Litigation: When A Party´s Chances At Trial Are Hurt By Lost Evidence

Under Florida law, spoliation of evidence can lead to: 1) a cause of action in tort for either the intentional or negligent loss of evidence; 2) a defense to recovery; 3) the basis for a negative evidentiary inference or presumption; and 4) sanctions.

From a defense perspective, spoliation is a rapidly growing area of the law because if the defendant did not spoliate the evidence, it can act as a complete bar to a recovery by the plaintiff. In that regard, the court may dismiss the case on the grounds that the defendant is deprived of the opportunity to adequately defend itself absent the spoliated evidence. Alternatively, it may strike the plaintiff’s pleadings as a sanction if he/she is the spoliating party.