Maryland Rules Order Amends Sanctions Rule

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On November 28, 2023, the Supreme Court of Maryland entered a Rules Order. In part, it amended Maryland’s sanctions rule, Rule 2-433(b).  The order “shall take effect and apply to all actions commenced on or after January 1, 2024 and, insofar as practicable, to all actions then pending….”

New Rule 2-433(b) states:

(b) Failure to Preserve Electronically Stored Information

If electronically stored information that should have been preserved in the reasonable anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it and the information cannot be restored or replaced through additional discovery, the court, upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.

I discussed the history of the Rule in Maryland Supreme Court Rejects Proposed Sanctions Rule Paralleling Fed.R.Civ.P. 37(e).

The Committee Note states:

Committee note: Section (b) of this Rule applies only to electronically stored information. Its application is limited to parties, and it does not apply to non-party subpoenas. Under this section, the duty to preserve information arises when litigation is reasonably anticipated or commenced. See Rule 2-101 (a). While section (b) of this Rule does not define the scope or limits of the duty to preserve, when the duty arises, the duty under this section is limited to “reasonable steps.” No sanction may be imposed if the court determines that secondary evidence reasonably can restore or replace the information that was not preserved. If warranted, measures to cure prejudice may include presuming that the lost information was unfavorable to the party; in a jury trial, instructing the jury that it may or must presume that the information was unfavorable to the party; or dismissing the action or entering a default judgment. [emphasis added].

The revisor’s note states that it is derived “in part” from the 2015 version of Fed.R.Civ.P. 37(e).

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