When Should a Spoliation Motion Be Filed and Decided? – – An Update

In Membreno v. Atlanta Restaurant Partners, LLC, 2021 WL 351174 (D. Md. Feb. 2, 2021), the Court penalized a litigant for her untimely filing of a spoliation motion, even though the motion had merit.  While the Court granted the request for sanctions, it denied a request for attorneys’ fees due to the untimely filing.

Discovery in this case was contentious and the Court was required to resolve approximately 10 heated disputes. These disputes arose from both sides and neither side was particularly timid about bringing discovery matters to the Court’s attention.

In a recent blog, I discussed the issue of when a spoliation motion should be filed and decided:

There are two general guiding principles.  First, prudence suggests prompt filing of such motions soon after learning of a basis for doing so.  Second, courts are likely to wait until a full record is developed before deciding the motion.  See, e.g., M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 229 (collecting cases).  In Eller, the Court implicitly determined that promptly pursuing “discovery about discovery” may toll the obligation to move for sanctions; however, it cautioned that, even in those circumstances, it would have been better to file a timely motion.

In Membreno, plaintiff delayed substantially: “The Court agrees that Plaintiff improperly delayed in filing her Motion. Ms. Membreno filed the Motion nearly seven months after the close of discovery. She knew by the end of February 2020 that Defendants had destroyed the personnel files at a time when they had a duty to preserve them. She should have filed her Motion promptly upon becoming aware of Defendants’ spoliation. Even after Ms. Batten’s May 2020 deposition, when Ms. Membreno obtained additional evidence about Defendants’ culpability, she continued to delay. Although she was in possession of all of the information she needed to seek sanctions against Defendants, she waited four more months to file her Motion.” [emphasis added].

Despite the lack of a good reason for delay in bringing the motion, the Court did not deny it as untimely because “Defendants’ misconduct is serious and Defendants are not significantly prejudiced because of the delayed filing.”

However, after considering the motion and awarding sanctions, the Court penalized Membreno for her delay:

Ms. Membreno also requests an award of reasonable attorney’s fees and costs. That request is denied because of Ms. Membreno’s substantial delay in filing her Motion. A party that has been prejudiced by spoliation must not sit on their hands. Spoliation motions are fact-intensive and take significant time for the Court to resolve. In some cases, spoliation sanctions may “end the litigation or severely alter its course.” Goodman, 632 F. Supp. 2d at 508. Courts have repeatedly insisted that parties file spoliation motions “as soon as reasonably possible after discovery of the facts that underlie the motion.” Id. Ms. Membreno failed to do so in this case. Considering the broad discretion that courts have in fashioning sanctions for spoliation, the Court finds that denying Ms. Membreno’s request for attorney’s fees and costs is appropriate given her delay in filing the Motion. Under the circumstances of this case, awarding attorney’s fees and costs to Ms. Membreno for Defendants’ spoliation would not be in the interests of justice…. [emphasis added]

Addressing a request for Rule 26(g) sanctions, the Court wrote:

[T]he Court cannot overlook Ms. Membreno’s delay in filing her Motion. The Court expects parties to bring discovery disputes to its attention promptly. “A failure to do so may result in a determination by the Court that the dispute must be rejected as untimely.” Loc. R., App. A, Guideline 1(f). The Court views ARP’s violation of Rule 26(g) as a serious discovery failure. This issue should have been brought to the Court’s attention more promptly. Ms. Membreno was aware of the relevant facts by May 2020 at the latest. She waited until September 2020 to bring the matter to the Court’s attention. Because of Ms. Membreno’s delay in bringing this matter to the Court’s attention, the Court exercises its discretion to limit the award to which she is entitled for ARP’s Rule 26(g) violation. [emphasis added]

The Court’s Discovery Guideline 1(f) states: “Whenever possible, attorneys are expected to communicate with each other in good faith throughout the discovery process to resolve disputes without the need for intervention by the Court, and should do so promptly after becoming aware of the grounds for the dispute.”

As noted in the earlier blog, while there is no statute of limitations on a spoliation motion, a party seeking sanctions should do so promptly upon learning of the reason for doing so.  There may be a sharp delineation between the time for filing and the time for deciding such a motion; however, courts generally appear to insist on timely filing.  In Eller, the Court permitted an implied tolling where the movant sought discovery in order to present the sanctions issue; however, even there, it wrote that the motion should have been filed sooner.

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August 10, 2021, update:

In another delay situation, the Court held that it is improper to raise spoliation for the first time in a reply memorandum.  The Court described that as a belated attempt “to morph a motion to compel into a motion for sanctions grounded in a Rule 37 spoliation argument.”  Gaske v. Crabake Factory Seafood House, LLC, 2021 WL 3188007,  *6 (D. Md. Jul. 28, 2021).

Maryland Discovery Guideline 2 states: “Attorneys are encouraged to enter into written discovery stipulations to supplement the Court’s scheduling order under Rule 2-504, such as milestone dates for motions, including spoliation motions and motions in limine (including Frye-Reed motions), that may not otherwise be subject to deadlines imposed by Court order or rule.” [emphasis added].