Swearingen v. Pretzer » The Florida E-Discovery Case Law Database » Levin College of Law » University of Florida

Swearingen v. Pretzer

Swearingen v. Pretzer

Case Date: 12/21/2020
Citation: 2020 WL 7488128; 310 So. 3d 1084; 2020 Fla. App. LEXIS 18303
Court Type: District Court of Appeal
Court: Fla. 1st DCA
Judge: Associate Judge: Scott D. Makar
Rule(s): Rule 34, Fed. R. Crim. Pro.

The trial judge granted the plaintiff’s motion seeking to temporarily prevent the Florida Department of Law Enforcement from destroying the records that would have otherwise been subject to the destruction statute.  The Florida Department of Law Enforcement, argued that its retention of the records subjects it to penalties for the commission of a felony, under § 790.065(4)(a), Fla. Stat. (2020),  and that it may also be required to broadly preserve the records of potential plaintiffs, which would be unduly burdensome.


The court affirmed the trial judge’s decision to temporarily prevent the destruction of the plaintiffs’ firearms applications.  As an initial point, the Court noted that “[p]reservation orders, such as the one at issue, are a common and accepted exercise of judicial power that safeguard the integrity of the judicial process whose central feature is evidence-based fact-finding.” The court held that the Department’s compliance with a court order is no an intentional and malicious act that would establish statutory liability.  Additionally, the court held that the preservation order only relates to the handful of plaintiffs in the current lawsuit, making the Department’s claim of the necessity to preserve the records of all potential plaintiffs inapt.  Lastly, the court held that the temporary preservation order did not harm the legislative purpose of the destruction statute. Judge Susan L. Kelsey filed an extended dissent

E-Discovery Issues: Discovery Order, Preservation, Temporary Restraining Order
E-discovery Tags: Data Retention, Preservation and Collection
E-discovery subjects: Electronically stored information

Published: July 13th, 2021

Category: Uncategorized

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