Spoliation of Evidence in Maryland

In products liability and truck and accident cases, our law firm sees defendants who negligently or intentionally destroy evidence that would help us at trial. Here is some quick cheat sheet law for Maryland car accident and truck accident lawyers dealing with a defendant who may have destroyed relevant evidence:

“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).

“The maxim, Omnia praesumuntur contra spoliatem, ‘all things are presumed against the spoliator,’ rests upon a logical proposition that one would ordinarily not destroy evidence favorable to himself.” Id.

There are four elements prerequisite to a court’s imposition of spoliation sanctions:

1. An act of destruction;
2. Discoverability of the evidence;
3. Intent to destroy the evidence;
4. The 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.

Klupt v. Krongard, 126 Md.App. 179, 199, 728 A.2d 727, 737 (1999).

“[I]ntent means knowledge, actual or constructive that discoverable evidence is relevant to pending litigation.” Id.

The court has “wide discretion” to impose any sanction allowed under Md.Rule 2-433(a), regardless of whether there is a finding of prejudice. Id. at 201, 728 A.2d at 738.

This includes:

1. An order that the matters sought to be discovered, or any other designated facts shall be established for the purpose of the action by the claim of the party obtaining the order;
2. An order refusing to allow the failing party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters into evidence; or
3. An order striking out pleadings or parts thereof, or staying further proceeding until the discovery is provided, or dismissing the action or any part thereof, or entering a judgment by default that includes a determination as to liability and all relief sought by the moving party against the failing party if the court is satisfied that it has personal jurisdiction over that party.

When a party has possession of a piece of evidence at a time he knows or should have known it will be evidence in a controversy, and thereafter disposes of it, makes it unavailable, or fails to produce it, the law presumes that the piece of evidence, had it been produced, would have been unfavorable to the party that did not produce it.

Intent matters. If a jury finds that a party has altered or destroyed evidence with fraudulent intent, it may presume that the party’s case is weak and the party’s belief that it would not prevail without the aid of such improper tactics. DiLeo v. Nugent, 88 Md. App. 59, 71, 592 A.2d 1126 (1990).

But intent is not necessary. An adverse presumption may arise against the spoliator even if there is no evidence of fraudulent intent. Anderson v. Litzenberg, 115 Md. App. 549, 561, 694 A.2d 150 (1997).

If you have a real spoilation argument, you need to fight to get relief that meets the crime.  Spoliation does not have a history as a narrow evidentiary rule that slaps the offending party on the wrist. Trial court are given wide latitude to fashion the appropriate relief.  This point was made by the Maryland Court of Special Appeals in Klupt v. Krongard, 126 Md. App. 179, 728 A.2d 727 (1999):

“…We note that the destruction or spoliation of evidence doctrine is itself flexible and versatile. Various courts have recognized it as an independent cause of action, a defense to recovery, an evidentiary inference or presumption, and as a discovery sanction. It is regarded as both a substantive rule of law and a rule of evidence or procedure. Its application depends on the attendant circumstances.”  The take home message?  Beat the defendant over the head with it (of course, it is almost always the defendant).

Maryland Rule 2-433 (a).

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.

MPJI-Cv 1:10 (Maryland jury instruction) The inferences permitted depend on the jury’s finding of the party’s intent in destroying the evidence. If done to conceal, the destruction is subject to a much broader inference than if it was done merely negligently.

• Adventist Healthcare, Inc. v. Mattingly (2020 opinion by the Maryland Court of Special Appeals dealing with the issue of spoliation of a dead body – malpractice defense lawyers claiming that getting a body cremated was spoliation which, not surprisingly, was rejected by the courts).
• Spoliation of Evidence Law (practical application of spoliation of evidence in Maryland)
• 2016 Maryland Court of Appeals Opinion on Spoliation of Evidence