Evidence destroyed? Do I still have a case?

What happens when evidence is destroyed in a case?

Spoliation of Evidence: what is it and what can you do about it?

Mark Perenich is a personal injury lawyer in Clearwater he has more than 30 years experience with various cases from Car accidents to Medical malpractice.

What is ‘spoliation’ of evidence?

Spoliation is the alteration, destruction or loss of evidence which is involved in litigation.

What example can be given of spoliation of evidence?

A creditor who is suing for the payment of a sum of money on a contract has in his safekeeping the only copy of the contract which was signed by the debtor. If during discovery or litigation the debtor’s lawyer borrows the only signed copy of the contract and loses it when his briefcase is taken by a mugger, there is spoliation of evidence. If the office of the debtor’s lawyer burned down to the ground, the contract is destroyed by fire; there is also spoliation of evidence. If the contract which was in the office safe was not destroyed in the fire but the ink was smudged due to water damage so that the contract’s contents are illegible, then there is also spoliation of evidence as it was altered.

What is the effect of spoliation of evidence?

When an object which is supposed to be presented as evidence is spoliated it is not only destroyed, altered or lost, it becomes unavailable for a party to use to prove his claims. Depending upon the importance of the evidence to the litigation and depending upon the good or bad faith of the party who lost it, the party who was disadvantaged by the loss, alteration or destruction of the evidence is given the recourse of suing the spoliator – he may also be sanctioned by the court.

Is the loss, alteration or destruction of all kinds of evidence sanctioned?

No, the evidence must be key evidence and it must be essential to the subject of the litigation. In the example above, the contract is a key piece of evidence and essential to prove the creditor’s claims. The creditor is disadvantaged because the contract which was reduced to writing is the best evidence of the particulars of the agreement between him and the debtor. The signature of the debtor is the best evidence that he has agreed to be bound by the agreement. Unless the creditor can prove the contents of the agreement through a photocopy or by an exchange of letters or emails between the creditor and the debtor, he will not be able to prove his claims.

Wrongful Death Stautes

What kinds of sanctions can be imposed on the spoliator?

In the example above, the debtor may claim that sum of money the creditor was suing for should not be paid as he had not delivered the goods in exchange for the sum of money. The pleadings or documents filed in court by the debtor to prove his alternative defense of non-delivery of goods may be stricken from the record.

If the debtor filed a counterclaim in damages against the creditor, his counter claim may be dismissed. If the debtor assailed the genuineness of his signature on the document and presented the testimony of a handwriting expert, the expert testimony based upon the missing or destroyed evidence may be stricken from the records. The debtor may be declared to be in default and will therefore lose his right to present his own evidence. Or, an evidentiary presumption may rise against him.

What happens if the spoliation is inadvertent or accidental?

In determining the sanction to be imposed, the court takes into consideration not only the importance of the evidence to the subject of the litigation but also the motives of the spoliator. Bad faith is when the party deliberately destroyed or altered the evidence to deprive the opposing party of his right to prove his claim.

In the example above, the debtor’s lawyer lost the document because he was mugged and the contents of his entire briefcase was taken by the mugger. Unless the story of the mugger was fabricated, it cannot be said that the loss of the copy of the contract was intentional, deliberate or calculated to deprive the creditor of his just claims. There can be no bad faith attributable to the debtor’s lawyer.

What are evidentiary presumptions and how do they work as sanctions?

There is a saying that evidence withheld is presumed to be unfavorable if produced. That is to say when bad faith attended the loss, destruction or alteration of an essential piece of evidence, the court will deem the loss, destruction or alteration of the evidence to have been accomplished because it was unfavorable to the spoliator.

In the example above, if bad faith on the part of the debtor or the lawyer is shown, the court will deem that the debtor or lawyer destroyed, lost or altered the contract because if it had been produced in court, it will be adverse evidence against the debtor.

Why is spoliation sanctioned?

Imposing sanctions on the spoliation of evidence in bad faith maintains the integrity of the court system. If such acts were not sanctioned, any person can defeat claims against him by simply destroying evidence. Also, the court has an interest in seeing that evidence is preserved because courts cannot decide cases if evidence goes missing or is destroyed. Missing evidence delays the disposition of cases by the court.

In the example above, lawyers are officers of the court and they have a duty and accountability before the court to maintain the integrity of the legal processes. They are supposed to maintain fair play in their dealings especially in keeping documentary evidence safe.

If you have any questions about this or any personal injury case please contact Mark at 727-386-9677

Do I need a minimum amount of insurance in Florida?

 Mark Perenich is a personal injury lawyer in Clearwater Florida, he has been practicing law for over 30 years, he understands what most people do not know about Florida law.  The problem is that we really don’t need ask these things until it’s too late, so here is a short overview of  Florida’s financial responsibility law.

What is Flordia’s Financial Responsibility? Or What is the Penalty for Not Having

The term Financial Responsibility is usually associated with motor vehicles and is a sort of legal obligation imposed by law on motor vehicle or property owners. The Financial Responsibility law seeks to protect people who have claims against a particular motor vehicle or property owner for accidents associated with the motor vehicle or property. The law lays down an obligation on an owner of property to prove that he or she is capable to pay damages, in case an accident takes place because of his motor vehicle or property. The proof of financial responsibility does not go away only because of the fact that a particular owner of property has insurance coverage for accident or is at no fault but is an obligation independent of the two. All states in the U.S. do not have compulsory insurance law but they do have financial responsibility law which lays down an obligation on insurance policy holders to comply with financial responsibility norms in addition to the obligation of getting insured.

Do I need a minimum amount of insurance in Florida?

Financial responsibility Law is the legislation and mechanism used by the state of Florida to encourage vehicle owners to maintain financial protection for themselves as well as any other drivers on the road. The law of financial responsibility in Florida is enacted in Chapter-324 of Title XXIII of the Florida Statutes.

In Florida a vehicle owner must get car insurance at a minimum $10,000 to cover bodily injury or death of one person through one motor vehicle accident and $20,000 to cover two or more persons. A minimum of $10,000 insurance must be purchased to cover for property damages. This rule applies to all individuals who own a car for the past 90 days in the preceding year and are either employed in Florida, resides in Florid or have children in a school in Florida. At all times the owner or registrant of the vehicle must carry proof of insurance.

Car accident Clearwater


Establishing Financial Responsibility in Florida

There are various ways to establish and insure financial responsibility in Florida by obtaining a certificate of Financial Responsibility from the Bureau of Financial Responsibility (BFR) which is mentioned below:

• By posting a surety bond with a state licensed company and obtaining a Financial Responsibility Certificate from BFR

• By providing evidence of possessing a net encumbered capital and obtaining a Self Insurance Certificate from BFR

• By depositing cash or securities with Florida Department of Highway Safety and Motor Vehicles and obtaining a Certificate of Financial Responsibility from BFR

In addition to these three ways, a person can establish Financial Responsibility by purchasing a commercial insurance policy from a carrier licensed to sell insurance policy in Florida.

Proving Financial Responsibility in Florida

Financial Responsibility in Florida can be proved in the following ways:

• Showing proof of Financial Responsibility Certificate from the Bureau of Financial Responsibility.

• Showing proof of Self-insurance Certificate from the Bureau of Financial Responsibility

• Showing proof of Self-Insurance Certificate from the Bureau of Financial Responsibility


Enforcement mechanism for Financial Responsibility adopted in Florida

A driver or motorist must furnish evidence of Financial Responsibility upon request of law enforcement authorities. In roadside traffic stops police officers usually ask for proof of insurance however they have Personal injury lawno authority to stop a vehicle only for checking their insurance documents. A citation is issued to the motorists who are unable to show proof of insurance and in that case the owner has to show proof of insurance in court.

Any motorist involved in any crash must produce evidence of insurance at the scene. In case a driver is unable to submit proof of insurance at the time of the accident, the driver is granted a period of 30 days for submission of evidence. If a vehicle owner is still unable to produce evidence a notice shall be generated approximately 120 days after the crash. If injury occurs to any person at the time of the accident, the vehicle owner must furnish proof of bodily injury coverage on the date of the crash.

Penalties for Failure in establishing Financial Responsibility

Owners who do not establish Financial Responsibility and thus unable to provide proof of Financial Responsibility can face suspension of registration, license plate, driving privileges in addition to payment of reinstatement fees as per Florida law.

If an out-of-state vehicle owner gets involved in a crash and is uninsured, his driving privilege is suspended until the victim of the accident is compensated.


If you have any questions about you car insurance, or Florida’s financial responsibility law please contact Mark Perenich at [email protected] or by calling 727-386-9677