Duty to Preserve Evidence

Under Florida Law, any person who has a reasonable anticipation of litigation has a duty to preserve all documents and electronically stored information that are potentially relevant to that litigation. The consequences for failing to perform this duty can be very severe, and can include sanctions by the Court against the person who failed to preserve such evidence. These sanctions can include monetary penalties, the Judge or Jury presuming that the evidence that was not preserved was detrimental to your case, or, in extreme situations, can include the Court striking your pleadings, which essentially means that your opponent will prevail in the lawsuit. As a result, it is very important that, if you have reason to anticipate that you may become involved in a lawsuit, either as a Plaintiff or as a Defendant, you take steps to ensure that all potentially relevant information is preserved.

This duty to preserve potentially relevant evidence is particularly important for businesses because the amount of information that the business may have is likely much greater than that of an individual, and because the information that belongs to the business is likely to be spread out among its many employees, including on their computers and other electronic devices. Because of this, when litigation is anticipated, it is important that the managers of the business inform their employees of this duty, and instruct them to preserve any potentially relevant information. Often, this instruction will take the form of an instruction not to delete or dispose of such information.

Many businesses also have automated processes, based on a regular schedule, for disposing of or deleting old information and files. When litigation is anticipated, it is important to discontinue such automated processes in order to avoid unintentionally destroying potentially relevant evidence. Often, businesses have either internal IT departments or external IT consultants or vendors that manage such automated processes. Regardless of whether the business’s IT support comes from employees or agents of the company, it is imperative that the business inform and instruct their IT support personnel when litigation is anticipated, so that they can make the necessary changes to the automated documents destruction processes.

More and more businesses are storing their data in the cloud. Essentially this means that the business is renting space on servers that are managed by other companies and that are not located at the business’s offices. In this situation, it is important to inform your cloud storage vendor when litigation is anticipated, so that they can ensure that your data, stored on their servers, is preserved.

Both hard-copies, and electronically stored information, must be preserved. This is important because electronically stored files contain meta-data, which could be relevant to the lawsuit, and which is not preserved when the file is printed. As a result, if you were to print any particular relevant file, without also preserving the file itself, you would lose potentially relevant data. In addition, all non-identical versions of each paper or electronic document should be preserved.

When in doubt about whether any particular paper or electronic information should be preserved, you should err on the side of preservation.

In summary, if you, or your business, is contemplating filing a lawsuit, or if a lawsuit is filed against you, or if you reasonably anticipate that a lawsuit may be filed against you, then you have an important duty to preserve all potentially relevant information, and failure to do so can be very costly. If you have any questions about your obligations related to the preservation of evidence, consider contacting a knowledgeable Florida litigation attorney in order to ensure that your interests are protected.

Please note that this article is intended for informational purposes only, and that nothing contained in this article may be relied upon as legal advice. Every situation is unique and requires unique attention and legal advice.