Spoliation of Evidence in Florida: What You Need to Know

What Is Spoliation of Evidence?

Spoliation refers to the loss, destruction, or alteration of evidence that may be relevant to a legal claim. This may include physical items like documents or car parts, which are forms of physical evidence, as well as digital materials such as emails, text messages, surveillance footage, or metadata. A document can be either a physical or electronic record, and is a common subject of spoliation. Spoliation can happen through negligence or intentional conduct, and specifically occurs when parties destroy evidence relevant to a claim. Spoliation occurs when evidence is lost, destroyed, or altered during the course of a legal dispute. In Florida, both intentional and negligent destruction of evidence can be considered spoliation, and the courts may impose serious consequences if one party is found to have spoliated evidence.

Legal Duties to Preserve Evidence in Florida

In Florida, there is no general common-law duty to preserve evidence. Instead, a duty arises when:

• A statute or regulation imposes preservation requirements
• A contract between the parties includes preservation obligations
• A discovery request or court order requires the evidence to be retained

The duty to preserve extends to evidence relevant to both ongoing and future litigation.

Parties must also preserve evidence in anticipation of pending or future litigation.

Once litigation becomes reasonably foreseeable, or parties can foresee litigation, there is a legal obligation to take reasonable steps to preserve relevant evidence. Failure to do so can severely damage a party’s credibility and position in the case. See Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005).

To fulfill this obligation, parties should take the necessary steps to identify, collect, and safeguard all relevant documents and electronic data to prevent spoliation and ensure compliance with legal requirements.

Spoliation in Personal Injury and Accident Cases

In personal injury claims, including automobile accidents, slip and falls, and premises liability matters, evidence preservation is critical—especially in cases where plaintiffs are severely injured, as the need to secure all relevant evidence becomes even more important. Examples include:

• Surveillance video of a fall in a store or parking lot
• Maintenance records from property owners
• Vehicle damage photos and repair estimates
• Black box data from automobiles
• Crucial evidence such as medical records or accident scene photos

The loss or destruction of other evidence, such as witness statements or third-party records, can significantly affect the outcome of a personal injury case.

If a business or property owner destroys video footage or other material evidence before a plaintiff can inspect it, courts may allow the jury to infer that the evidence would have been unfavorable to that defendant. See Golden Yachts, Inc. v. Hall, 920 So. 2d 777 (Fla. 4th DCA 2006).

New Rule: Florida Rule of Civil Procedure 1.380(e)

Effective January 1, 2025, Florida adopted a new rule regarding electronically stored information (ESI). Florida Rule of Civil Procedure 1.380(e) closely mirrors Federal Rule 37(e). Under this rule, if ESI that should have been preserved is lost due to a party’s failure to take reasonable steps, the court may impose sanctions. A sanction can include a range of penalties, such as adverse jury instructions, dismissal of claims, or even monetary penalties. More severe remedies, such as an adverse inference that the lost evidence was unfavorable, may be drawn if the loss was due to intentional destruction. The rule distinguishes between intentional destruction and negligent destruction of evidence, with intentional acts typically resulting in harsher sanctions, while negligent destruction may still lead to penalties but often less severe. Destroying evidence can also result in the court awarding legal fees to the opposing party.

This rule makes it more important than ever for litigants to implement proper data preservation protocols as soon as litigation is anticipated. Florida Rules of Civil Procedure, Rule 1.380(e)

Consequences of Spoliation

Florida courts may respond to spoliation in several ways:

• Exclude or limit testimony related to the missing evidence
• Instruct the jury that it may presume the missing evidence was unfavorable to the responsible party
• Apply a rebuttable presumption of negligence if evidence is destroyed and the party had a duty to preserve it
• Award attorney’s fees and costs associated with the spoliation
• In extreme cases, dismiss claims or defenses altogether

When determining the appropriate sanction, courts consider several factors, including the intent behind the destruction, the extent of prejudice suffered by the opposing party, and the importance of the evidence to the case. The severity of sanctions is influenced by the extent of the prejudice caused. Courts must determine the best response to spoliation based on the facts and circumstances, evaluating intent and prejudice before imposing penalties. The appropriate remedy is determined by the court after considering all relevant facts.

Spoliation can significantly impact the outcome of a case, as the loss of evidence may make it more difficult to prove a claim or defense. There is a risk of sanctions and adverse legal outcomes if evidence is not properly preserved.

These remedies have been recognized and applied in numerous Florida decisions, including Martino and Golden Yachts.

Third-Party Spoliation

Florida also recognizes third-party spoliation claims. A spoliation claim can be brought against a third party who, although not a party to the lawsuit (such as a tow company, landlord, or insurer), negligently or intentionally destroys evidence critical to a litigant’s case. In these cases, the court will examine the underlying cause of the evidence loss to determine liability. Both defendants and plaintiffs can be affected by third-party spoliation, as the actions of the other party or opposing party responsible for preserving evidence may impact the outcome of the litigation. In such situations, a separate civil claim may be brought against the third party responsible. To succeed on a third-party spoliation claim, the plaintiff must establish a prima facie case by showing the existence of a duty to preserve evidence, a breach of that duty, and resulting harm. See American Hospitality Mgmt. Co. of Minnesota v. Hettiger, 904 So. 2d 547 (Fla. 4th DCA 2005).



For further analysis, see the Florida Bar Journal article, “Spoliation of Evidence and Non-Party Witnesses,” available at Florida Bar Journal.

Preventing Spoliation: Practical Tips

If you are involved in or anticipate a legal dispute:

1. Save all photos, documents, videos, emails, texts, and other materials related to the incident
2. Do not delete or modify any files, messages, or social media posts
3. Alert your attorney immediately so they can issue preservation letters if needed
4. Identify any third parties who may possess relevant evidence
5. Create backups of important digital files

Serving Daytona Beach, Volusia County, and Central Florida

At My Affordable Attorney, we represent clients across Central Florida, including Daytona Beach, Deltona, DeLand, Palm Coast, Sanford, and Orlando. We know the local courts, the rules of evidence, and how to protect your case when critical information is at stake. Whether your case involves a car crash, slip and fall, or insurance dispute, our team is ready to take immediate steps to prevent spoliation and preserve your legal rights.

Contact Us Today

If you believe someone has destroyed evidence relevant to your case, or you have been accused of failing to preserve material evidence, contact My Affordable Attorney for a free consultation. We are available 24 hours a day, 7 days a week, and we serve clients throughout Florida.