Chapter 49 Sanctions for Failure To Comply With Court-Ordered Discovery

• Jurisdiction: Maryland

CHAPTER 48 NONPRODUCTION, SPOLIATION, DISCOVERY VIOLATIONS, AND ADVERSE INFERENCE

Smith sued Jones for alleged violations of a licensing agreement. Jones served on Smith a request for production of documents, including a request for documents relating to all oral and written communications between Smith and Jones (or Jones's counsel).

Unbeknownst to anyone else at that time, Smith had a habit of tape-recording his telephone conversations with Jones and his counsel. Later, Smith prepared typewritten memoranda from these recorded conversations. Each memorandum was signed and dated. Smith did not produce the tapes or the memoranda in response to Jones's document requests. Smith did produce a privilege log, but it made no mention of the tapes or memoranda.

When questioned at deposition, Smith initially testified that he had provided all documents he currently possessed in accordance with Jones's document requests. Later on in the deposition, Smith recanted and acknowledged that there were tape recordings of conversations, as well as memoranda prepared from the tapes. Smith further acknowledged that he destroyed the tapes and memoranda six months after the lawsuit had been filed.

Following the deposition, counsel for Jones filed a motion to dismiss Smith's complaint as a sanction for Smith's nonproduction and spoliation of documents. Jones's motion was based on MD. RULES 2-432(a) and 2-433(a)(3), as well as the inherent power of the circuit courts to impose discovery sanctions. The motion alleged that Smith made tape recordings of telephone conversations; that Smith prepared written memoranda from the recordings; that he intentionally destroyed the tape recordings and the memoranda while the case was pending; and that he falsely affirmed in his deposition that he had produced all documents.

Smith responded that dismissal of the complaint was unwarranted because he did not appreciate that he should not have destroyed the material. Moreover, he argued, Jones was not prejudiced by Smith's actions—he had ultimately provided truthful testimony concerning the contents of the tape recordings and the memoranda, leaving adequate time for Jones's counsel to prepare the case for trial.

How should the court rule?

Comment: Spoliation is destroying, significantly altering, or failing to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. A party on notice that evidence is relevant has a duty to preserve it.

Although the MD. RULES do not specifically address spoliation of evidence, Maryland courts have imposed an array of sanctions on litigants who engage in spoliation based on the courts' broad discretion to impose sanctions and their inherent powers to administer justice and direct the course of litigation. "The doctrine of spoliation is grounded in fairness . . . Stated simply, a party should not be allowed to support its claims or defenses with physical evidence that it has destroyed to the detriment of its opponent."¹ The Maryland Court of Appeals has recognized that "[t]he inherent power of the court is the power to protect itself; the power to administer justice . . . ; the power to promulgate rules for its practice; and the power to provide process where none exists."² In Bartholomee v. Casey, the Court of Special Appeals wrote that...