“The burden of proof on a motion for spoliation sanctions is unsettled.” Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 104 (E.D. Va. 2018).
Two recent District of Maryland decisions have held that, at least where a relatively harsh sanction is involved, a clear and convincing standard applies:
“The burden of proof is on ‘[the] party seeking sanctions based on the spoliation of evidence.’ See Turner v. United States, 736 F.3d 274, 282 (4th Cir. 2013); see Goodman, 632 F. Supp. 2d at 509. This Court has noted that ‘the precise burden of proof in a motion for sanctions is unclear in the Fourth Circuit. However, proving misconduct occurred by ‘clear and convincing’ evidence, as opposed to by a mere preponderance, certainly suffices.’ Glynn v. EDO Corp., No. JFM-07-01660, 2010 WL 3294347, at *2 (D. Md. Aug. 20, 2010). Absent guidance from the Fourth Circuit, ‘the general approach of courts in the Fourth Circuit has been to apply the clear and convincing evidence standard, especially where a relatively harsh sanction like an adverse inference is sought.’ Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 104 (E.D. Va. 2018). In this case, the result is the same under either standard.” [emphasis added].
Brittney Gobble Photography, LLC v. Sinclair Broad. Grp., Inc., No. SAG-18-3403, 2020 WL 1809191, at *4 (D. Md. Apr. 9, 2020); Eller v. Prince George’s County Public Schools, 2020 WL 7336730 at *7 n. 8 (D. Md. Dec. 14, 2020); accord People for Ethical Treatment of Animals, Inc. v. Tri-State Zoological Park of W. Maryland, Inc., No. 1:17-CV-02148-PX, 2018 WL 5761689, at *6 (D. Md. Nov. 1, 2018), order clarified on reconsideration, No. 1:17-CV-02148-PX, 2018 WL 6324806 (D. Md. Dec. 3, 2018).