In Little v. Pohanka, 2022 WL 17412861 (Appellate Ct. of Md. Dec. 5, 2022), Mr. Little sued Mr. Pohanka for negligent driving. The jury found that Mr. Pohanka was negligent; however, in Maryland, contributory negligence is a complete defense, and the jury determined that Mr. Little was contributorily negligent. As a result, a defense verdict was entered and affirmed on appeal.
In pertinent part, a surveillance video of the occurrence was not preserved by: (1) Mr. Pohanka; (2) non-party, Pohanka Honda, his father’s auto dealership; and, (3) Geico, his insurer. As a result, Mr. Little requested a spoliation instruction. The trial court denied the request and the appellate court affirmed.
The collision was on December 28, 2017. Suit was not filed until October 18, 2019. Plaintiff, Mr. Little, did not send a pre-suit preservation letter to Mr. Pohanka. That proved fatal to his spoliation request. I suggest some alternative analyses.
THE APPELLATE OPINION
The Appellate Court wrote:
First, a Pohanka Honda video camera had recorded the collision. “Because Mr. Pohanka was not on notice to preserve the video footage, the [trial] court stated that he did not demonstrate an intent to lose it.”
Second, “[o]n direct examination, Mr. Pohanka testified that he submitted the video footage to his insurer, Geico, two years before the lawsuit was filed.”
Third, Mr. Pohanka reviewed the video when he received it, and he recognized that it was important.
Fourth, Mr. Pohanka stated that he no longer had the video footage because “he received it [from his father’s dealership] through email and his email storage auto-deletes.”
Fifth, “[d]uring a deposition, Mr. Pohanka testified that once he learned of Mr. Little’s complaint, he attempted to obtain the video footage from the dealership but was unable to because they no longer had it.”
Sixth, the Court wrote: “Mr. Little also stated during trial that the video footage was requested from Geico during discovery but not provided.”
Seventh, “the circuit court stated, Mr. Pohanka did not own the video footage; instead, he was in possession of an emailed copy of the video footage…. [B]ecause Mr. Pohanka did not own or possess the original video footage, he cannot be held responsible for its destruction.”
Eighth, “potential litigation cannot be ‘fairly perceived as imminent’ two years prior.”
Ninth, because the jury found Mr. Pohanka negligent, any error in excluding additional evidence of his negligence via the missing video was harmless.
The Court concluded:
Ultimately, spoliation did not occur because Mr. Pohanka did not own the video and thus could not destroy it, he did not have actual or constructive knowledge of its relevance, and litigation was not fairly imminent.
In pertinent part, the Appellate Court’s holding was grounded on two points of law:
Mr. LITTLE’S BRIEF
Mr. Little’s appellate brief paints a different picture.
Mr. Little was employed by Pohanka Honda at the time of the incident with Mr. Pohanka. Mr. Pohanka admitted that his father owns the dealership that initially controlled the video.
Mr. Little alleged that Mr. Pohanka was driving at excessive speed. In reply, Mr. Pohanka contended he was not going too fast, and that Mr. Little pulled out in front of him.
Mr. Pohanka’s brief quotes Mr. Pohanka’s testimony:
Q: What did the video show?
A: The video showed me coming up to the parking lot, going 15-20 miles an hour and the Defendant [sic- Plaintiff] not yielding to traffic and coming out and our vehicles colliding.
Q: So you believe that the video is favorable to your version of how the accident occurred?
Mr. Little asserted that “[o]n direct examination, Mr. Pohanka volunteered that he had originally produced the video to his insurer, Geico, before it was lost.” He argued that Mr. Pohanka admitted to having obtained the video shortly after the collision. Mr. Little’s brief states that
Pohanka testified on direct examination that after the collision, Geico directed him to obtain a copy of the surveillance video. [Mr. Pohanka] watched the video before [he] submitted it to Geico. Subsequently, he lost the video. Geico does not have the submitted video. [emphasis added].
Further, Mr. Little asserted that Mr. Pohanka was permitted to testify to the contents of the video, draw conclusions about it, and argue its meaning to the jury in closing. Mr. Little wrote:
Pohanka went on to claim that the video was favorable to his defense and that it “completely exonerates” him from liability in the case. (Trial Testimony of Kevin Pohanka; June 3, 2021….).
Mr. Little asserted that Mr. Pohanka was permitted to “characterize and summarize the missing video’s content to the jury, “describing it as favorable to his defense that Little was solely responsible for causing the collision.” Additionally, Mr. Little’s brief states:
Pohanka conceded that, after viewing the video, he knew it was “really important.” (Trial Testimony of Kevin Pohanka….). But after turning it over to Geico, he did not know what happened to it. (Trial Testimony of Kevin Pohanka…..). [emphasis added].
Mr. Little’s brief continues:
In closing argument, Counsel for Pohanka characterized the missing video as showing “exactly what [Pohanka] testified here to today.”
Mr. Little asserted that there was “clear evidence that the video had been in the possession of both Pohanka and his agent, Geico. And, there was evidence and an admission that it had been lost.” Mr. Little asserted that Mr. Pohanka’s explanation was that the “very important” video that “completely exonerates” him had been lost by his insurer, which was what he called a “blame Geico” argument.
Mr. POHANKA’S BRIEF
Mr. Pohanka’s brief quoted some of the testimony. He was asked when he obtained the video. He said it was during the “claims process” when he was going through the dealership’s insurance claims process. He obtained the video “shortly after the [December] accident or very early January.”
Mr. Pohanka testified that, at that time (i.e., when he obtained the video), he was not “aware that there was going to be any sort of lawsuit filed against” him. Presumably, he was making a claim for the property damage to his car.
Mr. Pohanka explained why he did not have the video:
Sadly, the video was emailed to me. My email storage is limited. I get a lot of emails, and so, basically, as a new email comes in, the old one purges out. And so it keeps for – it depends on how many emails I get, three to five months, maybe…. The company stored it on their server….. [W]e don’t keep video records for two years…..” [emphasis added].
Curiously, Mr. Pohanka’s brief also states that he “never had actual possession of the video of the accident.” However, in the next sentence, the brief admits that “[h]e obtained a copy from his employer,” i.e., his father’s company. He argued that he did not have “control of the video….” It was in control of his “insurance company and employer,” who were not parties.
In his brief, Mr. Pohanka wrote that he “credibly testified” that he “had not been instructed to retain a copy of the video.” He “was never instructed to preserve a copy of the video by anyone, including his insurer or the Appellant…. He was not instructed to keep copies or make copies of the video.” In his brief, Mr. Pohanka added: “Perhaps the Appellee should have kept a copy of the video but that is clearly not intentional destruction.”
Globally, I suggest that Mr. Little had a point. After Mr. Pohanka’s insurer requested a copy of the surveillance video, Mr. Pohanka was so curious about its contents that he reviewed it. He then – at least according to Mr. Little – concluded that it was “important,” perhaps “very” important. As requested, he sent it to his insurer. Then, after Mr. Pohanka did not preserve it, he was permitted to: describe it in detail during his testimony; state his conclusion that it completely exonerated him; and, his attorney was permitted to reinforce that in closing argument. That said, Mr. Pohanka’s brief raises some significant issues regarding alleged failures to object.
As to the spoliation analysis, I have several thoughts:
First, I suggest that the Appellate Court incorrectly analyzed the absence of a preservation demand from Mr. Little to Mr. Pohanka. A preservation letter is not required to trigger the duty to preserve. See Does Maryland Require that Spoliation be “Intentional”?, citing Thompson v. HUD, 219 F.R.D. 93, 99 (D. Md. 2003), and Maryland’s Intermediate Court Affirms Denial of Sanction for Spoliation of Video Evidence.
The duty to preserve is a common law duty and it is triggered when litigation is reasonably anticipated or, in the terms of many Maryland courts, “fairly perceived as imminent.” I suggest that the first question should have been, when Mr. Pohanka had a copy of the video was litigation reasonably anticipated or objectively fairly perceived as imminent? The question should not have turned on whether Mr. Little sent a preservation letter.
Of course, it is almost invariably prudent to make a written preservation demand, especially where surveillance video may be available. Mr. Little’s failure to do so was an unforced error. As I wrote in Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence: “[I]f you anticipate relying on a surveillance video, send a preservation letter as soon as possible. Retention times vary, so the sooner the letter is sent, the less likely the video will have been over[written] or stored in an inaccessible manner,” quoting Donna Fisher and Matthew Hamilton, “New Cases Bring Lessons on Video Surveillance Preservation,” JDSupra (Sept. 18, 2020); accord M. Berman, et al., eds., “Electronically Stored information in Maryland Courts” (Md. State Bar Ass’n. 2020), 156.
Nevertheless, if it focuses on the lack of a preservation letter, I respectfully disagree with the Court’s analysis that: “Because Mr. Pohanka was not on notice to preserve the video footage, … [Mr. Little] did not demonstrate an intent to lose it.”
Second, in my opinion, there was no briefing on when Mr. Pohanka’s common law duty to preserve was “triggered.” However, that should be the first analytical step in a spoliation analysis. See Triggering the Duty to Preserve ESI, citing M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 149; and, The Sedona Conference’s “Commentary on Legal Holds, Second Edition: The Trigger & Process, 20 Sedona Conf. J. 346, 366 (2019)(public comment version).
The Appellate Court wrote:
Mr. Pohanka was not put on notice, he was not instructed by anyone to preserve the video footage, and he did not have a reason to anticipate litigation when he obtained the video footage. Instead, the video footage was obtained due to the request of Mr. Pohanka’s insurer, and Mr. Little did not file suit until almost two years later. Mr. Little’s decision to file suit two years after the accident demonstrates that litigation was not imminent. Further, because litigation could not be anticipated, Mr. Pohanka did not have a duty to preserve the footage…. As previously stated, potential litigation cannot be “fairly perceived as imminent” two years prior…. Mr. Pohanka received no notice of potential litigation until almost two years after the accident…. [emphasis added].
While it is not indisputable on the facts available, a colorable argument can be made that Mr. Pohanka’s common-law duty to preserve was triggered before the video was auto-deleted, and long before the 2019 lawsuit was filed:
Relatedly, the Court appeared to apply a subjective standard to the “trigger” analysis. While Mr. Pohanka testified that he was subjectively not aware of an imminent lawsuit, the test for triggering the duty to preserve is an objective one. See, e.g., Sedona Guideline 4, quoted in Berman, “ESI in Maryland Courts” at 153, 155. I suggest, above, that there are facts sufficient to support an objective determination that Mr. Pohanka’s common law duty to preserve was triggered prior to the auto-deletion of the video. A litigant should not be able to avoid triggering the duty to preserve using a pure heart, empty head, subjective argument.
There is at least a colorable argument – albeit one that was not briefed by the parties – that is at odds with the Court’s conclusion.
Third, in my view, the analysis of whether Mr. Pohanka had possession, custody, or control of the missing video before it went missing was incomplete. I suggest that there are several key considerations:
While there is debate, the better test of “possession, custody, or control” is the “practical ability” test. The federal court in Maryland has followed that standard for defining “possession, custody, or control,” and, arguably, a Maryland court has at least impliedly done the same. See The “Practical Ability” Standard for “Control” in Maryland and Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”?
Here, I suggest that Mr. Pohanka had actual possession and control in December 2017 or January 2018, when he obtained the video from Geico. Given the fact that Mr. Pohanka’s father owned the dealership that had the surveillance equipment, it may be assumed or asserted that Mr. Pohanka had the “practical ability” to ask his father for another copy, or to preserve the original, and his father would comply. In fact, Mr. Pohanka admitted as much when he testified: “The company stored it on their server….. [W]e don’t keep video records for two years…..” [emphasis added]. The word “we” in reference to Pohanka Honda is an admission of possession, and “practical ability,” in my opinion.
While Mr. Pohanka pointed to Mr. Little’s alleged failure to subpoena Geico, if the duty to preserve was triggered, as may colorably be asserted, and if he had “practical ability” to preserve the video, as may be colorably asserted, then the obligation was on Mr. Pohanka to preserve the video.
Fourth, the Court defined spoliation as the “intentional” destruction of evidence. Fed.R.Civ.P. 37(e)(1) permits sanctions for negligent destruction of ESI if the non-destroying party suffers prejudice. The Little Court was correct that there is Maryland case law requiring intent. Berman, “ESI in Maryland Courts” at 213-14 (collecting cases).
I have argued for a lesser standard:
Thus, if “X” tears up a postcard from a paramour, the inference of adultery may be logical in a family law case; however, if a dog ate the postcard, it may not be. However, a requirement of intent may be too stringent and unfair. For example, an intent requirement would not allow a court to “level the playing field” where a litigant was substantially prejudiced by an opposing litigant’s negligent failure to preserve key information. Once the dog eats the evidence, it is gone, and the innocent party cannot prove the contents. Relief in the form of some sanction may be necessary and appropriate. In short, while intentional misconduct must be deterred, a litigant may be just as grievously (or more severely) prejudiced by negligent destruction of key evidence as by intentional destruction. Fairness suggests that there should be a remedy for a party that is prejudiced, regardless of the opponent’s intent…. Quite simply, there is disagreement as to the proper standard.
Id. at 215-16. Thus, “a substantial body of recent Maryland authorities suggests that negligent failure to preserve may support at least some spoliation sanctions.” Id. at 217-18. Further, the drafting history of Md. Rule 2-433(b) supports the conclusion that sanctions may be imposed based on mere negligence. Id. at 218 (describing drafting history in detail).
Fifth, Rule 2-433(b) was ignored. Neither party briefed or argued Md. Rule 2-433(b), despite its apparent applicability, and the Court did not raise it sua sponte. Maryland Rule 2-433(b) incorporates a “safe harbor” defense to spoliation of ESI. I have written an MSBA white paper pointing to the fact that the Rule is largely ignored. It’s Time to Replace Maryland’s “Safe Harbor” Rule.
Mr. Little could have asserted that Geico’s request was an “exceptional circumstance” that defeated the “safe harbor” protection against imposition of sanctions. Mr. Little also had a potential argument that ESI – a video – had not been lost due to routine, good faith operation of an information technology system, i.e., auto-deletion after the duty to preserve was triggered is not routine, good faith operation.
Finally, the Court found no prejudice by refusing to charge spoliation because Mr. Pohanka was held to be negligent, and the video was merely cumulative evidence that would have supported that finding of negligence. However, a video of the events leading up to the collision could also have rebutted the defense of contributory negligence and Mr. Little was deprived of that opportunity. It was contributory negligence that led to a defense verdict.
Should Carl Little, Jr., have won his appeal challenging denial of a spoliation instruction? I am the first to concede that the holding in Little may be correct. It may be that, in January 2018, when Mr. Pohanka obtained the video at Geico’s request as part of the claims process, and after he reviewed it, an objective observer could conclude that litigation was not “reasonably anticipated” or “fairly perceived as imminent,” as the Court held.
On the other hand, there is a colorable argument to the contrary. If that contrary argument is accepted, the duty to preserve the video was triggered. In that event, Mr. Little made a good point. If the duty to preserve was triggered, it would be difficult to contend that Mr. Pohanka did not breach it. It would have been his obligation to preserve it, either in his email or because he arguably had the practical ability to get it from Pohanka Honda. The video was relevant, important, irreplaceable, and preservation would have been inexpensive. I suggest that, at least under the practical control test, it was in his possession, custody, and control when it went missing.
The bottom line take-aways are that: any sanctions argument should consider trigger, scope, and limitations of the duty to preserve; and, any potential litigant seeking to rely on an opponent’s surveillance video should make a prompt – perhaps immediate – request for preservation. For the price of a postage stamp, Mr. Little may have been able to rebut the contributory negligence defense using the video.
 This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in any Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
 This fact came from appellate brief, not the Court’s opinion.
 In his brief, Mr. Pohanka argued that no subpoena was served on Geico.
 Mr. Pohanka noted that there was no objection to this testimony. In his brief, he argued that he was open to cross examination as to how he obtained the video and why he no longer had a copy. Md. Rule 1004(a) states: “The contents of a writing, recording, or photograph may be proved by evidence other than the original if: … (a) Original Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith….”
 We do not know the content of any communications between Mr. Pohanka and Geico, other than the fact that Geico asked him to get the video and he sent it to Geico.
 A number of other issues were discussed in the Appellate Court’s opinion. While significant, they are not discussed in this blog.
 I have argued that, as a practical matter, the two standards are the same. M. Berman, et al., eds., “Electronically Stored information in Maryland Courts” (Md. State Bar Ass’n. 2020), 154, citing inter alia Peterson v. Evapco, Inc., 238 Md. App. 1, 54 (2018).
 The Court wrote that “spoliation did not occur because Mr. Pohanka did not own the video and thus could not destroy it….” If there is any confusion because Pohanka Honda had the original video while Mr. Pohanka and Geico had only a copy, I suggest it is a red herring. The Rule 5-1002 requirement of an “original” is riddled with exceptions. In fact, the “copy” was likely a Rule 5-1001(c) original: “If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original’.” The copy likely could be authenticated by testimony of a witness with knowledge, i.e., Mr. Little.
 For more information on the “safe harbor,” see Berman, “Electronically Stored Information in Maryland Courts,” 219-25.
 Addressing electronically stored information is complex. The Hon. Paul W. Grimm recently wrote of the need for more education about discovery. The Need for Law School Classes in Discovery Procedures.