Florida finally receives much needed guidance on what triggers the duty to preserve relevant evidence in anticipation of litigation. In a surprising collateral ruling that resulted from The Florida Supreme Court’s decision in League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015), Florida has finally received some much needed guidance on what triggers the duty to preserve relevant evidence in anticipation of litigation. Under the Federal Rules, the requirement has been clear since Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003).
In Zubulake, the court opined that a litigant’s duty to preserve information is triggered when litigation is “reasonably anticipated.” The court went on to elaborate that the test for “reasonable anticipation of litigation” varies by jurisdiction, but generally, reasonable anticipation of litigation arises when a party knows there is a credible threat of litigation. Events rising to the level of a credible threat of litigation vary, but may include receipt of a demand letter, formal complaint, records subpoena, or the occurrence of an event that typically results in litigation.
Until now, the “trigger” of that duty has been unclear in the State of Florida, but thanks to Detzner, Florida has joined many other states in following the lead of the Federal Courts. In Detzner, the court confirms and clarifies that a “reasonable anticipation of litigation” triggers the duty to preserve relevant evidence. This opinion will have a major impact on how we deal with eDiscovery in the State of Florida and sets the stage for Florida’s stance on eDiscovery issues. It finally gives the bench some tangible guidance to an otherwise inconsistent an unpredictable subject of litigation prior to Detzner. Further, it re-emphasizes the path that eDiscovery is taking from the state level in conjunction to its more progressive counterpart – the federal system.
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