Florida Appellate Court Limits a Nonparty’s Duty to Preserve Evidence


Florida’s Fifth District Court of Appeal has ruled that Florida law does not impose an obligation on a nonparty to preserve evidence based solely on the foreseeability of litigation.

Shamrock-Shamrock, Inc. v. Remark involved an interesting fact pattern and a question of first impression for Florida’s courts. The case was also presented against the unique legal backdrop of Florida’s cause of action for spoliation against third parties who lose, damage, or destroy evidence critical to litigation.

Shamrock sought to rezone and develop a Daytona Beach property into a hotel and marina. The city and planning board—including member Tracey Remark—denied its request. Shamrock sued, but did not name Remark as a defendant. During the case, it served Remark with several deposition notices and subpoenas, but it was not until its sixth (and final) one that Shamrock ever requested documents. At her deposition, Remark testified that she obtained a new computer and destroyed her old one after receiving Shamrock’s first deposition notice, but before its subpoena duces tecum.

Shamrock sued Remark for third-party spoliation, alleging she destroyed her old computer either intentionally or negligently in bad faith. Remark beat the case on summary judgment. The trial court found she had no statutory or contractual duty to preserve evidence, so all that mattered was a duty imposed by a discovery request. Because she destroyed her computer before receiving the subpoena duces tecum, the trial court held she had no legal duty to preserve it on the date she destroyed it.

On appeal, the Fifth DCA—one of Florida’s intermediate appellate courts—found that only one element of the third-party spoliation claim was at issue: whether Remark had a duty to preserve evidence relevant to a potential legal action. After dissecting each decision Shamrock offered, the Court concluded: “no Florida court has yet recognized a common law duty for third-party preservation of evidence based on the knowledge or foreseeability of litigation, we now consider whether we should.

The Fifth DCA first examined whether there is a common law duty to preserve evidence, and found most jurisdictions that allow an independent tort for third-party spoliation decline to find one. After considering a number of competing concerns, the court reasoned the most significant is “respect for individual property rights.” It also recognized litigants have various legal mechanisms at their disposal to ensure a nonparty preserves evidence, such as a subpoena duces tecum. However, Shamrock did not serve its subpoena before Remark destroyed her computer.

Affirming the judgment in her favor, the Fifth DCA held there was no statute, contract, or discovery request that imposed any duty on Remark to preserve evidence. “As such, Shamrock would like us to announce that Remark owed a duty to it based on the foreseeability of litigation . . . such a broad pronouncement would be tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others’ lawsuits.

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