Failed Request for a Preservation Order

In Gibson v. Frederick County, MD, 2022 WL 2593710 (D. Md. Jul. 6, 2022), the Court denied a request for a preservation order that was made in the form of a motion for a temporary restraining order.  Plaintiffs sought an order to preserve certain information after expiration of a statutory preservation mandate that required preservation of election records until September 3, 2022.  Plaintiffs alleged that: “A Protective Order should be issued with immediate effect, in the form of a Temporary Restraining Order (TRO)….” Compl., page 35.

I addressed the substance of Requests for a Preservation Order in a prior blog.  “Courts have found that in instances where a party is already under a duty to preserve material evidence and appears to be fulfilling that duty, there is no need preemptively to issue a separate preservation order.”  Id., quoting Gambino v. Hershberger, 2017 WL 2493443, at *3 (D. Md. June. 8, 2017).  “A party seeking a preservation order ‘must show that absent a court order, there is significant risk that relevant evidence will be lost or destroyed—a burden often met by demonstrating that the opposing party has lost or destroyed evidence in the past.’”  Id., quoting Gambino, 2017 WL 2493443 at *3.  As noted in that blog, there is case law suggesting that, instead of the standard for injunctive relief, a movant for a preservation order should ask for a two-factor balancing test.  Id.   Under that approach, the party seeking preservation must demonstrate that an order is both necessary and not unduly burdensome.  Id., citing Cognate BioServices, 2014 WL 988857 at *6.

The Gibson plaintiffs selected the highest burden – a TRO – and failed to carry it.  The Court’s opinion is short.  However, the Complaint fills 67 pages. ECF No. 1, Case 1:22-cv-01642-GLR.  Plaintiffs sought to challenge the 2020 election.  Under 52 U.S.C. §20701, federal election records must be retained for twenty-two months, i.e., until September 3, 2022.  Plaintiffs sought an extension of a deadline that was months away.  The Court wrote:

To the extent that Plaintiffs allege immediate harm, it is limited to the bald assertion “on information and belief” that Defendants are presently destroying the relevant materials in violation of § 20701. (ECF No. 1 ¶ 19.) This unadorned accusation plainly fails the Rule 65(b) requirement of proof by “specific facts.” See in re Kunstler, 914 F.2d 505, 515 (4th Cir. 1990) (emphases in original) (“[Rule 65(b)] requires that “specific facts” be “shown” to the court with the request for relief. We agree with the district court that the appellants’ request for relief and their indication that they were not ‘in a position to make the showing required by Rule 65(b)’ without later discovery indicates an unacceptable level of pre-filing investigation.”). In addition to being evidentiarily unsupported, Plaintiffs’ accusations of spoliation are particularly implausible given that any person who “willfully steals, destroys, conceals, mutilates, or alters any record or paper required by section 20701 of this title to be retained and preserved” already faces significant criminal penalties. See 52 U.S.C. § 20702. In short, Plaintiffs have failed to meet threshold requirements for the entry of an ex parte TRO. While the Court takes no position at this time on Plaintiffs’ potential entitlement to other forms of preliminary relief, such relief must be sought after notice to Defendants…. While the Court takes no position on the ultimate merits of Plaintiffs’ requests, those merits can only be resolved after the adversarial testing typically required by our judicial system. [emphasis added].

I have litigated a lot of election and referendum cases.[1] Nevertheless, it is hard for me to describe the Gibson Complaint.

A putative class of voters sued the State of Maryland, twenty-one Maryland counties, and each unlawfully acting citizen and government employee, except those protected by immunity, as well as many others.  The Complaint purports to assert claims of vote fraud, creation of a RICO entity, a State and National conspiracy to commit vote fraud in a national election in violation of 6 U.S.C. §651, and seeks temporary preliminary, and final injunctive relief.  The TRO sought to prevent “all such related documents from destruction” and expedited discovery.  Compl., page 3.  It sought a “[s]tay of evidence destruction, a continuation of Federal Election law, contained in 52 U.S.C. §20,701 [sic], indefinitely, for the District of Maryland….” Compl., ¶10.a.

The Complaint was docketed on July 5, 2022.  Plaintiffs alleged: “The impending deadline for the destruction of election data is September 3, 2022.”  Compl., ¶19 (emphasis added).  It also alleged – on information and belief – “now ongoing” destruction.[2] It alleged: “Preventing destruction of evidence as is allowed by the existing ‘destruct’ schedule, applicable to each county or voting jurisdiction in the State of Maryland is a start” to the requested relief.  Id., page 21.  “Accordingly, that evidence needs to be preserved beyond the normal destruction date of September 3, 2022.” Id.  “The preservation should be between the time of the hearing on the Preliminary Injunction request and trial.”  Id. at page 30.

As the Court noted, this allegation failed to meet the burden of justifying a TRO for a preservation order.  “Courts have found that in instances where a party is already under a duty to preserve material evidence and appears to be fulfilling that duty, there is no need preemptively to issue a separate preservation order.”  Gambino, 2017 WL 2493443, at *3.

______

[1] Schade v. Md. State Board of Elections, 401 Md. 1 (2007); Hufnagel, et al. v. State Board of Elections, No. 1534 (Md.Ct.Sp.Apls. 2007)(unpublished); Board of Elections v. Capozzi, 396 Md. 53 (2006); Liddy v. Lamone, 398 Md. 233 (2006); Md. Green Party v. Md. Bd. of Elections, 377 Md. 127 (2003), subsequent opinion, 165 Md.App. 113 (2005), cert. denied, 390 Md. 501 (2006); Ross v. State Bd. of Elections, 387 Md. 649 (2005); Mayor and City Council of Havre de Grace v. Vincenti, et al., C-12-CV-738 (Cir.Ct.Harford Co. 2022)(redistricting); The Town of La Plata v. Faison-Rosewick, LLC, 434 Md. 496 (2013); Canvan v. Md. State Bd. of Elections, 430 Md. 533 (2013); Citizens Against Slots at the Mall v. PPE Casino Resorts Maryland, LLC, 429 Md. 176 (2012); Co-author, “Referenda in Maryland: The Need for Comprehensive Statutory Reform,” 42 U.Balt.L.Rev. 655 (2014).

[2] Exhibits to the Complaint were not available on Westlaw.