Instead of any of those orders or in addition thereto, the court, after opportunity for hearing, shall require the failing party or the attorney advising the failure to act or both of them to pay the reasonable costs and expenses, including attorneys' fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circ*mstances make an award of costs and expenses unjust.
Committee note: Section (b) of this Rule applies only to electronically stored information. Its application is limited to parties, and it does not apply to non-party subpoenas. Under this section, the duty to preserve information arises when litigation is reasonably anticipated or commenced. See Rule 2-101 (a). While section (b) of this Rule does not define the scope or limits of the duty to preserve, when the duty arises, the duty under this section is limited to "reasonable steps." No sanction may be imposed if the court determines that secondary evidence reasonably can restore or replace the information that was not preserved. If warranted, measures to cure prejudice may include presuming that the lost information was unfavorable to the party; in a jury trial, instructing the jury that it may or must presume that the information was unfavorable to the party; or dismissing the action or entering a default judgment.
If the motion is denied, the court, after opportunity for hearing, shall require (1) the moving party, (2) the attorney advising the motion, or (3) both of them to pay to the party or deponent who opposed the motion the reasonable costs and expenses incurred in opposing the motion, including attorneys' fees, unless the court finds that the making of the motion was substantially justified or that other circ*mstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable costs and expenses incurred in relation to the motion among the parties and persons in a just manner.
Md. R. Civ. P. Cir. Ct. 2-433
This Rule is derived as follows:
Section (a) is derived from former Rule 422 c 1 and 2.
Section (b) is new and is derived in part from the 2015 version of Fed. R. Civ. P. 37 (e).
Section (c) is derived from former Rule 422 b.
Section (d) is derived from the 1980 version of Fed. R. Civ. P. 37(a) (4) and former Rule 422 a 5, 6 and 7.
Section (e) is new.
Section (f) is new.
Section (g) is new.
HISTORICAL NOTES
2003 Orders
The November 12, 2003, order amended the source note.
2007 Orders
The December 4, 2007, order, added a new section (b) pertaining to the loss of electronically stored information; renumbered section (c) to be section (d); and amended the source note.
2013 Orders
The October 27, 2013, order, amended the rule to add to sections (a) and (b) the words "costs and before the word "expenses; to add language to the tagline of section (d); to add to section (d) a reference to Rule 2-434; to add a new section (e) pertaining to a verified statement regarding costs and expenses, including attorneys' fees; to add a new section (f) pertaining to a response to a request for an award of costs and expenses, including attorneys' fees; to add a new section (g) referring to the Guidelines Regarding Compensable and Non-compensable Attorneys' Fees and Related Expenses; and to make stylistic changes.