Secondary Evidence as a “Gap Filler”

No Sanction Despite Convoluted and Murky Explanation for Missing Texts
March 11, 2022
UPDATE:  Recovery of ESI Costs:  “The fuss is about money…. [E]lectronic discovery is really expensive.”
March 12, 2022

In Hale v. Mayor and City Council of Baltimore, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court applied the secondary evidence rule where text messages had been deleted:

As discussed throughout, there is a glaring lack of documentary or testimonial evidence corroborating the existence of the text messages that constitute the substantial basis of Plaintiff’s claims. Even so, testimonial evidence may be admitted to prove the contents of a writing where the originals are lost or destroyed by a proponent not acting in bad faith. See, e.g., Fed. R. Evid. 1004(1); Vodusek, 71 F.3d at 156.

The Court also noted the potential deficiencies in secondary evidence: “Defendants’ assertions that Plaintiff’s testimony is contradicted by records of text messages between Moore and Plaintiff…  may ultimately persuade a factfinder that her testimony is not credible.”

In some instances, courts have held that secondary evidence is sufficient to fill a gap caused by loss of primary evidence.  Satisfactory Secondary Evidence Prevents Sanction.  Secondary evidence has been incorporated into the December 2015 version of Fed.R.Civ.P. 37(e), which permits sanctions when the missing ESI “cannot be restored or replaced through additional discovery….”

Because of this, “[w]hen potentially relevant information goes missing, it is always a good practice to look for secondary evidence to replace it.” Damage Control Method.  Prompt disclosure and efforts to remediate can be central to avoiding sanctions.

In Hale, the spoliator filled the gap.  In other situations, a spoliator may assert that the innocent party should use secondary evidence to fill the gap.  Courts may be “skeptical of the spoliator’s  attempt to avoid sanctions by asserting that the innocent and injured opponent can ‘fill the gap’ by merely describing the contents of the missing document to the finder of fact. For example, the secondary evidence may be significantly less reliable or probative than the missing original.”  M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Maryland State Bar Ass’n. 2020), 933. Where the “most accurate” evidence cannot be replaced with a gap filler, it may be appropriate to reject secondary evidence.