In Florida, the duty to preserve evidence relevant to a case may arise long before a complaint is filed. A party’s duty to preserve evidence is triggered once litigation is reasonably anticipated. The duty extends to any evidence that a party:
- knows, or
- reasonably should know
is relevant to the anticipated action, including electronically stored information.
The failure to preserve relevant evidence, also known as the spoliation of evidence, may result in the imposition of sanctions and a rebuttable presumption shifting the burden of proof in the underlying action. A court may exercise a “leveling mechanism” due to the spoliation of evidence if it finds that:
- the evidence existed at one time;
- the party had a duty to preserve the evidence; and
- the evidence was critical to the opposing party’s ability to prove its prima facie case or defense.
Under Rule 1.380(e) of the Florida Rules of Civil Procedure, a party cannot be sanctioned for the failure to produce electronically stored information that was lost due to the “routine, good faith operation of an electronic information system.” However, the Committee Notes to Rule 1.380 are clear that a party cannot avoid discovery obligations by allowing relevant evidence to be destroyed in the routine operation of an electronic information system.
To avoid becoming a spolier, companies and other large institutions that routinely destroy electronically stored information, such as emails, should consider implementing procedures to save and preserve relevant electronic information.