Opinion
Case No. 04-20044 CIV UUB.
July 11, 2005
ORDER DENYING PLAINTIFFS' RULE 37(c) MOTION TO STRIKE ANSWER AND/OR AFFIRMATIVE DEFENSES
This matter is before this Court on Plaintiffs' Rule 37(c) Motion to Strike Answer and/or Affirmative Defenses Due to Spoliation of Evidence . . ., filed December 16, 2004. The Court has considered the motion, the response, the reply, the supplements, and all pertinent materials in the file.
It seems that the "new frontier" of litigation is the spoliation arena; find some evidence in the case that is not preserved exactly, and try to win the case on that basis. If this Court were to grant this motion (and that ruling were to be upheld by an appellate court), it would eviscerate Federal Rule of Evidence 407. It would take nothing short of a complete preservation of an accident scene to avoid an adverse result. Fortunately, that is not the law of the Eleventh Circuit.
The elements of a claim for spoliation are set forth in the case of Green Leaf Nursery v. E.I. Dupont De Nemours and Company, 341 F.3d 1292 (11th Cir. 2003). They are six in number. Most importantly "Plaintiffs must `demonstrate that [they] were unable to prove [their] underlying action owing to the unavailability of the evidence." Id at 1308 (quoting Continental Insurance Co. v. Herman, 576 So. 2d 313, 315 (3rd DCA 1990)).
On this point, plaintiffs' arguments fail. While there is no question that the presence of the actual bar stool might enhance the ability to support plaintiffs' theories of liability, a case can nonetheless be made. Furthermore, if we had the bar stool, we'd be arguing about the failure to preserve the base. In short, failure to videotape the actual accident happening and preservation of the scene en toto are not necessary prerequisites to avoiding negative consequences.
Additionally, plaintiffs admit there is no evidence of bad faith. See Mot. p. 16. This, too, is a necessary prerequisite.See, e.g., Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997); Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F. Supp. 2d 1273, 1277 (S.D. Fla. 1999). While these cases deal with the issue of a negative inference arising out of spoliation, it is more than logical that if bad faith is needed to create a negative inference, it certainly is needed to strike pleadings, which is a far more severe sanction. See generally Silvestri v. General Motors Corporation, 271 F.3d 583, 590 (4th Cir. 2001); West v. Goodyear Tire Rubber Company, 167 F.3d 776, 779 (2d Cir. 1999). See also Vick v. Texas Employment Commission, 514 F.2d 734, 737 (5th Cir. 1975), reh'g denied, 520 F. 2d 944 (5th Cir. 1975).
Decisions of the United States Court of Appeals for the Fifth Circuit, (the "former Fifth" or "the old Fifth") as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit for this court." Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
Plaintiffs argue that defendant "acted deliberately and intentionally to alter the evidence by repairing the stool almost immediately. . . ." Mot. p. 16. Accepting this as true, it does not give rise to the relief sought. In the first place, there simply is no claim for "immediate and deliberate" repair of a defective situation. Were that the case, as noted, supra, it would eviscerate Federal Rule of Evidence 407, and would create liability, for example, where a spill in a supermarket was cleaned up, where an automobile was moved after an accident, or where a staircase was repaired after someone tripped and fell. Such a dramatic upheaval in the law must come from a higher court than this one.
A practice, by the way, mandated in many areas of the country.
There are additional factors in this decision. Other requirements for spoliation are that there must be "the existence of a potential civil action" and "a legal or contractual duty to preserve evidence. . . ." Green Leaf Nursery, 341 F.3d at 1308. The existence of a potential civil action and/or the duty to preserve evidence must be based on more than the mere possibility that something may occur at some time in the future. Other courts have recognized that more than the mere happening of an accident must occur for a duty to be created. See, e.g., Silhan v. Allstate Insurance Co., 236 F. Supp.2d 1303, 1309 (N.D. Fla. 2002); Royal Sunalliance v. Lauderdale Marine Center, 877 So. 2d 843, 845-46 (Fla. 4th DCA 2004).
Therefore, for the reasons stated herein, and the Court being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that said motion be and the same is hereby DENIED.