Maryland courts have addressed spoliation since Love v. Dilley, 64 Md. 238 (1885).
In a recent published decision addressing spoliation, Maryland’s intermediate appellate court wrote:
Spoliation is a doctrine grounded in fairness and symmetry. The doctrine is premised upon the principle that a party should not be allowed to support its claims or defenses with physical evidence that it has destroyed to the detriment of its opponent. When determining whether spoliation has occurred, a court considers whether there has been an act of destruction, whether the destroyed evidence was discoverable, whether there was an intent to destroy the evidence, and whether the destruction occurred at a time after suit has been filed, or, if before, at a time when the filing was fairly perceived as imminent.
Adventist Healthcare, Inc. v. Mattingly, 244 Md. App. 259, 274 (2020) (emphasis added). I have omitted internal quotations and citations to Cumberland Ins. Group v. Delmarva Power, 226 Md.App. 691 (2016).
I discussed the unique facts of Adventist Healthcare in a prior blog, “Is Cremation, Burial, or Suicide Spoliation?” Adventist Healthcare involved the disposition of a decedent’s remains.
TRIGGERING THE DUTY TO PRESERVE – “IMMINENT” OR “REASONABLY ANTICIPATED”?
Adventist Healthcare pegs the trigger of the duty to preserve as “a time when the filing was fairly perceived as imminent.” While many Maryland cases describe the standard for triggering the duty to preserve as when litigation is fairly “imminent,” federal and other authorities tend to use “reasonably anticipated” as the standard.
Using that terminology, the duty to preserve is triggered when litigation is “reasonably anticipated.” See M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 153-54.
With my co-author, I have suggested that, “[t]o the extent, if any, to which there is a distinction between ‘fairly perceived as imminent’ and ‘reasonable anticipation’ of litigation, the latter should govern.” Id. at 155. Uniform terminology may eliminate ambiguity given that many preservation decisions arise before a forum is selected. It may be preferable to have uniformity between Maryland and federal courts.
ESTABLISHING THE LEVEL OF CULPABILITY FOR SPOLIATION: IS INTENT REQUIRED?
Adventist Healthcare asks “whether there was an intent to destroy the evidence….” The “intent to destroy” prong comes from a 1999 decision, Klupt v. Krongard, 126 Md. App. 179 (1999) (involving intentional destruction with a hammer).
Intent is no longer required under Fed.R.Civ.P. 37(e)(1). We have argued that it should not be required in Maryland common law. Berman, et al., “Electronically Stored Information in Maryland Courts” at 213-16:
A requirement of intent may be logical and is consistent with the maxim that “all things are presumed against the spoliator,” because “one would ordinarily not destroy evidence favorable to him [or her] self.” Russell, 159 Md. App. at 618, 861 A.2d at 106 (citation and quotation omitted). That premise, based on intent to destroy, is absent where there is only negligence. Thus, if “X” tears up a postcard from a paramour, the inference of adultery may be logical in a family law case; however, if a dog ate the postcard, it may not be. However, a requirement of intent may be too stringent and unfair. For example, an intent requirement would not allow a court to “level the playing field” where a litigant was substantially prejudiced by an opposing litigant’s negligent failure to preserve key information. Once the dog eats the evidence, it is gone, and the innocent party cannot prove the contents. Relief in the form of some sanction may be necessary and appropriate.
In short, while intentional misconduct must be deterred, a litigant may be just as grievously (or more severely) prejudiced by negligent destruction of key evidence as by intentional destruction. Fairness suggests that there should be a remedy for a party that is prejudiced, regardless of the opponent’s intent. That would also be consistent with the purpose of the doctrine….
Id. at 215-16. “Level the playing field” sanctions should be available even in the absence of intentional destruction. Id. at 273. In fact, in the Cumberland decision, the Court wrote that “intent to destroy isn’t a prerequisite to a finding of spoliation….” Cumberland, 226 Md. App. at 702.
The drafting history of Rule 2-433(b) also supports a conclusion that intent to destroy is not a prerequisite for the imposition of sanctions. A proposal was made to limit sanctions to intentional or reckless loss of ESI. That language was not adopted by the Court of Appeals. Berman, et al., “Electronically Stored Information in Maryland Courts” at 218.
To the extent to which Adventist Healthcare mandates examination of “whether there was an intent to destroy the evidence,” it imposes an unnecessarily stringent burden. On the facts of that case, that made no difference.
WILL AN OMISSION SUFFICE OR IS AN “ACT” NECESSARY?
Finally, the old formulation of the sanctions doctrine applied in Adventist Healthcare refers to “an act.” As demonstrated in Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), and Berman, et al., “Electronically Stored Information in Maryland Courts” at 217-18, negligence should suffice and an omission may support sanctions.
It may be preferable to state that the duty to preserve arises when litigation is “reasonably anticipated.” An “act” or “intent” to destroy should not be required to find spoliation. The act or intent may, however, be important to the sanction imposed.
These distinctions would not likely have mattered in Adventist Healthcare; however, they may in the future. Many preservation decisions are made when preserving counsel does not know what the future forum – state or federal – will be. Consistency of terminology may assist in avoiding ambiguity
SUPPLEMENT – See “Maryland’s Confusing Spoliation Doctrine.“