For example, Florida courts have held that the existence of prespoliation photographs of the product at issue are or can be sufficient to insulate a spoliator
from sanctions for the product's later destruction or modification.
Thus, a check-the-box approach may be followed in the event that a party commits one of the enumerated acts of gross negligence within the formulaic roadmap of Pension Committee, the innocent party is strongly incentivized to bring a spoliation motion because the burden rests entirely upon the alleged spoliator
to disprove relevance and prejudice, rather than upon the party bringing the motion to prove these elements.
(71) This ambiguous approach has imparted more discretion to the courts to impose a sanction that is commensurate with the level of culpability of the spoliator
and the importance of the evidence to the non-spoliator.
Notwithstanding the apparent broad application that an independent cause of action would encompass, the Court opined that where the Plaintiff can establish that the spoliator
had a legal or contractual duty to refrain from spoliation, tort liability can arise.
"A duty in a third-party negligence spoliation case can be created by the spoliator
's voluntarily undertaking to preserve the evidence and a plaintiff's reasonably and detrimentally relying thereon; by an agreement to preserve between the spoliator
and the plaintiff; or by a specific request to the spoliator
to preserve a particular item," found the court in Johnson v.
Some sanctions are designed to punish the spoliator
. For example, a punitive sanction advances the goals of retribution, specific deterrence, and general deterrence.
(93) See discussion (between Judges Woods and Rosenthal) as recorded in the Minutes of the Rules Committee immediately after the Duke Conference at Minutes, Meeting of November 15-16, at lines 687-690 ("compliance programs should count in favor of a spoliator
One sanction--the imposition of an adverse inference instruction--can create an extremely difficult hurdle for the spoliator
(17) "Spoliation is established by proving (i) the evidence existed at one time, (ii) the alleged spoliator
had a duty to preserve the evidence, and (iii) the evidence was crucial to the movant's prima facie case or defense." (18) Therefore, preservation letters are critical because they ensure that the duty to preserve has been triggered.
culpability of the spoliator
and inferring relevance and prejudice
2009) ("The argument of an accused spoliator
that it did
Courts precluding the issuance of the negligent spoliation inference do so with the belief that the adverse inference prejudices the spoliator
by branding him as a bad actor.
Unfair prejudice flows, for example, from a spoliator
Generally, before an adverse inference is given, the aggrieved party must show that the spoliator
acted with bad faith or some other type of willful intent or willful behavior.
Courts will dismiss cases if there is an "unwarranted intrusion on the property rights of a person who lawfully disposes of his or her own property." Courts have found, however, that a duty to preserve evidence may arise under any of the following circumstances: the spoliator
voluntarily undertakes to preserve the evidence and a person reasonably relies on it to his detriment; the spoliator
entered into an agreement to preserve the evidence; there is a specific request to the spoliator
to preserve the evidence; or there is a duty to do so based upon a contract, statute, regulation, or some other special circumstance or relationship.