In many of our personal injury and wrongful death cases, physical evidence is lost or destroyed long before we are retained by our clients. After an incident, our clients are typically preoccupied by their injuries and medical treatment while defendants often dispose of the “smoking gun.” This improper destruction of evidence is referred to as “spoliation.” Common examples of spoliation include purging documents or records, failing to preserve video surveillance footage, disposing of dangerous objects, and prematurely repairing damaged structures without opportunity for inspection. A party’s failure to preserve evidence can be extremely prejudicial in personal injury cases because the plaintiff, who bears the burden of proof, may not be able to prove their case without certain evidence.
Florida Courts have established standards for the preservation of evidence and certain sanctions that may be imposed for violating those standards. In the recent case of League of Women Voters of Fla. v. Detzner, the Florida Supreme Court confirmed that all individuals and entities have a responsibility to preserve evidence in their possession where litigation is “reasonably foreseeable.” Florida appellate courts have elaborated on this standard by holding that parties who willfully destroy evidence may have their pleadings or defenses stricken altogether. If a defendant’s pleadings are stricken, the plaintiff essentially wins the case and must only prove the amount of their damages. In less egregious circumstances, where a party destroys evidence inadvertently or unintentionally, the judge will generally allow an “adverse inference” jury instruction. In other words, the judge will instruct the jury that they may infer that the party who destroyed the evidence did so because the evidence was unfavorable to their case.
The trial judge has broad discretion to impose sanctions for spoliation of evidence. This determination will depend heavily on the conduct of the party who destroyed the evidence and all other attendant circumstances. Often times, any sanctions granted are insufficient and leave the plaintiff with an uphill battle as they prosecute their case without the most crucial evidence. Accordingly, it is imperative that injured parties retain experienced attorneys who will ensure that all evidence is promptly identified and preserved.