Most litigators are familiar with this call from a client: “I just opened a letter from an attorney instructing my company to preserve all documents and follow a bunch of instructions about what to do with our electronic data and email. I’ve never heard of the case the attorney mentions. It doesn’t involve us. Do I have to follow all of these instructions?”

In a recent decision, Florida’s Third District Court of Appeals may have provided an answer. On April 26, the appellate court held that Florida law does not “impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation,” see Shamrock-Shamrock v. Remark, Case No. 5D18-1987, 2019 WL 1868175, — So. 3d — (Fla. 3d DCA Apr. 26, 2019). In the underlying action, Shamrock-Shamrock, Inc. (Shamrock), a property owner, had filed a complaint against the city of Daytona Beach relating to a zoning dispute. In the complaint, Shamrock alleged that Tracey Remark, a third party, had participated in hearings and written a letter relevant to the zoning dispute.

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