In Shamrock-Shamrock, Inc. v. Remark, No. 5D18-1987 (Fla. Dist. Ct. App. Apr. 26, 2019), the District Court of Appeal of Florida, Fifth District affirmed the summary final judgment in favor of the Appellee, holding that Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation.
Case Background
In the case originally involving the Appellant’s suit against the City of Daytona Beach over zoning, the Appellee was never a party to the Appellant’s action against the City, but the Appellant’s operative complaint contained two references to the Appellee in its general allegations. During the case, the Appellant sought to take the Appellee’s deposition and served several notices of deposition and subpoenas on the Appellee, beginning in May 2011 and ending ten months later with a sixth amended notice of taking deposition in March 2012, which was the only one that included a duces tecum request for documents to be produced at the deposition.
The Appellee’s deposition was taken in April 2012, where she testified that she had obtained a new desktop computer and had destroyed her old computer in December 2011. She did not preserve any records, documents, or emails from her old computer and did not inform anybody, including the City Attorney, that she was destroying it. Her testimony established that she destroyed her old computer after receiving the first deposition notice but before receiving the sixth amended...
