Nolan v. O.C. Seacrets, Inc., 2021 WL 4806337 (D. Md. Oct. 14, 2021), reemphasizes that a preservation letter needs to be well-drafted and provide details sufficient to put the recipient on notice of the factual nature of the claim. In Nolan, because plaintiff’s preservation demand was purportedly too vague, it may have created a defense at trial. The defendants may be permitted to show that important evidence went missing because plaintiff failed to properly notify them and also failed to cooperate for more than a year after he gave the allegedly defective notice of his claim.
Defendants had placed dining tables in shallow bay waters near their restaurant and entertainment venue. Plaintiff, a customer, was injured when his foot allegedly rubbed a hazardous underwater footrest while he was getting up from his seat. The mechanism of injury was unclear. A sharp metal surface may have been involved. Alternatively, there was testimony that barnacles could attach to the furniture and defendants did not routinely inspect for them.
Immediately after the injury, Plaintiff was carried to the beach by a friend. Another individual brought him some water. The identity of the second assisting individual, and whether that person was an employee of defendants, was disputed.
Two weeks later, plaintiff sent a preservation demand asserting “a claim for injuries and/or property damage sustained in an accident which occurred on’ August 19, 2017.” Almost three years later, on August 11, 2020, Plaintiff sued for an allegedly hazardous condition of the bay furniture. By then, the evidence was long gone because defendants removed the furniture at the end of the season to power wash it.
After the close of discovery, defendants moved for summary judgment asserting, in pertinent part, that they were entitled to prevail due to plaintiff’s spoliation of evidence. Defendants asserted that plaintiff’s pre-suit preservation demand provided only a “vague statement” of what had allegedly happened.
In my words, defendants argued that they did not know what to preserve because plaintiff’s preservation demand lacked factual specificity.
Defendants also asserted that plaintiff’s subsequent intransigence compounded the problem. They asserted that he was responsible for spoliation because he allegedly “failed to provide ‘any information’ related to his alleged injury for a year and a half following the incident disputed defendants’ repeated requests for additional information.” [emphasis in original].
Defendants argued: “If a party cannot fulfill [his or her] duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving the evidence,” citing Silvestri v. Gen’l. Motors Corp., 271 F.3d 583 (4th Cir. 2001), and Erie Ins. Exch. v. Davenport Insulation, Inc., 659 F. Supp. 2d 701, 707 (D. Md. 2009).
Defendants sought summary judgment for, in pertinent part, alleged spoliation. Although their motion was denied, the Court provided a possible spoliation remedy at trial.
The Court wrote that “plaintiff… had an obligation to give defendants notice of access to the evidence in this case….” [emphasis added]. This duty was based on Silvestri, 271 F.3d at 591: “If a party cannot fulfill [the] duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence.”
In short, because plaintiff could not preserve the object that caused the injury, he was obligated to notify the defendants of their duty, or right, to do so.
Here, plaintiff had sent a preservation demand two weeks after the incident. Defendants admitted to having received it. Timeliness of the notice was not an issue.
Instead, the issue was whether the preservation demand provided effective notice. Sufficiency of the demand could not be resolved on summary judgment and presented an issue for trial. The Court explained:
While defendants may pursue a productive line of questioning of plaintiff at trial as to whether plaintiff’s communication lacked the diligence needed for defendants to properly investigate plaintiff’s claims, it is not appropriate at this stage for the court to decide this issue as a matter of law. The court concludes, therefore, that summary judgment on the basis of spoliation is not justified under the circumstances in this case. [emphasis added].
In short, because of the allegedly vague preservation demand, defendants may argue at trial that they did not have sufficient notice to preserve the footrest that allegedly caused the injury and that they were prejudiced.
Plaintiff made an unforced error. While Nolan presented a unique fact pattern, there is little new ground here. See A Focused Preservation Letter and The Perils of a Misfocused Preservation Letter. Craig Ball, Esq., has written that frequently preservation letters “tend to receive minimal thought before dissemination, resulting in easily ignored, boilerplate forms crowding out artfully-targeted requests. If I’m frank, most of what passed for preservation letters ‘back in the day’ were, well, crap.” See The Perfect Preservation Letter: A New Guide | Ball in your Court (craigball.net) (Sep. 10, 2020); Principle 2.01(c) of the ESI Principles of the District of Maryland; and, M. Berman, et al., eds., Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), 149-68, 155-56.
The Nolan decision reinforces the need for factual specificity in making a preservation demand. If plaintiff’s preservation demand had stated something to the effect of: “I was injured by a sharp and hazardous underwater footrest on a table in the Isle of Wight Bay while at the defendants’ restaurant on August 19, 2017,” the defendants’ “productive line of questioning” may have been foreclosed.
As a starting point for drafting an effective preservation demand, see Craig Ball’s Perfect_Preservation_Letter_Guide_2020.pdf (craigball.com), 8:
Don’t assume those receiving your preservation letter know what the dispute is about: spell it out for them. Supply sufficient information about the claim to allow a reasonable person reading the preservation letter to understand what evidence may be relevant. Names of key players, dates, business units, office locations, causes of action and events will all be weighed in deciding what’s relevant and must be retained. The more you elucidate, the less likely you are to hear, “If you wanted Madison’s text messages, why didn’t you mention Madison in the preservation letter?”
Further, another issue may be presented because plaintiff allegedly “failed to provide ‘any information’ related to his alleged injury for a year and a half following the incident disputed defendants’ repeated requests for additional information.” [emphasis in original]. That would appear to be a breach of the duty to cooperate.
On the other hand, in the unlikely event that the individual who assisted plaintiff while he was on the beach is later shown to be defendants’ employee, it is likely that no preservation letter was necessary to trigger the duty to preserve. Thompson, 219 F.R.D. at 100.
 The Court explained: “On the day of the incident, plaintiff, along with seven friends, arrived at defendants’ property between 10:30 a.m. and 11:00 a.m. and sat at a semi-circle booth and table placed by defendants in a shallow portion of the Isle of Wight Bay next to defendants’ premises. Plaintiff was seated continuously at the table for approximately six hours before leaving his seat. As plaintiff was getting up to leave his seat, his foot rubbed on the underwater metal footrest attached to the bottom of the seated portion of the table, causing ‘a sharp pain’ in his foot.” [citations omitted].
 That duty to notify a potential defendant is an exception to the general rule: “While a litigant certainly may request that an adversary agree to preserve electronic records during the pendency of a case,… it is not required, and a failure to do so does not vitiate the independent obligation of an adverse party to preserve such information” when the adverse party should reasonably anticipate litigation. Thompson v. U.S. Dep’t of Hous. & Urb. Dev., 219 F.R.D. 93, 100 (D. Md. 2003).
 The District Court distinguished Silvestri, where the plaintiff was sanctioned for failing to notify the defendant that he did not own the car in question and could not preserve it. Here, defendants owned and controlled the furniture at all relevant times.