Cool Change: Evolution And Explanation Of New Florida Rule Of Civil Procedure 1.380(E)

While “paper” discovery demands production of responsive “documents,” in today’s reality, “documents” mainly exist in your client’s–or an opposing party’s–digital world. Until recent amendments to the Florida Rules of Civil Procedure, trial courts generally applied discovery rules created for the physical world to digital problems. Specifically, Florida’s spoliation jurisprudence arose from the loss of physical evidence, not electronically stored information (ESI). Effective January 1, 2020, Fla. R. Civ. P. 1.380(e) was amended to specifically address sanctions in litigation regarding the loss of ESI. This article addresses the history of spoliation law in Florida, the change to the rule, and attempts to provide litigators helpful insight into the challenges associated with ESI spoliation issues.

Brief History of Spoliation Law in Florida

Spoliation is the “intentional destruction of evidence or the significant and meaningful alteration of a document or instrument” and “the intentional concealment of evidence.” ¹ Before ESI evidence exploded through the use of email, texts, and computer

applications, Florida’s spoliation law prohibited an independent cause of action for first-party spoliation of evidence. ² Rather, if evidence involved in ongoing litigation was destroyed, a trial court was required to apply a three-part test set forth in Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006): 1) whether the evidence existed at one time; 2) whether spoliator had a duty to preserve; and 3) whether the evidence would be critical to prove a prima facie case or a defense.

If a trial court found in favor of the movant on all three elements of the Golden Yachts test, the trial court had discretion to remedy negligent spoliation through an adverse jury instruction, an adverse inference, or a presumption. ³ The trial court also had broader discretion to remedy intentional spoliation, including the discretion to strike the spoliator’s pleadings. ⁴ In League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 392 (Fla. 2015), the Florida Supreme Court applied the Golden Yachts test to ESI.

Rule 1.380(e)

Rule 1.380 generally addresses the failure to make discovery and sanctions. On July 5, 2012, the Florida Supreme Court amended the rule “to provide that, absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information that was lost as a result of the routine, good-faith operation of an electronic information system.” ⁵ The amendment employed “language [that] mirrors that of Federal Rule of Civil Procedure 37(e).” ⁶

On December 5, 2019, the Florida Supreme Court again amended the part of Rule 1.380 addressing ESI, effective January 1, 2020. Now, Rule 1.380(e) provides that if a party lost irreplaceable ESI because it “failed to take reasonable steps to preserve it,” the trial court may 1) upon finding prejudice from the loss of ESI order measures “no greater than necessary to cure” such prejudice; or 2) upon finding intentional spoliation, may order an adverse presumption or adverse inference, or even “dismiss the action or enter a default judgment.” This latest amendment takes a position between Golden Yachts and the 2012 amendment, and the change should alert litigators to their heightened responsibilities to clients relating to preservation of ESI. ⁷

The comments to the amended rule (again) explain the rule is to be interpreted consistently with federal Rule 37(e). ⁸ There are no Florida cases discussing the new version of Rule 1.380(e); however, there are many federal cases discussing a party’s duty to preserve ESI

Application of Rule 1.380(e)

Federal Magistrate Judge William Matthewman thoughtfully explained the factors to consider when dealing with a Rule 37(e) spoliation claim in a recent Florida Law Review article. ⁹ Judge Matthewman sets out four preliminary questions, and if any is answered in the negative, he posits the spoliation claim must be denied. ¹⁰ The article provides an outstanding primer on ESI issues, modern ESI discovery, and Rule 37(e).

Preliminary Inquiry

Like Federal Rule 37(e), Florida’s Rule 1.380(e) only applies to ESI issues. Assuming that threshold, also like its federal counterpart, Rule 1.380(e) requires the trial court to determine when the duty to preserve arose, which is a fact-dependent inquiry. ¹¹ This incorporates the second Golden Yachts prong. The primary test is whether litigation was pending or reasonably foreseeable when the spoliation occurred. ¹² This determination *26 is made on an objective standard. ¹³

If the ESI is deleted before the anticipation of a lawsuit, there is likely insufficient evidence to prove it should have been preserved. However, litigation is foreseeable when parties are aware the other party has hired an attorney and engaged in discussions about the looming threat of a lawsuit. ¹⁴ Likewise, if a party creates an internal memorandum or other documents it contends are protected by the work-product doctrine, the party can be considered “on notice” of a reasonable anticipation of litigation. ¹⁵ One may even look to actions taken in previous litigation to determine if an opponent should have foreseen litigation. ¹⁶

Next, Rule 1.380(e) requires a showing of a failure to take reasonable steps to preserve the ESI. This could be a difficult factor to establish because the party seeking spoliation sanctions has the burden to establish its opponent did not take reasonable steps to preserve the ESI. ¹⁷ However, the committee notes make clear that one may look to the sophistication of the party to determine if it took reasonable steps to preserve the ESI. ¹⁸ Also, practitioners should take note, to competently make (or defend against) these arguments, the litigator must have a technical understanding of what would (or would not) be “reasonable” steps to preserve ESI.

Finally, the preliminary Rule 1.380(e) inquiry requires the movant to show the ESI cannot be restored or replaced. Rule 37(e) precludes sanctions or curative measures if the ESI can be restored or replaced through alternative discovery. ¹⁹ Many times, ESI exists in multiple locations, and loss from one source may be harmless when substitute information or the same information may be found elsewhere. However, recollection testimony of what was contained in the ESI is not an adequate substitute for the actual ESI. ²⁰

Post-Preliminary Spoliation Inquiry

If the preliminary inquiry under Rule 1.380(e) is met, the trial court must next determine whether there is prejudice to another party or whether the party acted with the “intent to deprive” the other party of the ESI’s use in the litigation. The prejudice requirement is akin to the third prong of the Golden Yachts test. If prejudice is found, the trial court may order measures “no greater than necessary to cure” as provided by Rule 1.380(e)(1). However, if an “intent to deprive” is found, the trial court may order the more severe measures provided by Rule 1.380(e)(2). This rubric is less punitive than Golden Yachts, because an adverse inference or adverse instruction is allowed only for intentional conduct, whereas under Golden Yachts, such mechanisms were allowed for negligent conduct.

The advisory committee’s notes on Rule 37(e)(1) clarify that neither party has the burden of proving or disproving prejudice. ²¹ The trial court has the discretion to best assess prejudice on a case-by-case basis, depending upon the circumstances surrounding the missing evidence, including its importance to the litigation. ²² The remedies available to the court are broad and subject to the court’s discretion. However, this discretion is limited in that the remedy can be no greater than necessary to cure the prejudice caused by the loss of evidence and cannot include the remedies that are exclusively reserved for a finding of bad faith under Rule 37(e)(2). ²³ Examples of curative remedies include limiting the spoliating party’s ability to put on certain evidence, permitting the parties to present evidence and argument regarding the loss of evidence, and giving the jury instructions to assist in its evaluation of the loss of evidence (other than the adverse inference instruction that applies to Rule 37(e)(2)). ²⁴

Finally, if there is intentional conduct, Rule 1.380(e) gives a trial court authority to employ an adverse inference, instruct the jury as to an adverse presumption, or even strike the plaintiff’s pleadings or enter a default judgment against a defendant. Under Rule 37(e)‘s intent to deprive standard, the party seeking sanctions would have to provide evidence its opponent took an affirmative act to deprive the use of the information. ²⁵ Alternatively, circumstantial evidence may show bad faith when the act causing loss cannot be credibly explained as not involving bad faith. ²⁶ However, there is no intent to deprive when the ESI is deleted as part of routine company-wide policies related to periodic ESI deletion. ²⁷ Likewise, failure to suspend default deletion policies does not necessarily equal an intent to deprive. ²⁸

As noted above, the “intent to deprive” standard provided by the new Rule 1.380(e) constitutes a restriction on a trial court’s formerly wider discretion to assess sanctions for negligent spoliation of ESI under Golden Yachts. Now, spoliation of ESI resulting from negligence will not warrant an adverse inference or adverse instruction sanction.

Conclusion

The 2019 amendment to Rule 1.380(e) provides more clarity as to when and how a trial court can address ESI spoliation in litigation. It creates a higher standard to sanction than Golden Yachts, but affords less reprieve for spoliation than the prior Rule 1.380(e). Practitioners need to understand the mechanics of preservation to be competent and can look to Fed. R. Civ. P. 37(e) for caselaw in support of motions involving spoliation of ESI under Rule 1.380(e).

This column is submitted on behalf of the Business Law Section, Leyza Florin Blanco, chair, and Matthew Horowitz, editor.

Footnotes

a1 GREGORY S. WEISS is a shareholder of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A. He is board certified in business litigation and civil trial by The Florida Bar and focuses his practice on hourly and contingency complex business trials. He is also a certified electronic discovery specialist.

a2 GEORGE P. KASTRENAKES is an associate at Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A. He earned his B.A. from the University of North Carolina at Chapel Hill, and his J.D., cum laude, from the University of Florida Levin College of Law in 2013. His practice focuses on complex commercial litigation.

a3 MICHAEL KRANZ is an associate at Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A. He graduated from the University of Florida Levin College of Law, cum laude, in 2014 after graduating from Florida State University, magna cum laude, in 2010. He focuses his practice on complex commercial litigation.

1. Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1322 (S.D. Fla. 2010).
2. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 347 (Fla. 2005).
3. Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006) (citing       Martino, 908 So. 2d at 346-7).
4. Id. at 780 (citing Martino, 908 So. 2d at 346-7).
5. In re Amendments to Fla. Rules of Civil Procedure–Elec. Discovery, 95 So. 3d 76, 77 (Fla. 2012).
6. FLA. R. CIV. P. 1.380, Comments.
7. See RUL. REG. FLA. BAR 4-1.1.
8. FLA. R. CIV. P. 1.380, Comments.
9. William Matthewman, Towards a New Paradigm for E-Discovery in Civil Litigation: A Judicial Perspective, 71 FLA. L. REV. 1261 (Sept. 2019); see also Living Color Enters., Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216, 2016 WL 1105297, at *4-5 (S.D. Fla. Mar. 22, 2016).
10. Living Color Enters., Inc., 2016 WL 1105297 at *5.
11. In re Abilify (Aripiprazole) Prods. Liab. Litigation, No. 3:16-md-2734, 2018 WL 4856767, at *3 (N.D. Fla. Oct. 5, 2018).
12. Title Capital Mgmt., LLC v. Progress Residential, LLC, No. 16-21882, 2017 WL 5953428, at *4 (S.D. Fla. Sept. 29, 2017).
13. Id.
14. Id.
15. Williford v. Carnival Corp., No. 17-21992, 2019 WL 2269155, at *7 (S.D. Fla. May 28, 2019).
16. Id. at *8.
17. Sosa v. Carnival Corp., No. 18-20957, 2018 WL 6335178, at *17 (S.D. Fla. Dec. 4, 2018).
18. FED. R. CIV. P. 37, advisory committee’s note to 2015 amendment; Williford, 2019 WL 2269155 at *11.
19. Living Color Enters., Inc., 2016 WL 1105297 at *5.
20. Williford, 2019 WL 2269155 at *12.
21. FED. R. CIV. P. 37, advisory committee’s note to 2015 amendment.
22. Id.
23. Id.
24. See Sosa, 2018 WL 6335178 at *21 (allowing the presentation of evidence and argument regarding loss of CCTV video purportedly showing slip and fall accident and allowing jury to make finding regarding intent to deprive and potential additional curative measures depending upon jury’s findings).
25. In re Abilify (Aripiprazole) Prods. Liab. Litigation, 2018 WL 4856767 at *8.
26. Snider-Hancox v. NCL Bahamas Ltd., No: 17-20942, 2018 WL 6448765, at *4 (S.D. Fla. Dec. 3, 2018).
27. In re Abilify (Aripiprazole) Prods. Liab. Litigation, 2018 WL 4856767 at *8.
28. Id.