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Maryland Judiciary’s Rules Committee weighs replacing ‘safe harbor’ rule for electronic discovery – RWL Attorney Michael Berman’s White Paper Noted

May 12, 2023 News

Judiciary panel weighs replacing ‘safe harbor’ rule for electronic discovery

By Madeleine O’Neill

//May 12, 2023

The Maryland Judiciary’s Rules Committee will consider clarifying what steps a judge can take when electronically stored information isn’t preserved for discovery purposes, a step that would follow changes in federal rules.

The Standing Committee on Rules of Practice and Procedure is set to review the proposed change at its meeting on Friday.

Under current discovery rules, courts are prohibited from imposing sanctions if a party fails to provide electronically stored information “that is no longer available as a result of the routine, good-faith operations of an electronic information system.”

The rule was an effort to deal with the ever-growing amount of electronic materials that can be sought in discovery.

But in a white paper published last year, Maryland attorney Michael D. Berman argued the current “safe harbor” rule provides little protection for lawyers.

The rule has broad exceptions, Berman wrote — it applies only in the absence of “exceptional circumstances,” which are undefined, and only provides protection from sanctions under the discovery rules, not those that can be issued under a judge’s inherent authority.

“There are several ‘mines’ in the ‘safe harbor,’ Berman wrote. “In short, the protection offered by the Rule is, at best, limited and, at worst, illusory.”

It appears that the rule has also never been used to prevent sanctions in any Maryland case, according to the white paper. Berman suggested replacing the “safe harbor” provision with a “more comprehensive rule” to offer clarity.

The change would also follow the federal rules, which abandoned the “safe harbor” concept in 2015 after concluding the rule had not adequately addressed the “exponential growth” of electronically stored information, leading litigants to use significant resources to preserve information in order to avoid sanctions down the road.

The proposed rule change in Maryland would remove the safe harbor provision and replace it with a more detailed section.

Under the proposal, if electronically stored information that should have been preserved is lost because a party to the litigation “failed to take reasonable steps to preserve it,” courts could respond in two ways.

If one of the parties to the litigation is prejudiced because the electronically stored information was unintentionally lost, the court “may order measures no greater than necessary to cure the prejudice.”

If the court finds that one party intended to deprive the other of information in the litigation, it could then presume the lost information was unfavorable to that party, instruct jurors that they can presume the information was unfavorable, or dismiss the action entirely.

The court could not impose a sanction if it finds that some other evidence could replace the information that was lost, according to the proposed amendment to the rules.