Introduction

• Jurisdiction: Maryland

I. INTRODUCTION

"I just delete. I delete-delete. Anything there that I don't want, don't need anymore, I delete." Peterson v. Evapco, Inc., 238 Md. App. 1, 21, 189 A.3d 210, 222 (2018). This chapter addresses "spoliation" of electronically stored information (ESI). Spoliation may be considered the flip side of the duty to preserve potentially responsive information. See Chapter 9. If there is no duty to preserve information, destruction or loss of it cannot be spoliation. For example, destruction that occurs before the duty to preserve is triggered is not spoliation. Columbia Town Ctr. Title Co. v. 100 Investment Limited Partnership, 203 Md. App. 61, 83, 36 A.3d 985, 988 n.6 (2012), aff'd in part, rev'd in part, 430 Md. 197, 80 A.3d 1 (2013); accord First Mariner Bank v. Resolution Law Grp., P.C., CIV. MJG-12-1133, 2014 WL 1652550, at *8—9 (D. Md. Apr. 22, 2014) ("[T]his is not a spoliation case. The files were destroyed before appellants knew there was a title problem."). As discussed in this chapter, both spoliation and the duty to preserve are, or at least originally were, common law doctrines that have received attention in countless federal and Maryland decisions, and sanctions are the subject of December 2015 revisions to the Federal Rules of Civil Procedure.²

Under the ancient doctrine omnia praesumuntur contra spoliatem, "[a]ll things are presumed against the spoliator."³ Cecil County Department of Social Servs. v. Russell, 159 Md. App. 594, 618, 861 A.2d 92, 106 (2004); see also Miller v. Montgomery County, 64 Md. App. 202, 214, 494 A.2d 761, 768 (1985). That presumption or inference "rests upon a logical proposition that one would ordinarily not destroy evidence favorable to him [or her] self." Russell, 159 Md. App. at 618, 861 A.2d at 106; see also Miller, 64 Md. App. at 214, 494 A.2d at 768. The corollary is that a person will preserve that which is beneficial to his or her case. Anderson v. Litzenberg, 115 Md. App. 549, 562, 694 A.2d 150, 156 (1997). "The destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator, the nature of the inference being dependent upon the intent or motivation of the party." Steamfitters Local Union No. 602 v. Erie Ins. Exch., 241 Md. App. 94, 130, 209 A.3d 158, 179 (2019), cert. granted, 466 Md. 193, 216 A.3d 937 (Sept. 9, 2019) (citation and internal quotations omitted).

However, in modern times the doctrine has become more nuanced and complex than a mere Latin phrase. It is particularly...