It’s Time to Replace Maryland’s “Safe Harbor” Rule

Sanctions Denied, But Be Careful What You Agree To (Part I)
October 28, 2022
New ABA “Reply All” Ethics Opinion
November 9, 2022

UPDATED Nov. 11, 2022

The Maryland State Bar Association published a white paper, Michael D. Berman, “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule” (Oct. 2022). A download link is provided below.

In the paper, I argue that Maryland’s 2008 “safe harbor” rule, Rule 2-433(b), is obsolete. It was patterned on the 2006 Federal “safe harbor” rule.  However, the Federal Rules of Civil Procedure modified that Rule in 2015, finding it to be shallow and problematical. In Maryland, it suffers from those defects and has been largely ignored.  I suggest that Maryland’s Standing Committee on Rules and Practice should follow the federal lead and replace the Maryland Rule.

The 2015 amendment to Fed.R.Civ.P. 37(e) provides state-of-the-art guidance.  Further, as noted in the white paper, some Maryland appellate opinions limit sanctions to intentional misconduct while others – properly, in my opinion – state that negligence may suffice. Therefore, clarification is needed.  The federal rule provides it by permitting “level the playing field” sanctions for negligence and a wide panoply of sanctions where there is intentional spoliation.

In the MSBA white paper, I conclude:

Rule 2-433(b) should be replaced, not simply because the federal rules have done so, but because replacement would further the goal of construing the Maryland Rules “to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay.” Md. Rule 1-201.

Rule 2-433(b) served its purpose when adopted; however, it is no longer workable or useful. Further, the process of replacing it with a more comprehensive rule can provide the opportunity to clarify the degree of culpability that can support sanctions.

Equity suggests or demands a degree of clarity that is missing from Rule 2-433(b).  As noted in the white paper, several other states retain the old “safe harbor.”  J. Parness, “State Spoliation Claims in Federal District Courts,” 71 Cath. U.L.Rev. 1, 31 n. 21 (2022).  This blog may also apply to them.

For additional posts on the differences between the Maryland and Federal rules, please see the “tag” on this blog titled “MD Rules v. Federal Rules of Civil Procedure.”

Click here to download