Posted by: Patricia Salkin | April 26, 2019

Florida Appeals Court Dismisses Complaint Involving Destruction of Files Related to Rezoning Lawsuit

This post was authored by Amy Lavine, Esq.


A Florida appellate court held in April that a planning board member had no independent common law duty to preserve evidence based on the foreseeability of litigation relating to the denial of a developer’s rezoning request.

Shamrock wanted to develop property it owned in Daytona Beach as a hotel and marina, but it was unsuccessful in obtaining the necessary rezoning. After the city denied its administrative appeal, it eventually filed a lawsuit claiming that the city had intentionally interfered with its property rights, and its complaint included several allegations involving a particular member of the planning board, Tracey Remark. Specifically, Shamrock claimed that Remark, before becoming a member of the planning board, had sent a letter to another planning board member opposing the rezoning, and that after she joined the planning board, she had participated in deliberations relating to its rezoning request and administrative appeal, “despite having bias and a pre-determined opinion against SHAMROCK, the Hotel and the Marina.”

Shamrock served a series of deposition notices and subpoenas on Remark during the early stages of its litigation, and its sixth amended notice included a subpoena duces tecum ordering Remark to produce certain documents. At her deposition, however, Remark testified that she was unable to produce any of the requested documents because she had destroyed her old computer in 2011, without informing any city officials or obtaining consent from the city attorney. Moreover, although she had already received Shamrock’s first deposition notice, she destroyed the old computer without reviewing its contents or preserving any files that might have been relevant to the litigation. As a result of this testimony, Shamrock then filed a separate complaint against Remark, alleging that she had a duty to preserve evidence based on her receipt of the first deposition notice and the foreseeability of the litigation, even though she was only later served with the duces tecum subpoena specifically requesting the production of documents. Shamrock further alleged that Remark had destroyed her old computer intentionally, negligently, or in bad faith.

The court began its analysis by explaining that Florida law recognizes an independent cause of action for spoliation of evidence that can be asserted against third parties provided that six elements are met: “(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.”

The primary issue in this appeal was the second of these elements, relating to the duty to preserve evidence. As the court explained, a duty may arise based on the existence of a contract, statute, or properly served discovery request, but the court emphasized that “neither the Florida Supreme Court nor Florida’s intermediate appellate courts have imposed a common law duty on a third party to preserve evidence based on foreseeability, or even actual knowledge, of litigation.” Although Shamrock attempted to establish this sort of duty, the court distinguished the cases it relied on, which generally didn’t involve the duty of third parties and only suggested in dicta that a duty to preserve evidence existed when “a party should reasonably foresee litigation.”

Having found no precedent recognizing a common law duty for third parties to preserve evidence based on the foreseeability of litigation, the court then considered whether it should officially adopt such a rule. It noted in this respect that other “jurisdictions that permit an independent tort for third-party spoliation generally decline to recognize a broad, common law duty to preserve evidence.” It also emphasized the importance of competing concerns, such as the respect for individuals’ property and rights to privacy, as well as concerns relating to “the finality of judgments, the potential for conflicting judgments, speculative damages, and imposing undue financial burdens on nonparties to litigation.” Finally, the court noted that legal mechanisms such as discovery and subpoena powers already exist to require the preservation of evidence by third parties. Taking these factors into consideration, the court declined to adopt Shamrock’s argument that Remark owed a duty to it based on the foreseeability of litigation.


Shamrock-Shamrock, Inc. v. Remark, 2019 WL 1868175 (4/26/19).

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: