Procedural Failures in Request to Preserve Video Evidence

In Nolan v. Secretary of Dept. of Public Safety and Correctional Services, No. 1181 (Appellate Court of Md. Feb. 8, 2023)(unreported),[1] Nolan appealed from denial of a “Motion for Injunction” to preserve certain video evidence.

The circuit court denied the motion because it had dismissed the case three months earlier. The Appellate Court held that the appellant had failed to include a certificate of service on the appellee with the notice of appeal and, therefore, the Court refused to accept the defective appeal.

Reading between the lines, this may have been a pro se inmate appeal that was procedurally defective on multiple grounds.  Even a pro se litigant cannot obtain relief in a closed circuit court case and, even under liberal pro se standards, may be required to correctly note an appeal.

However, preservation of video evidence is a significant issue. No Spoliation Instruction Regarding Surveillance Video in Supermarket Personal Injury Case,  Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence, and, Does Maryland Require that Spoliation be “Intentional”? Because video is often quickly overwritten pursuant to “document destruction” policies, a prompt preservation demand is prudent.

The law governing requests for preservation orders is unsettled.  Where a party is already under a duty to preserve because litigation is reasonably anticipated (federal) or fairly perceived as imminent (Maryland), courts often refuse to issue preservation orders.  Requests for a Preservation Order.

Further, the applicable test governing such requests is not settled.  Id.  It appears, however, that a movant is well advised not to caption a request for a protective order as a motion for injunctive relief because that may impose a higher than necessary standard on the movant.  Failed Request for a Preservation Order.

As noted in those blogs, there is case law suggesting that, instead of the standard for injunctive relief, a movant for a preservation order should ask for a two-factor balancing test.   Under that approach, the party seeking preservation must demonstrate that an order is both necessary and not unduly burdensome, a standard that is less rigorous than a request for injunctive relief.

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[1] An unreported opinion may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.  The Rules Committee has proposed a prospective amendment of this Rule.