There Is a Difference Between Relevance for Discovery and Relevance for Spoliation Sanctions

In Snyder v. Moag & Co., LLC, 2021 WL 3190493 (D. Md. Jul. 28, 2021) (Copperthite, J.), the Court wrote that, “the matter is quite simple – has Petitioner met the elements of spoliation.”  The Court answered that in the negative.  In doing so, it differentiated between the loss or destruction of discoverable information, on the one hand, and what must be shown to support imposition of sanctions, on the other.

The opinion is instructive in many respects.  The Court defined spoliation and enumerated its elements.  It then applied the well-settled principle that a spoliation motion cannot be based on speculation.[1]

However, using a belts and suspenders analysis, the Court also analyzed relevance and prejudice for spoliation purposes.  It wrote that, in a sanctions analysis, missing information is relevant “if the evidence would have naturally been introduced into evidence….”  Id. at * 3 (citation omitted).

The Court explained that it had previously determined that the information, if it existed, was discoverable: “On December 17, 2020 this Court made a preliminary finding after carefully reviewing the pleadings in this case, the information sought regarding the production of phone records, text messages and other communications…to be within the scope of discoverable information…”  Id. (quotations omitted).

It then explained: “That ruling pertained only to the relevance of the information with respect to the motion to compel, not the relevance of the alleged information and the burden of proof for spoliation.”  Id. (Emphasis added).

The Snyder Court carefully explained the differences between relevance as it relates to the scope of discovery and relevance for purposes of spoliation sanctions.  It wrote:

The Petitioner here is not asking for compelling production, but sanctions for spoliating evidence. The burden of proof with respect to the issue of relevance is distinctly different requiring a different analysis by the Court. [Emphasis added].

In short, a party seeking sanctions must show more than that discoverable information went missing:

“Spoliation of evidence causes prejudice when, as a result of the spoliation, the party claiming spoliation cannot present evidence essential to its underlying claim….  Put another way, a finding of ‘relevance’ for purposes of spoliation sanctions is a two-pronged finding of relevance and prejudice.”

Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 532 (D. Md. 2010) (cleaned up; subsequent history omitted) (Emphasis added);  see Simone v. VSL Pharms., Inc., 2018 WL 1365848, at *4 (D. Md. Mar. 16, 2018) (test for relevance for sanctions is more stringent than Fed.R.Evid. 401); Eller v. Prince George’s Cty. Pub. Sch., 2020 WL 7336730, at *9 (D. Md. Dec. 14, 2020) (same); First Mariner Bank v. Resol. L. Grp., P.C., 2014 WL 1652550, at *12 (D. Md. Apr. 22, 2014) (same).

At bottom, the scope of discovery under Fed.R.Civ.P. 26(b)[2] is not the same as “prejudice” under Rule 37(e)(1).[3]   A showing of the failure to preserve all discoverable material may be insufficient to support a motion for spoliation sanctions.

****

[1] See, Blog, “Where Producing Party Represents That It Fulfilled Its Duty to Produce, a Motion to Compel Additional Production Cannot Be Based on Speculation.”

[2] Rule 26(b) states: “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” [Emphasis added].

[3] Rule 37(e) states: “If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.” [Emphasis added]/