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Appellate Court Clarifies Liability for Spoliation of Evidence

The Fifth Circuit Court of Appeals recently provided some clarification regarding potential liability that can result from discarding materials that could be evidence in a lawsuit. In Shamrock-Shamrock, Inc. v. Remark, Case No. 5D18-1987 (Apr. 26, 2019), a land developer sued the City of Daytona Beach and its Planning Board for denying a rezoning petition, allegedly for the City’s own gain. In connection with that lawsuit, the land developer sought discovery from a member of the Planning Board, Tracey Remark. Ms. Remark testified during her deposition that she destroyed her old computer and failed to preserve any records six months after the land developer began efforts to take her deposition (but three months before the land developer sought any documents from her). After Ms. Remark’s deposition, the land developer sued Ms. Remark for destroying potential evidence in the lawsuit against the City. The trial court entered summary judgment in Ms. Remark’s favor against the land developer, and the Fifth District Court of Appeal affirmed.

The Court explained that where a party to the lawsuit destroys evidence, the party who is seeking the discovery cannot assert a separate claim based solely on the destruction of the evidence. Rather, the discovery-seeking party may seek a jury instruction against the destroying party which would permit the jury to infer that the evidence would have been unfavorable to the destroying party.

But, if the evidence is destroyed by a non-party to the lawsuit, the discovery-seeking party might be able to successfully assert a claim against the destroying party if the following six criteria are met:

(1) 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 in the ability to prove the lawsuit,
(5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and
(6) damages.

The Court explained that the land developer could not prove a spoliation of evidence claim against Ms. Remark as a matter of law because Ms. Remark did not have a legal or contractual duty to preserve the materials destroyed (i.e., her computer and records). Neither the foreseeability of the land developer’s lawsuit nor Ms. Remark’s actual knowledge of the lawsuit, standing alone, was sufficient to impose on Ms. Remark a legal or contractual duty to preserve evidence.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Regulations and laws may vary depending on your location. Consult with a licensed attorney in your area if you wish to obtain legal advice and/or counsel for a particular legal issue.