The “Best Time” to File a Spoliation Motion

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

A motion for spoliation sanctions was held to be “premature,” and the motion was denied without prejudice, in Taylor v. Walter Kidde Portable Equipment, Inc., 2025 WL 1758347, at *15 (M.D.N.C. May 28, 2025), report and recommendation adopted, 2025 WL 1755911 (M.D.N.C. June 25, 2025).

The Federal Rules of Civil Procedure (and the Maryland Rules) are silent on the timing of spoliation motions. In Taylor, the spoliation motion was filed too early. Other courts have held that spoliation motions were filed too late. For example, springing spoliation motions at trial is disfavored and may result in waiver. Groves Inc. v. R.C. Bremer Marketing Associates, 2024 WL 4871368, at n. 2 (N.D. Ill. Sep. 22, 2024). Some courts have considered multiple factors to define when spoliation motions should be filed.

Goldilocks said the porridge was too hot or too cold, before it was “just right.” That is much like the timing of spoliation motions. Taylor involved the alleged spoliation of five fire extinguishers that were allegedly the subject of a defective product recall.  At the time of the spoliation motion, discovery was incomplete and no milestone for filing summary judgment motions had been set.

In this blog, I suggest an alternative approach.  Where, as here, parties may be operating in a “gray area,” the can pre-emptively approach the procedural issues in an ESI Protocol or Fed.R.Civ.P. 29 stipulation.

BACKGROUND ON THE “SWEET SPOT” FOR SPOLIATION MOTIONS

“Much ink has been spilled addressing tardy spoliation motions. On the flip side, courts have also addressed premature spoliation motions. This order addresses the best time to file spoliation motions.” Groves Inc. v. R.C. Bremer Marketing Associates, 2024 WL 4871368, at *3 (N.D. Ill. Sep. 22, 2024)(Emphasis added). In Groves:

The Groves court discussed the many factors to consider and wrote:

• “But, regardless of the factors, the ultimate question in determining whether a spoliation motion is tardy is this: whether the requested relief sought was made without ‘unreasonable delay.’”
• “In addition to filing spoliation motions too late, counsel can also jump the gun and file them too early….  Judges will want to consider these critical factors in determining when to address the spoliation issue…. So—again—have a conversation.”

In Groves, the court denied the spoliation motion without prejudice, deferring it to pre-summary judgment or pre-trial discussions.  The court wrote that: “The Court will take up the issue at the appropriate time, if it ever even needs to address it.”

One of the leading¹ cases on timing is Goodman v. Praxair, 632 F.Supp.2d 494, 508 (D. Md. 2009)(Grimm, J.):

The lesson to be learned from the cases that have sought to define when a spoliation motion should be filed in order to be timely is that there is a particular need for these motions to be filed as soon as reasonably possible after discovery of the facts that underlie the motion. This is because resolution of spoliation motions are fact intensive, requiring the court to assess when the duty to preserve commenced, whether the party accused of spoliation properly complied with its preservation duty, the degree of culpability involved, the relevance of the lost evidence to the case, and the concomitant prejudice to the party that was deprived of access to the evidence because it was not preserved.… Before ruling on a spoliation motion, a court may have to hold a hearing, and if spoliation is found, consideration of an appropriate remedy can involve determinations that may end the litigation or severely alter its course by striking pleadings, precluding proof of facts, foreclosing claims or defenses, or even granting a default judgment. And, in deciding a spoliation motion, the court may order that additional discovery take place either to develop facts needed to rule on the motion or to afford the party deprived of relevant evidence an additional opportunity to develop it from other sources. The least disruptive time to undertake this is during the discovery phase, not after it has closed…. [Emphasis in original].

Goodman v. Praxair, 632 F.Supp.2d 494, 508 (D. Md. 2009)(Grimm, J.).

See generally:

• When Should a Spoliation Motion Be Filed and Decided? (Dec. 26, 2020);
• Spoliation Motions Denied as Untimely – Another Wake-Up Call (Sep. 8, 2023);
• Another Spoliation Motion Denied as Untimely (Mar. 14, 2024); and
• A Wolf in Sheep’s Clothing: Litigant Can’t Convert a Discovery Dispute Into a Sanctions Motion (Apr. 23, 2023);
• M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (American Bar Assoc. 2011), Appendix C (discussing Goodman).

THE PREMATURE SANCTIONS MOTION IN TAYLOR

Taylor involved an allegedly defective recall of fire extinguishers. Plaintiff, Ms. Taylor alleged that the recall was ineffective and therefore the putative class members had not received a recall.

Defendant moved for sanctions alleging plaintiff’s “willful destruction of five fire extinguishers….” After Ms. Taylor retained counsel, and after counsel photographed them, Ms. Taylor disposed of the five fire extinguishers.

Defendant called this “textbook spoliation.” It contended that Ms. Taylor retained the extinguishers and then (after this litigation had commenced) disposed of them in the family’s dumpster, long after the duty to preserve had been triggered. It asserted prejudice because it could not determine if the five extinguishers had, for example, been stored improperly or misused by the customer.

Ms. Taylor responded that the discarding was “an honest mistake” because she did not believe they were necessary for this case. Based on factual confusion, she did not realize that these extinguishers had been recalled. She had described a different extinguisher in her complaint and thought it had been the recalled extinguisher. She asserted that there was no “impact,” i.e., no prejudice, from the loss, pointing to the photographs and claiming that the prior recall was an admission that the extinguishers were defective. She argued that defendant could ask her in deposition how the missing extinguishers had been stored.

Defendant replied that the mere fact that a product was potentially subject to a recall does not establish that it was defective. It merely shows that there was risk of a defect, justifying recall.

The Taylor court held that the spoliation motion was premature. Id. at *15.  The court wrote that:

• “Spoliation motions should be filed as soon as reasonably possible after discovery of the facts that underlie the motion.”
• However, if the parties are still in pretrial discovery and not near the date for filing summary judgment motions, some courts might find a spoliation motion premature.”
• “This is particularly true if the summary judgment filing date is far in the future and no trial date is set.”
• “In order to properly determine if a spoliation inference or sanction is appropriate, the Court requires a complete factual predicate…. Cases which have dealt with the issue of spoliation rely upon substantial factual records.”
• “A motion for sanctions for spoliation is more appropriate later in the case when the court is considering motions in limine and other trial administration topics.”
• “A deferred ruling is especially preferred when the moving party has established only a suspicion of prejudice.”
• “Where a proposed evidentiary sanction seeks to bar the allegedly spoliating party from presenting evidence, a reasonable district judge may want the spoliation motion and summary judgment motion filed simultaneously and then, after reviewing the filings, decide which to address first.” [all quotations are cleaned up].²

I would add that, under Fed.R.Civ.P. 37(e), sanctions are not available if the missing ESI can “be restored or replaced through additional discovery….”

Taylor was already more than three years old. However, several factors “militate[d] against” granting the motion “at this juncture.”

First, the Taylor court decided that Ms. Taylor should have an opportunity to cure. The fire extinguishers were “discarded” or “disposed of,” but that did not equate to “destroyed.” The court wrote:

Since the disposal of said extinguishers took place at “her family’s dumpster[,]” presumably on Taylor’s own property, the extinguishers could potentially still [be] within her control and may not be subject to disturbance by others, and are thus possibly not destroyed. Therefore, the undersigned will permit Taylor to endeavor to cure the alleged spoliation by seeking to recover the Discarded Fire Extinguishers.

Taylor v. Walter Kidde Portable Equipment, Inc., 2025 WL 1758347 (M.D.N.C. May 28, 2025).

Second, although the parties did meet and confer, that effort “is currently unresolved and ongoing….” The parties were directed to abide by the requirement to cooperate.

Third, discovery was incomplete. No deadline for summary judgment motions had been set.

Fourth, “the parties attempt to use their briefing on the sanction issue as a forum to argue the fundamental legal issue in this action…. A motion for sanctions is an improper vehicle for the parties to attempt to litigate the underlying merits of a pending action.”

Fifth, “given the incomplete record, Defendant’s arguments amount to no more than suspicions of fault, abuse of the judicial process, and prejudice by Taylor, which suggests that deferral is appropriate.”

In order to conserve resources, the motion was denied without prejudice. The issue was deferred “until the close of all discovery and the resolution of a forthcoming summary judgment motion, if one is indeed filed.”

SUGGESTIONS

The Federal Rules of Civil Procedure do not specify when a spoliation motion must or should be filed. M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 229.

Of course, given the varying approaches, it is important to research the case law and local rules in each jurisdiction. Groves states that the outcome may vary with “the judge who decides the motion” and suggests that briefing be “tailor[ed] to the particular judge before whom” the lawyers will argue. The Groves court wrote: “Strangely, in places, the parties take certain positions regarding Rule 37(e), ignoring the Court’s previous extensive decisions concerning Rule 37(e) motions.”³

Some decisions suggest prompt notice to the opponent followed by negotiations. Some cases suggest that a spoliation motion should be filed promptly after learning the facts.⁴ Some suggest that early motions are premature. And, some suggest that a motion should be filed promptly, but not decided until discovery is closed or a summary judgment motion is contemplated or decided. Clearly, waiting until after issuance of the pretrial order or to trial runs a significant risk of waiver. Groves, 2024 WL 4871368, at n. 2.

Spoliation motions are expensive. It likely would not sit well to bill a client for preparation and filing of a motion only to have the trial court find it either premature or tardy.

If there is no binding and contrary authority, courts suggest first notifying the opposing party. I know that, as the Groves court wrote: “[S]ome counsel view assertions of spoliation as a declaration of war.”⁵ However, in my view, unless you are going to abandon the spoliation argument, you will have to “swallow the frog” at some point, and it may as well be sooner rather than later. In the words of the Grove court:

[L]itigation is not high tea at the Savoy…. So, if there’s a legitimate concern about spoliation rooted in fact and law, then counsel should raise it with opposing counsel immediately and then fairly and accurately convey the parties’ discussion about the concern with the court at the next opportunity. [cleaned up; citation omitted]

Groves Inc. v. R.C. Bremer Marketing Associates, 2024 WL 4871368 (N.D. Ill. Sep. 22, 2024)

However, there is an alternative that I suggest is preferable.  Another mechanism for discussion might be in connection with a discovery plan or ESI Protocol. See “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024); Fed.R.Civ.P. 26(f)(3)(B, C). One advantage of this approach is that a discussion could be had well in advance of a “declaration of war.” For example, my Discovery Plan/ESI Protocol template provides:

Spoliation Motions:

1. The parties are aware of case law governing when spoliation motions should be presented and when they should be decided.⁶
2. The parties agree pursuant to D. Md. Discovery Guideline 2, that, if a party becomes aware of alleged spoliation, it will notify the alleged spoliating party within __ days thereafter.
3. The parties will confer orally within __ days thereafter to discuss all factors set forth in Fed.R.Civ.P. 37(e) and attempt to resolve the dispute including, without limitation, considering whether sufficient and satisfactory secondary evidence is available.
4. If the parties are unable to resolve the dispute, they shall notify the Court by letter within __ days thereafter and propose a schedule for filing, responding to, replying, and deciding a spoliation motion.

It may be reasonable, for example, to discuss whether sources of secondary evidence to replace or restore the missing ESI may be available;⁷ what discovery might unearth such secondary evidence, when a spoliation motion must be filed; when a response or reply will be due; and, propose a milestone for a ruling on the motion.

As part of the process, it may be prudent to suggest a stipulation to govern the briefing process. Under Fed.R.Civ.P. 29: “Unless the court orders otherwise, the parties may stipulate that… procedures governing or limiting discovery be modified–but a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial.”

For example, District of Maryland Discovery Guideline 2 encourages written stipulations regarding spoliation motions. In the District of Maryland spoliation motions should be “filed as soon as reasonably possible after discovery of the facts that underlie the motion.” Goodman v. Praxair Servs., 632 F. Supp. 2d 494, 508 (D. Md. 2009). Some courts view spoliation as a discovery issue to be resolved during discovery. M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 229; but cf. Groves, 2024 WL 4871368, at *5 (“Are spoliation motions discovery motions or evidentiary motions? The answer is that they might be both.”).

It seems generally preferable to file any spoliation motion before summary judgment motions are filed. Groves, 2024 WL 4871368, at *4, citing Goodman, 632 F.Supp.2d at 507. Some decisions suggest simultaneous filing; however, a spoliation motion that would alter already-filed summary judgment briefs would likely be prejudicial to the party opposing the spoliation motion. Id.

As noted in Taylor, in other districts, filing prior to the close of discovery may be premature. For example, in Davis v. Grant Park Nursing Home, LP, 2010 WL 4642531, at *1 (D.D.C. Nov. 9, 2010): “Prejudice to a party can only be examined by looking at all the information that is available, for only in that context can the nature and extent of the loss suffered be accurately gauged…. Accordingly, it is premature to consider the question of sanctions until discovery ends and the Court can assess accurately what prejudice, if any, the loss of the electronically stored information has caused. I will therefore strike the plaintiff’s motion for sanctions without prejudice.” [Emphasis added].

Other jurisdictions have said that motions should be filed timely, but should not be decided before discovery closes. Berman at 231-32. One rationale is that prejudice, and whether missing ESI may be restored or replaced under Fed.R.Civ.P. 37(e), cannot be determined until discovery has closed. This might support a motion to stay or extend time to respond to the spoliation motion until discovery is closed.  Under Groves, a common example of a premature spoliation motion is “when the movant hasn’t yet established that the ESI can’t be restored or replaced.”

Groves suggests:

Going forward, consistent with Rule 1, it would behoove parties to raise any spoliation concerns with the judge who is going to decide the spoliation motion. In this way, the judge can determine the best way to proceed before the parties engage in extensive briefing that might be unnecessary.

Groves, 2024 WL 4871368, at *7.

At bottom, the Groves court wrote that: “Courts also have a general duty to avoid deciding unnecessary issues.” A spoliation movant should show timely notice, efforts to resolve the issue, inability to restore or replace the missing information, a distinction between spoliation and the merits, and suggest when it is necessary or appropriate to resolve the motion.

In my view, parties can negotiate a “safe harbor” in an ESI Protocol or Discovery Plan.

Notes

1. Groves, 2024 WL 4871368, at *4, called Judge Grimm’s Goodman decision the leading opinion. ↩︎
2. Citations and quotation marks are omitted from all cleaned up quotations. ↩︎
3. 2024 WL 4871368, at n. 5. ↩︎
4. In Groves, 2024 WL 4871368, at *2, the early filing of the spoliation motion permitted a “fairly damning” forensic examination to be performed. ↩︎
5. 2024 WL 4871368, at *3. “Spoliation is a serious allegation that should not be thrown around lightly.” Id. ↩︎
6. Another Spoliation Motion Denied as Untimely – E-Discovery LLC (ediscoveryllc.com), citing inter alia, D. Md. Discovery Guideline 1(f), Smith v. Wormuth, 2024 WL 1012887 (D. Md. Mar. 8, 2024), Membreno v. Atlanta Restaurant Partners, LLC, 2021 WL 351174 (D. Md. Feb. 2, 2021), and, Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 508 (D. Md. 2009). ↩︎
7. See M. Berman and R. Shapiro, “The Secondary Evidence Rule in Avoidance of Spoliation Sanctions,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 233-36, 652-53, and Apx. F. ↩︎

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