“The maxim, Omnia praesumuntur contra spoliatorem, ‘all things are presumed against the spoliator,’ rests upon a logical proposition that one would ordinarily not destroy evidence favorable to himself.”i Spoliation is defined as the destruction or alteration of evidence.ii While the concept of spoliation can be traced back hundreds of years1, Maryland’s law regarding spoliation, which has developed over the last 70 years, leaves much to be desired. This article will address the elements of spoliation, the practical application of spoliation to civil plaintiffs, and the impact that the shortcomings of spoliation precedent currently create in leveling the playing field.
Maryland law on spoliation has been adopted from federal case law, including a four-part test for determining whether spoliation has occurred. The elements of this test are as follows: “1) an act of destruction; 2) discoverability of the evidence; 3) an intent to destroy the evidence; and, 4) occurrence of the act at a time after suit has been filed, or, if before, at a time when the filing is fairly perceived as imminent.”iii
The first element of spoliation - an act of destruction - requires that the evidence sought was destroyed. In Klupt v. Krongard, the Appellant had been sued and had counter-sued for damages arising from licensing of a videocassette invention of the Appellant.iv During litigation, it was discovered that the Appellant had recorded his telephone conversations with the opposing parties.v It was further discovered that the recorded conversations had been smashed with a hammer by the Appellant six months following the commencement of litigation.vi The Appellate Court of Maryland held that the smashing of the recordings with a hammer clearly amounted to an act of destruction.vii Destruction is not limited to the complete disposal of evidence, however. In Miller v. Montgomery Cnty., the Appellate Court of Maryland found that if Montgomery County had altered the interior of a traffic control mechanism after its removal from the traffic light, this would amount to tampering of evidence and such an act would be an act of destruction.viii Of great importance is the requirement that the evidence existed in the first place. In Webb v. Giant of Maryland, LLC, a premises liability case, the Plaintiff sought a spoliation instruction for the destruction of video evidence.ix The Supreme Court of Maryland, in affirming the opinion of the Appellate Court of Maryland, held that no spoliation instruction was warranted because while the Plaintiff had provided evidence that there were video cameras in the vicinity of the Plaintiff’s fall, there was no evidence that an actual video recording ever existed.x Thus, not all acts of destruction will give rise to a claim for spoliation.
The second element of spoliation – discoverability of the evidence – requires that the evidence be relevant to the proceedings and otherwise discoverable. Further, there must be an intent to destroy the evidence and the litigation must have commenced or be fairly perceived as imminent.
The third element of spoliation - intent to destroy the evidence - is, on its face, misleading. Thus, it requires an analysis into the legal definition and importance of intent as it relates to the concept of spoliation. Intent is defined as: knowledge, actual or constructive, that discoverable evidence is relevant to reasonably foreseeable litigation.xi
In Cumberland Ins. Group v. Delmarva Power, a subrogation claim was made by a homeowner’s insurance company for damages caused by a fire.xii The insurance company sued the power company alleging the fire was caused by faulty wiring in the house’s electric meter box.xiii The insurance company conducted its own investigation of the cause of the fire and then demolished the property.xiv The Power Company moved for summary judgment on the basis that the evidence had been spoliated and the Power Company was not able to prepare a defense due to the spoliation.xv The Trial Court granted the Motion for Summary Judgment and the Appellate Court of Maryland affirmed, finding that the insurance company had given notice to the Power Company about the loss and potential claims, but had given no notice as to the destruction of the property.xvi Further, the insurance company was aware that destruction of the property would take place imminently as the check written to the homeowner included costs for demolition.xvii So, despite not controlling the actual demolition, the insurance company was found to have spoliated evidence as it financed the demolition and was aware of its own impending claim for subrogation. Thus, the evidence was destroyed at a time when a claim was reasonably foreseeable.
Not all relevant evidence that is intentionally destroyed will give rise to spoliation. Common sense and public policy concerns are vital to any court’s analysis. Consider Adventist Healthcare, Inc. v. Mattingly, where the Plaintiff brought a medical malpractice case personally and as Personal Representative of her son’s estate.xviii Following her son’s death, the Plaintiff had her son’s remains cremated following his autopsy.xix The Defendant’s requests for judgment and a spoliation instruction on the issue of spoliation were refused by the trial court.xx The Appellate Court of Maryland held that, while the body of the Plaintiff’s son had obviously relevant evidence, conflating a loved one’s cremation with intentional destruction of evidence was unconscionable.xxi
Maryland Courts have held that unintentional or negligent destruction of evidence can still give rise to spoliation. In Anderson v. Litzenberg, Plaintiff made claims for personal injuries he sustained when a tarp system attached to the Defendant’s dump truck became dislodged and struck the Plaintiff’s vehicle, causing the Plaintiff to lose control of his vehicle.xxii The Defendant discarded a majority of the tarp system following inspection by Defendant’s insurer.xxiii While no claims were pending when the tarp system was discarded, the Defendant admitted under cross-examination that a claim arising for personal injury due to the malfunction of the tarp system might have been anticipated.xxiv
In short, whether an act of destruction was made intentionally or negligently has bearing on the remedy, not whether spoliation occurred. The question of whether evidence was destroyed negligently or intentionally is often a question of fact. Steamfitters Loc. Union No. 602 v. Erie Ins. Exch. concerned a dispute over a video recording that was in the vicinity of, although it did not directly capture, the origin of a fire.xxv In that case, the party seeking the video had sent correspondence requesting the video’s preservation 17 days after the fire and receipt of the correspondence was acknowledged 21 days after the fire.xxvi The Appellate Court of Maryland held that it was a question for the jury as to whether the video was destroyed negligently or intentionally when the video recording system would tape over video recordings within 30 days.xxvii
The final element of spoliation - that the spoliation occurred after litigation had been commenced or when litigation was fairly perceived as imminent - also contains misleading language. The term “imminent” would seem to provide that evidence can only be spoliated if litigation is likely to commence in the coming weeks or months. However, Maryland case law seems to refute this notion. See, Anderson, (trial took place nearly three years after collision); Peterson v. Evapco, Inc. (holding that spoliation occurred as records were not preserved after receiving correspondence requesting that records be preserved for future litigation).xxviii Perhaps a more accurate phrasing of the final element of spoliation would be “after litigation has commenced or notice has been given of a likelihood of future litigation.”
When the factual groundwork for spoliation has been laid and spoliation has occurred, the question of remedy arises. Spoliation can be remedied in two ways: as a jury instruction and/or as a discovery sanction.
Specifically, a party may be entitled to Maryland Civil Pattern Jury Instruction 1:16, which states:
The destruction of or the failure to preserve evidence by a party may give rise to an inference unfavorable to that party. If you find that the intent was to conceal the evidence, the destruction or failure to preserve must be inferred to indicate that the party believes that his or her case is weak and that he or she would not prevail if the evidence was preserved. If you find that the destruction or failure to preserve the evidence was negligent, you may, but are not required to, infer that the evidence, if preserved, would have been unfavorable to that party.
Spoliation of evidence can also lead to discovery sanctions, including dismissal or default judgment. In Cumberland, the Court analyzed when sanctions may be imposed, and to what extent. The Cumberland Court discussed that there must be some degree of fault to impose sanctions, but that fault does not require bad faith or intentionality.xxix Instead, where the conduct is not as egregious as intentionally destroying evidence, severe sanctions may be necessary where prejudice to a party is extraordinary.xxx The Cumberland Court adopted a two-part test for determining whether severe sanctions, such as dismissal, are warranted: 1) the spoliator’s conduct is so egregious to require a severe sanction; or 2) the loss of evidence is so prejudicial that it denies a party the ability to defend or make its claim.xxxi
Interestingly, it would seem that discovery sanctions for spoliation provide more potential relief for a Plaintiff whose ability to make a claim have been compromised or thwarted by a spoliating party than the inferences allowed from a spoliation instruction. This shortcoming in Maryland law will be discussed further in this article.
Practitioners should closely monitor federal decisions regarding spoliation as these cases have been cited as instructive by Maryland’s Appellate Courts in developing Maryland’s spoliation doctrine. As pointed out supra, Maryland’s spoliation doctrine contains language that can be misleading to the purpose and intent of the spoliation doctrine. Sampson v. City of Cambridge, Md.xxxii, a federal case, was cited by the Court in Cumberland when discussing spoliation. The language of the Sampson case can clarify certain elements of the spoliation doctrine.
For example, contrast Maryland’s element of timing: that spoliation occurred “at a time after suit has been filed, or, if before, at a time when the filing [was] fairly perceived as imminent” with the language of Sampson that the time period for a duty to preserve evidence extends to “when a party reasonably should know that the evidence may be relevant to anticipated litigation.”xxxiii In practice, the spirit of the language of Sampson has been extended to Maryland’s spoliation doctrine as well.xxxiv As such, practitioners should be sure to send “Litigation Hold Letters” requesting that all evidence be preserved. The “Litigation Hold Letter” should be detailed as to the exact evidence being requested to be preserved, including any applicable time frames for electronic or recorded evidence.
Discovery depositions should be viewed as an opportunity to seek information as to when a defendant reasonably anticipated litigation and what evidence existed at that time. In Webb, the Court declined a spoliation instruction on the basis that the Plaintiff had not shown the actual existence of video recordings. Testimony regarding surveillance cameras in the area of the Plaintiff’s injury was held to not be evidence of actual video recordings of the scene of the incident. Similarly, the Sampson Court discussed the need for a finding that the spoliated evidence contained relevant evidence in order to justify a spoliation instruction or sanction.xxxv It should be noted that evidence spoliated in bad faith, intentionally or with willful conduct, alone establishes that the destroyed documents are relevant in Federal Court.xxxvi 2 Given these decisions, it would seem appropriate, in a “slip and fall” premises liability case to establish what surveillance systems were in place, verify all were in working order at the time of the injury, establish that the surveillance video would have shown what caused the plaintiff’s fall, and to gather information as to when the defendant was reasonably aware of future litigation. Interestingly, defendants in these cases almost always assert that incident reports from the day of a plaintiff’s injury were created “in anticipation of litigation” thus proving that the defendant had an almost immediate reasonable anticipation of future litigation.
In light of the above, practitioners should also seek to remedy the spoliation through discovery sanctions where possible. Unfortunately, given that Maryland law on spoliation has relied on the oft-cited principle that spoliated evidence cannot act as a surrogate for a fact essential to a non-spoliating party’s claims, discovery sanctions provide a far more effective method of remedying spoliation, including default judgment.
Maryland’s spoliation doctrine leaves much to be desired. The most glaring issue is the principle that spoliated evidence cannot substitute for a fact necessary for a party to make their prima facie case.xxxvii In Larsen v. Romeo, the Defendant had alleged the motor vehicle collision was caused by defective brakes but had discarded an air hose that Defendant alleged was the cause of the defective brakes.xxxviii The Supreme Court of Maryland held that, while a presumption arose from the spoliation of the air hose that the air hose was not the cause of the brake failure, the spoliation of the air hose did not negate the testimony of the Defendant that his brakes had failed.xxxix Put differently, while spoliation can create a presumption against a party, the presumption can be rebutted by a responding party.xl In such a scenario, if the presumption against the spoliator is sufficiently rebutted, the party favored by the presumption must still present evidence necessary to establish a prima facie case.xli In such a situation, the adverse presumption enhances other evidence put forward by the party bearing the burden of proof.xlii
Notwithstanding the above, the limits of the adverse inference provide by spoliated evidence is subject to interpretation, as the Appellate Court of Maryland in Anderson did state that the disposal of the tarp system created an adverse inference that the tarp was in fact defective.xliii In Goin v. Shoppers Food Warehouse Corp., the Appellate Court of Maryland noted that “[t]here may indeed be a ‘business premises slip and fall case’ in which the doctrine of spoliation will operate to prevent summary judgment in favor of the business.”xliv Essentially, given that Maryland law on spoliation has relied on the oft-cited principle that spoliated evidence cannot act as a surrogate for a fact essential to a non-spoliating party’s claims, discovery sanctions provide a far more effective method of remedying spoliation, including default judgment.
A hypothetical case may illustrate the current shortcomings in Maryland’s spoliation doctrine. If a plaintiff alleges negligence on the part of a business that caused a “slip and fall” injury, the plaintiff is required to prove some knowledge of the hazard, actual or constructive. However, the plaintiff in such a scenario is often unaware of the hazard prior to the fall and is therefore also unaware of the amount of time the hazard has existed on the floor. In fact, the plaintiff would have no case if the plaintiff had been aware of the hazard prior to the fall. In such circumstances, surveillance video evidence is often the only evidence available to the plaintiff to determine the defendant’s knowledge of the hazard. Assuming that all elements of spoliation have been met, the law is unclear as to whether the plaintiff would need to prevail via a discovery sanction or not at all. If the plaintiff receives only a spoliation jury instruction as to the missing video, the idea that the spoliated evidence cannot “act as a surrogate” for a fact essential to plaintiff’s case (i.e. actual or constructive notice of the hazard) currently appears to require a verdict against the plaintiff. Such a result defies not only the purpose of the spoliation doctrine, to encourage fairness, but provides no actual presumption against the spoliator. In certain cases, such as medical malpractice cases and business premises “slip and fall” cases, the evidence required for a plaintiff’s case often rests exclusively in the defendant’s control.
The more logical result would be that an adverse inference arises against the spoliating defendant that the destroyed video recording would have shown that the hazard was placed on the floor by the negligence of the defendant’s own employees (actual notice). Such a result actually makes a presumption against the spoliator and encourages fair dealing in litigation. In fact, such a result requires that business premises owners, hospitals, or other sophisticated defendants do nothing more than simply keep the records they have already created for their ordinary business purposes.
Thus, it is incumbent upon all plaintiffs’ attorneys to familiarize themselves with the spoliation doctrine and seek discovery of all records that have existed. Importantly, plaintiffs’ attorneys should continue to highlight any imbalances placed upon plaintiffs by defendants who maintain control over necessary evidence to our appellate courts. Maryland’s spoliation doctrine, especially in this digital age, is still developing and it is important that it is developed with the considerations of plaintiffs in mind.
Justin Wallace, of the Law Office of Justin A. Wallace, LLC, is a solo practitioner in Timonium, Maryland. Justin’s practice focuses on civil litigation in workers’ compensation and personal injury matters involving motor vehicle collisions, dog bites and premises liability. In practice since 2015, Justin has successfully tried numerous Circuit Court jury trials throughout the State of Maryland.
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