D.C.M. DISCOVERY GUIDELINES FOR
THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY
The Five Principles
# 1 Start Early
# 2 Standard Times
# 3 Prompt Responses
# 4 Fair Sanctions
# 5 Court Consistency
Anne Arundel County’s differentiated case management ("DCM") discovery plan does not invent new rules. Instead, we actively apply provisions already on the books – the Maryland Rules and case law.
From the Rules, case law and court discretion, five principles can guide parties and counsel towards prompt and successful completion of discovery and, if necessary, awards of appropriate sanctions.
One measure of success for Anne Arundel County’s DCM discovery plan will be reducing pretrial-settlement conferences postponements due to failure to complete discovery.
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#1- Start early
Why not begin early with your discovery planning? Even if early discovery negotiation fails, you may learn important information about your opponent’s strategy. The Rules provide:
(c) A order setting a scheduling conference may require that the parties, at least 10 days before the conference:
(1) complete sufficient initial discovery to enable them to participate in the conference meaningfully...regarding
(B) dispute resolution
(C) limitation of issues
(D) stipulations, and
(E) other matters that may be considered at the conference; and
(2) confer in person or by telephone and attempt to reach agreement or narrow...disagreement regarding matters that may be discussed at the conference [such as discovery] and whether the action or any issues...are suitable for... alternative dispute resolution....
(d) The court may hold a scheduling conference in chambers, in open court, or by telephone or other electronic means.
Because Family Division Scheduling Conferences are scheduled so quickly, the Court will not order counsel to "complete ... initial discovery" in these cases before the conference.
But, the Court will order family law counsel, before the scheduling conference, to "confer in person or by telephone and attempt to reach agreement or narrow...disagreement" as to discovery and other issues.
The Court also may direct you to "show cause why sanctions should not be imposed" if you’ve not remembered to do this!
Too much hassle to "start early" with discovery? Under the discovery DCM plan, the Court offers a "carrot" and a "stick" to encourage cooperation:
1. If parties can agree to a civil (as opposed to family law) scheduling order, including discovery consistent with the plan, you may confer with the court by phone or electronically – and get permission to skip the scheduling conference.
2. If parties can agree to a family law scheduling order, including discovery consistent with the plan, you may get priority over other cases in line for a conference.
3. If counsel have not complied with Rule 2-504.1's requirements– to confer, to seek agreements, and to plan discovery, you may lose your place in line on the scheduling conference docket while you are sent to a conference room.
4. If a second scheduling conference is required because of counsel’s failure to start early and to confer as required, the Court may require counsel to show cause why court "costs and expenses occasioned by the continuance" should not be assessed. Rule 2-508 (e).
CASE NOTE: The summary judgment rule (Rule 2-501(d) permits the court to deny summary judgment or grant a continuance, if discovery cannot reasonably be completed, to allow more time for a response. But, no such discovery postponement is permitted for a motion to dismiss. Beyond Systems v. Realtime Gaming, 388 Md. 1 (2005).
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#2. Standard times
(b) A scheduling order shall contain...a date by which discovery must be completed....
(c) A scheduling order may also contain...any limitations on discovery...including reasonable limitations on the number of interrogatories, depositions and other forms of discovery....
The DCM discovery plan will provide standard times for discovery:
- 6 months in civil cases; and
- 3 months in family law cases.
Also, in family law cases, the order setting your scheduling conference normally will provide that interrogatories and requests for production of documents should be filed within 30 days of the date of that order.
However, simple cases may be provided with less discovery time and complex cases may be provided with more. Consent scheduling orders should include an explanation, if calling for more than "standard" discovery times.
A helpful hint: You can download the Court’s standard civil and family law scheduling order forms from the Court’s website to create your consent orders! That’s http://www.circuitcourt.org/
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#3. Prompt responses
The DCM discovery plan calls for promptness by counsel and the court in dealing with discovery matters.
The discovery process can gain speed by: a) reducing delivery time, b) prompt efforts to resolve discovery disputes, and c) prompt court action, if needed.
a) Reducing delivery times
Rule 1-203(c) directs that "three days time shall be added" to any act for which service is made by mail.
By parties’ stipulating to email or facsimile service, six days may be gained for each discovery exchange. Photos or documents not easily scanned can be mailed separately.
When the Maryland Rules are revised for Anne Arundel County’s participation in the Maryland Electronic Courts system, counsel will need to pay still more attention to prompt discovery transmissions.
b) Prompt efforts to resolve discovery disputes
Under Rule 2-431, the Court need not consider a discovery dispute unless the attorney seeking action describes good faith efforts to resolve the dispute in a certificate, including the date, time and circumstances of discussions and attempts.
If the parties have stipulated to email or fax discovery exchanges, print outs may be incorporated to satisfy the certificate requirement.
How long is enough time to wait for Rule 2-431 responses? Unless reasonable explanations are offered, two weeks’ efforts to resolve the dispute may be sufficient.
Examples of reasons for discovery delay which the Courts have found not "reasonable":
– vague claim of "personal problems"- Hossainkail v. Geberhiwot, 143 Md. App. 716 (2002)
– "my office manager left two months ago and did not file answers" – Warehime v. Dell, 124 Md. App. 31(1998)
- financial trouble in paying expert witness fees – Helman v. Mendelson, 138 Md. App. 29 (2001)
C. Discovery motions
Under Rule 2-432, a party may move for:
a) immediate sanctions for a complete failure to respond to discovery, or
b) an order compelling discovery for a partial failure to respond to discovery.
Will Court inefficiency delay resolution of discovery disputes? Not if counsel promptly pursue their discover issues and seek assistance with the designated judge. Counsel should recognized that the Court’s scheduling orders provide that “all discovery (including…motions to compel and/or for sanctions) shall be completed by” the discovery deadline. Failure to file a discovery motion as to a known discovery problem at least 18 days before the discovery deadline may result in its denial.
A. For immediate discovery sanction requests, written motions should be referred to Judge Harris as designated sanctions judge or, if he is unavailable, to Judge Goetzke or other designee identified by the Assignment Office.
B. For immediate discovery sanction requests, oral motions in family law cases may be made during a pretrial conference (or even possibly another matter) if you have complied with all requirements (e.g., Motion to Compel, good faith efforts certificate, etc.). In this event, Judge Harris & Goetzke have agreed, if they can fit it in to their dockets, to address these matters on the same day that parties/counsel are here for the pre-trial conference (or other matter).
C. For motions to compel and other discovery disputes not involving sanctions, motions should bereferred to the Chambers Judge. (Contact the Assignment Office if you do not know what judge is designated for the week your dispute is presented).
Unless there is a complete failure to respond, the motion to compel’s format shall state:
1) the question or request,
2) the answer or objection, and
3) the reasons discovery should be compelled.
A proposed order compelling discovery or for sanctions should be filed with the motion. Failure to follow Rule 2-432 format or to include the order may delay the Court’s consideration of the discovery motion.
The chambers judge may arrange for conference calls with counsel to resolve discovery disputes–either sua sponte or at counsel’s request. A written order compelling discovery should be provided as a result of a discovery conference. Such an order later may be enforceable via a motion for sanctions, if necessary. Cf., Broadwater v. Arch, 267 Md. 329 (1972). Phone conferences with the chambers judge also may be especially appropriate for dealing with discovery disputes:
- while a deposition is in progress to avoid a reset;
- as to a discovery protective order request; or
- as to matters relating to simple legal questions.
If a discovery motion is ripe and not promptly ruled upon, counsel should inquire with the appropriate judge’s chambers.
Fair advance notice of phone conference must be given, unless all parties have agreed. Phillips v. Venker, 316 Md.212, at 222(1989). Discovery after scheduling order’s deadline (absent court-approved extension) may be denied without a hearing. Shelton v. Kirson, 119 Md. App. 325, 331, cert, denied, 349 Md. 236 (1998).
Requests for productions and copying costs? See Dynamic Corp. v. Shan Enters., LLC, 175 Md. App. 211 (2007). The appellate court makes clear that the discovering party normally must advance copy costs. Counsel’s agreements as to discovery may be enforced if not inconsistent with Rules.
Considering a possible protective order, trial judge properly should rule in camera on clearly irrelevant or privileged items; but for borderline questions, a trial judge may chose “expanded in camera review” with participation of counsel who, in turn, may be instructed not to disclose contents of items excluded. Ehrlich v. Grove, 396 Md. 550 (2007).
Will hearings on discovery disputes delay the process? No hearing is required for a denial. A hearing is required only if:
1) a hearing is requested, per Rule 2-311(f), when the motion or response is filed;
2) the Court grants relief; and
3) the relief includes
– damages on a default judgment,
– dismissal of a claim, or
– reasonable expenses, such as attorney’s fees.
See Rule 2-433 and Karl v. BC/BS, 100 Md.App.743, cert. denied 336 Md. 558 (1994).
Discovery and trial dates
Remember, under Rule 2-508(b), when an action has been assigned a trial date, the trial shall not be continued on the ground that discovery has not been completed, except for good cause shown. And Rule 2-508(e): “...[T]he court may assess costs and expenses occasioned by the continuance.”
If failure to obey discovery order is involved, recall Rule 2-433: “...The court shall require the failing party or the attorney advising the failure to act or both of them to pay the reasonable expenses , including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make the award of expenses unjust.”
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#4. Fair sanctions
What sanctions should reasonably be expected?
A. Lesser sanctions may be granted without a hearing under Rule 2-433(a)(1). E.g.:
– drawing adverse inferences;
- providing that discovering party’s allegation is presumed correct on issue;
– awarding expenses "to be determined" at later hearing or merits;
- permitting discovery party rights otherwise unavailable – e.g., additional discovery, or continuance of hearing.
Or, the party frustrated despite seeking discovery may be permitted to obtain the information sought by subpoena duces tecum with expenses to be reimbursed by later court order. (Compare – Rule 2-424 provision for party’s reimbursement of expenses to prove "request for admission" item, unless court finds "reasonable grounds" for failure to admit.)
B. Ultimate sanctions require a hearing if requested. (See above as to hearings.)
What is the standard for ultimate sanctions?
Draconian sanctions of dismissing a claim or excluding necessary evidence...are “normally reserved for persistent and deliberate violations that actually cause ... prejudice, either to a party or to the court."Admiral Mortgage v. Calvin Cooper, 357 Md. 533 (2000) - emphasis added.
Before granting a dismissal, the court should consider: 1) whether violation is technical or substantial, 2) timing of ultimate disclosure, 3) reason, if any, for the violation, 4) degree of prejudice to parties offering & opposing evidence, and 5) whether prejudice could be cured by continuance, if so, desirability of such a continuance. But, court need not state specific factor findings. Heineman v. Bright, 124 Md. App 1. at 7-8 (1998).
Trial judge improperly excluded expert witness simply because witness was disclosed only one month after scheduling order's after deadline. Where party "substantially complied with discovery", trial court should weigh actual prejudice and consider alternate sanctions, or it may be reversed due to not exercising discretion. Maddox v. Stone Electrical, 174 Md. App. 489 (2007).
Distinguishing Wilson v. Crane, 385 Md. 185 (2005) which effectively approved default sanction for failure to respond to admissions request, the Court here holds that trial judge abused discretion in refusing to permit belated response to admissions request when “early in case” (only 8 days late), unlike Wilson’s “eve-of-trial” situation. This opinion also discusses standard for showing prejudice (“more than ... inconvenience,” ordinary counsel fees and costs) and that trial judge’s exercise of discussion normally will be upheld “unless no reasonable person could take the view adopted...”. Gonzales v. Boas, 162 Md. App. 344 (2005).
Where parties failed to provide expert disclosures despite many requests and discovery motions until 2 weeks before merits, trial judge properly excluded expert and granted dismissal of action. Rodriguez v. Clarke, 400 Md. 39 (2007).
NOTE: If dismissal is granted for one party due to discovery failures, it may be granted simultaneously to other parties who had similar unmet discovery requests but who did not seek the sanction, so as to prevent moving party’s liability via cross-claims. Hossainkail v. Geberhiwot, 143 Md. App. 716 (2002).
C. Setting the amount of monetary sanctions:
Rule 2-433 permits award of reasonable expenses , including attorney’s fees, caused by a substantial discovery failure. It does not say the counsel or the court should pick a round number that sounds appropriate. For counsel fee awards, actual billing records are almost mandatory:
Without billing records, trial judge could take notice of legal work "directly visible to it" in file and court for "relatively small" fee award of $1500. Mullaney v. Aude, 126 Md. App. 639, cert. den. 356 Md. 18 (1999).
Where particular legal bills were challenged, trial judge was reversed for failure to state basis for finding fees reasonable when "huge legal fees" of over $30,000 were billed. Kilsheimer v. Dewberry & Davis, 106 Md. App. 600, 620-621 (1995).
Fees for salaried, house counsel can be awarded only based on actual cost, not based on "market rates." U.S. Health. Inc. v. State, 87 Md. App. 116, 131 (1991).
As to pro bono attorneys; Applying Fam. Law, Art. 12-103, a trial judge properly may award counsel fees even if a party is represented by a non-profit org.’s attorney or pro bono attorney, even if no fee agreement was signed and even though details of fee were not disclosed in discovery. Henriquez v. Henriquez, 185 Md. App. 465 (2009), affirmed 413 Md. 287 (2010).
Apportioning of counsel fees should relate to actual work required, not ascribing 1/4 fees to each of four counts. Fees awarded are compensatory, not punitive, per Rule 1-341. Kilsheimer, supra, 106 Md. App. 600, 622-623 (1995).
Burden of proof as to proportionality is on moving party to accurately document related expenses. Betty v. Md. Medical Lab, 89 Md. App. 81, 102 (1991).
D. Other considerations for fee awards:
Expert fee award must consider facts & give reasons, although precise formula is not required. Where expert himself caused delays by late preparation and modifications of his opinion, reduction in fee requested was appropriate. Time spent preparing for a deposition should be awarded "only in extraordinary situations." Kilsheimer v. Dewberry & Davis, 106 Md. App. 600, 628-631(1995).
"[O]ther circumstances [may] make an award of expenses unjust" if found by the Court per Rule 2-433 (a)(3). Such circumstances possibly may include "financial ability of the litigant to pay the amount assessed." Dictum in Needle v. White, Mendel, Clarke & Hill, 81 Md. App. 463, 480 (1990) as to Rule 1-341 sanctions.
E. Cases involving minor children...and others with disability?
There is one major exception to guidelines as to sanctions in family law cases: As to matters involving children, the Court should not grant the sanction of default or exclusion of evidence "unless every available remedial step to enforce discovery" has been exhausted. Rolley v. Sanford, 126 Md. App. 124, at 131 (1999).
Also see Parker v. Housing Authority, 129 Md. App. 482 (1999) for similar rule in non-family, civil context, holding that Court may consider appointing a new “next friend” if parent does not cooperate with discovery and that any dismissal must be ‘without prejudice" to the minor.
Arguably, the same principle applies disabled persons since they, too, are entitled to the Court’s special protection. See, e.g., Solesky v. Tracey, 198 Md. App. 292 (2011), finding no an abuse of discretion for a trial court to refuse sanctions against an elderly landlord who refused to be deposed due to health issues explained in advance of the scheduled deposition date.
Reservation of amount of monetary sanction until the merits – too slow? The court and party requesting sanctions may keep in mind that even an interlocutory order for payment of money is immediately appealable. In re Katherine C., 390 Md. 554 (2006). But other discovery decisions are not appealable until final judgment. In re Foley, 373 Md. 627 (2003).
F. Discovery from nonparties, internet issues, and miscellaneous
Discovery from third parties - anonymous internet defamation: Where Plaintiff claims online defamatory statement by an unknown person, Plaintiff may obtain a court order for disclosure of the unknown person’s identity from the service provider IF certain conditions are satisfied. Holding outlines factors to be considered a showing of need, sufficient allegation of defamation, necessity for disclosure, etc. Independent Newspapers v. Brodie, 407 Md. 415 (2009).
Pre-litigation "discovery": Pre-litigation misconduct by plaintiff (unauthorized download of opponent's email) did not warrant trial judge's dismissal of his complaint for "unclean hands," in absence of actual prejudice to opponent. On remand, however, trial judge may provide further relief if further abuse of the improper discovery is ascertained. Weaver v. Zenixax Media, -- Md. App. - (5/25/07).
“Long-Arm” jurisdiction - Internet & spam: 1) Trial judge properly granted summary judgment and denied further discovery where plaintiff alleged that only contact in the State of Maryland by defendants was a series of spam-type emails. 2) In dicta, CA discusses whether “highly interactive” website’s availability could form basis of personal jurisdiction claim in different factual scenario. Dissent points to precedent, advocating further discovery. Beyond Systems, Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1 (6/22/05).
Conclusion as to sanctions
DCM discovery guidelines are not designed to make litigation more difficult or expensive. The opposite is true. DCM discovery guidelines have two goals:
1. To encourage completion of discovery before the first pretrial/settlement conference and, as a result,
2. To make litigation quicker and less costly.
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#5. Court consistency
The Circuit Court adopted the DCM plan of having a single, designated “sanctions judge” (with back ups) for all discovery sanctions motion with the goal of having a uniform standard and reliable enforcement for discovery rules and orders.
An important measure for compliance with and success of Anne Arundel County’s DCM discovery plan will be reducing pretrial conferences postponements due to failure to complete discovery.
The Bench also is committed to educating itself – and The Bar—as to the discovery rules, standards and precedents with the goal of getting fair, consistent results.
Despite our best efforts, can it happen that a party who "cheats" on discovery will “get away with it” at trial, while a party who plays by the Rules will suffer? Here are some principles and precedents, aimed at avoiding "last minute surprises" and "sandbagging" at trial.
A party is not at fault for failing to seek a motion to compel, under (b)(1)(D), if opponent’s discovery response stated that it later would provide relevant information. “When a discovery violation becomes apparent only after the trial has commenced, the potential for prejudice is greater than if the discovery violation had occurred prior to trial. ‘[Due to] unfair surprise [...,i]t would seem that the only effective cure for this disease is preclusion of the material withheld." "However, a party seeking discovery may not expect his opponent to construe discovery requests as broadly as possible, in essence, to volunteer information beyond the request, on pain of preclusion of evidence at trial as a discovery sanction.” (Citations omitted.) Storetrax.com, Inc. v. Gurland, 168 Md. App. 50 (2006), aff'd, 397 Md. 37 (2007).
Exclusion may be denied at trial:
A. if dispute relates to debatable sufficiency of answers in absence of a timely motion to compel. - Union Memorial v. Dorsey, 125 Md. App. 275, 291 (1999) and Food Lion v. McNeill, 393 Md. 715 (2006)
B. if no prejudice shown as to new evidence and objecting party did not seek a continuance – Klein v.Weiss, 284 Md. 36, 56 (1978);
C. if discovering party "didn’t ask" specifically for omitted information in deposition or interrogatory. Hill v. Wilson, 134 Md. App. 472 (2000).
D. if defense did not seek relief when plaintiff named new treating doctor as witness only one week before trial and plaintiff earlier had disclosed new treating doctor in her deposition . Giant Food v. Satterfield, 90 Md. App. 660 (1992).
E. if late expert disclosure was in response to opposing party’s late disclosure of expert opinion in deposition, where both parties knew of newly-named expert and his report was not prepared in anticipation of litigation. Dorsev v. Nold. 362 Md. 241 (2001). Note: An expert’s trial testimony properly may exceed literal scope of prior report "by defending conclusions... even if that defense takes the form of discrediting [others] contrary conclusions." Id., at 258-259.
F. if defendant invoked 5th Amendment until completion of his criminal case, then supplemented discovery promptly even though after discovery deadline. Faith v. Keefer, 127 Md.App. 706 (1999);
G. if bankruptcy stay interrupted time for discovery. Klass v. Klass, 377 Md. 13 (2003).
Exclusion may be granted at trial or summary judgment:
A. if evidence which contradicts discovered materials is "updated" too late – e.g., long after deadline and 4 days before trial – Bartholomee v. Casey, 103 Md. App. 34 (1994).
B. if crucial expert report was 2 months after discovery close, 2 days before summary judgment hearing & followed numerous prior delays. Helman v. Mendelson, 138 Md. App.29 (2001).
C. if deposition notice failed to specify "use at trial" and witness was not unavailable for trial or second deposition. Univ. of Md. Med. Sys. v. Malory, 143 Md. App.327 (2001).
Also see recently revised Rule 2-501(e)(2) “sham affidavit” rule: "If the court finds that the affidavit [filed in support of summary judgment] contradicts any prior sworn statement [such as discovery responses], the court shall strike the contradictory part unless the court determines that (A) the person reasonably believed the prior statement to be true...at the time, and (B) the statement in the affidavit... is based on facts that were not [previously] known...".
– An objection simply to the "form of the question," or otherwise failing to specify a basis which could have been cured, is waived as not complying with Rule 2-415 (g). Mayor & City Council of Baltimore v. Theiss, 354 Md. 234 (1999).
– If deponent refuses to answer, deposition must be completed to the extent practicable before seeking compelling order. Rule 2-415 (h). (But, this also may be resolved on the same day with chambers’ judge phone conference.)
– Insults and inappropriate conduct by attorney at deposition may warrant protective order and counsel fees, including time required to prepare motion for protective order. Mullaney v.Aude, 126 Md. App. 639, cert. den. 356 Md. 18(1999).
– Deposition may be excluded from trial as substantive evidence if deposition notice failed to specify "use at trial" and witness was not unavailable for trial or second deposition. See Rule 2-419 (a)(3) and Univ. of Md. Med. Sys. v. Malorv, 143 Md.App.327 (2001).
– Objections to videotape deposition must be made in writing within sufficient time to allow rulings and editing tape. Rule 2-416 (g). Failure to object until morning of trial may result in court’s ruling that the objections are waived, unless finding that "justice so requires." Id.
Though not technically "discovery," similar advance disclosure requirements apply to other Rules for trial preparation:
– Charts, compilations & summary-exhibits of voluminous but otherwise admissible evidence must be disclosed with "timely notice," permitting opposing party the opportunity to inspect any document(s) upon which the exhibit is based. Rule 5-1006. Failure to comply may result in exclusion or other sanction. "Timely" probably means at least five days before trial, by analogy to pretrial conference requirement of Rule 2-504.2(a).
– Computer-generated evidence must be disclosed by written notice at least 90 days before trial, then made available for inspection within 5 more days. Any objection must be filed 60 days before trial, or it is waived, absent good cause showing. Rule 2-504.3.
Standards the Court may apply to commonplace objections as to interrogatories and requests for production:
– Questions in form approved in Rules’ appendix will be approved as a single question, despite subparts. Rule 2-421 (a)
– If more than 30 interrogatories are asked without leave of court, a party properly may refuse to answer any of them. Maryland Discovery Opinions (MSBA 1975), at 94, citing Griffith v. Polakoff, Sup. Ct. Balto., C.J. Niles. But, the refusal should be stated in writing as required by Rule 2-421 (b). The propounding party then may amend the interrogatories to a lawful number.
– Joint records, such as spouses’ income tax returns, are discoverable by an opposing party, although the Court generally will permit redaction of portions which apply only to the nonparty. Ashton v. Cherne Contracting, 102 Md. App. 87 (1994).
– Claim of privilege or work-product? The party asserting privilege has the burden to prove this; however, the party asserting Rule 2-402 (c) exception to work-product has the burden. Id.
– Insurance carrier’s employees and work product rule. See Rhea v. Burt, 161 Md App. 451 (2005).
- Attorney billing records may be discoverable if relevant, being redacted only if they disclose communication contents. Maxima Corn. v. 6933 Arlington Development Ltd. Pshp., 100 Md. App. 441 (1994).
– Claim of 5th Amendment privilege against self-incrimination:
1) Corporations and partnerships have no 5th Amendment privilege; therefore, this privilege cannot be invoked as to such business documents. Unnamed Attorney v. Attorney Grievance Commission, 349 Md. 391, 398-399 (1998).
2) An individual may not make a blanket claim of 5th Amendment privilege, but must answer until the transaction in question is reached. Trial court may rule, on question-by-question basis as to whether claim is appropriate. Gardner v. State, 10 Md. App. 691 (1971).
3) The 5th Amendment claim itself is admissible in a civil trial (though not a subsequent criminal trial) and an inference of guilt properly may be drawn. Whitaker v. PG. Co., 307 Md. 368 (1986)
--"Not in my possession?" Under Pleasant v. Pleasant, 97 Md. App. 711(1993), documents within a party’s legal control, but not in his physical possession – e.g., tax returns, credit card statements, etc. – still are compellable.
If a party claims to be unable to obtain or afford the requested documents, the court may direct the discovering party to obtain them directly by subpoena, if desired, subject to later court order for reasonable expenses. Compare Rule 2-424.
However, if there is a factual dispute, the party disputing the claim of "no control" has the burden of proof. Compare Kelch v. MTA, 287 Md. 223 (1980) and Dupont v. Forma-Pak, 351 Md. 396 (1998).
Less commonplace discovery situations: Where substantive issue in litigation involved right to an accounting, the trial court properly should bifurcate the proceedings rather than compel in discovery the disputed information. Golub ex rel. Golub v.Cohen, 138 Md.App. 508 (2001).
It may be appropriate for court to provide protective order, directing that information be provided to counsel but not disclosed to client. Cf., Md.State Bd. Of Dental Examiners v. Fisher, 123 Md.App.322, at 329 (1998) and Reynolds v. State, 98 Md. App. 348 , at 370 (1993).
Lawyer-client privileged document, if disclosed accidentally, has lost any claim to privilege (absent agreement to the contrary). Elkton Care Center v. Quality Care, 145 Md. App. 532 (2002).
Where insured fails to cooperate with discovery obligations, insurer may be excused from its contractual duties of liability. Allstate v. State Farm, 363 Md. 106 (2001).
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