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: 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; 3) the practical importance of the evidence; 4) the good faith or bad faith surrounding the loss of the evidence; and 5) possible abuse if the evidence is not excluded. 4 In some instances, the court may determine that the violation deserves the harshest sanction possible, dismissal or striking of defenses, while in others the court may fashion some other remedy. 5
The second use of spoliation is as a separate cause of action.