Maryland’s Confusing Spoliation Doctrine

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In Giant of Maryland LLC v. Webb, __ A.3d__, 2021 WL 733828 (Md. Ct. Spl. Apls. Feb. 25, 2021), Maryland’s intermediate appellate court defined spoliation to require intent and recognized that negligence may suffice.  The Court’s holding was that, because the moving party failed to provide an adequate factual foundation, no sanction could be imposed.

Ms. Webb was injured by a cart while shopping in a grocery store.  After a verdict for plaintiff, the store appealed.  One issue presented was whether it was error to give a spoliation instruction based on a lack of video evidence.

The appellate Court held that it was error to give a spoliation charge on the facts presented.  Plaintiff asserted that there were “probably upwards of 30-some cameras” positioned in the store.  The store presented discovery responses and testimony that “[n]o video of that incident was captured.”  It argued that there was no foundation to show that there was any video to be preserved.

In one passage, the Court wrote:

Spoliation is “[t]he intentional destruction, mutilation, alteration, or concealment of evidence, usu[ally] a document.”

Id. at *11 (citation omitted) (Emphasis added).

The Court also quoted Maryland Civil Pattern Jury Instruction 1:16, that states in part:

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 that party.

Id. (Emphasis added).

The two principles appear to inconsistently define the spoliation doctrine.  If spoliation requires intent, negligence would appear to be insufficient to support the spoliation sanction of a permissive adverse inference.

In M. Berman and A. Shelton, “The Spoliation Doctrine in Maryland State Courts,” M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 214, we recognized that there is Maryland decisional authority suggesting that intent is required to support spoliation.

However, we also pointed out that an opponent may be just as seriously prejudiced by negligent spoliation.  Id. at 215-16.  “Fairness suggests that there should be a remedy for a party that is prejudiced, regardless of the opponent’s intent.”  Id. at 216.

We noted that the December 2015 amendments to Fed.R.Civ.P. 37(e) permit “level the playing field sanctions” for negligent destruction and “game ending sanctions” for intentional destruction.  Under Rule 37, both negligent and intentional acts can support spoliation sanctions.

However, we went further, writing:

[A] substantial body of recent Maryland authorities suggests that negligent failure to preserve may support at least some spoliation sanctions.

Id. at 217; see alsoMaryland’s Spoliation Standard.”

Further, we pointed to the drafting history of Md. Rule 2-433(b).  A suggestion to limit sanctions to intentional or reckless loss of ESI was rejected by the rule makers.  Id. at 218.  We concluded:

A sanction to deter misconduct implicates intentional acts. However, the need to level the playing field does not. As noted above, an injured litigant may be just as grievously prejudiced by an opponent’s negligent loss of key data as by intentional destruction. To that injured litigant, the central point is the degree of prejudice, not culpability. This calculus is reflected in the structure of Fed. R. Civ. P. 37(e)(1 and 2)…. [F]or at least some sanctions, negligence should suffice. Intent may be required and reserved for dispositive sanctions.

Id. at 273-76 (Emphasis added).  In short, either state of mind can support spoliation; however, the appropriate sanction may differ depending on the state of mind.

On its facts, Webb involved video evidence of an occurrence in a grocery store.  Maryland courts have affirmed the grant and denial of sanctions for the loss of video evidence.  Cf. “Maryland’s Intermediate Court Affirms Denial of Sanction for Spoliation of Video Evidence” with “Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence.”  In Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704, 744 (2020), it was sufficient to “that the camera was pointed in a direction that would have captured persons present on Steamfitters’ property prior to and at the time of the fire, as well as a portion of the property close to the origin of the fire. Video of that area may have captured other evidence similar to the evidence captured by the other video cameras, which were shown to the jury, such as the color of the smoke, wind direction, and speed.”

The holding of the Webb Court was that the plaintiff failed to prove that the missing surveillance video ever existed.  It is undoubtedly correct to conclude that, if evidence did not exist, a party cannot be sanctioned for failing to preserve it.

There can be no act of destruction or failure to preserve evidence not proven to exist, and therefore no act or omission from which inferences can arise.

In Webb, there was no direct evidence that a video of the occurrence existed and “the cameras are, at most, deer tracks in the snow, but they are not necessarily tracks of a particular deer –  in this case, a video of the incident.”  Webb, 2021 WL 733828 at *12.

It is submitted, however, that quotation of a standard indicating the need to show “intent” in order to seek spoliation sanctions is confusing.