Construction Law

Spoliation of Evidence

In order for construction law firms in Tampa to prosecute or defend against a claim during a construction dispute, evidence must be presented to the judge or jury responsible for the verdict. With that said, if important evidence, such as blueprints, paper records, mechanical equipment, video recordings, or medical records, is destroyed, altered, or lost, otherwise known as spoliation, the affected party is at a significant disadvantage.

For this reason, the State of Florida imposes sanctions against parties responsible for the spoliation of evidence. Differing from federal law, the Florida courts also determined that when the destroyed evidence is a central part of the opposing party’s defense or prosecution, whether it was destroyed unintentionally or in “bad faith” is irrelevant. The sanctions imposed include the striking of pleadings, exclusion of expert testimony, and dismissal of a claim.

There are, however, a series of factors that must be met to successfully make a spoliation claim.

The following factors must be present:

• a potential civil action existed involving the evidence that was destroyed;
• a duty to preserve that evidence did, in fact, exist;
• the evidence has been destroyed;
• the destruction of the evidence significantly impairs the ability of the claimant to pursue the civil action;
• the destruction of the evidence has caused the inability to prove the elements of the civil action; and
• damages have resulted.

First Party vs. Third Party Spoliation

If the destruction, damage, or loss of evidence resulted from a non-party, the severity of sanctions imposed could be reduced or eliminated entirely. Third-party spoliation of evidence occurs when a party, who is not named in the lawsuit, is responsible for the evidence being destroyed. The judge overseeing the case ultimately decides what action to take in regards to sanctions, but most commonly the control of the first-party over the third-party will determine the outcome.

Duty to Preserve Evidence

When it comes to Tampa construction law firms filing a spoliation of evidence claim, duty to preserve is one of the most important factors that must be proven. If a construction professional knows that pending or potential litigation could lead to certain documents or items being relevant to a case, there is an inherent duty to preserve the evidence.

There are no guarantees when it comes to sanctions being imposed, and the reality is without evidence to back up a claim or create a defense, it is highly difficult to procure a successful outcome. To ensure that you are protected, we recommend having your construction law firm in Tampa include a duty to preserve clause in your construction contracts. Documented correspondence requesting that evidence not be altered or damaged after a dispute is also an effective legal strategy for ensuring that evidence is not tampered with in any way.

To schedule a consultation with a lawyer from Cotney Attorneys & Consultants, please call us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.