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Practice Areas
TRANSPORTATION LAW
CARGO SUBROGATION
- Air
- Land
- Sea
MARINE AND TRANSPORTATION INSURANCE
WAREHOUSE GOODS LOSS
PERSONAL INJURY
8751 West Broward Boulevard - Suite 106
Fort Lauderdale, Florida 33324
Telephone: 954-476-1770
Toll Free: 866-932-4011
Fax: 954-476-1577
E-mail: Fudali@attglobal.net
Newsletter
CARGO UPDATE NEWSLETTER
SPOLIATION OF EVIDENCE - NOT NECESSARILY – June 2012
Your cargo is damaged. Perhaps it was as a result of a faulty container refrigeration unit. Or
maybe there was a hole in the container. Or the truck chassis might have been defective or
improperly maintained. You make a claim against the responsible carrier or third party and
request the digital print out for the refrigeration unit or the maintenance and repair records for the
container or chassis. Instead of receiving the requested items, you are told that they don’t exist the
digital print out was lost or recorded over, the container or chassis have been scrapped or
repaired, and the records cannot be found. Ah hah, spoliation of evidence? – Well . . . not
necessarily.
Spoliation has been defined as “the intentional destruction, mutilation, alteration, or concealment
of evidence.� Black’s Law Dictionary, 1531 (9th ed. 2009). The majority of States that have
considered the issue do not recognize an independent cause of action for spoliation of evidence.
Those States that do recognize an independent cause of action generally limit such actions to
third-party spoliation, i.e., spoliation claims against non-parties to a pending litigation. Florida
recognizes an independent spoliation cause of action in third-party cases but not in first-party
cases against parties to a pending litigation. The majority of jurisdictions remedy first-party
spoliation through sanctions or adverse jury instructions. In the Eleventh Circuit, spoliation
sanctions may include dismissal of the case, exclusion of expert testimony, or a jury instruction
that raises a presumption against the spoliator.
In a very recent decision, the U.S. District Court for the Middle District of Florida in Vanliner
Insurance Company v. ABF Freight System, Inc., 2012 WL 750743 (M.D. Fla. 03/08/2012),
denied a motion for spoliation sanctions due to the alleged failure of a defendant to download
and/or preserve Electronic Control Module (“ECM�) data prior to destruction. The case arose
from an automobile accident involving a disabled ABF tractor. The crux of the argument was that
although ABF downloaded certain ECM data soon after the accident, it allegedly failed to
download and preserve data pertaining to maintenance of the tractor. The court found that there
was no evidence ABF had been put on notice of the negligent maintenance claim or that it could
have reasonably foreseen the allegation at the time of download. Additionally, certain
maintenance records were produced in discovery, and the court found that the movant had not
met its burden of proving that the particular ECM data was crucial to being able to prove its
prima facie case or defense. The court noted that in order to establish spoliation, the moving party
must prove that the missing or destroyed evidence actually existed at one point in time, that the
alleged spoliator had a duty to preserve the evidence, and that the evidence was crucial to proof of
its prima facie case or defense. The court went on to note that even if all three elements are met,
sanctions are only available where the spoliation was a result of bad faith. The court made clear
that in the Eleventh Circuit, bad faith is an indispensible element of the court’s analysis.
To summarize, the destruction or alteration of evidence does not always give rise to actionable
spoliation. Each State’s rules, decisions, and laws are different, so professional
 advice should be sought with regard to which rules, decisions and laws are
applicable to your particular State and to your particular circumstances.
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CIVIL LITIGATIONÂ
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TRANSPORTATION, MARITIME & CARGO SUBROGATION SERVICES
This website is intended for informational purposes only and is not intended to convey leagl advice or to create an attorney/client relationship
Copyright 2011: Law Offices of Peter W. Fudali, P.A. Transportation, Maritime & Cargo Subrogation Attorneys. All rights reserved.
8751 West Broward Boulevard Suite 106
Fort Lauderdale, Florida 33324Â
866-932-4011 |Â Fudali@attglobal.net
