Ian Ross, with Stumphauzer, Foslid, Sloman, Ross & Kolaya.

Most litigators are familiar with this call from a client: “I just opened a letter from an attorney instructing my company to preserve all documents and follow a bunch of instructions about what to do with our electronic data and email. I've never heard of the case the attorney mentions. It doesn't involve us. Do I have to follow all of these instructions?”

In a recent decision, Florida's Third District Court of Appeals may have provided an answer. On April 26, the appellate court held that Florida law does not “impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation,” see Shamrock-Shamrock v. Remark, Case No. 5D18-1987, 2019 WL 1868175, — So. 3d — (Fla. 3d DCA Apr. 26, 2019). In the underlying action, Shamrock-Shamrock, Inc. (Shamrock), a property owner, had filed a complaint against the city of Daytona Beach relating to a zoning dispute. In the complaint, Shamrock alleged that Tracey Remark, a third party, had participated in hearings and written a letter relevant to the zoning dispute.

During discovery, Shamrock served a series of deposition notices on Remark. When she was finally deposed nearly a year later, Shamrock determined that she had not preserved records regarding the dispute. In the interim—after she received her first deposition notice but before receiving an amended deposition notice with a duces tecum request—she had also purchased a new computer and destroyed her old computer. Shamrock then brought a two-count complaint against Remark alleging that she had intentionally or negligently destroyed her computer, and claiming that she had a duty to preserve evidence based on the foreseeability of litigation.

The trial court granted summary judgment in Remark's favor. The appellate court affirmed, finding that, absent a “statute, contract, or discovery request that would impose a clearly defined duty” on the third party, there is no generalized duty to preserve potentially relevant evidence based solely on the knowledge of the lawsuit. To hold otherwise, the court found, would be “tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others' lawsuits.” Although the court recognized that “there are innumerable circumstances in which a nonparty to litigation may have evidence relevant to a case and may know of its relevance,” “that knowledge, by itself, should not give rise to a duty to safeguard the evidence in anticipation of litigation.”

The appellate court conceded that, understandably, it could not “speculate as to every circumstance under which a third party to litigation may have a legal duty to preserve evidence.” Indeed, other courts have observed that this duty may arise in a number of ways, including by way of “an agreement, contract, statute, or other special circumstance,” see Wilson v. Beloit, 921 F.2d 765, 767 (8th Cir. 1990) (quoting Koplin v. Rosel Well Perforators, 734 P.2d 1177, 1179 (Kan. 1987)). Preservation obligations may exist for third parties that are agents or affiliates of a party, or that have control or legal right of access to the documents of a party in litigation. Likewise, an insurer or expert that is entrusted with a party's documents may assume a duty to preserve them, see Thompson v. Owensby, 704 N.E.2d 134, 139 (Ind. Ct. App. 1998).

Thus, although that there may be no generalized duty for third parties to preserve evidence, third-party preservation letters still have their use. In particular, practitioners may find value in sending preservation letters once litigation is reasonably anticipated to third parties who may have control of a party's documents. Likewise, when a client calls seeking advice about a nonparty preservation letter it has received, counsel should consider the client's relationship with the parties in litigation, including whether the client has been entrusted with potential evidence by one of the parties or whether a special relationship might exist that imposes a preservation duty.

An analysis of a client's duty to preserve, as with any legal analysis of a duty owed to a third party, will likely depend on a number of factors and requires an understanding of the law in that jurisdiction. Even in jurisdictions where a generalized duty to preserve documents does not exist for nonparties, courts have recognized that there may be an independent claim for negligence or spoliation of evidence where a third party undertakes to preserve evidence and a party reasonably and detrimentally relies on that undertaking, see Swick v. The New York Times, 815 A.2d 508, 512 (N.J. App. Ct. 2003). The Remark decision offers useful guidance on the general rule in Florida law, but the specifics of the nonparty's duty to the parties in litigation may lead to a different result.

Ian Ross is a partner at Stumphauzer Foslid Sloman Ross & Kolaya. He litigates business disputes, complex commercial cases, and class actions, and has advised companies on and coordinated significant multijurisdictional and multinational discovery matters, including document collections, reviews and productions.