From Goodman v. Praxair Servs., Inc., 2009 U.S. Dist. LEXIS 58263 (D. Md. July 7, 2009):

[Trigger Date.]

The mere existence of a dispute does not necessarily mean that parties should reasonably anticipate litigation or that the duty to preserve arises. See Treppel v. Biovail Corp., 233 F.R.D. 363, 371 (S.D.N.Y. 2006). By April 1999, Marty had severed all ties between Goodman and the EPA, thereby arguably preventing him from obtaining the EPA exemptions and securing his success fee. Although these actions may have given rise to the dispute that underlies this litigation, Goodman and Tracer/PSI negotiated for quite some time before litigation became reasonably foreseeable. ***

[T]he March 2000 email exchange was insufficient to put Tracer/PSI on notice that a claim by Goodman was reasonably foreseeable. Goodman's email said that he had "real questions," which is vague, and would not, when objectively viewed, put Tracer/PSI on notice of foreseeable litigation. In Goodman's email, he complained that he could be "deprived of the chance to perform under [the] contract," but this was in reference to Wilson failing to obtain the exemptions. Were this to happen, Goodman would still have been to able to argue that he was entitled to his success fee—if the exemptions were granted because of work that Goodman had done. Accordingly, the November 1999 email exchange was insufficient to trigger Tracer/PSI's duty to preserve evidence.

Similarly, the December 2000 phone conversation between Goodman and Marty did not trigger the duty to preserve, as Marty testified she did not recall telling Goodman that Tracer/PSI would offer him $20,000 in exchange for a release of any claim.... While Goodman states in an affidavit that Marty did say that to him, there is no contemporaneously created corroborating evidence that has been presented that would enable me to resolve this disputed fact in Goodman's favor.

I do find, however, that the duty to preserve was triggered when Goodman sent his January 5, 2001 letter to Marty***.

III. Timeliness of a Spoliation Motion

Preliminarily, Tracer/PSI asserts that Goodman's Motion should be denied as untimely. Citing Media Communications, Inc. v. Multimedia Sign Up, Inc., No. 99 C 5009, 1999 WL 1212652, at *4 (N.D. Ill. Dec. 14, 1999), Tracer/PSI argues that "[c]ourts have held that failure to bring [spoliation] claims for over four months justifies their denial." ... In response, Goodman contends that his repeated references in court filings to a motion for spoliation sanctions ensured the Court and opposing counsel were aware of his intent to file such a motion, and the only reason for a delay in its filing was the compiling of deposition transcripts and evidence in order to determine what, if any, evidence had not been preserved. Also, Goodman argues that he could not "prepare both [the spoliation motion] and the [motion for summary judgment briefs] by the [motion for summary judgment] deadline." ... Further, relying on Marrocco v. General Motors Corp., 966 F.2d 220, 225 (7th Cir. 1992), Goodman contends that a spoliation motion may be brought "years after the spoliation was discovered." ...

Fed. R. Civ. P. 37 governs most motions for discovery sanctions, but it does not contain any specific reference to the timing of the filing of a motion seeking spoliation sanctions. See McEachron v. Glans, No. 98-CV-17(LEK/DRH), 1999 WL 33601543, at *2 (N.D.N.Y. June 8, 1999). Courts considering this issue have identified a number of factors that can be used to assess the timeliness of spoliation motions. First, "[k]ey to the discretionary timeliness assessment of lower courts is how long after the close of discovery the relevant spoliation motion has been made . . . ." See, e.g., id. at *2 & n.3 (holding spoliation motion made two weeks after the close of discovery was timely); id. at *2 (citing Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d 879, 886 (S.D.N.Y. 1999) (finding motion for spoliation sanctions filed two months after conclusion of discovery was timely, as it was "not brought well after the close of discovery . . . nor after the start of trial")). Second, a court should examine the temporal proximity between a spoliation motion and motions for summary judgment. See, e.g., id. (citing Glenn v. Scott Paper Co., Civ. A. No. 92-1873, 1993 WL 431161, at *17 n.3 (D.N.J. Oct. 20, 1993) (spoliation argument used to defend a summary judgment motion was untimely, as the plaintiff did not raise any concerns "during the discovery phase or bring them to the attention of the magistrate [judge]")); Morse Diesel Int'l, Inc. v. United States, 81 Fed. Cl. 220, 222 (2008) (plaintiff's spoliation motion, which was filed after the court ruled on the plaintiff's motion for partial summary judgment, was held to be untimely); Ferrone v. Onorato, No. 05-303, 2007 WL 2973684, at *10 (W.D. Pa. Oct. 9, 2007) (spoliation argument should have been made in "appropriate discovery motion," and not in "opposition to summary judgment [motion]"); but see, e.g., McDonald v. Wal-Mart Stores East, LP, No. 3:07cv425, 2008 WL 153783, at *1 & n.1 (E.D. Va. Jan. 14, 2008) (granting plaintiff's request to file untimely summary judgment motion nunc pro tunc because spoliation argument contained in the motion was present in earlier motion in limine, and "[c]reating a clear record benefits both parties"). Third, courts should be wary of any spoliation motion made on the eve of trial. See, e.g., Permasteelisa CS Corp. v. Airolite Co., LLC, No. 2:06-cv-569, 2008 WL 2491747, at *2-3 (S.D. Ohio June 18, 2008) (spoliation motion filed one week before trial was held to be untimely); Shamis, 34 F. Supp. 2d at 886. Fourth, courts should consider whether there was any governing deadline for filing spoliation motions in the scheduling order issued pursuant to Fed. R. Civ. P. 16(b) or by local rule. Finally, the explanation of the moving party as to why the motion was not filed earlier should be considered.

[Footnote 5] Some courts also have examined whether the spoliation motion "was made in accordance with Rule 37." McEachron, 1999 WL 33601543, at *2; accord Glenn, 1993 WL 431161, at *17 n.3. Neither the McEachron nor the Glenn courts provide an explanation as to the meaning of this phrase; however, it stands to reason that a court should take Rule 37 compliance into consideration when dealing with a spoliation motion founded on a violation of a specific court order, rather than a motion brought under the court's inherent power to control the judicial process. Because Goodman does not contend that Tracer/PSI's spoliation violated an order of this Court, compliance with Rule 37 is irrelevant to determining whether Goodman's Motion was timely. For these reasons, I am not persuaded by Tracer/PSI's citation of Media Communications, Inc. .... Despite the defendant's purported violation of a protective order [in July 1999], the plaintiff did not seek sanctions for the repossession until late November.... Further, the plaintiff failed to respond to the defendant's motion to extinguish the protective order; therefore, the court questioned whether the protective order was still in effect.... In comparison, the present case is distinguishable from Media Communications, Inc., as Goodman did not wait months after the issuance and violation of a court order to bring a spoliation motion. The Court also fails to see the relevance of Goodman's reference to Marrocco, as that court failed to provide any explanation as to why a motion for violation of a protective order, filed nearly four years after the destruction of evidence, was timely. See 966 F.2d at 222-23.

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. See, e.g., Silvestri, 273 F.3d at 594-95. 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. Reopening discovery, even if for a limited purpose, months after it has closed or after dispositive motions have been filed, or worse still, on the eve of trial, can completely disrupt the pretrial schedule, involve significant cost, and burden the court and parties. Courts are justifiably unsympathetic to litigants who, because of inattention, neglect, or purposeful delay aimed at achieving an unwarranted tactical advantage, attempt to reargue a substantive issue already ruled on by the court through the guise of a spoliation motion, or use such a motion to try to reopen or prolong discovery beyond the time allotted in the pretrial order.

In this case, Goodman filed his spoliation Motion more than five months after the conclusion of discovery, and more than two months after dispositive motions had been fully briefed. He has offered no satisfactory explanation why he could not have filed his Motion much earlier, which is particularly egregious given the fact that he clearly was aware of the grounds for his Motion months before he filed it, as he noted his intention to file a spoliation motion in the August 15th Joint Status Report. Nor is the fact that Goodman is proceeding pro se a mitigating factor, as he has demonstrated throughout this case that, when it suits him, he has a considerable command of the procedural and substantive law, and a well-honed, frequently exercised ability to file motions and memoranda. It is difficult not to reach the conclusion, on the record before me, that Goodman was dilatory in filing his Motion for spoliation sanctions to a degree that would warrant denying it as untimely. The justification for not doing so is that the dispositive motions had not yet been ruled on when Goodman's Motion was filed, Goodman did not attempt to reargue his summary judgment motion in his spoliation Motion, it was not filed on the eve on trial, and the relief granted in this Memorandum Opinion will not entail reopening discovery or delaying the upcoming trial.