Florida Supreme Court Justices Find Legal Duty to Maintain or Preserve Property Necessary for Spoliation
Martino, et al. v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005)
Ronna Martino ("Martino") sued Wal-Mart Stores, Inc. ("Wal-Mart") alleging that she suffered injury in March 1997 when the shopping cart she was using collapsed. Plaintiff claims that the injury occurred when a cashier, who was ringing up goods for purchase, asked Martino to lift 40 pound bags of salt so that price codes could be scanned. Martino allegedly placed a bag on top of the cart, which collapsed causing injury to her arm.
Martino testified that shortly after this happened, she showed the store's assistant manager where the cart was in the parking lot and requested that he obtain surveillance video of the incident. The lawsuit was filed on August 26, 1999 alleging negligent maintenance of the shopping carts and negligence in failing to train employees regarding procedures for scanning and customer handling of heavy items. During discovery, Wal-Mart could not produce the cart nor the surveillance tape. Martino filed a second amended complaint which included a claim of spoliation. The spoliation claim was dismissed because the trial court found that Wal-Mart had no contractual or statutory duty to preserve the evidence. At trial, Martino sought an inference of negligence jury instruction based on spoliation, which was also rejected. Wal-Mart was granted a motion for directed verdict.
Martino appealed, alleging three errors by the trial court: (1) it erred in dismissing the spoliation claim, (2) it erred in granting a directed verdict on the negligent maintenance claim because an adverse inference should have been drawn from Wal-Mart's failure to produce evidence, and (3) it erred in granting a directed verdict on the negligent mode of operation claim.
Addressing the first issue, the Fourth District Court of Appeal found that there is no independent cause of action for spoliation under these circumstances and certified a conflict with the Third District Court of Appeal which had recognized such a cause of action. It agreed that directed verdicts in connection with the negligent maintenance and negligent mode of operation claims were in error.
The majority Florida Supreme Court opinion only addressed the issue that was certified, namely whether there is an independent cause of action for first-party spoliation of evidence in Florida. It found that there is not, and approved the Fourth District's dismissal of the cause of action. Justice Wells, in a specially concurring opinion in which Justice Bell concurs, agreed that there is no separate action for spoliation but would also have quashed the Fourth District's decision to reverse the trial court's directed verdict for Wal-Mart on the negligent maintenance theory. The Fourth District had found that the failure to produce evidence might lead to "adverse inferences" and thus the claim should be presented to the jury. Yet, the lawsuit was filed two years after the incident and no court order or discovery rule required Wal-Mart to preserve the evidence.
Justice Wells held that spoliation of evidence requires the owner or possessor of the property to "have a legally defined duty to maintain or preserve the property." Otherwise, the use of presumptions or sanctions would create serious due process concerns. Making Wal-Mart subject to various sanctions absent a duty to maintain evidence "...causes very serious constitutional and practical concerns and issues, and frankly, is unfair and wrong." He quoted passages from Martin H. Redish's article, Electronic Discovery and the Litigation Matrix, 51 Duke L.J. 561, including the following which discuss a strict liability retention standard for electronic information and what should trigger the duty to preserve:
At some point, society must be willing to cut back on the search for truth to take account of other values the litigation matrix serves, including the utilitarian concern for efficiency, the need to preserve the procedural-substantive balance, and the need to provide predictable standards of primary behavior. An absolute strict liability retention standard, triggered by the mere potential of suit, would severely threaten attainment of all three goals.
For commercial enterprises that face the constant threat of litigation, adoption of such a standard effectively would mean that the enterprise would be required to constantly review its backup tapes for documents that could, at some later point in the litigation process, be deemed relevant; and if the enterprise predicted incorrectly, it would risk imposition of severe sanctions. The expense of such a process could easily prove prohibitive, because it would require the devotion of an enormous and unending number of person-hours, by knowledgeable individuals, to complete a careful review of unorganized backup tapes. Yet the only realistic alternative to such a burden would be a policy of total retention indefinitely--a practice that, given the geometric increases in document volume in the electronic age, could lead to the physical overrunning of a company with electronic equipment and severe retrieval burdens if and when the documents actually were needed in litigation. These are difficulties never faced in the age of pre-electronic storage. Yet to this point, at least, few courts seem willing to consider the possible need to adjust spoliation standards. The need for such a reconsideration is well at hand.
Although reasonable debate is possible over which moment should trigger the duty to preserve--the moment of a discovery request or the moment of a discovery order--it should be clear that any earlier point in the litigation process would be inadvisable. Use of any earlier demarcation point could lead to unlimited and chaotic disruption of electronic recordkeeping, as well as to the imposition of unfair and unpredictable standards of behavior on defendants. If defendants were obligated to preserve documents the moment they became aware that a suit might be filed, large companies that regularly face the possibility of suit would be required constantly to disrupt their normal practices, presumably adopted because of their efficiency, merely because a suit was threatened. Nor is the time of filing a complaint a more appropriate demarcation point for the obligation to preserve electronically stored evidence, again because the disruption for industries regularly subject to suit could be enormous.
Full text of the decision can be found here.