Insurers pursuing subrogation claims in Florida often find that evidence necessary to establish their claim is in the possession of an adverse party. To discourage the destruction of evidence, Florida Rule of Civil Procedure 1.380 provides courts with the authority to sanction a party who spoliates evidence. Under the previous instruction, the sanction varied depending upon a) whether the destruction of evidence was willful or in bad faith, b) the extent of the prejudice suffered by the party, and c) whether the prejudice could be cured. Dismissal of the case or entry of default judgment is appropriate only in the most extreme situations. In the case of unintentional/non-negligent spoliation of evidence, the most lenient sanction will be applied — an adverse inference that the withheld evidence would be unfavorable to the party who failed to produce it. Nevertheless, even the most lenient sanction can make a crucial difference in some cases.

In determining the appropriate sanction, a majority of Florida courts have considered whether the spoliating party had a duty to preserve the evidence. A duty most commonly arises via a request from another party or third party to preserve the evidence in anticipation of litigation. Failure to preserve the evidence despite the existence of a duty would generally result in a harsher sanction than a failure to preserve the evidence in the absence of a duty.

Despite the guidance from the Florida Rules of Civil Procedure, courts used different analyses and balancing tests to determine whether a spoliation sanction would be appropriate and, if so, the nature of the sanction. To clear up the confusion, in 2010 the Committee on Standard Jury Instructions in Civil Cases began efforts to create a standard spoliation instruction for all civil cases. One of the major tasks before the committee was to determine whether a duty to preserve the evidence is a prerequisite to an adverse inference jury instruction. The committee determined the duty is not a prerequisite to an adverse inference instruction; rather, it simply requires that 1) a party destroyed evidence while it was in its control, and 2) the evidence would have been material in deciding the disputed issues in the case.

This is a much lower standard than many courts previously implemented with the end result that an adverse inference instruction should be available to more litigants than before the revision. It must be noted that the jury is free to accept or reject an adverse inference instruction. Should a duty to preserve the evidence exist, the adverse inference instruction is replaced with a rebuttable presumption instruction, which states that there is a presumption that the spoliated evidence would have been unfavorable to the spoliating party. Under this new instruction, parties concerned about the potential spoliation of evidence are encouraged to place the party in control of the evidence on notice of its interest in the evidence and request the evidence be preserved for future inspection. By taking this step, the requesting party will maximize the chances of the rebuttable presumption instruction being issued by the court as opposed to the less-severe adverse inference instruction.

Of course, subrogating insurers and their insureds also must preserve relevant evidence in cases where subrogation is possible or when another entity has requested that evidence be preserved.