Is it Spoliation to Bury a Dead Cow?

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In Duggins v. Haapala, 2023 WL 7627823 (Apls. Ct. Md. Nov. 15, 2023)(unreported), the intermediate appellate Court addressed whether it was spoliation to bury a dead cow that had been involved in an auto accident.  By the time suit was filed, two years had passed and the location of the burial spot was no longer known.  The Court held that it was not spoliation.

Maryland has an extensive history of applying the spoliation doctrine in unique contexts. See  Is Cremation, Burial, or Suicide Spoliation? (Jan. 3, 2021).

While this blog is focused on ESI, Maryland State courts have addressed whether:

(1) cremation is spoliation, Adventist Healthcare v. Mattingly, 244 Md. App. 259 (2020); Jarrett v. State, 220 Md. App. 571 (2014);

(2) burial is spoliation, Hollingsworth & Vose Co. v. Connor, 136 Md. App. 91 (2000); and,

(3) suicide of a litigant before his deposition is spoliation, Tyler v Judd, 2016 WL 3570467 (Md. Ct. Spl. Apls. June 30, 2016).

In 2013, gynecologist Nikita Levy committed suicide.  See S. Dance, et al., “Accused Hopkins gynecologist suffocated himself with helium,” Baltimore Sun (Feb. 20, 2013).  Levy was accused of secretly filming thousands of female patients.  See “Doctor who secretly filmed patients in exam room apologized to wife in suicide note,” CBS (Feb. 22, 2020).  The case settled and the spoliation issue was not presented.  See D. Rodricks, “Plaintiffs in lawsuit against Hopkins gynecologist Levy receive settlement amounts,” Baltimore Sun (Dec. 30, 2016).[1]

Each of those cases involved human remains.  See M. Berman and A. Shelton, “The Spoliation Doctrine in Maryland State Courts,” published in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020).

Duggins v. Haapala involved a cow.  The Appellate Court of Maryland explained:

At approximately 2:20 a.m. on September 7, 2018, Duggins was driving on Maryland Route 313 in a rural area of Caroline County when he struck and killed a black angus cow that was walking in the roadway. Duggins suffered personal injury and damage to his vehicle. While his vehicle was disabled in the roadway after the collision, a vehicle driven by Haapala struck his vehicle from behind.

After receiving the call about the accident, local 911 operator Steven Scharf called his friend Ullah, who lived nearby on a farm owned by his brother, Ullah-Alvi. Scharf asked if Ullah would assist the police in removing the cow from the ditch by the roadway into which it had been thrown. Scharf said that he called Ullah to save Duggins’s insurance company the cost of sending removal equipment and because, on the Eastern Shore, “everybody helps everybody.”

Ullah and his son Muhammed Faizan Ullah (“Faizan”) proceeded to the scene of the accident, and after observing the dead cow, which had no identifying markings or tags, determined it was not one of the black angus cows they owned and kept on their property. Nonetheless, as Ullah had lived in the neighborhood for 30 years and always helped his neighbors, Ullah had Faizan remove the cow with a tractor and bury it in the woods. By the time Duggins filed his lawsuit, more than two years later, Faizan was unable to remember exactly where he had buried the cow.

Upon his belief that the cow was owned or controlled by Ullah or his brother, Ulla-Alvi, Duggins filed suit, alleging negligence by Ullah and Ulla-Alvi for failing to ensure that the cow remained contained and out of the roadway and against Haapala for negligent driving.

The Court wrote that Mr. Ullah denied the dead cow was his, and “Ullah explained that he was sure that the dead cow was not one of his because the cow hit by Duggins was castrated, and none of the nine male black angus cows he owned were castrated.”  Id. at *1.  The Court noted: “Cows are female. ‘Male cows’ are bulls. Our task, however, is merely to explain the record, not grammar or biology.”  Id. at n. 1.

Mr. Ullah also said that he kept his cows locked in a pen and none had escaped in 30 years.  Further, he checked and none were missing.  And, he said that “everybody” owns cows in the area.  A witness explained in deposition testimony that he “noted that the cow Duggins hit was clean, while the Ullahs’ cows usually spend their days standing in a pond on the property and, as a result, tend to be ‘pretty muddy.’”

Plaintiff Duggins admitted that he could not say who owned the cow, except for some hearsay evidence.  He also admitted that defendants owed him a duty only if their cow was roaming on the dark street.

While there were other issues and facts, as to spoliation, the Court wrote:

To the extent that Duggins argues that Ullah and Ulla-Alvi committed spoliation of relevant evidence that a fact-finder should have been permitted to consider, we point out that spoliation only applies when the following four factors are met: “(1) [a]n act of destruction; (2) [d]iscoverability of the evidence; (3) [a]n intent to destroy the evidence; [and] (4) [o]ccurrence of the act at a time after suit has been filed, or, if before, at a time when the filing is fairly perceived as imminent.” Cumberland Ins. Grp. v. Delmarva Power, 226 Md. App. 691, 701-02 (2016) (quoting Klupt v. Krongard, 126 Md. App. 179, 199 (1999)). Even assuming for the sake of argument that the first two factors were met here, we could not say that Ullah intended to destroy evidence in burying the cow or that the filing of a lawsuit was imminent when he did so.

Intent has been held to include “knowledge of imminent or reasonably foreseeable litigation.” White v. Office of the Public Defender for the State of Md., 170 F.R.D. 138, 148 (D.Md. 1997). At the time of Duggins’s accident, Ullah had no knowledge that the cow carcass would be of relevance to a lawsuit. Ullah was not put on notice of a suit, he was not instructed by anyone to preserve the cow, and he did not have a reason to anticipate litigation against him in light of his asserted lack of ownership of the cow. Moreover, Duggins’s decision to file suit more than two years after the accident demonstrates that litigation was not imminent when the cow was buried. See Cumberland, 226 Md. App. at 702 (citing Klupt, 126 Md. App. at 199). Therefore, spoliation is not a relevant issue in this matter and has no effect on the circuit court’s grant of summary judgment in favor of Ullah and Ulla-Alvi.

When it comes into effect, Maryland’s newly-adopted spoliation rule would not apply in this context, because it is limited to ESI.  Maryland Supreme Court Rejects Proposed Sanctions Rule Paralleling Fed.R.Civ.P. 37(e).  For a critique of the “intent” and “fairly perceived as imminent” prongs of Klupt and White decisions that were cited by the Duggins Court, see M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 154, 212, 273-77.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.


[1] Similarly, Jeffrey Epstein committed suicide while in jail and being sued by his alleged victims.  S. Prokupecz, et al., “Jeffrey Epstein has died by suicide, sources say,” CNN (Aug. 11, 2019).