Spoliation: A Non-Party’s Potential Duty to Preserve Evidence

It is not uncommon in a condominium complex for a unit to be damaged due to a failure in a neighboring unit. With units tightly packed together, water can quickly flow from one unit to another, causing damage along the way. Determining the cause of damage is often the first step in evaluating an insurance claim. If evidence relating to the cause of the damage, such as maintenance records or a breached window or door, is owned and controlled by a third-party, when is there a duty imposed on the third-party to preserve the potential evidence?

Typically the duty to preserve evidence is “based on the existence of a contract, statute, or properly served discovery request.”¹ In Shamrock-Shamrock, Inc. v. Remark, the Fifth District Court of Appeal recently concluded that “no Florida court has yet recognized a common law duty for third-party preservation of evidence based on the knowledge or foreseeability of litigation.”² However, the court considered what would be needed to establish that duty. Although the court did not discuss the duty to preserve evidence in the context of a water claim, the same standard could still apply.

In Shamrock-Shamrock, Inc. v. Remark, Shamrock sought to rezone its property and develop the property into a hotel and a marina. The City of Daytona Beach Zoning Department denied Shamrock’s rezoning request, and Shamrock appealed the decision to the Daytona Beach Planning Board. Before the Planning Board made its decision, Remark sent a letter to a Planning Board member opposing Shamrock’s rezoning request. Thereafter, Remark joined the Planning Board, took part in hearings on Shamrock’s re-zoning request, and ultimately the board upheld the City of Daytona Beach Zoning Department’s decision to deny Shamrock’s request.

During Shamrock’s subsequent litigation with the City of Daytona Beach and its Planning Board, Shamrock’s complaint alleged that Remark took part in the Planning Board’s decision despite having a bias against Shamrock’s project. Shamrock subpoenaed Remark and requested several documents. Following the initiation of the underlying litigation, but before the subpoena was served on Remark, Remark obtained a new computer and destroyed her old computer. Her old computer stored documents that were responsive to the subpoena. “Shamrock thereafter filed a two-count complaint against Remark, alleging that Remark either intentionally destroyed her old computer or ‘negligently destroyed [it] in bad faith.’”³ The trial court granted Remark’s summary judgment motion and found that at the time she destroyed her old computer, she “had no statutory or contractual duty to preserve evidence,” and no discovery requesting documents had yet been issued.

Shamrock appealed the trial court’s decision and relied on cases that the Fifth District Court of Appeal found did not address a non-party’s duty to preserve evidence. With its conclusion that “no Florida court has yet recognized a common law duty for third-party preservation of evidence based on the knowledge or foreseeability of litigation,”⁴ the Fifth District Court of Appeal considered “whether, and under what circumstances, a duty to preserve evidence arises,” for a non-party.

“In evaluating the existence of a common law duty, courts assess the interests of each party and society to determine whether a duty should be imposed.”⁵ The chief concern for non-parties regarding the preservation of evidence is property rights itself. An automatic duty to preserve any potential evidence would interfere with the custodian’s right to do what it wants with its property, including destroying the property.

In contrast, the chief concern for litigants is to ensure spoliation does not improperly impair their rights. However, the Fifth District Court of Appeal noted that litigants have other mechanisms to preserve and obtain evidence, such as issuing a subpoena duces tecum.

The appellate court found that

[T]here was no statute, contract, or discovery request that would impose a clearly defined duty on Remark to preserve any potentially relevant evidence. Thus, a duty would arise only through Remark’s purported knowledge of Shamrock’s pending litigation and her anticipation that something in her control could potentially be of use to that litigation.⁶

The court refused to impose a mere foreseeability standard to establish the common-law duty. The court noted,

There are innumerable circumstances in which a nonparty to litigation may have evidence relevant to a case and may know of its relevance. But that knowledge, by itself, should not give rise to a duty to safeguard the evidence in anticipation of litigation.⁷

The court declined to provide a clear line to when a common-law duty to preserve evidence may arise and affirmed the lower court’s decision that Remark did not have a legal duty to Shamrock.

Although the court did not provide a hard-line rule for when a non-party has a common-law duty to preserve evidence, the court did provide some guidelines. In the context of a condominium water loss event, a duty for a unit owner to retain evidence regarding the cause of a water loss would not be imposed just because the loss occurred. Some external stimulus is likely necessary to put the owner on notice that it is more than foreseeable that a neighboring condominium owner may need the potential evidence in litigation. It is not clear what the Fifth District Court of Appeal would need before imposing a common-law duty to preserve evidence, but the court would entertain imposing a common-law duty to preserve evidence under the right circumstances.
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¹ Gayer v. Fine Line Constr. & Elec., Inc., 970 So.2d 424, 426 (Fla. 4th DCA 2007).
² Shamrock-Shamrock, Inc. v. Remark, 271 So. 3d 1200, 1202 (Fla. 5th DCA 2019).
³ Id. at 1202.
⁴ Id. at 1205.
⁵ Id. (citing Rupp v. Bryant, 417 So.2d 658, 667 (Fla. 1982)).
⁶ Id. at 1206.
⁷ Id. (citing Mukamal v. Gen. Elec. Capital Corp. (In re Palm Beach Fin. Partners II, L.P.), 517 B.R. 310, 327 (Bankr. S.D. Fla. 2013)).