Litigation Hold Memorandums - Martin County, Florida

LEGAL M E M O 2009-7
To:
All MCSO Personnel
From: Terence E. Nolan, Legal Advisor
Date: December 29, 2009
Re:
Litigation Hold Memos
______________________________________________________________________________
Earlier this year, the U.S. District Court for the Middle District of Florida, entered an order in a
civil case involving the Sheriff of Seminole County in his official capacity as Sheriff, and two
Deputy Sheriffs in their individual capacity. The civil case involved two Deputies, one of whom
was a K-9 Deputy, who were searching for burglary suspects. During the search, the Deputies
went through an opening in a fence, created by the K-9 Deputy, and entered on to the property
of Robert Swofford. Mr. Swofford was awoken by his dog, armed himself and exited his house to
investigate the noise. At some point, Mr. Swofford was shot seven times, resulting in him being
hospitalized for six weeks. Subsequently, the process leading to a civil suit was initiated.
During the course of the civil action, the attorney for Mr. Swofford sent a letter to the Seminole
County Sheriff’s Office requesting that the evidence relating to the shooting case be maintained
in its original order. This evidence included the radios, firearms, magazines, ammunition and
electronic evidence. The legal advisor for the Sheriff’s Office copied the letter to the Sheriff and
the command staff. The Deputies were never given copies of these letters.
As time passed, some of the evidence which was requested to be preserved was destroyed. Both
of the firearms and one of the computers issued to the Deputies, were inventoried and replaced
as part of the regular replacement and upgrade cycles of the SCSO, which include the
replacement of other firearms and computers belonging to other SCOS Deputies. Further, a radio
issued to one of the Deputies can not be accounted for.
As a result, a motion concerning spoliation of the evidence was made by the plaintiff’s lawyer.
Spoliation is the intentional destruction, mutilation, alternation, or concealment of evidence.
Following a hearing on this matter, the Court found that, “nothing but bad faith can be inferred
from the facts of the case.”
As to the Deputies, the Court found that as the Plaintiff’s attorneys were prohibited, under the
Florida Rules of Civil Procedure, from directly contacting the Deputies, that the Deputies had
been put on notice of the preservation issue when the legal advisor for the Sheriff’s Office
received the notice. The Deputies “cannot absolve themselves of liability from their
failure to preserve the evidence by having their counsel withhold the demand for
preservation from them.”
Although the e-mails to and from the one Deputy were deleted, the Plaintiff’s attorney was able
to obtain the instant messages between that Deputy and another LEO. It seems that the Plaintiff
had previously won the Florida Lotto. An e-mail was sent to one of the Deputies involved in the
shooting, in which he was referred to as the “Lotto Killa”. The Deputy involved in the shooting
responded that, he was “going to the sign shop and have that name put on the side of the car.”
At the time this instant message was sent, Swofford was still in the hospital. The Court ordered
that based upon this exchange and the destruction of the other e-mails that the jury can be

given the instruction that they can infer that the deleted e-mails contained information
detrimental to the Deputies.
As to the Sheriff, the Court found that he as defendant was given a copy of the preservation
letter, and was among those who did nothing “to see that the SCSO employees complied
with the SCSO’s legal obligations to preserve the evidence relevant to the Plaintiff’s
Case.”
As to the legal advisor, even though he circulated the preservation letter, and while not a
defendant in the case, never issued any “litigation hold memos to suspend all orders,
practices, or policies that could lead to the destruction of evidence relevant to this
case.”
The sanctions for a finding of spoliation include the award of attorney’s fees and costs associated
with the motion, and the imposition of jury instructions which have detrimental and adverse
inferences against the defendants. Initially a request of over $300,000 in attorney’s fees and
costs was requested by the Plaintiffs. While the judge has yet to rule on the exact amount, she
has ruled that the attorney’s fees and costs are to be awarded.
I recently spoke to the Legal Advisor for Seminole County Sheriff’s Office and he stated that this
matter is presently being appealed. While he believes that the actual awards will be significantly
reduced, the award of some amount will still be ordered. At present, The Florida Sheriff’s Self-
Insurance Fund, which also represents the MCSO and its Deputies in these matters, is covering
the costs of the sanctions. Nevertheless, as the Seminole County Sheriff’s Office was given
notice of the preservation issue, if this matter proceeds to trial, there will be at the very least jury
instructions which will be adverse to the SCSO.