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Suing Third-Party for Spoliation of Evidence

There is an independent spoliation of evidence cause of action against a third-party that accrues when that party “though not a party to the underlying action causing the plaintiff’s injuries or damages, loses, misplaces, or destroys evidence critical to that action.”  Shamrock-Shamrock, Inc. v. Remark, 44 Fla. L. Weekly D1093a (Fla. 5th DCA 2019).  This claim is a claim against a third-party – a party the plaintiff did not originally sue– and known as a third-party spoliation of evidence claim.  

If a party, such as a defendant, in the underlying action damages, loses, misplaces, or destroys evidence, this is known as first-party spoliation of evidence and does NOT give rise to an independent cause of action.  Shamrock-Shamrock, supra, n.1.   First-party spoliation can be dealt with directly in the underlying action.

A third-party spoliation of evidence cause of action is not easy to prove and is not intended to be easy to prove.

To establish a [third-party] spoliation cause of action, the plaintiff must prove each of the following six elements: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. 

Shamrock-Shamrock, supra

The recent decision in Shamrock-Shamrock dealt with the “duty” element, i.e., did the third-party owe a duty to the plaintiff to preserve evidence.  The duty element is based on the “existence of a contract, statute, or properly served discovery request.”  Shamrock-Shamrock, supra.    

In this case, the plaintiff sued the third-party after the third-party obtained a new computer and destroyed the records on her old computer, although she did not know whether her old computer had relevant records to the underlying action.  In the underlying action, she was served with a deposition notice.  That deposition notice/subpoena was later amended a number of times and she was ultimately noticed for deposition duces tecum or with the requirement to bring documents.    Her computer was destroyed and replaced between the time she was originally noticed for deposition (without the duces tecum requirement) and the time she was noticed for deposition with the duces tecum requirement. 

The plaintiff argued that the third-party had a duty to preserve evidence on her computer based on the foreseeability of the underlying lawsuit and her actual knowledge of the lawsuit.  The appellate court, however, and at least in this case, was not going to extend the duty this far – it was not going to extend a third-party’s duty to preserve evidence based on the foreseeability or knowledge of litigation.  The reason being that such a “broad pronouncement would be tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others’ lawsuits.”  Shamrock-Shamrock, supra.  

The outcome of whether a duty existed would presumably have been different if the third-party destroyed her computer AFTER she received a subpoena duces tecum for deposition requiring her to produce documentation at the deposition. In this situation, there would be an argument that the duty of preservation arose once she received the subpoena requiring her to produce the documentation.   The plaintiff would still need to prove the other elements to a third-party spoliation of evidence claim, but it would at least establish a duty existed on behalf of the third-party to preserve evidence.


Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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