Maryland Moves Closer to Replacing the Obsolete “Safe Harbor” Rule
“I hate, hate, hate motions for sanctions.”
May 9, 2023Fowler Cell Phone Decision Affirmed
May 23, 2023My proposal to replace Maryland’s “safe harbor” rule with a rule that more closely parallels Fed.R.Civ.P. 37(e) has moved forward. See Madeline O’Neill, Judiciary panel weighs replacing ‘safe harbor’ rule for electronic discovery | Maryland Daily Record (thedailyrecord.com)(May 12, 2023), and Maryland Rules Committee agenda.pdf (state.md.us).
The newspaper reported that:
The [“safe harbor”] rule was an effort to deal with the ever-growing amount of electronic materials that can be sought in discovery.
But in a white paper published last year, Maryland attorney Michael D. Berman argued the current “safe harbor” rule provides little protection for lawyers.
The rule has broad exceptions, Berman wrote — it applies only in the absence of “exceptional circumstances,” which are undefined, and only provides protection from sanctions under the discovery rules, not those that can be issued under a judge’s inherent authority.
“There are several ‘mines’ in the ‘safe harbor,’ Berman wrote. “In short, the protection offered by the Rule is, at best, limited and, at worst, illusory.”
The Daily Record also reported that:
It appears that the rule has also never been used to prevent sanctions in any Maryland case, according to the white paper. Berman suggested replacing the “safe harbor” provision with a “more comprehensive rule” to offer clarity.
The change would also follow the federal rules, which abandoned the “safe harbor” concept in 2015 after concluding the rule had not adequately addressed the “exponential growth” of electronically stored information, leading litigants to use significant resources to preserve information in order to avoid sanctions down the road.
The proposed rule change in Maryland would remove the safe harbor provision and replace it with a more detailed section.
Under the proposal, if electronically stored information that should have been preserved is lost because a party to the litigation “failed to take reasonable steps to preserve it,” courts could respond in two ways.
The Official Reporter’s Note to the proposed rule states:
Proposed amendments to Rule 2-433 were presented to the Discovery Subcommittee by an attorney to address concerns regarding Maryland’s “safe harbor” Rule…. In “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule,” a white paper published by the MSBA in October 2022, Michael D. Berman, Esq. wrote that the “safe harbor” provision is shallow and offers little protection, has not been used since its adoption in 2008, and lacks clarity. Mr. Berman advised the Subcommittee that Rule 2-433 (b) no longer is functioning. Amendments can clarify the culpability required to support sanctions when electronically stored information is lost. Mr. Berman informed the Subcommittee that the “safe harbor” provision of the parallel federal rule was amended in 2015 and suggested similar changes to Rule 2-433.
For additional information, please visit It’s Time to Replace Maryland’s “Safe Harbor” Rule (Nov. 8, 2022), and Maryland’s Confusing Spoliation Doctrine (Mar. 14, 2021).
