In an earlier posting I discussed the difference between first-party spoliation of evidence and third-party spoliation of evidence.  


There is NO independent cause of action for first-party spoliation of evidence because that can be dealt with directly in the underlying lawsuit.  This deals with the assertion that an actual party to a lawsuit spoiled evidence. 


However, there is an independent cause of action for third-party spoliation of evidence since this deals with a nonparty to a lawsuit destroying critical evidence.   With that said, a third-party spoliation of evidence cause of action is rather difficult to prove and requires the plaintiff to prove 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.”  See Shamrock-Shamrock, Inc. v. Remark, 44. Fla. L. Weekly D1093a (Fla. 5th DCA 2019).    As it pertains to the duty to preserve evidence owed by a nonparty (the element underlined above), the court in Shamrock-Shamrock maintained that the duty does not arise simply because the nonparty can foresee the lawsuit or is aware of the lawsuit.  The court was not going to extend such duty on a nonparty to anticipate the critical evidence of others in a lawsuit where the nonparty is just that…a nonparty.  Rather, the duty to preserve evidence arises based on the existence of a contract, statute, or properly served discovery request on the nonparty.   Review this posting for more information on this case.  


Please contact David Adelstein at dadelstein@gmail.com 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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