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Spoliation of Electronic Evidence: Florida Edition
Introduction: Spoliation of Electronic Evidence
The digital age has brought forth unique challenges in litigation, particularly concerning the preservation and handling of electronic evidence. Spoliation, the destruction or alteration of such evidence, can have severe consequences, as illustrated by recent Florida court rulings. If you are dealing with a spoliation issue, contact W.F. “Casey” Ebsary Jr. at 813-222-2220 or visit us for expert legal guidance. This article delves into the intricacies of spoliation, focusing on a specific Florida Circuit Court case involving deleted data from USB thumb drives and external hard drives, and the application of Florida Standard Jury Instructions.
The Florida Circuit Court Case: A Case Study in Electronic Spoliation:
A recent Florida Circuit Court case underscored the stringent approach courts are taking towards the destruction of electronic evidence. In this instance, a judge sanctioned a party for intentionally deleting data from a sheriff’s office laptop, an “Armor” computer, and an external hard drive, as well as discarding a USB thumb drive containing relevant information.
The court found that these actions violated discovery rules, significantly prejudicing the opposing party’s ability to present its case. This ruling serves as a stark reminder that parties involved in litigation have a duty to preserve electronic evidence, and failure to do so can result in severe penalties.
Spoliation and the Florida Rules of Evidence:
Under the Florida Rules of Evidence (FRE), spoliation of evidence can lead to significant sanctions. The court’s decision to impose an “adverse inference” instruction highlights the severity of these penalties.
Adverse Inference: A Powerful Sanction:
An adverse inference instruction allows the jury to presume that the destroyed or missing evidence would have been unfavorable to the party responsible for its destruction. In the aforementioned case, the court ordered the jury to be instructed that the deleted data and the data on the discarded thumb drive contained information detrimental to the defendants. For assistance with spoliation matters, reach out to W.F. “Casey” Ebsary Jr. at 813-222-2220 .
Florida Standard Jury Instructions and Spoliation:
Florida Standard Jury Instruction 301.11 (“Failure to Maintain Evidence or Keep a Record”) plays a crucial role in spoliation cases. This instruction clarifies that the jury may draw an adverse inference when evidence has been lost, destroyed, or made unavailable. Key considerations include:
- Materiality: The missing evidence must have been “material” to the disputed issues.
- Permissive Inference: The instruction allows, but does not require, the jury to draw an adverse inference.
- Court Discretion: Courts have significant discretion in determining the appropriate sanctions, including whether to give this instruction.
- Duty to Preserve: If a duty to preserve evidence exists, such as by statute, contract, or discovery request, the jury instruction may change to a rebuttable presumption.
Factors Influencing Court Decisions:
Courts consider several factors when addressing spoliation, including:
- The intent of the party responsible for the destruction (e.g., intentional vs. negligent).
- The degree of prejudice suffered by the opposing party.
- The existence of a duty to preserve the evidence.
Practical Implications for Legal Professionals:
- Preservation Obligations: Attorneys must advise their clients of their duty to preserve electronic evidence as soon as litigation is reasonably anticipated.
- Discovery Management: Robust discovery protocols are essential to ensure the preservation and proper handling of electronic evidence.
- Expert Assistance: Engaging electronic discovery experts can be crucial in recovering deleted data and assessing the impact of spoliation.
- Motions for Sanctions: Attorneys must be prepared to file motions for sanctions when opposing parties engage in spoliation.
Destruction of Evidence Q&A Section:
Spoliation refers to the destruction, alteration, or failure to preserve electronic evidence that is relevant to litigation. This includes intentionally deleting files, discarding storage devices, or failing to implement proper data preservation protocols.
An adverse inference instruction allows the jury to presume that destroyed or missing evidence would have been unfavorable to the party responsible for its destruction. This can significantly impact a trial by influencing the jury’s perception of the evidence and the credibility of the parties involved.
Florida Standard Jury Instruction 301.11 guides trial courts on instructing juries regarding lost or destroyed evidence. It clarifies that the jury may draw an adverse inference if the evidence was material and lost due to a party’s actions.
Courts consider factors such as the intent behind the destruction, the degree of prejudice suffered by the opposing party, and the existence of a duty to preserve the evidence.
Attorneys should: Advise clients of their preservation duties as soon as litigation is reasonably anticipated;
Implement robust discovery protocols;;Engage electronic discovery experts when necessary; and Document all preservation efforts.
Table: Key Aspects of Electronic Spoliation in Florida
| Aspect | Description | Legal Implications | Practical Considerations |
|---|---|---|---|
| Spoliation Definition | Destruction, alteration, or failure to preserve relevant electronic evidence. | Can lead to sanctions, including adverse inference instructions and monetary penalties. | Implement clear data preservation protocols and communicate them to clients. |
| Adverse Inference | Jury instruction allowing the presumption that destroyed evidence was unfavorable. | Influences jury perception and party credibility, potentially impacting trial outcome. | Understand the requirements of Florida Standard Jury Instruction 301.11. |
| Duty to Preserve | Legal obligation to preserve relevant evidence, arising from statute, contract, or discovery request. | Failure to fulfill this duty can result in severe sanctions. | Educate clients on their preservation obligations and ensure timely implementation of preservation measures. |
| Court Discretion | Courts have broad discretion in determining appropriate sanctions. | Sanctions vary based on intent, prejudice, and duty to preserve. | Be prepared to argue for or against sanctions, presenting relevant evidence and legal arguments. |
| Expert Assistance | Electronic discovery experts can aid in data recovery and analysis. | Provides crucial support in assessing spoliation’s impact and arguing motions. | Consider engaging experts early in litigation to address potential spoliation issues. |
Conclusion: Spoiled Evidence
The Florida Circuit Court ruling serves as a cautionary tale for parties involved in litigation. The courts are increasingly vigilant in addressing spoliation of electronic evidence, and the consequences can be severe. Understanding the Florida Rules of Evidence and the Florida Standard Jury Instructions is crucial for legal professionals navigating these complex issues.
By prioritizing the preservation of electronic evidence and adhering to proper discovery protocols, attorneys can protect their clients’ interests and ensure fairness in the litigation process. For knowledgeable and experienced legal representation regarding spoliation of electronic evidence, please call W.F. “Casey” Ebsary Jr. at 813-222-2220 or visit https://www.centrallaw.com/contact-us/.
Source Text of Jury Instruction:
301.11 FAILURE TO MAINTAIN EVIDENCE OR KEEP A RECORD
a. Adverse inference.
If you find that: (Name of party) [lost] [destroyed] [mutilated] [altered] [concealed] or otherwise caused the (describe evidence) to be unavailable, while it was within [his] [her] [its] possession, custody, or control; and the (describe evidence) would have been material in deciding the disputed issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to (name of party). You may consider this, together with the other evidence, in determining the issues of the case.
b. Burden shifting presumption.
The court has determined that (name of party) had a duty to [maintain (describe missing evidence)] [keep a record of describe subject matter as to which party had record keeping duty)]. (Name of party) did not [maintain (describe missing evidence)] [or] [keep a record of (describe subject matter as to which party had recordkeeping duty)]. Because (name of party) did not [maintain (describe missing evidence)] [or] [keep a record of (describe subject matter as to which party had a record keeping duty)], you should find that (name of invoking party) established [his] [her] (describe applicable claim or defense) unless (name of party) proves otherwise by the greater weight of the evidence.
Original Post in 2010
“At trial, the jury will be instructed that data deleted . . .
contained information detrimental to defendants.”
Tampa Criminal Defense expert has just studied a recent Circuit Court Order in Florida where a Judge ruled a jury can learn of destruction of evidence on a USB Thumb drive and external hard drive in a civil case. Under the Florida Rules of Evidence (FRE), spoliation of evidence can result in sanctions. Spoliation is a legal term for destruction of evidence.
The Florida Circuit Court Judge noted that a party had intentionally deleted files on a USB Thumb Drive and external hard drive. Apparently the USB Thumb Drive had been thrown away. The Court also observed that the materials on the drives were subject to the Discovery Rules under a Court Order. Prejudice can occur when efforts of a litigant are obstructed. The court found that while data had been destroyed, the opposing party could still present evidence to support its allegations. The Jury in the case will be given an “adverse inference” instruction that would tell the jury to assume that the deleted data on the USB Thumb Drive would have hurt the offending party’s case. The Court noted, “The content of the files deleted from the Sheriff’s laptop, the external hard drive and the Armor computer is not known. Plaintiff’s expert may be able to reconstruct some or all of these files, but only at excessive cost to plaintiff. The thumb drive, of course, has been lost altogether.”
Excerpted Text of Court’s Ruling:
“1. The motion to impose sanctions for spoliation of evidence is granted.
2. At trial, the jury will be instructed that data deleted from the Sheriff’s Office laptop, the Armor computer and the external hard drive, and data on the discarded thumb drive, contained information detrimental to defendants.
3. Plaintiff’s expert shall not be required to perform further analysis in an effort to retrieve deleted files or data.
4. Plaintiff is entitled to recover reasonable attorney fees incurred in connection with the prosecution of the instant motion.”
Source: FLW Supp 1709PRIS