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Filing # 81457339 E-Filed 11/30/2018 01:06:15 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
MICHAEL CLOUTIER Case No.: [* *]_2017-000815-CA
Plaintiff Division: [* *
vs.
STEWART CHRISTOPHER KITTS,
SAUNDRA BUSCEMI KITTS,
ELIZABETH CHRISTINE KITTS
Defendants
PLAINTIFF’S MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE
HERE COMES, the Plaintiff, MICHAEL CLOUTIER, Pro Se, and moves the Court to strike
the Defendant's Affirmative Defenses, and for sanctions, including the award of reasonable costs and
fees for Defendant’s common law spoliation of evidence and violations of Fed.R.Civ.P. 37(e),
Fla.R.Civ.P. 1.380(b)(2)(c) and Fla.R.Civ.P. 1.380(e) and in good faith as grounds states the following:
CASE HISTORY C INCERNING SPOLIATION
ELIZABETH C. KITTS (“Elizabeth”) is a defendant in a related civil action in Case No.:
2016-CA-003421-NC in Sarasota County, initiated on July 7, 2016 for a single count of
Malicious Prosecution, which is currently pending trial on August 19, 2019.
The Defendants attorney of record, Mr. Aker, is also the attorney of record for Elizabeth in
the Sarasota County case.
Elizabeth had a litigation hold in effect since the Calendar year 2016 prior to this action
containing documentary evidence necessary for this current action.
The Defendant’s affirmative defenses are based solely on communication between Elizabeth
and the Plaintiff, thirteen (13) months prior to Elizabeth filing an Ex-Parte Injunction for
Protection Against Stalking on the Plaintiff in Sarasota County.
The material evidence has been destroyed after two (2) court orders requiring the Defendants
to produce the information and many requests for the Defendants to retain the information.
On February 5, 2018, the Defendants provided Mr. Aker a response to Plaintiffs First
Request for Production. The Defendants provided Mr. Aker screenshots of Elizabeth’s iPhone
with text messages exchanged between Elizabeth and material witness NATALIE M. KITTS
(“Natalie”), and between Elizabeth and material witness BRANDIS B. GODWIN (“Brandis”).
The screenshots of Elizabeth’s iPhone have an origin metadata date stamp beginning on
2018-02-05 10:14:27PM, meaning all images the Defendant’s production response were taken
on February 5, 2018.
On February 9, 2018 2:41 p.m. the Plaintiff received the Defendants response to the First
Request for Production via e-mail from Mr. Aker containing the forwarded .eml files that
were originally sent to Mr. Aker by the Defendants.
On February 10, 2018 the Plaintiff e-mailed Mr. Aker and stated:
“The text messages between Elizabeth and Brandis Godwin are not complete. They
left out parts of the communication that are quite important! They also do not show
dates of when the communication transpired (Elizabeth hand writing them in will
also not be acceptable). so please ask your client to produce the proper text message
history in the correct order, without duplicate pages and with proper dates.”
“Based on the timestamp of the screenshots she sent you, she still has access to all of
this information on her device and any attempt to destroy it will not be tolerated by
the Court, so please notify her not to destroy any information as it has been recently
screenshot and sent to you.”
“Tf there is any more documentary information that has not been furnished as part of
the production request, you were ordered by the Court to furnish the discovery
2
requests and still to this date we do not have the proper information or format from
Saundra and Elizabeth’s production requests.”
10. On November 13, 2018, the Plaintiff, conducted a video deposition of Natalie. The Plaintiff
had served Natalie a Subpoena Duces Tecum, referencing the same document request
propounded on Elizabeth in the Plaintiff's First Request for Production and the Plaintiffs
Second Request for Production. At the deposition, Natalie told the Plaintiff she had nothing
to provide the Plaintiff as she had factory reset her phone losing all data and also received a
new phone in February 2018.
11 In addition, the Defendants alleged material witness Brandis provides a similar statement at
her deposition on October 31, 2018:
Brandis. I have text messages between me and Elizabeth Kitts from -- I mean, I got
a new phone earlier this year, so I wasn't able to retrieve anything from before that,
but you are welcome to contact my service provider and retrieve that information.
12. The Plaintiff attempted to retrieve the information from both sources and the text messages
have been concealed or destroyed by the Defendants and the Defendants alleged material
witnesses.
13. Furthermore, the Plaintiff has identified additional communication concealed from the
Plaintiff's First and Second Production Requests.
14, The communication produced in the response to the First Production Request were evasive
containing fragments of conversations regarding the Plaintiff or the Defendant’s employment
with the CSO and a majority of the text messages were missing dates and timestamps of
when the communication had transpired.
15. A few of the conversation fragments provided by the Defendants were construed to implicate
the Plaintiff of additional allegations later discovered in the depositions of Saundra and
Elizabeth to have no relation to the Plaintiff.
16. On September 22, 2018 the Plaintiff served the Defendants, Plaintiffs Second Request for
Production on Elizabeth, requesting the fragmented missing text messages, and the date and
timestamps from the text-message communication between Elizabeth and Natalie. The
Defendant’s response was:
Plaintiff [sic] attempted to access the text messages but was unable to do so.
Plaintiff [sic] contacted MetroPCS to try and recover them and they stated
they are unable to access the text messages.
17. The Defendants destroyed or were negligent in their duty to hold and preserve text-message,
e-mail, and phone record communication necessary for this action. The Defendants were
ordered to produce the items in two court orders on November 28, 2018 and August 8, 2018,
and then failed to retain them after the Plaintiff, acting Pro Se, and in addition the Plaintiff's
attorney of Record ALBERT TISEO, ESQ. had requested them repeatedly.
18. The Defendants response to destroyed evidence is “it was not relevant.” Or “I tried to access
them and it is just not working.”
19. Elizabeth failed to provide or has destroyed a written statement described in Elizabeth's text
message communication with Brandis regarding a sworn statement, to be used in court that
Elizabeth had drafted for Brandis, containing events Brandis had allegedly witnessed, and
for Brandis to make any corrections, sign it and return it to Elizabeth before an injunction
hearing on May 25, 2018.
20. Elizabeth testified in her deposition on August 22, 2018, that the statement was never
constructed, yet later discovered on November 01, 2018 in the Plaintiff's Second Production
Request, additional communication between Elizabeth and Brandis where Elizabeth tells
Brandis she couldn't use the sworn statement in court on May 25, 2016 because it wasn’t
legal and Brandis had to have actually witnessed the events.
21 On May 25, 2016 Elizabeth alleged on her affidavit for injunction against the Plaintiff, to
material witness Brandis, to the Plaintiffs employer CINDY SCARUFFI-KLISPIE, and to
the presiding Judge of an injunction trial, the Plaintiff had sent her money and gifts to her
home.
22. Throughout the course of Discovery in this action, the Plaintiff, acting Pro Se, and the
Plaintiff's attorney of record at the time ALBERT TISEO, ESQ (“Mr. Tiseo”) asked the
Defendants to produce any information regarding these allegations and the Defendants have
failed to produce it.
23. Within text message communication between Elizabeth and Brandis, Elizabeth describes to
Brandis money that had been “sent to her mother”, and a “MacBook sent to her brother”,
having no relation to Elizabeth.
24. The Defendants have destroyed the evidence to conceal the fact that Elizabeth was never the
recipient of these alleged gifts and used it to falsely accuse the Plaintiff to further the
Defendant’s scheme against the Plaintiff.
25. Furthermore, On August 22, 2018 at the deposition of Elizabeth, when asked about the
allegations of money and gifts outlined in Elizabeth’s text messages, Elizabeth stated under
oath that she “had never actually seen the evidence”, and it was “only described to her by her
mother.”
26. The Defendants have and continue to conceal, destroy material evidence, abuse the discovery
process, and hinder the questioning of material witnesses in this action. They have failed to
make any efforts to retain documents necessary for the Plaintiff's prima facie case.
MEMORANDUM OF LAW
L ‘HE PURPOSEFUL DESTRUCTI! NN OF RECORD: HT BY REQUEST:
RR PRODUCTI IN IN ON ING LITIGATION IS A MAJOR DISC RY
VIOLATION
Defendants have destroyed records that were the subject of Requests for Production after the
requests for production were served and after a Motion to Compel was filed. Rule 1.380, Fla. R. Civ.
Proc. sanctions for destruction of evidence while a lawsuit is pending are readily imposed by courts,
and usually are one of the more onerous options selected. Florida law recognizes a heightened duty
to preserve evidence. “[A] party does have an affirmative responsibility to preserve any items or
documents that are the subject of a duly served discovery request.” Strasser v. Yalamanchi, 783
So.2d 1087, 1098 (Fla. 4th DCA 2001). The Fourth District recognizes that striking of defenses is an
appropriate sanction for failure to preserve evidence after a lawsuit is filed, even if the destruction of
the evidence may have resulted from negligence. Nationwide Lift Trucks, Inc. v. Smith, 832 So.2d
824, 826 (Fla. 4th DCA., 2002); Silhan v. Allstate Ins. Co., 236 F.Supp.2d 1303, 1311 (N.D.Fla.,
2002).
There are two different types of spoliation of evidence claims. See Bard D. Rockenbach,
Spoliation of Evidence: A Double-Edged Sword, 75 Fla. B.J. 34 (2001). The first type occurs when a
party, during litigation, destroys or loses evidence that is vital to the opposing party. See id. Such
loss is then treated by the court as a discovery violation, which is subject to a variety of discretionary
sanctions. See id. The second type is an independent cause of action. See id. at 36.
Under Florida law, spoliation is established when the party seeking sanctions proves: “(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.” Golden Yachts, Inc. v. Hall, 920
So.2d 777, 781 (Fla. 4th DCA 2006). Where a party loses crucial evidence and the loss of that
evidence prejudices the opposing party’s ability to prosecute or defend the claim, appropriate
sanctions should be imposed. Depuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983) (holding that
loss of crucial evidence should have resulted in striking of defendants’ answer). “What sanctions are
appropriate when a party fails to preserve evidence in its custody depends on the willfulness or bad
faith, if any, of the party responsible for the loss of the evidence, the extent of prejudice suffered by
the other party or parties, and what is required to cure the prejudice.” Sponco Manufacturing, Inc. v.
Alcover, 656 So. 2d 629 (Fla. 3d DCA 1995). “Drastic sanctions, including default, are appropriate
when a defendant alters or destroys physical evidence, and when the Plaintiff has demonstrated an
inability to proceed without such evidence.” Id. at 630. When evidence is intentionally lost, misplaced
or destroyed by one party, a trial court can rely upon sanctions found in Florida Rules of Civil
Procedure 1.380(b)(2). See Martino v. Walmart Stores, Inc., 908 So. 2d 342 (Fla. 2005).
6
Here, the evidence was intentionally destroyed. The Defendants were served with the
Complaint and was aware of this litigation, failed to provide the Plaintiff the requested documents
after numerous attempts and two Court Orders requiring the Defendants to produce the documents.
The Defendants destroyed those records despite having an obligation to preserve them during the
pendency of this action.
IL. 'HE DEFENDANTS HAD A DUTY TO PRESERVE THE EVIDENCE; THEY
DESTROYED THE EVIDNECE; AND ITS DESCTRUCTION SEVERELY
JUDICES THE PLAINTIF:
It is undisputed that communication and evidence destroyed or negligently lost existed at the
time this lawsuit was filed in September 2017 and was in the possession of the Defendants in
February 05, 2018. Defendants had a duty, and in fact was required under Federal and Florida Law
to preserve the records. In addition, the Defendants alleged material witnesses have also alleged to
have lost the evidence. Lastly, the Defendants have another independent basis for preserving such
originals pursuant to their obligations under this lawsuit. The documents and communication are
the subject of pending discovery requests in this action. As part of the subject matter of this lawsuit,
there is a duty to preserve. Strasser v. Yalamanchi, 783 So.2d 1087, 1093 (Fla. 4th DCA 2001). The
testimony of Elizabeth, Natalie, and Brandis have established that the records were conveniently
destroyed in early 2018 after the Plaintiff had requested the Defendant’s attorney of record to notify
his clients to retain the records.
Furthermore, there is no doubt that, as a direct result of the Defendants failure to preserve
evidence, the Plaintiff is permanently prevented from reviewing the communications, regarding the
Plaintiff, by the Defendants, and the Defendants’ alleged material witnesses regarding obtaining a
restraining order or having the Plaintiff removed from his employment. Rockwell Int'l Corp. v.
Menzies, 561 So. 2d 677, 680 (Fla. 3d DCA 1990) (defendant/manufacturer’s alteration of saw by
removal of bolts left Plaintiffs with no way of challenging the conclusion of defendant's experts, made
its defense to plaintiffs prima facie case unassailable, and justified striking defendant’s pleadings
and entering default on liability).
Where there has been a “substantial and complete nature of the destruction of evidence by
the spoliator” a finding of prejudice is justified. Id.; see also Residential Funding Corp. v. DeGeorge
Fin. Corp., 306 F. 3d 99, 109 (2d Cir. 2002); E*Trade Sec., LLC v. Deutsche Bank AG, 230 F.R.D. 582.
592 (D.Minn.20085); see also In re Krause, 367 B.R. 740, 749 (Bankr. D.Kan. 2007) (spoliation found
where debtor used security program to permanently wipe or purge files on hard drive after court
ordered him to turn over computer).
For example, in Public Health Trust of Dade Countyy. Valcin, 507 So. 2d. 596, 600 (Fla.
1987), the Florida Supreme Court dismissed the notion that a “vanishing presumption” would be the
appropriate sanction for the spoliation of evidence, and noted the irony that the selective destruction
of evidence by a defendant deprives plaintiffs of the tools with which to rebut “the self-serving
testimony of the defendant.”
In another similar case, involving the blatant deletion of data, the District Court for the
Middle District of Florida found that sanctions were required to keep the spoliator from benefitting
from its intentional conduct and to deter others from similar conduct in the future. Pacific Coast
Marine Windshields Ltd. v. Malibu Boats, LLC, 2012 WL 10817204, *10 (M.D.Fla. November 30,
2012); see also Collazo—Santiago v. Toyota Motor Corp., 149 F.3d 23, 29 (1st Cir.1998) (the spoliation
doctrine is concerned not only with rectifying prejudice, but with deterring similar misconduct in the
future).
When there is a basis for imposing spoliation sanctions, “the appropriate sanction varies
according to 1.) the willfulness or bad faith, if any, of the party who lost the evidence, 2.) the extent
of the prejudice suffered by the other party, and 3.) what is required to cure the prejudice.” Fleury v.
Biomet, Inc., 865 So. 2d 537, 589 (Fla. gad DCA); see also, Harrell v. Mayberry, 754 So. 2d 742 (Fla.
gnd DCA 2000); Sponco Mfg. Inc., v. Alcover, 656 So. 2d 629 (Fla. gid DCA 1995).
Ill. STRIKING DEFENDANT’S PLEADINGS IS THE APPROPRIATE REMEDY.
Where a party willfully destroys evidence after having a clear duty to maintain the
information, Courts do not hesitate to strike its pleadings. See Taylor v. Mitre, 2012 WL 5473715
(E.D. Va. Sept. 10, 2012) (granting motion for dismissal with prejudice for plaintiff's destruction of
his hard drive and ruining of evidence by eliminator and cleaner programs); Gutman v. Klien, 2008
WL 4682298, *12 (E.D.N.Y. Oct. 15, 2008) (finding that use of a hard drive wiping program
“Grretrievably deleted computer files that likely contained important discovery information” and may
have deprived the aggrieved party of “crucial evidence” sufficient to warrant a default judgment and
attorney's fees and costs); Ameriwood Indus., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3,
2007) (entering default judgment and awarding fees and costs because defendant's intentional use of
“Window Washer” scrubbing software “evidence a serious disregard for the judicial process and
prejudice plaintiff’); Arista Records, LLC v. Tschirhart, 241 F.R.D. 462, 466 (W.D. Tex. 2006)
(awarding fees and costs and proposing an order of default judgment against defendant who willfully
destroyed evidence by installing data-wiping software); Communications Center, Inc. v. Hewitt, 2005
WL 3277983, *2 (E.D. Cal. April 5, 2005) (recommending entry of default against defendant for use
of Evidence Eliminator software while under a court order to undergo computer imaging finding it
showed a “stark affront to the judicial process”). In matter of fact, the Fourth District recognizes that
striking of defenses is an appropriate sanction for failure to preserve evidence after a lawsuit is filed,
even if the destruction of the evidence may have resulted from negligence. Nationwide Lift Trucks,
Inc. v. Smith, 832 So.2d 824, 826 (Fla. 4th DCA, 2002).
The Plaintiff is severely prejudiced by the Defendants deliberate and willful destruction or
non-excusable neglect of all communication between Elizabeth and material witness Natalie,
Elizabeth and Lorraine H. English, Stewart and the CSO regarding his removal as concertmaster,
and Saundra’s destruction and sale of material evidence regarding allegations used against the
Plaintiff in multiple court proceedings.
More importantly, Defendants compromised the integrity of the judicial process in not
seeking a court order and destroying evidence subject to discovery. Parties who destroy material
evidence in the course of discovery after many requests by the opposing party, must be sanctioned;
otherwise, the public will have no confidence in the system and future violations will grow
exponentially.
Consequently, the Defendants should be sanctioned for spoliation of evidence. Because the
evidence destroyed was material, and the destruction was complete and prejudicial. Plaintiff
requests that Defendants’ pleadings be stricken with prejudice pursuant to Rule 1.380 (b)(2)(C).
Plaintiff incurred fees and costs that should be recoverable, as a consequence of the destruction of
the records in question, without notice to the Plaintiff, or to the Court, and accordingly, the Plaintiff
should be entitled to recover costs associated with a lawsuit seeking inspection and copying of
records that were destroyed.
WHEREFORE, the Plaintiff, requests that this Court GRANT Plaintiff's Motion for
Spoliation of Evidence and Motion to Strike Defendant’s Affirmative Defenses and for sanction:
1 Enter a finding of fact that the destruction of the Defendants documents and communication
regarding the Plaintiff or documents and items used to falsely accuse the Plaintiff in the
calendar years 2014-2016, after requests for production were served and a motion to compel
was filed, constitutes spoliation of evidence and a discovery violation subject to penalty under
the inherent authority of this Court and under Fla.R. Civ. P 1.380(b)(2)(C);
Strike all or in part the Defendant’s Affirmative Defenses as a result of Defendant’s
spoliation of Evidence;
Make a determination that the Plaintiff is entitled to costs associated with the inspection of
records that were destroyed.
Determine that Plaintiff is entitled to an award of reasonable costs and fees for Defendant's
Spoliation of Evidence and violations of Fla.R.Civ.P 1.380(b)(2)(c);
The court reserve jurisdiction and hold a separate hearing to determine the amount of
attorney’s fees or costs to award.
Such other relief as the court determines is needed.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of hereof has been served via the Florida
Courts E-Filing Portal to Stewart C. Kitts, Saundra B. Kitts, and Elizabeth C. Kitts via the
Defendants’ attorney of record E. Dusty Aker 240 S. Pineapple Ave., Suite 803, Sarasota, Florida
34236, e-mail address: dustyaker@akerlawfirm.com and assistant@akerlawfirm.com, on November
23, 2018.
Respectfully submitted,
Mobo Coster
Michael Cloutier
Plaintiff in Pro Per
520 Crocus Rd
Venice, FL 34293
Telephone: (941) 587-6504
E-Mail: viotech@comcast.nei
11
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Filing # 81457339 E-Filed 11/30/2018 01:06:15 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION MICHAEL CLOUTIER Case No.: [* *]_2017-000815-CA Plaintiff Division: [* * vs. STEWART CHRISTOPHER KITTS, SAUNDRA BUSCEMI KITTS, ELIZABETH CHRISTINE KITTS Defendants PLAINTIFF’S MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE HERE COMES, the Plaintiff, MICHAEL CLOUTIER, Pro Se, and moves the Court to strike the Defendant's Affirmative Defenses, and for sanctions, including the award of reasonable costs and fees for Defendant’s common law spoliation of evidence and violations of Fed.R.Civ.P. 37(e), Fla.R.Civ.P. 1.380(b)(2)(c) and Fla.R.Civ.P. 1.380(e) and in good faith as grounds states the following: CASE HISTORY C INCERNING SPOLIATION ELIZABETH C. KITTS (“Elizabeth”) is a defendant in a related civil action in Case No.: 2016-CA-003421-NC in Sarasota County, initiated on July 7, 2016 for a single count of Malicious Prosecution, which is currently pending trial on August 19, 2019. The Defendants attorney of record, Mr. Aker, is also the attorney of record for Elizabeth in the Sarasota County case. Elizabeth had a litigation hold in effect since the Calendar year 2016 prior to this action containing documentary evidence necessary for this current action. The Defendant’s affirmative defenses are based solely on communication between Elizabeth and the Plaintiff, thirteen (13) months prior to Elizabeth filing an Ex-Parte Injunction for Protection Against Stalking on the Plaintiff in Sarasota County. The material evidence has been destroyed after two (2) court orders requiring the Defendants to produce the information and many requests for the Defendants to retain the information. On February 5, 2018, the Defendants provided Mr. Aker a response to Plaintiffs First Request for Production. The Defendants provided Mr. Aker screenshots of Elizabeth’s iPhone with text messages exchanged between Elizabeth and material witness NATALIE M. KITTS (“Natalie”), and between Elizabeth and material witness BRANDIS B. GODWIN (“Brandis”). The screenshots of Elizabeth’s iPhone have an origin metadata date stamp beginning on 2018-02-05 10:14:27PM, meaning all images the Defendant’s production response were taken on February 5, 2018. On February 9, 2018 2:41 p.m. the Plaintiff received the Defendants response to the First Request for Production via e-mail from Mr. Aker containing the forwarded .eml files that were originally sent to Mr. Aker by the Defendants. On February 10, 2018 the Plaintiff e-mailed Mr. Aker and stated: “The text messages between Elizabeth and Brandis Godwin are not complete. They left out parts of the communication that are quite important! They also do not show dates of when the communication transpired (Elizabeth hand writing them in will also not be acceptable). so please ask your client to produce the proper text message history in the correct order, without duplicate pages and with proper dates.” “Based on the timestamp of the screenshots she sent you, she still has access to all of this information on her device and any attempt to destroy it will not be tolerated by the Court, so please notify her not to destroy any information as it has been recently screenshot and sent to you.” “Tf there is any more documentary information that has not been furnished as part of the production request, you were ordered by the Court to furnish the discovery 2 requests and still to this date we do not have the proper information or format from Saundra and Elizabeth’s production requests.” 10. On November 13, 2018, the Plaintiff, conducted a video deposition of Natalie. The Plaintiff had served Natalie a Subpoena Duces Tecum, referencing the same document request propounded on Elizabeth in the Plaintiff's First Request for Production and the Plaintiffs Second Request for Production. At the deposition, Natalie told the Plaintiff she had nothing to provide the Plaintiff as she had factory reset her phone losing all data and also received a new phone in February 2018. 11 In addition, the Defendants alleged material witness Brandis provides a similar statement at her deposition on October 31, 2018: Brandis. I have text messages between me and Elizabeth Kitts from -- I mean, I got a new phone earlier this year, so I wasn't able to retrieve anything from before that, but you are welcome to contact my service provider and retrieve that information. 12. The Plaintiff attempted to retrieve the information from both sources and the text messages have been concealed or destroyed by the Defendants and the Defendants alleged material witnesses. 13. Furthermore, the Plaintiff has identified additional communication concealed from the Plaintiff's First and Second Production Requests. 14, The communication produced in the response to the First Production Request were evasive containing fragments of conversations regarding the Plaintiff or the Defendant’s employment with the CSO and a majority of the text messages were missing dates and timestamps of when the communication had transpired. 15. A few of the conversation fragments provided by the Defendants were construed to implicate the Plaintiff of additional allegations later discovered in the depositions of Saundra and Elizabeth to have no relation to the Plaintiff. 16. On September 22, 2018 the Plaintiff served the Defendants, Plaintiffs Second Request for Production on Elizabeth, requesting the fragmented missing text messages, and the date and timestamps from the text-message communication between Elizabeth and Natalie. The Defendant’s response was: Plaintiff [sic] attempted to access the text messages but was unable to do so. Plaintiff [sic] contacted MetroPCS to try and recover them and they stated they are unable to access the text messages. 17. The Defendants destroyed or were negligent in their duty to hold and preserve text-message, e-mail, and phone record communication necessary for this action. The Defendants were ordered to produce the items in two court orders on November 28, 2018 and August 8, 2018, and then failed to retain them after the Plaintiff, acting Pro Se, and in addition the Plaintiff's attorney of Record ALBERT TISEO, ESQ. had requested them repeatedly. 18. The Defendants response to destroyed evidence is “it was not relevant.” Or “I tried to access them and it is just not working.” 19. Elizabeth failed to provide or has destroyed a written statement described in Elizabeth's text message communication with Brandis regarding a sworn statement, to be used in court that Elizabeth had drafted for Brandis, containing events Brandis had allegedly witnessed, and for Brandis to make any corrections, sign it and return it to Elizabeth before an injunction hearing on May 25, 2018. 20. Elizabeth testified in her deposition on August 22, 2018, that the statement was never constructed, yet later discovered on November 01, 2018 in the Plaintiff's Second Production Request, additional communication between Elizabeth and Brandis where Elizabeth tells Brandis she couldn't use the sworn statement in court on May 25, 2016 because it wasn’t legal and Brandis had to have actually witnessed the events. 21 On May 25, 2016 Elizabeth alleged on her affidavit for injunction against the Plaintiff, to material witness Brandis, to the Plaintiffs employer CINDY SCARUFFI-KLISPIE, and to the presiding Judge of an injunction trial, the Plaintiff had sent her money and gifts to her home. 22. Throughout the course of Discovery in this action, the Plaintiff, acting Pro Se, and the Plaintiff's attorney of record at the time ALBERT TISEO, ESQ (“Mr. Tiseo”) asked the Defendants to produce any information regarding these allegations and the Defendants have failed to produce it. 23. Within text message communication between Elizabeth and Brandis, Elizabeth describes to Brandis money that had been “sent to her mother”, and a “MacBook sent to her brother”, having no relation to Elizabeth. 24. The Defendants have destroyed the evidence to conceal the fact that Elizabeth was never the recipient of these alleged gifts and used it to falsely accuse the Plaintiff to further the Defendant’s scheme against the Plaintiff. 25. Furthermore, On August 22, 2018 at the deposition of Elizabeth, when asked about the allegations of money and gifts outlined in Elizabeth’s text messages, Elizabeth stated under oath that she “had never actually seen the evidence”, and it was “only described to her by her mother.” 26. The Defendants have and continue to conceal, destroy material evidence, abuse the discovery process, and hinder the questioning of material witnesses in this action. They have failed to make any efforts to retain documents necessary for the Plaintiff's prima facie case. MEMORANDUM OF LAW L ‘HE PURPOSEFUL DESTRUCTI! NN OF RECORD: HT BY REQUEST: RR PRODUCTI IN IN ON ING LITIGATION IS A MAJOR DISC RY VIOLATION Defendants have destroyed records that were the subject of Requests for Production after the requests for production were served and after a Motion to Compel was filed. Rule 1.380, Fla. R. Civ. Proc. sanctions for destruction of evidence while a lawsuit is pending are readily imposed by courts, and usually are one of the more onerous options selected. Florida law recognizes a heightened duty to preserve evidence. “[A] party does have an affirmative responsibility to preserve any items or documents that are the subject of a duly served discovery request.” Strasser v. Yalamanchi, 783 So.2d 1087, 1098 (Fla. 4th DCA 2001). The Fourth District recognizes that striking of defenses is an appropriate sanction for failure to preserve evidence after a lawsuit is filed, even if the destruction of the evidence may have resulted from negligence. Nationwide Lift Trucks, Inc. v. Smith, 832 So.2d 824, 826 (Fla. 4th DCA., 2002); Silhan v. Allstate Ins. Co., 236 F.Supp.2d 1303, 1311 (N.D.Fla., 2002). There are two different types of spoliation of evidence claims. See Bard D. Rockenbach, Spoliation of Evidence: A Double-Edged Sword, 75 Fla. B.J. 34 (2001). The first type occurs when a party, during litigation, destroys or loses evidence that is vital to the opposing party. See id. Such loss is then treated by the court as a discovery violation, which is subject to a variety of discretionary sanctions. See id. The second type is an independent cause of action. See id. at 36. Under Florida law, spoliation is established when the party seeking sanctions proves: “(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.” Golden Yachts, Inc. v. Hall, 920 So.2d 777, 781 (Fla. 4th DCA 2006). Where a party loses crucial evidence and the loss of that evidence prejudices the opposing party’s ability to prosecute or defend the claim, appropriate sanctions should be imposed. Depuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983) (holding that loss of crucial evidence should have resulted in striking of defendants’ answer). “What sanctions are appropriate when a party fails to preserve evidence in its custody depends on the willfulness or bad faith, if any, of the party responsible for the loss of the evidence, the extent of prejudice suffered by the other party or parties, and what is required to cure the prejudice.” Sponco Manufacturing, Inc. v. Alcover, 656 So. 2d 629 (Fla. 3d DCA 1995). “Drastic sanctions, including default, are appropriate when a defendant alters or destroys physical evidence, and when the Plaintiff has demonstrated an inability to proceed without such evidence.” Id. at 630. When evidence is intentionally lost, misplaced or destroyed by one party, a trial court can rely upon sanctions found in Florida Rules of Civil Procedure 1.380(b)(2). See Martino v. Walmart Stores, Inc., 908 So. 2d 342 (Fla. 2005). 6 Here, the evidence was intentionally destroyed. The Defendants were served with the Complaint and was aware of this litigation, failed to provide the Plaintiff the requested documents after numerous attempts and two Court Orders requiring the Defendants to produce the documents. The Defendants destroyed those records despite having an obligation to preserve them during the pendency of this action. IL. 'HE DEFENDANTS HAD A DUTY TO PRESERVE THE EVIDENCE; THEY DESTROYED THE EVIDNECE; AND ITS DESCTRUCTION SEVERELY JUDICES THE PLAINTIF: It is undisputed that communication and evidence destroyed or negligently lost existed at the time this lawsuit was filed in September 2017 and was in the possession of the Defendants in February 05, 2018. Defendants had a duty, and in fact was required under Federal and Florida Law to preserve the records. In addition, the Defendants alleged material witnesses have also alleged to have lost the evidence. Lastly, the Defendants have another independent basis for preserving such originals pursuant to their obligations under this lawsuit. The documents and communication are the subject of pending discovery requests in this action. As part of the subject matter of this lawsuit, there is a duty to preserve. Strasser v. Yalamanchi, 783 So.2d 1087, 1093 (Fla. 4th DCA 2001). The testimony of Elizabeth, Natalie, and Brandis have established that the records were conveniently destroyed in early 2018 after the Plaintiff had requested the Defendant’s attorney of record to notify his clients to retain the records. Furthermore, there is no doubt that, as a direct result of the Defendants failure to preserve evidence, the Plaintiff is permanently prevented from reviewing the communications, regarding the Plaintiff, by the Defendants, and the Defendants’ alleged material witnesses regarding obtaining a restraining order or having the Plaintiff removed from his employment. Rockwell Int'l Corp. v. Menzies, 561 So. 2d 677, 680 (Fla. 3d DCA 1990) (defendant/manufacturer’s alteration of saw by removal of bolts left Plaintiffs with no way of challenging the conclusion of defendant's experts, made its defense to plaintiffs prima facie case unassailable, and justified striking defendant’s pleadings and entering default on liability). Where there has been a “substantial and complete nature of the destruction of evidence by the spoliator” a finding of prejudice is justified. Id.; see also Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F. 3d 99, 109 (2d Cir. 2002); E*Trade Sec., LLC v. Deutsche Bank AG, 230 F.R.D. 582. 592 (D.Minn.20085); see also In re Krause, 367 B.R. 740, 749 (Bankr. D.Kan. 2007) (spoliation found where debtor used security program to permanently wipe or purge files on hard drive after court ordered him to turn over computer). For example, in Public Health Trust of Dade Countyy. Valcin, 507 So. 2d. 596, 600 (Fla. 1987), the Florida Supreme Court dismissed the notion that a “vanishing presumption” would be the appropriate sanction for the spoliation of evidence, and noted the irony that the selective destruction of evidence by a defendant deprives plaintiffs of the tools with which to rebut “the self-serving testimony of the defendant.” In another similar case, involving the blatant deletion of data, the District Court for the Middle District of Florida found that sanctions were required to keep the spoliator from benefitting from its intentional conduct and to deter others from similar conduct in the future. Pacific Coast Marine Windshields Ltd. v. Malibu Boats, LLC, 2012 WL 10817204, *10 (M.D.Fla. November 30, 2012); see also Collazo—Santiago v. Toyota Motor Corp., 149 F.3d 23, 29 (1st Cir.1998) (the spoliation doctrine is concerned not only with rectifying prejudice, but with deterring similar misconduct in the future). When there is a basis for imposing spoliation sanctions, “the appropriate sanction varies according to 1.) the willfulness or bad faith, if any, of the party who lost the evidence, 2.) the extent of the prejudice suffered by the other party, and 3.) what is required to cure the prejudice.” Fleury v. Biomet, Inc., 865 So. 2d 537, 589 (Fla. gad DCA); see also, Harrell v. Mayberry, 754 So. 2d 742 (Fla. gnd DCA 2000); Sponco Mfg. Inc., v. Alcover, 656 So. 2d 629 (Fla. gid DCA 1995). Ill. STRIKING DEFENDANT’S PLEADINGS IS THE APPROPRIATE REMEDY. Where a party willfully destroys evidence after having a clear duty to maintain the information, Courts do not hesitate to strike its pleadings. See Taylor v. Mitre, 2012 WL 5473715 (E.D. Va. Sept. 10, 2012) (granting motion for dismissal with prejudice for plaintiff's destruction of his hard drive and ruining of evidence by eliminator and cleaner programs); Gutman v. Klien, 2008 WL 4682298, *12 (E.D.N.Y. Oct. 15, 2008) (finding that use of a hard drive wiping program “Grretrievably deleted computer files that likely contained important discovery information” and may have deprived the aggrieved party of “crucial evidence” sufficient to warrant a default judgment and attorney's fees and costs); Ameriwood Indus., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3, 2007) (entering default judgment and awarding fees and costs because defendant's intentional use of “Window Washer” scrubbing software “evidence a serious disregard for the judicial process and prejudice plaintiff’); Arista Records, LLC v. Tschirhart, 241 F.R.D. 462, 466 (W.D. Tex. 2006) (awarding fees and costs and proposing an order of default judgment against defendant who willfully destroyed evidence by installing data-wiping software); Communications Center, Inc. v. Hewitt, 2005 WL 3277983, *2 (E.D. Cal. April 5, 2005) (recommending entry of default against defendant for use of Evidence Eliminator software while under a court order to undergo computer imaging finding it showed a “stark affront to the judicial process”). In matter of fact, the Fourth District recognizes that striking of defenses is an appropriate sanction for failure to preserve evidence after a lawsuit is filed, even if the destruction of the evidence may have resulted from negligence. Nationwide Lift Trucks, Inc. v. Smith, 832 So.2d 824, 826 (Fla. 4th DCA, 2002). The Plaintiff is severely prejudiced by the Defendants deliberate and willful destruction or non-excusable neglect of all communication between Elizabeth and material witness Natalie, Elizabeth and Lorraine H. English, Stewart and the CSO regarding his removal as concertmaster, and Saundra’s destruction and sale of material evidence regarding allegations used against the Plaintiff in multiple court proceedings. More importantly, Defendants compromised the integrity of the judicial process in not seeking a court order and destroying evidence subject to discovery. Parties who destroy material evidence in the course of discovery after many requests by the opposing party, must be sanctioned; otherwise, the public will have no confidence in the system and future violations will grow exponentially. Consequently, the Defendants should be sanctioned for spoliation of evidence. Because the evidence destroyed was material, and the destruction was complete and prejudicial. Plaintiff requests that Defendants’ pleadings be stricken with prejudice pursuant to Rule 1.380 (b)(2)(C). Plaintiff incurred fees and costs that should be recoverable, as a consequence of the destruction of the records in question, without notice to the Plaintiff, or to the Court, and accordingly, the Plaintiff should be entitled to recover costs associated with a lawsuit seeking inspection and copying of records that were destroyed. WHEREFORE, the Plaintiff, requests that this Court GRANT Plaintiff's Motion for Spoliation of Evidence and Motion to Strike Defendant’s Affirmative Defenses and for sanction: 1 Enter a finding of fact that the destruction of the Defendants documents and communication regarding the Plaintiff or documents and items used to falsely accuse the Plaintiff in the calendar years 2014-2016, after requests for production were served and a motion to compel was filed, constitutes spoliation of evidence and a discovery violation subject to penalty under the inherent authority of this Court and under Fla.R. Civ. P 1.380(b)(2)(C); Strike all or in part the Defendant’s Affirmative Defenses as a result of Defendant’s spoliation of Evidence; Make a determination that the Plaintiff is entitled to costs associated with the inspection of records that were destroyed. Determine that Plaintiff is entitled to an award of reasonable costs and fees for Defendant's Spoliation of Evidence and violations of Fla.R.Civ.P 1.380(b)(2)(c); The court reserve jurisdiction and hold a separate hearing to determine the amount of attorney’s fees or costs to award. Such other relief as the court determines is needed. 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of hereof has been served via the Florida Courts E-Filing Portal to Stewart C. Kitts, Saundra B. Kitts, and Elizabeth C. Kitts via the Defendants’ attorney of record E. Dusty Aker 240 S. Pineapple Ave., Suite 803, Sarasota, Florida 34236, e-mail address: dustyaker@akerlawfirm.com and assistant@akerlawfirm.com, on November 23, 2018. Respectfully submitted, Mobo Coster Michael Cloutier Plaintiff in Pro Per 520 Crocus Rd Venice, FL 34293 Telephone: (941) 587-6504 E-Mail: viotech@comcast.nei 11