Stephen D. MilbrathAllen, Dyer, Doppelt, Milbrath & Gilchrist, P.A.

The Divide Between State and Federal Courts on the Duty to Preserve Evidence

  

  

The Federal Duty to Preserve

• Swofford v. Eslinger, 671  F.  Supp.2d  1274 (M.D. Fla. Sept. 28, 2009)

• Sanctions may be imposed against a litigant who is on notice that information in its possession is relevant to potential litigation and nevertheless destroys such information.

• Optowave, 2006 U.S. Dist. LEXIS 81345 (M.D. Fla. Nov 7, 2006)

Elements In Federal Court

• A Potential Litigation • A Legal or Contract Duty to Preserve Relevant

Evidence • Destruction of the Evidence• Significant impairment of the ability to prove

the Case• Causation • “bad faith”• Damages (if you are suing a 3rd party)

The Source of the Court’s Power

•  Inherent power to manage the court’s own affairs

• Applicable law • Contract

THE LOGIC OF THE FEDERAL VIEW

• Zubulake V. UBS Warburg, 220 F.R.D. 212 (S.D. N. Y. 2003): A common law duty to preserve arises when you know of potential litigation. That duty extends to evidence of relevance to future litigation

• Sedona Conference Best Practices: 2003-2005: A duty to preserve arises for reasonably foreseeable litigation, but that duty does not require extraordinary measures

The Different State Court Approach •  Electric Machinery Enterprises, Inc. v. Hunt

Construction Group, Inc., 416 B.R. 801 (M.D. Fla. Aug. 28, 2009): There is NO Florida common law duty to preserve evidence before litigation has commenced

• Exceptions: contract or statute• There is some support in Florida for the

imposition of an adverse inference where critical evidence is destroyed intentionally even where there was no duty to preserve

Sanctions Without a Duty ?

•  Golden Yachts, Inc v. Hall, 920 So. 2d 777 (Fla. 4th DCA 2006): There is no common law duty to preserve prior to suit BUT an adverse inference may arise where damaging evidence is destroyed in anticipation of suit.

• Judge Williams In EME: Suggests he would follow Golden Yachts and draw an adverse inference but for the fact that it was not necessary: Plaintiff met its burden anyway.

The Resulting Lack of Certainty •  If you assume the case will be litigated in

federal court, you have a categorical duty to preserve potentially important evidence

• If you assume that you will be sued in state court, there is no common law duty to preserve evidence

• But your client might still suffer an adverse inference if it destroys evidence in bad faith and not pursuant to a routine document destruction protocol

• This would suggest the continued importance of pre-suit preservation of evidence demands