Does Maryland Require that Spoliation be “Intentional”?

Defendant Unsuccessfully Argued that Plaintiff Could Not Show That Data on Cell Phone That Defendant Destroyed Was Relevant
August 18, 2021
Waiver of Work Product Protection in Deposition Preparation Sessions
August 27, 2021

In Six Flags America, L.P. v. Mims, 2021 WL 1627055 (Md. Ct. Spl. Apls. Apr. 27, 2021) (unreported), the appellate court held that it was error to allow plaintiff/appellee’s rebuttal arguments concerning the overwriting of defendant’s surveillance footage of the park entrance taken at the time of the occurrence.  The Court pointed to a lack of proof that relevant footage existed and also criticized plaintiff’s effort to inject spoliation in a rebuttal argument.

This blog addresses only selected aspects of the unreported decision.[1]

First, this blog addresses the defense argument that there cannot be spoliation unless the plaintiff puts the defendant on notice of the claim.  That argument lacks merit and the Court appears to have rejected it.

Second, it addresses the state of mind that can support spoliation.  The trial court instructed the jury that spoliation could be based on negligence.  The appellate court indicated otherwise and suggested that destruction must be intentional.  That is contrary to the modern view of the spoliation doctrine.  See M. Berman and A. Shelton, “The Common Law Duty to Preserve ESI (Its Trigger, Scope, and Limit) in Maryland State Courts” in M. Berman, et al., eds., Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), Chap. 12 (hereinafter “The Common Law Duty to Preserve at __”).

The facts were not complex.  Plaintiff, an amusement park patron, was injured in an interaction with security personnel at the park.

Two video evidence issues were presented.

First, plaintiff asserted that Six Flags had “loss prevention” video of the area at the time of the incident and failed to preserve it. The Court wrote:

During the discovery process, appellees requested Six Flags “[a]dmit that video footage was recorded by loss prevention at the entrance[2] to the park on June 17, 2018, during the time of the incident involving Nicholas Mims.” Six Flags’ response stated: “[a]dmitted that the entrance of the park was under video by loss prevention.”  [Emphasis added].

This admission was read to the jury over objection.

Second, plaintiff introduced a one-second cell phone video into evidence. Defendant provided expert testimony that it was altered “or there was a third video file with unknown contents.”  Defendant, Six Flags, requested and received a spoliation instruction.  Id. at *2.


As to the “loss prevention” video of the park entrance, defense counsel argued: “[T]here is no inference of spoliation against us. We don’t have [a] duty to preserve stuff until they put us on notice that there’s going to be litigation.”  Id. at *3 (Emphasis added).  Defense counsel stated, “when they filed the complaint and when they filed their letter, the video had already been recorded over in the ordinary course, et cetera.”  The defense argued that there was not “any evidence regarding any potential duty on the part of Six Flags to preserve video.”

While Maryland follows the safe harbor rule, Md. Rule 2-433(b), the “not put on notice” argument is contrary to well established principles.  See Thompson v. HUD, 219 F.R.D. 93, 99 (D. Md. 2003); “The Common Law Duty to Preserve” 155-56 (there is no requirement of a preservation letter).

Instead, the common law duty to preserve is triggered by the reasonable anticipation of litigation.  Id. at 151, 155, passim; but cf.Maryland’s Intermediate Court Affirms Denial of Sanction for Spoliation of Video Evidence” (Jan. 9, 2021) (citing contrary unreported decision).

The Six Flags decision does not provide facts sufficient to determine when Six Flags should objectively have anticipated litigation.  However, a plaintiff need not put a potential defendant “on notice” in order to trigger the duty to preserve.

The trial court implicitly rejected the “no notice, no duty” argument and instructed the jury that an adverse inference could be based on either intentional or negligent failure to preserve evidence.[3]


Addressing the state of mind issue, the appellate court wrote:

As previously stated, spoliation is “[t]he intentional destruction, mutilation, alteration, or concealment of evidence, usu[ally] a document.” Giant of Maryland LLC v. Webb, No. 413, SEPT. TERM, 2019, 2021 WL 733828, at *11 (Md. Ct. Spec. App. Feb. 25, 2021) (citing Keyes, 191 Md. App. at 537 (quoting Black’s Law Dict., 8th Ed. (2004) at 1437)). Appellees presented no evidence of this nature and thus, the rebuttal arguments were not reflective of the evidence in the case.

Id. at *8 (Emphasis added); accord id. at *6 (stating that there must be “an intent to destroy the evidence”).

In fairness to the Court, it appears to have been focusing on whether “destruction” of a “document,” i.e., surveillance video, had been proven and not on Six Flags’ intent; however, Maryland courts often state that intent is an element of spoliation.

Courts should not require intent to support spoliation.  See “The Common Law Duty to Preserve” at 215-19.

In short, while intentional misconduct must be deterred, a litigant may be just as grievously (or more severely) prejudiced by negligent destruction of key evidence as by intentional destruction. Fairness suggests that there should be a remedy for a party that is prejudiced, regardless of the opponent’s intent.

Id. at 216 (Emphasis added). The Six Flags Court’s mention of “intent” stems from an early Court of Special Appeals decision that misread a 1997 federal case.  Id. at 274-75, 280.

There is authority that intent is not required to support spoliation.  In fact:

The drafting history of Rule 2-433(b) supports the conclusion that sanctions may be imposed for negligence. When Rule 2-433(b), addressing sanctions for loss of ESI, was pending before the Court of Appeals, a suggestion was made to add: “Sanctions should not be imposed unless there has been an intentional or reckless loss of electronically stored information.” See Nov. 13, 2007, Comments by Maryland Defense Counsel, Inc., and Lawyers for Civil Justice on Proposed Amendments to Rules Related to Discovery of Electronically Stored Information, etc., submitted to the Reporter, Rules Committee, at 4 (emphasis added). That suggestion was not adopted by the Court of Appeals.

Id. at 218; accord Blog, “Maryland’s Confusing Spoliation Doctrine” (Mar. 14, 2021); “Maryland’s Spoliation Standard” (Jan. 11, 2021).


In Six Flags, plaintiff requested that Six Flags admit that the missing video was taken “during the time of the incident involving” plaintiff.  Id. at *1.  Six Flags did not deny that request.  Instead, as the Court noted, Six Flags wrote only that it did not admit that there was video footage during the incident.  Id. at *5.

Maryland’s request for admissions provision, Rule 2-424(b), states that each requested matter shall be admitted unless the responding party denies the matter or states that it cannot respond after reasonable inquiry.  Six Flags did neither.  Nevertheless, the Court wrote that there was no evidence of a recording “during the incident in question.” Id. at *5.

The defense went further and argued that “there’s been no evidence that the video would have shown anything, one thing or the other.”  Id. at *3.

The Court concluded that there was no testimony that the camera would have provided a recording of the incident.  Id. at *6.  The Court wrote:  “In fact, no witness testified about the operability of cameras at the entrance, whether video was captured, and if so, whether it had been destroyed or was missing….  [A]ppellees presented no testimony about the existence or destruction of a video.” Id.  It stated:

In the present case, appellants [defendants] argue there was no evidence that a video captured the entrance to the park during the altercation, no evidence that such a video was not preserved, nor was there evidence that a video had been destroyed or was missing.

The Court explained that plaintiff’s expert “did not testify that cameras would have provided a video recording of the incident.”

Video evidence is frequently prominent in spoliation allegations.  It is often the case that a party asserting spoliation cannot prove what the missing information contained and that may not be fatal to a spoliation motion.  In one recent decision, a court wrote:

What is clear is that Plaintiffs will never know what information was contained on the [missing] cell phone. The Plaintiffs need not prove the content of the information or reconstruct the lost information in order to prove its relevance. That proposition is absurd. The parties agree that information is lost and the actual content unknown. As alleged, the information might have supported the claims of Plaintiffs and therefore, the information was relevant….

See, Blog, “Defendant Unsuccessfully Argued that Plaintiff Could Not Show That Data on Cell Phone That Defendant Destroyed Was Relevant” (Aug. 18, 2021).

The appellate court in Six Flags remanded for retrial.  In holding that plaintiff did not meet the burden of proof, the Six Flags Court did not cite Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020).  There, Steamfitters argued that a surveillance camera was not focused on the area in question and “might have also been completely irrelevant.”

The Court of Appeals rejected that argument holding that the camera was pointed in the correct direction and would have shown the scene of the occurrence.  For more information, see, Blog, “Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence” (Jan. 8, 2021).  In that blog, I wrote: “Steamfitters should not be heard to argue that, because we failed to preserve the evidence, our opponent cannot prove what it would have shown.”

It may be that plaintiff in Six Flags can plug some of the gaps upon remand for the new trial.[4]


[1] Six Flags is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in any Maryland court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

[2] The incident occurred at the exit.  Id. at *1.  The video was at the entrance.  The opinion does not state the distance between the entrance and exit.  However, there was evidence that the entrance was the site of the occurrence. Id. at *5.

[3] The trial court charged the jury: “The destruction of or the failure to preserve evidence by [appellees] may give rise to an inference unfavorable to [appellees]. If you find that the intent was to conceal the evidence, the destruction or failure to preserve must be inferred to indicate that [appellees] believe that their case is weak and that they would not prevail if the evidence was preserved. If you find that the destruction or failure to preserve the evidence was negligent you may, but are not required to, infer that the evidence, if preserved, would have been unfavorable to [appellees].” [Emphasis added].

[4] In Six Flags, plaintiff presented a “fight fire with fire” argument.  In closing, defendant argued that plaintiff spoliated the cell phone video.  Id. at *3.  Plaintiff argued in rebuttal  that defendant did not preserve the loss prevention video.  Id. at *5.  Defendant objected; however, the trial court permitted argument.  Plaintiff then argued:

Now they [sic] chomping on Ms. Mims because she don’t [sic] have video of her husband getting beat down, they got video at the front of the park, where is it? Do you think a little cell phone is better than Six Flags’ park video up there at the front where all the cashiers and all the cash registers? I bet you get … rob that place, they’d have 15 videos of it. Members of the jury, I thought I was at a magic show during the Six Flags defense of this case. I think they’re trying to make it disappear. All kind of magical stuff that they pull out of their head.