Legal Report, June 2019

General Counsel, Keith Davis

1.         Shamrock-Shamrock, Inc. v. Remark, 915 F.3d 1292, 2019 Fla. App. LEXIS 6437, 44 Fla. L. Weekly D 1093, 2019 WL 1868175 (5th Cir. 2019). Municipal planning and zoning board, evidence preservation.
Appellant, Shamrock-Shamrock, Inc. ("Shamrock"), owns property in Daytona Beach that it sought to rezone and develop into a hotel and marina. The City of Daytona Beach Zoning Department considered and denied Shamrock's rezoning request. Shamrock appealed, but the Daytona Beach Planning Board upheld the decision. Remark was a member of the Planning Board at the time. Shamrock sued the City of Daytona Beach and its Planning Board ("the City"), alleging that the City intentionally and for its own gain thwarted Shamrock's right to develop its property. Remark was never a party to Shamrock's action against the City. However, Shamrock's operative complaint contained two references to Remark in its general allegations.

During Shamrock's litigation against the City, they deposed Remark. Relevant to this appeal, Remark testified during her deposition that she obtained a new 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, that she was destroying it. She did not review her old computer to see if it contained documents relevant to the notices of taking deposition she received to date. Overall, Remark's testimony established that she destroyed her old computer after receiving the first deposition notice but before receiving the sixth amended deposition notice that for the first time included a duces tecum request.

Shamrock filed a two-count complaint against Remark, alleging that she either intentionally destroyed her old computer or "negligently destroyed [it] in bad faith." Remark and Shamrock filed competing motions for summary judgment regarding whether Remark had a duty to preserve her computer or its contents. Shamrock argued that Remark had a duty to preserve evidence because she had notice of the litigation between Shamrock and the City by virtue of the complaint and deposition notices, even though those notices did not specifically request that Remark produce any tangible items. Shamrock argued, citing League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (Fla. 2015), that she therefore had a duty to preserve evidence based on the foreseeability of litigation. The trial court denied Shamrock's summary judgment motion and granted Remark's. It found that there was no genuine issue of fact that Remark had no statutory or contractual duty to preserve evidence; thus, Shamrock had to rely on a duty imposed by a discovery request. It also found no genuine issue of fact that by the time Shamrock served Remark with a subpoena duces tecum, she already had destroyed her old computer. As a result, the trial court held that Remark had no legal duty to preserve her old computer or its contents on the date she destroyed it.

On appeal, the 5th DCA affirmed, holding that where appellant sued a planning board member over her failure to preserve records concerning the board's denial of appellant's rezoning request, the member was properly granted summary judgment because as a non-party to appellant's prior litigation against the board, she had no obligation to preserve evidence based solely on the foreseeability of litigation. The court noted that Florida courts have held that a duty may arise in third-party spoliation cases based on the existence of a contract, statute, or properly served discovery request. However, neither the Florida Supreme Court nor Florida's intermediate appellate courts have imposed a common law duty on a third party to preserve evidence based on foreseeability, or even actual knowledge, of litigation.

In this case, there was no statute, contract, or discovery request that would impose a clearly defined duty on Remark to preserve any potentially relevant evidence. Thus, a duty would arise only through Remark's purported knowledge of Shamrock's pending litigation and her anticipation that something in her control could potentially be of use to that litigation. While the court did not speculate as to every circumstance under which a third party to litigation may have a legal duty to preserve evidence, it held that the trial court properly determined that Remark did not owe a legal duty to Shamrock. The case stands for the proposition that an individual member of a municipal planning board not a party to litigation between a developer and the municipality may not be sued for spoliation of evidence concerning actions she took while serving on the planning board as Florida law does not impose a duty on nonparties to litigation to preserve evidence solely based on the foreseeability of litigation.