Spoliation Argument Gets Frosty Reception from Court Absent Intent – Case Law Update

A Maryland court denied a plaintiff’s motion for spoliation sanctions, finding that he did not meet his burden of demonstrating that the defendants had an “intent to deprive” him of lost data.

September 28, 2023 — by Joe Tate, Member and Managing Director, and Nicole Gill, Counsel, CODISCOVR

The U.S. District Court for the District of Maryland denied a plaintiff’s motion for spoliation sanctions, finding that he did not meet his burden of demonstrating that the defendants had an “intent to deprive” him of lost data as required for sanctions under Rule 37(e), despite the fact that the defendants failed to issue a litigation hold until over two years after the duty to preserve was triggered.

We help our clients provide litigation hold policies and preservation plans to ensure data is defensibly maintained.

Jennings v. Frostburg State University, et al., No. ELH-21-656, 2023 WL 4567976 (D. Md. June 27, 2023) is an employment discrimination case that was brought by a professor with disabilities against a university and associated entities and individuals when the university declined to renew his teaching contract. The professor filed a motion for sanctions for spoliation, alleging that the defendants had deprived him of evidence when the text messages of two university administrators were wiped from their university-issued cell phones upon their departure from their positions. The professor requested that the Court presume the lost information was unfavorable to the defendants’ case in light of the spoliation.

The Court denied the motion for sanctions, finding:

  • The defendants were under a duty to preserve when the text messages were deleted:  The defendants’ obligation to preserve evidence arose in November 2018, when plaintiff first submitted a rebuttal letter appealing his nonrenewal decision and raising the subject of discrimination. Although the university argued the rebuttal letter did not trigger a duty to preserve, the duty indisputably existed when the plaintiff filed an EEOC charge in March 2019, which predated the erasure of the cell phone data in June 2020 by over a year. The defendants did not issue a litigation hold until early 2021, when a civil action was filed.
  •  However, the plaintiff failed to prove the requisite culpability for sanctions: Even though the plaintiff established that the defendants were under a duty to preserve, he did not provide sufficient evidence to meet his burden of demonstrating an “intent to deprive” as required by Rule 37(e) for the imposition of sanctions. The plaintiff’s argument for spoliation was that data was improperly deleted, and that the intent element was satisfied by the experience of the university and its counsel with respect to litigation procedure – i.e., they should have known to preserve data. However, a failure to implement a litigation hold constitutes gross negligence, not willful or intentional conduct as required for sanctions.



Joe Tate
Joe A. Tate, Jr., Member and Managing Director of CODISCOVR, focuses his practice on eDiscovery, information governance, and data management issues in the context of litigation and investigations. In his role, Joe is responsible for the day-to-day management of a team of attorneys and technologists that handle all phases of the eDiscovery lifecycle. Connect with Joe →
Nicole Gill
Nicole Gill, Counsel at CODISCOVR, concentrates her practice on electronic discovery in a variety of contexts, manages complex document review workflows, and routinely navigates data and privacy protection laws across many jurisdictions, both domestic and foreign. Nicole also implements quality control procedures to mitigate risk and counsels both clients and colleagues on issues related to eDiscovery, information governance and data management. Connect with Nicole →


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