Title: Spoliation of Evidence: A Double-Edged Sword – The Florida Bar
Headings: Florida Bar Journal
Florida Bar Journal
Spoliation of Evidence: A Double-Edged Sword

Content: 2d 1307 (Fla. 3d DCA 1985), evolved two distinct “varieties” of spoliation of evidence claims. Although they are the same when one compares the elements of the claim, they are applied to different cases in different ways with different results. It is important to recognize the distinctions and applications, especially when considering precedent. First, a claim for spoliation of evidence may be used in the form of a discovery violation against an opponent in litigation. This happens when, during litigation, a party is in control of evidence crucial to his adversary and then loses or destroys the evidence. In that situation, the court treats the loss or destruction of evidence as a discovery violation pursuant to Fla. R. Civ. P. 1.380. 3 The failure to produce the evidence is then subject to a sanction, the choice of which is widely discretionary with the trial court. The trial court may consider 1) whether there is prejudice to the opposing party; 2) whether the prejudice can be cured;