Preview
Filing # 138343724 E-Filed 11/11/2021 10:39:18 AM
IN THE COUNTY COURT IN AND FOR
MIAMI-DADE COUNTY FLORIDA
CASE NO. 21-009772-CC-21
BAR NO. 0013980
THE RIGHT SPINAL CLINIC, INC.
A/A/O (HERNANDEZ, LOIDA)
Plaintiff,
vs.
GEICO GENERAL INS. CO.,
Defendant.
_________________________________/
______________________________________________________________________________
PLAINTIFF’S MOTION TO PRESERVE EVIDENCE
AND MOTION TO PROHIBIT SPOLIATION OF THE EVIDENCE
COMES NOW, the Plaintiff, The Right Spinal Clinic, Inc a/a/o Loida Hernandez., by
and through their undersigned attorney, and moves this Honorable Court for an Order Granting
its Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence against
Defendant, GEICO GENERAL INSURANCE COMPANY., pursuant to Florida Rules of Civil
Procedure 1.350 and as grounds therefore states:
1. The Plaintiff filed a complaint for overdue personal injury protection benefits
which are related to a car accident occurring on 3/4/2020.
2. The Plaintiff alleges that the Defendant breached its policy of insurance with its
insured by failing to pay personal injury protection benefits due and owing under the subject
policy.
Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |1
3. The Plaintiff will be seeking information via Requests for Production and
Depositions Duces Tecum in order to aid the prosecution of this case and produce sufficient
evidence at trial to establish the Defendant breached its contract with the insured and subsequent
assignee.
4. The case law in Florida is clear that the Plaintiff has an obligation to preserve the
evidence in order when asserting claims, and therefore, it stands to reason that the same should
apply to the Defendant.
5. Failure to preserve this evidence will impair Plaintiff’s ability to prevail in its
Breach of Contract claim and potentially impair its ability to successfully secure necessary
expert witnesses.
LEGAL AUTHORITY AND LEGAL ARGUMENT
A duty to preserve evidence can arise by contract, by statute, or by a properly served
discovery request after a lawsuit has already been filed. Silhan v. Allstate Ins. Co., 236 F.Supp.
2d 1303, 1309 (N.D.Fla. 2002); (Bondu v. Gurvich, 473 So. 2d 1307, 1312 (Fla. 3d DCA 1984);
Miller v. Allstate, 573 So. 2d 24, 27 (Fla. 3d DCA 1990); Strasser v. Yalamanch, 783 So. 2d
1087, 1093-94 (Fla. 4th DCA 2001). There may be additional circumstances from which a duty
may arise if a party is on notice that documents or tangible items may be relevant or discoverable
in pending or imminent litigation.
In Townsend v. Conshor, Inc., 832 So. 2d 166, 167 (Fla. 2d DCA 2002), the court held in
order to establish a cause of action for spoliation, a party must show:
(1) [the] existence of a potential civil action, (2) a legal or
contractual duty to preserve evidence which is relevant to the
potential civil action, (3) destruction of that evidence, (4)
significant impairment in the ability to prove the lawsuit, (5) a
Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |2
causal relationship between the evidence destruction and the
inability to prove the lawsuit, and (6) damages.
Also in Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1091 (Fla. 4th DCA
2001), quoting Continental Ins. Co. v. Herman, 576 So.2d 313, 315 (Fla. 3d DCA 1990) the
court held in part as follows:
In her amended complaint, Ms.Jost has intertwined her claims of
concealment and destruction of evidence as the basis for the
spoliation charges. Concealment of evidence, however, does not
form a basis for a claim of spoliation. Florida Evergreen Foliage v.
DuPont, 165 F.Supp. 2d 1345, 1360 (S.D.Fla.2001) (concluding
that “‘concealment’ of evidence is not actionable under Florida
law”).
In Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1091 (Fla. 4th DCA 2001),
the court held the essential elements of spoliation of evidence claim are:
(1) existence of a potential civil action, (2) a legal or contractual
duty to preserve evidence which is relevant to the potential civil
action, (3) destruction of that evidence, (4) significant impairment
in the ability to prove the lawsuit, (5) a causal relationship between
the evidence destruction and the inability to prove the lawsuit, and
(6) damages.
That even when it is clear that evidence has been lost while in the custody of a party, the
appropriate sanction varies according to the willfulness or bad faith, of the party who lost the
evidence, the extent of the prejudice suffered by the other party and what is required to cure the
prejudice. Harrell v. Mayberry, 754 So.2d 742, 745 (Fla. 2d DCA 2000); Sponco Mfg., Inc. v.
Alcover, 656 So. 2d 629, 630 (Fla. 3d DCA 1995). Dismissal or default, the harshest of all
sanctions, are reserved for cases in which one party’s loss of evidence renders the opposing party
completely unable to proceed with its case or defense. Harrell, 754 So.2d at 745.
Subsequent to Harrell, the Supreme Court of Florida ruled a claim for spoliation of
Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |3
evidence is not an independent cause of action in Florida. In Martino v. Wal-Mart Stores, Inc.,
908 So. 2d 342 (Fla. 2005), the court stated “the remedy against a first-party defendant for
spoliation of evidence is not an independent cause of action for spoliation of evidence; rather, the
available remedies are discovery sanctions and a Valcin rebuttable presumption of negligence for
the underlying tort.” The court relied upon Public Health Trust of Dade County v. Valcin, 507
So. 2d 596 (Fla. 1987) when it upheld a two-step presumption analysis in regard to spoliation of
evidence accusations in the underlying case.
The Third District found that “the lack of an ‘operative report’ by
the surgeon in Valcin's file impaired the expert's ability to
determine whether the operation had been performed with due
care,” and thus Valcin had been hindered in proving a prima facie
case of negligence against the defendant hospital. Id. at 597. The
Third District created a set of presumptions which were to apply so
that the plaintiff could still maintain the negligence action against
the defendant despite the absence of this key evidence. If the
defendant demonstrated that the loss of evidence was only
negligent, a rebuttable presumption that the defendant was
negligent in the underlying action was to apply. If the loss was
intentional, however, a conclusive, irrebuttable presumption of
negligence was to be entered against the defendant.
Id. Plaintiff has a legal duty to preserve evidence which is relevant to the Plaintiff’s breach of
contract action. The potential destruction of that evidence would result in a significant
impairment in the ability to prove the lawsuit and/or for Plaintiff to prosecute the claim and
severe prejudice to the Plaintiff’s cause/s of action.
Moreover, the courts have recognized the existence of a duty to preserve evidence simply
by virtue of the preparation of a work product incident report. In Hagopian v. Publix
Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001) the court recognized the preparation of
the incident report, coupled with Publix’s refusal to produce it on work product grounds,
Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |4
evidenced that it anticipated litigation, thereby creating a duty to preserve the potential evidence.
Plaintiff’s only remedy in accord with Valcin and Martino is to assert its Motion for
Preservation of Evidence and Motion to Prevent Spoliation of Evidence at this juncture.
In accord with “EXHIBIT A” the Plaintiff requests the Court enter an Order protecting
the listed information from spoliation.
WHEREFORE, based on the foregoing, Plaintiff respectfully requests that this
Honorable Court Grant its Motion to Preserve Evidence and Motion to Prohibit Spoliation of the
Evidence, and asks for any other relief this Court deems just and equitable.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy was submitted to the Florida Courts E-Filing
Portal to be served upon the following persons at the designated email address(es) for service:
Marcus Griggs, Esq., Law Office Of Haydee De La Rosa Tolgyesi, 2600 Douglas Road,
Suite#700, Coral Gables, FL 33134, Miamipipgeico@Geico.Com, this 11th day of November,
2021.
The Evolution Law Group, P.A.
2700 Glades Circle, Suite 145
Weston, FL 33327
Telephone (954) 840 6665
Facsimile (954) 840 6997
E-service:ServiceELG@theevolutionlawGroup.com
George@bgelegal.com
Attorney for Plaintiff
/s/ Kelly M. Arias
Kelly M. Arias Esquire
Florida Bar No. 013980
Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |5
EXHIBIT A
Plaintiff demands that Defendant, Defendant’s Corporate Entities, Agents, Employees
and Attorneys preserve all documents, tangible things and electronically stored information
pertaining to the allegations of this complaint. This demand includes but is not limited to all
Claims files associated with the subject complaint; all underwriting files associated with the
subject complaint and the subject patient, for any and all policies applied for with your company;
all special investigation unit files associated with the subject complaint or any of the providers
associated with the treatment of the subject patient; all district office files associated with the
subject complaint or any of the providers associated with the treatment of the subject patient; any
home office files associated with the subject complaint or any of the providers associated with
the treatment of the subject patient.
You should anticipate that much of the information subject to disclosure or responsive to
discovery in this matter is stored on Defendant’s current and former computer systems and other
media and devices (including personal digital assistants, voice-messaging systems, online
repositories and cell phones).
Electronically stored information (hereinafter “ESI”) should be afforded the broadest
possible definition and includes (by way of example and not as an exclusive list) potentially
relevant information electronically, magnetically or optically stored as:
1. Correspondence;
2. Digital Communications (e.g., e-mail, voice mail, instant messaging);
3. Word processed documents (e.g., Word or Wordperfect documents and drafts)
4. Image and Facsimile Files (e.g., .PDF, .TIFF, .JPG, .GIF images)
5. Sound Recordings (e.g., .WAV and .MP3 files)
6. Databases (e.g., Access, Oracle, SQL server data, SAP)
7. Contract and Relationship Management Data (e.g., Outlook, ACT!)
8. Online Access Data (e.g., Temporary Internet Files, History, Cookies) and Back-up and
archival files (e.g., Zip drives, alternate storage devices, GHO)
9. Presentations (e.g. Powerpoint, Corel Presentations)
10. Any and all computers, including software and hard drives
11. Any and all data stored on scanners, copy machines used in the transcription and
processing of reports related to the claim
Plaintiff requests the Defendant further comply with the following:
1. Suspend routine destruction of the aforementioned items.
2. Guard against deletion of the aforementioned items.
3. Preserve the aforementioned documents in native form (paper preservation is
inadequate).
4. Preserve paper data (e.g., statements, invoices, paper notes, post-it notes, envelopes)
Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |6
5. Preserve Metadata
6. Preserve Server contents via some form of network storage
7. Preserve passwords necessary to access encrypted data
8. Notify any current or former employee, agent, attorney, custodian or contractor to
preserve any potentially relevant ESI.
9. Do not delay preservation
10. Plaintiff requires a confirmation of compliance post order from the Court on this issue.
1.
Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |7
Preview
Filing # 138343724 E-Filed 11/11/2021 10:39:18 AM IN THE COUNTY COURT IN AND FOR MIAMI-DADE COUNTY FLORIDA CASE NO. 21-009772-CC-21 BAR NO. 0013980 THE RIGHT SPINAL CLINIC, INC. A/A/O (HERNANDEZ, LOIDA) Plaintiff, vs. GEICO GENERAL INS. CO., Defendant. _________________________________/ ______________________________________________________________________________ PLAINTIFF’S MOTION TO PRESERVE EVIDENCE AND MOTION TO PROHIBIT SPOLIATION OF THE EVIDENCE COMES NOW, the Plaintiff, The Right Spinal Clinic, Inc a/a/o Loida Hernandez., by and through their undersigned attorney, and moves this Honorable Court for an Order Granting its Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence against Defendant, GEICO GENERAL INSURANCE COMPANY., pursuant to Florida Rules of Civil Procedure 1.350 and as grounds therefore states: 1. The Plaintiff filed a complaint for overdue personal injury protection benefits which are related to a car accident occurring on 3/4/2020. 2. The Plaintiff alleges that the Defendant breached its policy of insurance with its insured by failing to pay personal injury protection benefits due and owing under the subject policy. Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |1 3. The Plaintiff will be seeking information via Requests for Production and Depositions Duces Tecum in order to aid the prosecution of this case and produce sufficient evidence at trial to establish the Defendant breached its contract with the insured and subsequent assignee. 4. The case law in Florida is clear that the Plaintiff has an obligation to preserve the evidence in order when asserting claims, and therefore, it stands to reason that the same should apply to the Defendant. 5. Failure to preserve this evidence will impair Plaintiff’s ability to prevail in its Breach of Contract claim and potentially impair its ability to successfully secure necessary expert witnesses. LEGAL AUTHORITY AND LEGAL ARGUMENT A duty to preserve evidence can arise by contract, by statute, or by a properly served discovery request after a lawsuit has already been filed. Silhan v. Allstate Ins. Co., 236 F.Supp. 2d 1303, 1309 (N.D.Fla. 2002); (Bondu v. Gurvich, 473 So. 2d 1307, 1312 (Fla. 3d DCA 1984); Miller v. Allstate, 573 So. 2d 24, 27 (Fla. 3d DCA 1990); Strasser v. Yalamanch, 783 So. 2d 1087, 1093-94 (Fla. 4th DCA 2001). There may be additional circumstances from which a duty may arise if a party is on notice that documents or tangible items may be relevant or discoverable in pending or imminent litigation. In Townsend v. Conshor, Inc., 832 So. 2d 166, 167 (Fla. 2d DCA 2002), the court held in order to establish a cause of action for spoliation, a party must show: (1) [the] existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |2 causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. Also in Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1091 (Fla. 4th DCA 2001), quoting Continental Ins. Co. v. Herman, 576 So.2d 313, 315 (Fla. 3d DCA 1990) the court held in part as follows: In her amended complaint, Ms.Jost has intertwined her claims of concealment and destruction of evidence as the basis for the spoliation charges. Concealment of evidence, however, does not form a basis for a claim of spoliation. Florida Evergreen Foliage v. DuPont, 165 F.Supp. 2d 1345, 1360 (S.D.Fla.2001) (concluding that “‘concealment’ of evidence is not actionable under Florida law”). In Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1091 (Fla. 4th DCA 2001), the court held the essential elements of spoliation of evidence claim are: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. That even when it is clear that evidence has been lost while in the custody of a party, the appropriate sanction varies according to the willfulness or bad faith, of the party who lost the evidence, the extent of the prejudice suffered by the other party and what is required to cure the prejudice. Harrell v. Mayberry, 754 So.2d 742, 745 (Fla. 2d DCA 2000); Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629, 630 (Fla. 3d DCA 1995). Dismissal or default, the harshest of all sanctions, are reserved for cases in which one party’s loss of evidence renders the opposing party completely unable to proceed with its case or defense. Harrell, 754 So.2d at 745. Subsequent to Harrell, the Supreme Court of Florida ruled a claim for spoliation of Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |3 evidence is not an independent cause of action in Florida. In Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005), the court stated “the remedy against a first-party defendant for spoliation of evidence is not an independent cause of action for spoliation of evidence; rather, the available remedies are discovery sanctions and a Valcin rebuttable presumption of negligence for the underlying tort.” The court relied upon Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987) when it upheld a two-step presumption analysis in regard to spoliation of evidence accusations in the underlying case. The Third District found that “the lack of an ‘operative report’ by the surgeon in Valcin's file impaired the expert's ability to determine whether the operation had been performed with due care,” and thus Valcin had been hindered in proving a prima facie case of negligence against the defendant hospital. Id. at 597. The Third District created a set of presumptions which were to apply so that the plaintiff could still maintain the negligence action against the defendant despite the absence of this key evidence. If the defendant demonstrated that the loss of evidence was only negligent, a rebuttable presumption that the defendant was negligent in the underlying action was to apply. If the loss was intentional, however, a conclusive, irrebuttable presumption of negligence was to be entered against the defendant. Id. Plaintiff has a legal duty to preserve evidence which is relevant to the Plaintiff’s breach of contract action. The potential destruction of that evidence would result in a significant impairment in the ability to prove the lawsuit and/or for Plaintiff to prosecute the claim and severe prejudice to the Plaintiff’s cause/s of action. Moreover, the courts have recognized the existence of a duty to preserve evidence simply by virtue of the preparation of a work product incident report. In Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001) the court recognized the preparation of the incident report, coupled with Publix’s refusal to produce it on work product grounds, Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |4 evidenced that it anticipated litigation, thereby creating a duty to preserve the potential evidence. Plaintiff’s only remedy in accord with Valcin and Martino is to assert its Motion for Preservation of Evidence and Motion to Prevent Spoliation of Evidence at this juncture. In accord with “EXHIBIT A” the Plaintiff requests the Court enter an Order protecting the listed information from spoliation. WHEREFORE, based on the foregoing, Plaintiff respectfully requests that this Honorable Court Grant its Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence, and asks for any other relief this Court deems just and equitable. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy was submitted to the Florida Courts E-Filing Portal to be served upon the following persons at the designated email address(es) for service: Marcus Griggs, Esq., Law Office Of Haydee De La Rosa Tolgyesi, 2600 Douglas Road, Suite#700, Coral Gables, FL 33134, Miamipipgeico@Geico.Com, this 11th day of November, 2021. The Evolution Law Group, P.A. 2700 Glades Circle, Suite 145 Weston, FL 33327 Telephone (954) 840 6665 Facsimile (954) 840 6997 E-service:ServiceELG@theevolutionlawGroup.com George@bgelegal.com Attorney for Plaintiff /s/ Kelly M. Arias Kelly M. Arias Esquire Florida Bar No. 013980 Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |5 EXHIBIT A Plaintiff demands that Defendant, Defendant’s Corporate Entities, Agents, Employees and Attorneys preserve all documents, tangible things and electronically stored information pertaining to the allegations of this complaint. This demand includes but is not limited to all Claims files associated with the subject complaint; all underwriting files associated with the subject complaint and the subject patient, for any and all policies applied for with your company; all special investigation unit files associated with the subject complaint or any of the providers associated with the treatment of the subject patient; all district office files associated with the subject complaint or any of the providers associated with the treatment of the subject patient; any home office files associated with the subject complaint or any of the providers associated with the treatment of the subject patient. You should anticipate that much of the information subject to disclosure or responsive to discovery in this matter is stored on Defendant’s current and former computer systems and other media and devices (including personal digital assistants, voice-messaging systems, online repositories and cell phones). Electronically stored information (hereinafter “ESI”) should be afforded the broadest possible definition and includes (by way of example and not as an exclusive list) potentially relevant information electronically, magnetically or optically stored as: 1. Correspondence; 2. Digital Communications (e.g., e-mail, voice mail, instant messaging); 3. Word processed documents (e.g., Word or Wordperfect documents and drafts) 4. Image and Facsimile Files (e.g., .PDF, .TIFF, .JPG, .GIF images) 5. Sound Recordings (e.g., .WAV and .MP3 files) 6. Databases (e.g., Access, Oracle, SQL server data, SAP) 7. Contract and Relationship Management Data (e.g., Outlook, ACT!) 8. Online Access Data (e.g., Temporary Internet Files, History, Cookies) and Back-up and archival files (e.g., Zip drives, alternate storage devices, GHO) 9. Presentations (e.g. Powerpoint, Corel Presentations) 10. Any and all computers, including software and hard drives 11. Any and all data stored on scanners, copy machines used in the transcription and processing of reports related to the claim Plaintiff requests the Defendant further comply with the following: 1. Suspend routine destruction of the aforementioned items. 2. Guard against deletion of the aforementioned items. 3. Preserve the aforementioned documents in native form (paper preservation is inadequate). 4. Preserve paper data (e.g., statements, invoices, paper notes, post-it notes, envelopes) Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |6 5. Preserve Metadata 6. Preserve Server contents via some form of network storage 7. Preserve passwords necessary to access encrypted data 8. Notify any current or former employee, agent, attorney, custodian or contractor to preserve any potentially relevant ESI. 9. Do not delay preservation 10. Plaintiff requires a confirmation of compliance post order from the Court on this issue. 1. Plaintiff’s Motion to Preserve Evidence and Motion to Prohibit Spoliation of the Evidence |7