Determining When the Duty to Preserve was Triggered is Critical to a Sanctions Analysis

Because a video of an alleged incident was destroyed pursuant to a reasonable information governance policy and before litigation was reasonably anticipated, spoliation sanctions were denied.  Acheneje v. Univ. of MD Medical Corp., 2026 WL 2880533 (D. Md. Sep 25, 2026)(Maddox, J.).

Plaintiff’s employment claims arose out of her termination as a clinical nurse. A series of interactions occurred, resulting in an investigation covering interviews of all staff and “review of video.”  “During and around the time of the two rapid responses, Plaintiff had a verbal interaction or altercation with another nurse, Gabrielle Spalt, and the two nurses have differing accounts of their encounter.”

Defendants moved for summary judgment.  The Court found no genuine dispute of material fact and granted the motion.

Plaintiff argued that summary judgment should be denied, in part, based on “potential spoliation of video evidence relevant to Plaintiff’s claims.  Specifically, Plaintiff contends that Defendants failed to preserve video footage of the interaction between her and Ms. Spalt during the rapid response events on September 16, 2023.”

Defendants relied on their information governance policy.  They told Plaintiff that the video footage was “retained for 30 days and was over-written pursuant to Defendants’ policy prior to notice of any legal claim and obligation to preserve footage.”

Plaintiff replied “that Defendant was on notice to preserve the video as of September 2023 because of the final written warning issued to Plaintiff and the specific request Plaintiff made to view the video during the investigation of the incident.”

Defendants responded “that there was no reason to anticipate litigation until Defendants received notice of Plaintiff’s filing of charges with the EEOC, in March 2024…. They contend that, pursuant to internal policy, the video footage from the September 16, 2023, incident was overwritten 30 days later, on or around October 15, 2023—well before they received notice of litigation.”

The Court wrote that “[s]poliation refers to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Id. (cleaned up; citation omitted).  The “mere existence” of a dispute does not trigger the duty to preserve.  The duty arises somewhere between knowledge of a dispute and direct, specific threats of litigation: “A non-exhaustive list of examples of events triggering the duty to preserve include the receipt of a demand letter, a request for evidence preservation, a threat of litigation, or a decision to pursue a claim.” Id. (cleaned up; citation omitted).

Applying those principles, the Court explained:

Plaintiff cites no authority to support the proposition that her request to see the video of her interaction with Ms. Spalt and the final warning issued to her in September triggered a duty to preserve. Plaintiff did not issue any demand letter to Defendants, request preservation of the video, or threaten litigation at any point before the video was over-written in the normal course of Defendants’ business. In the grievance she submitted to HR in September 2023, Plaintiff alleged that video footage would show that she was not on her phone when Ms. Spalt confronted her, but the grievance contains no request for preservation or threat of litigation…. The disciplinary action and any request Plaintiff made to view the video footage could not, by themselves, make litigation reasonably foreseeable. The case upon which Plaintiff relies in her opposition indicates, contrary to her position, that the duty to preserve began when Defendants learned about Plaintiff’s filing with the EEOC. See Membreno, 338 F.R.D. at 72 (concluding that the defendants “should have reasonably anticipated litigation…when they received notice of” the plaintiff’s filing with the EEOC). Here, Plaintiff did not file a charge with the EEOC until March 2024, long after the video footage at issue would have been over-written in the normal course. Thus, Plaintiff fails to establish any entitlement to relief based on spoliation of evidence.

Summary judgment followed.

The threshold inquiry for sanctions under Fed.R.Civ.P. 37(e) is whether “electronically stored information that should have been preserved in the anticipation or conduct of litigation” was “lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery….”  Here, Plaintiff failed to cross that threshold.

The Court wrote:

Plaintiff argues that Defendants mishandled video evidence. However, one of Defendants’ employees reviewed the video footage of the September 2023 incident and concluded that it was “tough to see much” and that she “had a difficult time seeing anything in the nurses station.” … That employee did not see what Plaintiff alleged, namely that Ms. Spalt came towards Plaintiff “pointing her finger at her and yelling at her.”

The Court did not address whether or not this showed a lack of prejudice. If so, it would have precluded Rule 37(e)(1) sanctions.