Under Florida law, if a party does not maintain material evidence or keep records in a dispute, the trial court may impose various sanctions against the offending party. A trial court has the discretion to impose appropriate sanctions or remedies against a party for either inadvertent or intentional conduct in the loss, destruction, mutilation, alteration, concealment, or other disposition of evidence material to a case. See, e.g., Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006); Am. Hosp. Mgmt. Co. of Minnesota v. Hettiger, 904 So. 2d 547 (Fla. 4th DCA 2005); Jost v Lakeland Reg. Med. Ctr., 844 So. 2d 656 (Fla. 2d DCA 2003); Nationwide Lift Trucks, Inc. v. Smith, 832 So. 2d 824 (Fla. 4th DCA 2002); Torres v. Matsushita Elec. Corp., 762 So. 2d 1014 (Fla. 5th DCA 2000); and Sponco Mfg, Inc. v. Alcover, 656 So. 2d 629 (Fla. 3d DCA 1995). One type of sanction that may be imposed against a party for the failure to maintain material evidence is an adverse inference. For example, the court may provide the following jury instruction at trial:
If you find that the Defendant lost, destroyed, mutilated, altered, concealed or otherwise caused evidence (specifically described) to be unavailable, while it was within its possession, custody, or control; and the evidence would have been material in deciding the disputed issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to the Defendant. You may consider this, together with the other evidence, in determining the issues of the case.
Moreover, the trial court may further impose a burden shifting presumption if it is determined that there was a duty to maintain or preserve the missing evidence at issue and the party invoking the presumption has established to the satisfaction of the court that the absence of the missing evidence hinders the party’s ability to establish its claim or defense. See Pub. Health Tr. of Dade Cty. v. Valcin, 507 So. 2d 596 (Fla. 1987). In this instance, the court may provide the following jury instruction at trial:
The court has determined that the Defendant had a duty to maintain evidence (specifically described) or keep a record of the evidence as to which the Defendant had record keeping duty. The Defendant did not maintain the evidence or keep a record of the evidence. Because the Defendant did not maintain the evidence or keep a record of the evidence, you should find that the Plaintiff established its claim (specifically described) unless the Defendant proves otherwise by the greater weight of the evidence.
Joel Ewusiak has represented parties in disputes involving the failure to maintain material evidence and has tried a case to verdict that included an adverse inference jury instruction. Please contact Joel for legal assistance with your particular matter.