The opinion
Dissenting Opinion by
MURPHY, J.,
which HARRELL and RODOWSKY, JJ., join.
While I agree with the majority that the “clearly erroneous” standard of review is the applicable standard in the case at bar, I am persuaded that there are two reasons why the *383 Petitioner is not entitled to new trial. First, because the Circuit Court expressly stated that it would revisit the protective order issue if requested to do so, that order constituted an in limine ruling that was not thereafter preserved for appellate review. As the Court of Special Appeals stated:
The motion court acknowledged the possibility that, after reviewing [the protected] information, defense counsel might find a need to discuss an aspect of the protected information with his client before the trial, in order to determine plea and trial strategy. Lancaster reads the court’s order, however, as limiting the “the type of clarification and modification it would consider ... to circumstances in which witness statements and identities could be shared with Lancaster ‘without him being able to determine the witness’ identification.’ ” After reviewing the bench ruling and written order in context, we conclude that Lancaster construes it too narrowly. The motion court explicitly invited defense counsel to seek reconsideration and/or clarification of the protective order in the event counsel developed a specific concern following disclosure of the protected information to counsel.
Defense counsel had the protected information for nearly two months before trial, but did not seek modification or clarification of the protective order as it pertained to any of the disclosed information. Cf. United States v. Padilla, 203 F.3d 156 (2d Cir.)(protective order temporarily barring counsel from informing clients about investigation into allegations of witness and jury tampering was lifted when it became relevant to their witness-selection decisions and to the nature of the anticipated cross-examination if defendants were to testify), cert. denied, 531 U.S. 832 , 121 S.Ct. 86 , 148 L.Ed.2d 47 (2000). There is nothing in the record to suggest that counsel approached the prosecutor in this regard, either, despite the court’s suggestion of that alternative possibility. In these circumstances, we think that the failure to request relief from the protective order severely undermines Lancaster’s complaint about it. See, e.g., Coleman [v. State], 321 Md. [586] at 604[, 583 A.2d 1044, 1052 *384 (1991) ] (appellate court’s decision that protective order delaying disclosure of prosecution witness information until trial did not violate defendant’s constitutional rights was “bolstered by the fact that” defendant did not request time for additional investigation even though the court assured counsel that additional time would be granted if the defense found that “to be advisable as a result of the testimony of [protected] witnesses at trial”).
Lancaster v. State, 180 Md.App. 1, 27-28 , 948 A.2d 102, 117-18 (2008).
Second, when the protective order expired on the date of trial, Petitioner’s trial counsel had an opportunity to—but did not—explain how the defense was prejudiced by the tardy disclosure of the protected information. Because no explanation was provided and no request for relief was presented to the Circuit Court, I would affirm the judgment of the Court of Special Appeals.
Judges HARRELL and RODOWSKY have authorized me to state that they join this dissent.