When Should a Spoliation Motion Be Filed and Decided?

Several recent decisions from the District of Maryland address the question of when a spoliation motion should be filed and decided.  Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. Dec. 14, 2020); Shackelford v. Vivint Solar Developer, LLC, 2020 WL 5203340 (D. Md. September 1, 2020); Brittney Gobble Photography, LLC v. Sinclair Broad. Grp., Inc., 2020 WL 1809191, at *3 (D. Md. Apr. 9, 2020); Sabah v. Agbodjogbe, 2019 WL 4447235, at *4 (D. Md. Sept. 17, 2019); Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 508 (D. Md. 2009).

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.

Beginning with Goodman, 632 F.Supp.2d at 508, the Court held that spoliation motions should be filed as soon as reasonably possible after discovery of the facts that underlie the motion.  The fact that Rule 37 does not specify when a spoliation motion must be filed “does not license litigants to seek sanctions long after discovery has closed.”  Al-Sabah v. Agbodjogbe, 2019 WL 4447235, at *4 (D. Md. Sept. 17, 2019) (sanctions motion filed long after movant knew of the issue, fourteen months after close of discovery and after deadline for dispositive motions, was untimely); Brittney Gobble Photography, LLC v. Sinclair Broad. Grp., Inc., 2020 WL 1809191, at *3 (D. Md. Apr. 9, 2020) (motion filed before discovery was closed, prior to deadline for dispositive motions, but four months after learning of facts, deemed timely). Both Shackleford and Goodman reason that one purpose for requiring prompt filing is that resolution of a sanctions motion may require additional discovery and the “least disruptive time” to do this is during the discovery phase.  Shackleford, 2020 WL 5203340 at *7, quoting Goodman, 632 F.Supp.2d at 508.

The time for ruling on the motion may be significantly later.  The Court has reiterated that “where discovery is not complete, it would be premature to have ruled on plaintiff’s request for sanctions.”  Shackleford, 2020 WL 5203340 at *6 (emphasis added).  The Court explained: “Without a detailed record before the Court, this Court could not pass on the issue of spoliation.” Id.  As noted in M. Berman, “Electronically Stored Information in Maryland Courts” at 229-33, and M. Berman, et al., eds., Managing E-Discovery and ESI (ABA 2011), 735, many authorities support that approach.

In Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. Dec. 14, 2020), the Court addressed whether a spoliation motion filed at the end of discovery, but a substantial time after the spoliation was discovered, was timely.  The Court held that, on the facts presented, the motion was timely; however, it wrote that the motion should have been filed sooner.

In Eller, defendants argued “that Plaintiff was aware of Defendants’ failure to preserve the PS-74 forms on July 17, 2019, but she waited until the close of discovery, more than one year later, to file the Motion.”  Eller, 2020 WL 7336730, at *2 (emphasis added).

The plaintiff responded that she had diligently pursued discovery and repeatedly requested more information about the circumstances of the loss or destruction of the documents.  She asserted that she attempted to obtain discovery from all available sources before bringing the motion.  In my words, she argued that promptly pursuing “discovery about discovery” tolled the obligation to promptly move for sanctions.

Further, the Eller plaintiff argued that, “[e]ven if the Motion had been filed in July 2019, … Defendants’ response likely would have been the same. The timing of Plaintiff’s Motion has not affected Defendants’ ability to oppose it.”

The Eller Court wrote: “Under the circumstances, Plaintiff’s Motion will not be denied for untimeliness. Although Rule 37 “does not contain a statute of limitations” for filing spoliation motions, courts nonetheless consider a number of factors in assessing the timeliness of such motions:

(1) how long after the close of discovery the relevant spoliation motion has been made; (2) the temporal proximity between a spoliation motion and motions for summary judgment; (3) whether the spoliation motion was made on the eve of trial; and (4) the explanation of the moving party as to why the motion was not filed earlier should be considered.

Accord Al-Sabah, 2019 WL 4447235, at *4; Barreto v. SGT, Inc., 2019 WL 3253373, at *3 (D. Md. July 19, 2019), aff’d, 826 F. App’x 267 (4th Cir. 2020).

Given plaintiff’s “sincere efforts to obtain discovery that had been lost by Defendants and information about how the loss had occurred,” the Eller Court deemed the spoliation motion timely.  It found defendants had not been prejudiced and noted that its docket had been delayed by the COVID-19 pandemic.  Nevertheless, the Court noted that plaintiff should have filed the sanctions motion sooner.

The Court has also rigorously adhered to the procedural predicates and it “will not entertain Plaintiff’s complaints about Defendants’ methods of collecting responsive emails or the timing of the production of these emails. Plaintiff could have brought these concerns to the Court in a motion to compel discovery but she did not do so.” Eller v. Prince George’s County Public Schools, et al., No. TDC-18-3649, 2020 WL 7336730, at *13 (D. Md. Dec. 14, 2020).

Please see February 7, 2021, UPDATE