I previously blogged on the spoliation of evidence in Florida courts.  In federal cases, federal law governs the imposition of sanctions for spoliation of evidence.  Federal courts may consider state law in deciding whether to impose sanctions for spoliation, so long as it is consistent with federal law.

In the Eleventh Circuit, the duty to preserve evidence arises when litigation is “pending or reasonably foreseeable.”  A party must preserve all relevant documents, including electronic communications like emails and text messages, once litigation is reasonably anticipated.

If a party fails to preserve evidence, a federal court may presume, or instruct the jury to presume, the information was unfavorable to the party.  This is known as an adverse inference instruction.

In the Eleventh Circuit, an adverse inference will be drawn “only when the absence of that evidence is predicated on bad faith.”  Federal courts will examine the circumstances surrounding the missing evidence to determine whether the party acted in bad faith.

To satisfy the bad faith requirement, the party must have acted with more than “mere negligence.”  The party does not necessarily have to act with malice for the absence of evidence to be predicated on bad faith, although malice is relevant to the degree of the party’s culpability.

Recently, the US District Court for the Southern District of Florida determined that a company’s failure to preserve the plaintiff’s employment application warranted an adverse inference instruction in an employment discrimination case.  However, the Court also recently found that a defendant’s failure to preserve text messages, despite a clear obligation to do so, was at worst negligent and did not warrant an adverse inference instruction.

Other sanctions that may be imposed due to a party’s spoliation of evidence include a dismissal of the action or entry of a default judgment.  As a result, once litigation is reasonably anticipated, even if not then pending, parties should take reasonable measures to preserve all relevant evidence, including text messages, to avoid an adverse inference sanction, or worse.

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