Sanctions

Sanctions for spoliation. Fed.R.Civ.P. 37(e). Md. Rule 2-433.

January 17, 2021

Documenting When the Duty to Preserve Potentially Responsive Information Was Triggered

It may be prudent to document the analysis of the point at which a potential litigant believes that its duty to impose a legal hold, or “litigation hold,” has or has not been triggered.  While it may not be dispositive, documentation may be useful in the event of a subsequent allegation of […]
January 13, 2021

Application of Maryland’s Evidentiary “Unfriending” Rule to Recent Events?

The Baltimore Sun reports that:  “In Maryland and beyond, those who once bragged about overrunning the Capitol are now deleting their [social media] photos ….” T. Prudente, “As scrutiny intensifies over deadly U.S. Capitol riots, Marylanders delete photos, social media trails,” The Baltimore Sun (Jan. 12, 2021). That alleged action may have […]
January 11, 2021

Maryland’s Spoliation Standard

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 […]
January 9, 2021

Maryland’s Intermediate Court Affirms Denial of Sanction for Spoliation of Video Evidence

An unreported decision of the intermediate appellate court provides an interesting contrast to Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), which is discussed in a prior blog. In Benson v. ALDI, Inc., 2019 WL 5704532 (Md. Ct. Spl. Apls. Nov. 5, 2019), summary judgment was affirmed […]
January 8, 2021

Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence

“I just delete. I delete – delete. Anything there that I don’t want, don’t need anymore, I delete.” Peterson v. Evapco, Inc., 238 Md. App. 1, 21 (2018).  That is an invitation to disaster.  Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), involved spoliation in the context […]
January 3, 2021

Is Cremation, Burial, or Suicide Spoliation?

While this blog is focused on ESI, Maryland State courts have been asked to apply the spoliation doctrine in unique contexts.  They have addressed whether: Cremation is spoliation, Adventist Healthcare v. Mattingly, 244 Md.App. 259 (2020); Jarrett v. State, 220 Md. App. 571 (2014); Burial is spoliation, Hollingsworth & Vose Co. v. […]
January 2, 2021

Unsupervised Self-Collection Predictably Led to Problems

In Equal Employment Opportunity Comm’n. v M1 5100 Corp, 2020 WL 3581372 (S.D. Fl. July 2, 2020), unsupervised self-collection by a client created a situation that “greatly troubles and concerns the Court.”  There, an attorney permitted the client to determine what ESI it would search for and produce.  This process ran afoul […]
December 26, 2020

When Should a Spoliation Motion Be Filed and Decided?

Several recent decisions from the District of Maryland address the question of when a spoliation motion should be filed and decided.  Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. Dec. 14, 2020); Shackelford v. Vivint Solar Developer, LLC, 2020 WL 5203340 (D. Md. September 1, 2020); […]
December 25, 2020

No Sanctions Despite Truncated Search

In In Re: Smith & Nephew Birmingham Hip Resurfacing (Bhr) Hip Implant Products Liability Litigation, MDL No. 2775, Master Docket No. 1:17-md-2775 (D. Md. Dec. 23, 2020), the Court denied a sanctions motion, attributing a failure to produce  an inconsistent email to search parameters that were too narrow.  The Court held that […]