The Duty to Preserve Evidence in Maryland
In Maryland, if a person or company has a reasonable expectation of a lawsuit, they have a duty to preserve evidence. This derives from a court's inherent power to ensure a fair judicial process. Sanctions can result against a party at court found to have intentionally or negligently destroyed important evidence.
1. Duty to Preserve Evidence:
"The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation," states the Fourth Circuit Court of Appeals, in Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)); accord Klupt v. Krongard, 126 Md. App. 179, 199, 728 A.2d 727, 735-736 (1999).
In other words, "Once a party reasonably anticipates litigation, it is obligated to implement a ‘litigation hold'." Cognate BioServices, Inc. v. Smith, Civ. No. WDQ-13-1797, Mem. Op. p. 3, 2015 WL 5158732, at *2 (D. Md. Aug. 31, 2015).
A litigation hold means to preserve documents, letters, notes, and emails, among other kinds of evidence related to the dispute at hand, and is meant "to ensure that potentially relevant evidence under its control is identified, located, and preserved for use in the anticipated litigation." Cognate BioServices, supra.
The intentional or negligent destruction of evidence can be sanctioned at court under Maryland law. “Spoliation is the destruction, mutilation or alteration of evidence by a party to an action.” Miller v. Montgomery Co., 64 Md. App. 202, 494 A.2d 761 (1984). Evidence that has been destroyed can be “presumed against the spoliator,” id.
A trial court has “wide discretion” to sanction a spoliator for intentional or negligent destruction of evidence. Klupt v. Krongard, 126 Md. App. 179, 201, 728 A.2d 727, 738 (1999).
2. Example, Eller:
In Eller v. Prince George’s Cty. Pub. Sch., the Maryland federal court surveyed an array of lost and/or destroyed evidence, and found that the employer school system had a duty to preserve forms documenting the harassment of a teacher, Eller, by students. The court found they had notice of litigation, but had destroyed and/or lost them, in gross negligence, despite knowledge of the dispute at hand. Civ. No. TDC-18-3649, Mem. Op. 1-23, 2020 WL 7336730 (D. Md. Dec. 14, 2020) (J. Sullivan).
As a result, the Court recommended the trial judge instruct the jury that these missing forms would have documented that the harassment alleged, DID IN FACT, occur. Id. at Mem. Op. 23.
In addition, if any discipline was taken against the students or not, to protect this teacher or not, it would have been documented there (or not), and the jury should know the school system was responsible for losing these forms. Id. In other words, the trial court imposed the sanction of presumption of evidence: to blame the school system ("Defendants") for this loss of evidence. Of course, this might seem suspicious or have other adverse impact on Defendants.
The Court’s proposed instruction to the jury, as a court-ordered sanction, stated:
You have heard evidence that Ms. Eller was subject to harassment by students on the basis of her transgender status during her tenure at Friendly High School. Other evidence about this harassment and the discipline imposed on these students was contained in written forms. These forms have been lost by Defendants. If the forms had not been lost, they would have described the harassment that Ms. Eller experienced. The forms would also have shown whether the students responsible for the harassment were disciplined and what kind of discipline was imposed. Defendants bear the sole responsibility for the loss of this evidence.
3. Conclusion
In conclusion, if a person or company has a reasonable expectation of a lawsuit in Maryland, they have a duty to preserve evidence related to the dispute at hand.
Sanctions can result against a party at court found to have intentionally or negligently destroyed important evidence. This doctrine is called, "spoilation." The law of spoilation is complicated; this article is a brief overview.
As a result, it is important to take reasonable efforts to preserve evidence.
Gregg H. Mosson, Esq.
Mosson Law, LLC
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