Litigants cannot use a spoliation motion to bring an untimely discovery dispute to the court. Rains v. Westminster College, 2023 WL 2894506, at *4 n. 44, passim (D. Ut. Apr. 11, 2023).
While Rains presented several examples of disguising an untimely motion to compel as a sanctions motion, the “background check” dispute is illustrative. Ms. Rains sued her former employer. The employer had performed a pre-hiring background check. Ms. Raines requested a copy of it in discovery; however, it was not produced.
Ms. Rains moved for sanctions. The court explained that there was a factual dispute over whether the defendants “violated their discovery obligations or whether they simply lacked responsive documents or information.” Id. at *5. It wrote:
Ms. Rains should have raised any claims of failure to produce in a motion to compel rather than a motion seeking sanctions. Because she failed to do so, this discovery dispute was not fully developed.
For that and other reasons, the motion for sanctions was denied.
Generally, either rules of procedure or scheduling orders specify when motions to compel must be filed. While the rules of procedure are silent as to when a spoliation motion must be filed, courts are in general agreement that it should be filed soon after discovery of the facts and generally before discovery is closed. This may, for example, permit the spoliating party to develop secondary evidence and will avoid the disruption of springing it at trial. See When Should a Spoliation Motion Be Filed and Decided?
Rains makes at least three other interesting points.
First, Rains re-emphasizes that, if the duty to preserve has not been triggered, there cannot be spoliation. Rains, 2023 WL 2894506, at *5. The elements of spoliation are (1) a breach of the duty to preserve, (2) with a culpable state of mind, (3) that caused prejudice. M. Berman & A. Shelton, “The Spoliation Doctrine in Maryland State Courts,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 213; Fed.R.Civ.P. 37(e).
Second, Rains re-states the general rule that, absent some special relationship arising out of contract, statute or other special circumstance, “the duty to preserve evidence applies only to parties to the litigation, not non-parties.” Rains, 2023 WL 2894506, at *5 & n. 47. Obviously, for example, a default judgment, adverse inference instruction, or exclusion of evidence cannot be imposed on a non-party. The rules of civil procedure confer on a non-party the right to object or move for a protective order and they also provide specific remedies for a non-party’s failure to comply with a proper subpoena.
Third, Rains delineates the differences between spoliation of ESI, on the one hand, and hard copy documents, on the other. Id. at *3. Rains states that Fed.R.Civ.P. 37(e) applies to ESI while the court’s common law inherent powers apply to sanctions for spoliation of hard copy documents. The differences can lead to different results.
The Rains court, however, stated that, for the duty to be triggered, a “litigant” must know or should know that “litigation is imminent.” Id. at *2. It also wrote that the obligation to preserve may arise when “future litigation is likely.” Id. at *6 (citation omitted).
I suggest that “imminent” or ”likely” is not the majority or better rule for triggering the duty.
It is the general rule, at least in federal courts, that the common-law duty to preserve is triggered when litigation is “reasonably anticipated.” E.g., Hale v. Mayor and City Council of Baltimore City, 2022 WL 374512, at *6 (D. Md. Feb. 8, 2022); Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 510 n. 7 (D. Md. 2009). Some Maryland state courts use the “fairly perceived as imminent” standard for triggering the duty. Id. at 151-52.
There may not be a difference: “While ‘fairly perceived as imminent’ is textually different from the ‘reasonably anticipated’ standard, the authors suggest that both are objective and, as a practical matter, the same.” M. Berman & A. Shelton, “The Common Law Duty to Preserve ESI (Its Trigger, Scope, and Limit) in Maryland State Courts,” in Berman, “Electronically Stored Information in Maryland Courts,” 153, 155.
However, one of the goals of the December 2015 amendments to the Federal Rules of Civil Procedure was to promote uniform national standards. Id. at 102; accord, M. Berman, “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule,” Md. State Bar Ass’n. White Paper (Oct. 2022). Uniformity was a specific goal of the sanctions rule. Id. at 107. A lack of uniformity exacerbates problems in handling ESI effectively. Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 516 (D. Md. 2010)(subsequent history omitted).
Sanctions can determine the outcome of a case and destroy attorneys’ careers. M. Berman, “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule,” Md. State Bar Ass’n. White Paper (Oct. 2022). Equity demands clarity in rules governing sanctions. Id.
“There are good reasons to approach sanctions decisions with great caution.” M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” at 277-79. Attorneys make preservation decisions in a free-for-all zone, with no judicial umpire. Id. at 162, citing Texas v. City of Frisco, 2008 WL828055 (E.D. Tex. Mar. 27, 2008).
Textual differences invite arguments over ambiguity. It would be advantageous if all jurisdictions use the same terminology when discussing what triggers the duty to preserve.
 Because the duty often arises prior to commencement of a lawsuit, a more accurate term would be a “potential litigant.”
 On a related topic, see Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”?