Florida Considering Rule Requiring Preservation of Emails

If you are injured in an accident, you may be more than willing to give the other side any information you have about your accident. You may be eager to tell them what they did wrong, how you were injured, and about the disabilities and limitations that you now face because of your accident.

As a general rule, parties can only produce to the other side things or items that they actually have. But often items get lost or destroyed, even accidentally, and thus are not available to give to the other side. One area where this happens is with emails, but Florida law is getting a lot tougher when it comes to making people and businesses turn their emails over to the other side.

New Proposed Rule Requires Preservation of Emails

Emails have always been discoverable in a lawsuit (at least, any emails that are related to anything about your accident or your injuries). But many of us routinely delete our emails, in order to clear storage space, or just to tidy up our inboxes.

A new proposed rule will now punish any party—victim or Defendant—who knowingly deletes emails when it is foreseeable that the emails could be relevant to any issue in a lawsuit. The proposed new rule could even be interpreted to prohibit the accidental or routine deletion of such emails.

When the Duty Starts

At the point that you are injured in an accident—even before you actually hire an attorney—you should avoid deleting or trashing any emails related to anything related to your accident or your injuries. If you are uncertain which emails can be deleted and which can’t you may want to run them by your personal injury attorney for review.

Even emails that seem trivial or insignificant, such as an email from you to your boss saying “I can’t come into work today because my back hurts” would need to be saved.

The good news is that the rule also applies to Defendants, which means that big companies can’t use routine deletion of data as an excuse for not producing emails related to a case.

Sanctions for Violators

The penalty for deleting emails that should have been saved can be severe. It can include a presumption that the substance of the email works against a party. That means that the jury can be instructed to assume that a now deleted email said something that is against the victim’s case, in the event there is a factual dispute between the victim and the Defendant.

Another big lesson here is to remember that your emails are not entirely private, and you should never put anything in writing through an email that you don’t want the other side to discover. Emails are not privileged or private. Deleting emails to “hide” them also can do more harm than good.

The Tampa personal injury attorneys at Barbas, Nuñez, Sanders, Butler & Hovsepian can help you prepare for your injury trial from the very beginning. Call us today to discuss obtaining damages for your injuries. Schedule a consultation today.

Resources:

americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2017/a-practical-look-at-preserving-esi/

floridasupremecourt.org/content/download/544265/6133188/file/sc19-108.pdf

https://www.barbaslaw.com/sometimes-you-cant-sue-in-florida/