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

“Although Plaintiff has not established each element of spoliation, the Court is troubled by Defendant’s conduct.” Feakes v. Washington Metro. Area Transit Authority, 2025 WL 2653155 (D. Md. Sep. 16, 2025)(Quereshi, J.).¹ The Court reserved on the issue of narrower-than-requested sanctions, which will be the focus of this blog.

THE SLIP AND FALL IN WMATA’S GARAGE

Ms. Feakes sued WMATA after falling in the transit authority’s parking garage. She asserted negligent failure to remedy a muddy area, and she moved for summary judgment on the issue of liability.

WMATA moved to exclude testimony of plaintiff’s expert and also filed a cross-motion for summary judgment, primarily asserting sovereign immunity. 

The Court denied both summary judgment motions, narrowed the issues, and specified the scope of allowable expert testimony. 

The slip-and-fall was on June 11, 2021.  Passersby assisted Ms. Feakes, and called a nearby police officer.  She was transported by ambulance to the hospital and underwent surgery the following day.

The Court wrote that:  “Plaintiff contacted Defendant within one week of the accident to inform it of her injury.” 

WMATA employed custodians to conduct upkeep of the garage.  WMATA’s schedule called for weekly cleaning or inspection.  Suit was filed on August 26, 2023.

WMATA PRODUCED ONLY ONE WEEKLY INSPECTION REPORT

The Court explained:

The case proceeded to discovery. In September 2024, Plaintiff raised a discovery dispute with the Court because Defendant had “not been cooperating” and “failed to provide” relevant documentation related to the South Garage…. In particular, Defendant had produced “only one ‘weekly’ inspection report” which “d[id] not…relate to the subject [S]outh [G]arage,” … despite deposition testimony from Ms. Cruz, one of the site supervisors, that she maintained all of her inspection reports…, took photos of issues raised during inspections on her work phone…, and believed Mr. Jones may have kept additional reports…. [emphasis added].²

Feakes v. Washington Metro. Area Transit Authority, 2025 WL 2653155 (D. Md. Sep. 16, 2025).

The Feakes Court continued:

After a discovery conference on October 8, 2024, the Court ordered Defendant to “produce any remaining documents related to the South Garage…within 14 days.” …. Plaintiff took two additional depositions of corporate designees, seeking to ascertain further information regarding Defendant’s record-keeping practices….. Neither witness shared relevant information on this topic, and Defendant did not produce any additional documentation or reports. [emphasis added].

Id.

As a result, “Plaintiff requested that the Court impose sanctions against Defendant for spoliation, due to its failure to provide inspection reports for the South Garage.”

THE SOLE SUBSTANTIVE ISSUE TURNED ON INSPECTIONS

The Feakes Court rejected a broad application of sovereign immunity. It held that sovereign immunity barred a claim as to the sufficiency of WMATA’s policies; however, it held that “Plaintiff’s claim may proceed under the narrow theory that Defendant’s failure to abide by its own internal cleaning schedules constitutes negligence.” 

The Court explained: “To succeed on this theory, Plaintiff must establish that Defendant’s failure to abide by its cleaning schedule constituted a breach of the relevant standard of care.”  The schedule called for weekly checks.

In short, the Court held that: “As explained above, Plaintiff’s claim may proceed solely under the theory that Defendant failed to comply with its internal policy mandating weekly cleaning and inspection of the grates in the parking garage.” [emphasis added].  The Court wrote that: “Accordingly, if Defendant adhered to the schedule on the day and week of the incident, WMATA would be immune to even this narrow challenge.”

WMATA FAILED TO PRESERVE & PRODUCE WEEKLY INSPECTION REPORTS

Understandably, “Plaintiff attempted to obtain inspection reports throughout discovery.” The Court wrote:  “Defendant, however, failed to produce the reports, despite testimony from supervisors that the documents existed.”

In fact, the Feakes Court wrote that “the only inspection report Defendant produced is dated from May 2021, three weeks before the incident occurred,” and it was only assumed that it applied to the “south” garage at issue.  That report noted that garage grates were dirty.

Pointing to the missing evidence, Ms. Feakes argued spoliation based on alleged failure to preserve inspection reports. 

FAILURE TO PROVE COMMON-LAW SPOLIATION

Ms. Feakes asked the Court to grant her motion for summary judgment on liability, and deny the defense motion, as a sanction. 

As noted at the outset, the Feakes Court was troubled; however, “[a]lthough the Court declines to adopt such an extreme sanction, it reserves ruling on whether a narrower sanction may be appropriate.”

Apparently, the missing reports were not electronically stored information, so the Feakes Court did not rely on Fed.R.Civ.P. 37(e). Quoting common-law, it wrote that Ms. Feakes must show: “(1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a culpable state of mind; and (3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.”

The Court held that Ms. Feakes had shown the first and third elements, but not the second.

The Feakes Court first looked at when the common-law duty to preserve was triggered.  In answering that question, the Court wrote: “Plaintiff contacted Defendant within one week of the accident to inform it of her injury…. At that point, WMATA should have anticipated litigation….”

Turning to the third prong, the Court described the missing inspection reports as “highly relevant.”  It wrote that: “The inspection reports—particularly those from the day of the accident—are central to the disputes of fact relevant to the application of sovereign immunity and Defendant’s knowledge of the danger that caused Plaintiff harm.”

However, having surmounted nearly all obstacles, Ms. Feakes fell short.  The Court wrote that she “has failed to establish that WMATA acted with the necessary state of mind to impose the sanction it requests.”  The Court stated that: “Plaintiff provides no argument regarding Defendant’s state of mind, and the record does not contain evidence suggesting intent to destroy or lose the inspection reports.”

Nevertheless, because the Court was “troubled by Defendant’s conduct,” it wrote that “the Court will reserve ruling on the appropriateness of an adverse inference as to Defendant’s knowledge of the muddy conditions which caused Plaintiff’s fall.”

WHAT IF?

Ms. Feakes raised spoliation in her Reply³ in Support of Plaintiff’s Motion for Partial Summary Judgment. The Reply is docketed as ECF No.  62.  She relied on common-law, the court’s inherent power, and made a passing and generic reference to Fed.R.Civ.P. 37.  Id. at 7. 

Ms. Feakes did not specify the form of missing inspection reports.  Nor did she cite subsection (e)(1) or (e)(2) of Rule 37.  It has been said that “Judges are not like pigs, hunting for truffles buried in the record.” (Mar. 31, 2025).

While it is pure speculation on my part, I wonder what would have happened if Ms. Feakes could have argued that the reports were electronically stored information, such as PDF’s or emails.  A WMATA site supervisor “took photos of issues raised during inspections on her work phone….” [emphasis added].  That is ESI.

If that assertion was factually possible, and if the Rule had been cited, it would have triggered Fed.R.Civ.P. 37(e), “failure to preserve electronically stored information.”

That might have led to a different result.  The Feakes Court determined that the duty to preserve had been triggered before the information went missing.  While Rule 37(e)(2) requires “intent to deprive,” which Ms. Feakes had not shown, Rule 37(e)(1) does not include that requirement.

Instead, Subsection (e)(1) states that “upon finding prejudice to another party from loss of the information,” which the Feakes Court found, a court “may order measures no greater than necessary to cure the prejudice….” On this hypothetical, curative sanctions (if they had been requested) would have been permitted. 

Notes

1. The currently-posted opinion does not contain page, or “PIN,” cites. ↩︎
2. WMATA denied Ms. Feake’s characterization of the discovery process. ↩︎
3. There was no discussion regarding whether it was procedurally proper to raise spoliation in a reply memorandum at the end of summary judgment briefing.  See generally The “Best Time” to File a Spoliation Motion (Jul. 15, 2025); When Should a Spoliation Motion Be Filed and Decided? (Dec. 26, 2020); When Should a Spoliation Motion Be Filed and Decided? – – An Update (Feb. 7, 2021); Spoliation Motions Denied as Untimely – Another Wake-Up Call (Sep. 8, 2023); Another Spoliation Motion Denied as Untimely (Mar. 14, 2024); Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (American Bar Assoc. 2011), Appendix C (discussing Goodman v. Praxair). ↩︎

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.