A few years ago, two suntan lotion companies became embroiled in a dispute concerning whether the defendant’s trade dress (consisting of a black suntan lotion bottle with orange and green accents) infringed upon the plaintiff’s suntan lotion bottle, which was also black with orange and green fringe.
In resolving the claim of trade dress infringement, the seminal question was whether consumers would likely be confused as to the manufacturer of the products in question. Because colors are rarely protectable as trade dress, the case should have been lost.
On the morning of a hearing on the plaintiff’s Motion for Preliminary Injunction, the defense lawyer arrived at Court with a display of several different black suntan lotion bottles — in an effort to show that no protection was available because there was no likelihood of consumer confusion.
Just as the United States Magistrate Judge entered the courtroom, the defense lawyer concluded that one of the bottles “didn’t look right” and instructed his associate to remove that bottle from the display. The Magistrate Judge observed the associate, like a quarterback hiding the football, placing the bottle in his pocket. The Hearing was not completed that day. That evening, the plaintiff’s counsel requested an inspection of all bottles that had been part of the defendant’s display. The bottle in question was not produced, although a photograph of the bottle was provided.
Ultimately, the issue of the bottle was presented to the Court as spoliation of evidence. By that point, the bottle had “disappeared” from the law firm holding the evidence “under lock and key.” In a subsequent Order, the Magistrate Judge imposed a sanction, finding that the presence of the missing bottle would have demonstrated the likelihood of confusion. Based on this finding, a Permanent Injunction was issued against the defendant. The defendant was forced to recall all offending bottles from the Market, resulting in a significant loss of sales. As a result of the loss of one of the display bottles, a case that should have been won was lost.
The defendant suntan lotion company then sued its lawyers for malpractice. The case was ultimately settled.
Florida’s Federal courts have defined Spoliation as the intentional destruction, concealment, mutilation, or material alteration of evidence. The moving party must establish: (1) that there was an obligation to preserve the evidence at the time it was destroyed; (2) the evidence was destroyed with a “culpable state of mind;” and (3) a reasonable trier of fact could find that the destroyed evidence would support a claim or defense in the case.
Under Florida state law, Spoliation is established when the party seeking sanctions proves that: 1) the evidence existed at one time; 2) the alleged spoliator had a duty to preserve the evidence; and 3) the evidence was crucial to the movant’s prima facie case or defense. Drastic sanctions, including dismissal, may be appropriate when the moving party has demonstrated an inability to proceed without such evidence.
An important distinction between Florida’s State and Federal courts concerns the commencement of the duty to preserve evidence. Under Federal law, once a party reasonably anticipates litigation, it is obligated to suspend any destruction under its document retention policies and ensure the preservation of relevant documents. Conversely, several Florida intermediate appellate courts have held that there is no common law duty to preserve evidence and that the duty typically arises only after a discovery request or a preservation letter is provided.
Spoliation of evidence is dangerous to litigants and to lawyers, particularly if the Spoliation occurs in connection with the lawyer’s duties. Litigants and their lawyers must take appropriate measures to protect against Spoliation as it can result in the loss of an otherwise winnable case. Always send a preservation letter, and always discuss the scope of this duty with your client.
Andrew C. Hall is the founder and managing partner of Hall, Lamb and Hall, P.A., a Miami-based law firm specializing in complex corporate, business, and securities litigation.
Adam S. Hall is a partner of Hall, Lamb and Hall, P.A. In addition to commercial litigation, Mr. Hall focuses his practice on cases involving professional malpractice, securities, real estate, and probate disputes.
The firm can be contacted at 2665 S. Bayshore Dr., PH 1 Miami, FL 33133 (305) 374-5030 www.hlhlawfirm.com
South Florida Legal Guide Midyear 2015 Edition