Judge Rules There is No Duty on Non-Parties to Preserve Evidence
In Shamrock-Shamrock, Inc. v. Remark, No. 5D18-1987 (Fla. Dist. Ct. App. Apr. 26, 2019), the District Court of Appeals, Fifth District, ruled in favor of Appellee, holding that there is no duty on nonparties to a lawsuit to preserve evidence based on the foreseeability of litigation.
This case stems from Appellant’s suit against the City of Daytona in which Appellee was never a party to the action. During the case, Appellee was served with several notices of deposition, one of which included a duces tecum request for documents.
At Appellee’s deposition, she testified that she had destroyed her personal computer and had not preserved any records, documents or emails from her old computer nor had she informed anyone connected to the lawsuit that she was destroying it. Appellee further testified that she had destroyed her computer and documents after she had received the first deposition notice but before receiving the amended notice that included a duces tecum request.
Following the deposition, Appellant alleged that Appellee either intentionally destroyed her old computer or “negligently destroyed it in bad faith” in violation of her duty to preserve evidence based on the foreseeability of litigation.
In ruling on the matter, the Court held 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.” In explaining its reasoning, the Court stated that there was no statute, contract or discovery request that would have imposed a clearly defined duty to preserve evidence. Rather, the duty to preserve evidence would only arise through Appellee’s purported knowledge of the pending litigation and Appellee’s anticipation that something in her control could potentially be of use to that litigation.
In refusing to impose such a duty on nonparties to litigation, the Court stated, “[c]onsidering the traditional approach to defining legal duty, we decline to do so. Indeed, such a broad pronouncement would be tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others’ lawsuits. 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…While we do not speculate as to every circumstance under which a third party to litigation may have a legal duty to preserve evidence, we hold that the trial court properly determined here that [Appellee] did not owe a legal duty to [Appellant].”