Bare Allegation of Refusal to Preserve Evidence Does Not State a Claim

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In Van Croft v. Louis, 2023 WL 4421571 (D. Md. July 10, 2023)(Xinis, J.), the Court rejected a poorly-asserted, pro se spoliation claim.

The plaintiff sued “her former paramour,” his wife, and a restaurant for injuries when the man allegedly assaulted her in a restaurant.  The claims against the restaurant were that it failed to render any aid during the allegedly lengthy brawl.  The fight occurred after “they broke up while having dinner at Mi Rancho.”  Id. at *1.  After describing the alleged punching and yelling, the Court wrote:

Throughout, Mi Rancho employees watched but did nothing to summon law enforcement or otherwise intervene, despite Van Croft’s repeated pleas for help….  The restaurant also erased camera surveillance footage of the assault.

Id. (emphasis added).

Ms. Van Croft sued and Mr. Louis counterclaimed.  Some claims were dismissed; however, the claims against the restaurant survived a motion to dismiss.  The Court held that, under Maryland law, there may be a duty to assist a business invitee when an attack is prolonged.  Id. at *4.  Here, that was sufficiently alleged.  And, it was also alleged that “Mi Rancho employees took no steps—not even calling the police or emergency medical services—to protect Van Croft from being beaten by another patron.”  On those well-pled facts, assumed to be true on a Rule 12(b)(6) motion:  “Given their total inaction throughout the protracted assault, the negligence claim, as pleaded, survives challenge.”

The Court addressed the spoliation claim as follows:

The Complaint separately faults Mi Rancho for impeding this litigation in “refusing to preserve evidence” such as camera footage…. But this bare allegation, standing alone, does not amount to a cause of action. Accord Jarvis v. Staples, Inc., No. PJM 10-244, 2010 WL 4942010, at *4-5 (D. Md. Nov. 30, 2010) (“[Plaintiff’s] claim for ‘obstruction of justice and spoliation of videotape evidence’ fails as a matter of law, since neither the Fourth Circuit nor the State of Maryland recognizes this as an independent cause of action.”). Although perhaps Mi Rancho’s failure to preserve video footage may give rise to a spoliation of evidence argument as the case progresses, that question cannot be answered at this juncture. See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001).

Id. at *4.

It is well-settled that:

The spoliation doctrine comes in many flavors. It has been variously recognized as an independent tort, a defense to recovery, an evidentiary inference or presumption, a discovery sanction, a substantive rule of law, and a rule of evidence or procedure. Klupt, 126 Md. App. at 198, 728 A.2d at 736. However, spoliation is not an independent tort in Maryland. [multiple citations omitted]. While this chapter focuses on spoliation by failing to preserve, or by destroying, ESI, spoliation has arisen in other contexts, including that of untimely discovery responses. E.g., The Roop Grp. Prop. Mgt., P.A. v. Vangenderen, No., 1612, 2020 WL 91569 *4 (Md. Ct. Spec. App. Jan. 8, 2020) (unreported) (failure to produce “secreted” documents at deposition); Muffoletto v. Towers, No. 1850, 2019 WL 6840591 *14 (Md. Ct. Spec. App. Dec. 16, 2019) (dispute over boat slip; opponent “required to incur significant legal fees to try to get a straight answer to this key question” and imposing sanctions for disregard of discovery deadlines); Claxton, 2019 WL 7193928 at *5 (unpublished) (failure to adhere to scheduling order by not providing timely medical evidence).

M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 218-19.

The Van Croft Court properly closed the door on the spoliation claim in the Complaint and properly left open the possibility that the plaintiff may later show that the restaurant’s duty to preserve was triggered and breached, thereby causing prejudice.  Of course, Fed.R.Civ.P. 37(e) will provide the applicable framework.