must first decide whether allegedly missing evidence should have or did exist. Then, court must determine whether missing evidence hindered plaintiff’s ability to  proceed. Jordan v. Masters, 821 So.2d 342 (4th DCA 2002).
“[W]hen essential evidence is unavailable due to a party’s negligence, a rebuttable presumption arises in favor of the other party.” Adamson v. R.J. Reynolds, 325 So.3d 887 (4th DCA 2021)
“A district court has ‘broad discretion’ to impose sanctions for spoliation, which is derived ‘from the court’s inherent power to manage its own affairs and to achieve the orderly and expeditious disposition of cases.’” Austrum v. Federal Cleaning Contractors, 149 F.Supp.3d 1343 (SDFL 2016)
Before court can impose sanctions, court must determine 1) whether evidence existed at one time, 2) whether spoliator had duty to preserve it, and 3) whether opposing party is prejudiced by the loss of the evidence. Adamson v. R.J. Reynolds, 325 So.3d 887 (4th DCA 2021); Walmart v. Pineda, 50 FLW D611 (3rd DCA 2025).
Before adverse inference can be drawn, there must be some showing that missing evidence would have been relevant to contested issue. Adamson v. R.J. Reynolds, 325 So.3d 887 (4th DCA 2021)
“What sanctions are appropriate when a party fails to preserve evidence in its custody depends on the willfulness or bad faith, if any, of the party responsible for the loss of evidence, the extent of prejudice suffered by the other party or parties, and what is required to cure the prejudice. Harrell v. Mayberry, 754 So.2d 742 (2nd DCA 2000); Sponco Mfg. v. Alcover, 656 So.2d 629 (3rd DCA 1995); Nationwide Lift Trucks v. Smith, 832 So.2d 824 (4th DCA 2002); Landry v. Charlotte Motor Cars, 226 So.3d 1053 (2nd DCA 2017); Fleury v. Biomet, Inc., 865 So.2d 537 (2nd DCA 2003).
“Dismissal or default, the harshest of all sanctions, are reserved for cases in which one party’s loss of evidence renders the opposing party completely unable to proceed with its case or defense.” Fleury v. Biomet, Inc., 865 So.2d 537 (2nd DCA 2003); Harrell v. Mayberry, 754 So.2d 742 (2nd DCA 2000).
“The ultimate sanction of dismissal should always be viewed as a remedy of last resort and only in cases where the conduct of the party evidences deliberate and willful failure to submit to discovery.” New Hampshire Insur. v. Royal Insur., 559 So.2d 102 (4th DCA 1990).
Objective in spoliation cases is to ensure that parties are on equal footing and to attempt to put aggrieved party in same position it would have been in if the evidence was not lost or destroyed; “Spoliation is not a strict liability concept – ‘lose the evidence, lose the case’ – no matter whether the plaintiff or the defendant was responsible for the loss. For a variety of reasons, the product is not always available after the incident causing injury.  Depending on the circumstances, a products liability claim may nevertheless be proven. The goal in spoliation cases is to assure that the non-spoliator does not bear an unfair burden.” Reed v. Alpha Professional Tools, 975 So.2d 1202 (5th DCA 2008).
Dismissal is appropriate even when spoliation is not intentional, especially when evidence is the instrumentality that caused plaintiff’s injuries. New Hampshire Insur. v. Royal Insur., 559 So.2d 102 (4th DCA 1990); Metropolitan Dade Co. v. Bermudez, 648 So.2d 197 (1st DCA 1994); Depuy v. Eckes, 427 So.2d 306 (3rd DCA 1983)(irrelevant whether destruction is intentional or inadvertent, because plaintiff could not proceed without it); Nationwide Lift Trucks, Inc. v. Smith, 832 So.2d 824 (4th DCA 2002); Delong v. Atop Air, 710 So.2d 706 (3rd DCA 1998) (dismissal appropriate where plaintiff inadvertently lost material evidence, hindering defendant’s ability to set forth its defense); Torres v. Matsushita, 762 So.2d 1014 (5th DCA 2000); Strasser v. Yalamanchi, 783 So.2d 1087 (4th DCA 2001)

Court may apply rebuttable presumption of negligence in medical malpractice case when medical provider is unable to produce essential medical records. This is because Fla. law requires medical provider to maintain records and to provide them to patient upon request. Court must determine that absence of records hinders plaintiff’s ability to establish prima facie case. Public Health Trust of Dade Co. v. Valcin, 507 So.2d 596 (Fla. 1987); American Hospitality Mgmt. Co. v. Hettiger, 904 So.2d 547 (4th DCA 2005).
“Where evidence necessary to prove a prima facie case is missing due to the actions of the opposing party, Valcin presumption shifts the burden of proof to ensure that a jury decides the issue of negligence.  As the court noted in Valcin, this presumption implements the public policy expressed in the statutory requirement that adequate notes of medical operations be kept. Thus, the presumption supplies an essential element of the case, negligence, and shifts to the defendant the burden of proving non-negligence. Jordan v. Masters, 821 So.2d 342 (4th DCA 2002)
“Valcin requires that the missing evidence be essential to the opposing party’s prima facie case.” Jordan v. Masters, 821 So.2d 342 (4th DCA 2002).
Rebuttable presumption is not appropriate where missing medical records are of marginal importance and could not have hindered plaintiff in proving case. Anesthesiology Critical Care v. Kretzer, 802 So.2d 346 (4th DCA 2001).
Rebuttable presumption may be appropriate in product liability case where party destroyed evidence during pre-trial testing of product despite agreement with opposing party to not destroy it and to return it in same condition. Rockwell v. Menzies, 561 So.2d 677 (3rd DCA 1990).
“We have found no case approving an instruction for an adverse inference to be drawn from the failure to produce evidence.” “It is not the position of the trial court to instruct the jury as to the facts of a case.” “[F]or the court to tell a jury that an adverse inference may be drawn from the failure to produce evidence invades the province of the jury.” Jordan v. Masters, 821 So.2d 342 (4th DCA 2002).
Jury instructions must not assume the truth of controverted facts, and ordinarily a court interferes with jury’s role when it gives instruction about disputed facts; presumption is stronger than inference, and compels jury to find presumed fact if prescribed circumstances are present; while a presumption shifts burden of proof, jury may accept or reject an inference. Palmas v. E.I. Dupont, 881 So.2d 565 (3rd DCA 2004).
“In circumstances where the lost evidence was under the sole control of the party against whom the evidence might have been used to effect, and where the lost evidence is in fact critical to prove the other party’s claim, an adverse inference instruction may be necessary to achieve justice in the jury’s determination of the case. This would be true where the party failing to preserve the evidence argues that the thing lost was not as represented by the injured party, or that the injured party should not prevail because of the failure to present the evidence foreclosed by the loss of the item.” American Hospitality Mgmt. Co. v. Hettiger, 904 So.2d 547 (4th DCA 2005).
“Where party fails to produce evidence within his control, an adverse inference may be drawn that the withheld evidence would be unfavorable to the party failing to produce it.” New Hampshire Insur. v. Royal Insur., 559 So.2d 102 (4th DCA 1990); “We note, however, that while counsel is free to make arguments concerning the adverse inference created by [the opposing party’s] failure to produce the [evidence], a jury instruction on this matter is not appropriate.” Martino v. Wal-Mart, 835 So.2d 1251, fn. 2  (4th DCA 2003). Pre-trial discovery conduct is generally not admissible on issue of liability, unless issue of liability depends on evidence that was hidden or destroyed during discovery process. Strasser v. Yalamanchi, 783 So.2d 1087 (4th DCA 2001)
“Unlike the presumption of negligence which may arise under Valcin, the adverse inference concept is not based on a strict legal ‘duty’ to preserve evidence. Rather, an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence. Martino v. Wal-Mart, 835 So.2d 1251 (4th DCA 2003).
“We distinguish cases in which the misconduct alleged is the destruction or unexplained disappearance of crucial evidence. In those cases, an instruction may be given concerning the inference that the withheld or missing evidence would be unfavorable to the party failing to produce the evidence. Also the destruction or unexplained absence of crucial evidence may result in a permissible shifting of the burden of proof. A jury may properly receive evidence and be instructed on the unexplained disappearance of evidence. Amlan v. Detroit Diesel Corp., 651 So.2d 701 (4th DCA 1995).
Inadvertent destruction of evidence generally calls for lesser sanction, unless opposing party can demonstrate that its case is fatally prejudiced by its inability to examine the lost evidence. Sponco Mfg. v. Alcover, 656 So.2d 629 (3rd DCA 1995).
Where aggrieved party cannot demonstrate it is prejudiced by loss of evidence, adverse inference instruction is not appropriate. Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). 
When a product is destroyed in an accident caused by a defect or malfunction in the product, the plaintiff may benefit from a presumption of a manufacturing defect. Cassisi v. Maytag, 396 So.2d 1140 (1st DCA 1981).
“In an action for the destruction of evidence, the plaintiff&#8217;s burden is to show that the defendant&#8217;s interference cost her an opportunity to prove her lawsuit.” Miller v. Allstate, 573 So.2d 24 (3rd DCA 1990).
Adverse presumption instruction was warranted where plaintiff shredded his wife’s medical records years earlier. Adamson v. R.J. Reynolds, 325 So.3d 887 (4th DCA 2021)
Adverse presumption instruction was warranted where defendant employer failed to preserve plaintiff’s employment application that contained information relevant to employment discrimination claim. Austrum v. Federal Cleaning Contractors, 149 F.Supp.3d 1343 (SDFL 2016)
Error to give adverse instruction where there was no evidence that defendant failed to take reasonable steps to preserve 2-minute portion of video, when it produced more than two hours of footage. Walmart v. Pineda, 50 FLW D611 (3rd DCA 2025).
FL Standard Jury Instruction 301.11 &#8211;

“(a) If you find that:
(Name of party) [lost] [destroyed] [mutilated] [altered] [concealed] or otherwise caused the (describe evidence) to be unavailable, while it was within [his] [her] [its] possession, custody, or control; and the (describe evidence) would have been material in deciding the disputed issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to (name of party). You may consider this, together with the other evidence, in determining the issues of the case.” 
The Notes on Use state “This instruction is not intended to limit the trial court’s discretion to impose additional or other sanctions or remedies against a party for either inadvertent or intentional conduct in the loss, destruction, mutilation, alteration, concealment, or other disposition of evidence material to a case.”
    AD. See also FSJI 301.11(b):
Burden shifting presumption.
The court has determined that (name of party) had a duty to [maintain (describe missing evidence)] [keep a record of (describe subject matter as to which party had record keeping duty)]. (Name of party) did not [maintain (describe missing evidence)] [or] [keep a record of (describe subject matter as to which party had recordkeeping duty)].
Because (name of party) did not [maintain (describe missing evidence)] [or] [keep a record of (describe subject matter as to which party had a record keeping duty)], you should find that (name of invoking party) established [his] [her] (describe applicable claim or defense) unless (name of party) proves otherwise by the greater weight of the evidence.

Question 6

VI.Availability of Alternative Evidence

Accepted Answer

Availability of photos of evidence and report of examination of evidence do not necessarily avoid sanctions for spoliation. Cutroneo v. Dryer, 12 A.D.3d 811(NY App. 2004).
It may be difficult to establish prejudice if there exists other available evidence that will provide substantially the same information. Harrell v. Mayberry, 754 So.2d 742 (2nd DCA 2000); Where defense expert was unable to examine defective tire because it had been discarded, but was able to examine photos of tire and other available evidence, defendant was not prejudiced by loss of tire. Derosier v. Cooper Tire & Rubber, 819 So.2d 143 (4th DCA 2002).
Where blood samples were destroyed, but results of testing on that blood were favorable to defendant, destruction of blood samples was not prejudicial; this is especially true when other blood samples in possession of other agency remained available for testing. State v. Cooper, 391 So.2d 332 (3rd DCA 1980).

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