# IN THE COURT OF APPEALS OF MARYLAND > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A0f72888102990148 ## Record - **Collection:** Court rules - **Document type:** Court rule ## Text IN THE COURT OF APPEALS OF MARYLAND R U L E S O R D E R This Court’s Standing Committee on Rules of Practice and Procedure having submitted its One Hundred Fifty-Eighth Report to the Court recommending adoption of proposed new Title 7, Chapter 500 (Appeals from the Orphans’ Court to the Circuit Court) and Rule 6.1 (Appeal of Denial of ADA Test Accommodation) of the Rules Governing Admission to the Bar of Maryland and proposed amendments to Rules 1-101, 1-312, 1-326, 2-341, 2-402, 2-421, 2-422, 2-424, 2-432, 2-433, 2-504, 2-504.1, 2-509, 2-510, 2-511, 2-512, 2-521, 2-522, 3-510, 4-215, 4-217, 4-242, 4-246, 4-262, 4-263, 4-264, 4-265, 4-301, 4-312, 4-313, 4-314, 4-326, 4-327, 4-341, 4-502, 4-503, 4-643, 5-101, 5-606, 5-609, 5-803, 5-902, 6-122, 6-413, 6-451, 6-455, 6-463, 6-464, 8-111, 8-204, 10-202, 10-203, 10-205, 10-213, 10-301, 10-302, 10-304, 13-102, 15-207, 16-107, 16-307, 16-308, 16-602, 16-608, 16-610, 16-701, 16-731, 16-735, 16-737, 16-743, 16-751, 16-771, 16-808, 16-813, 16-815, 16-1004, and 16-1006; Forms 4-503.1 and 4-503.2; Appendix: Form Interrogatories, Form 3 and Form 7; Appendix: The Maryland Lawyers’ Rules of Professional Conduct, Rules 3.5 and 8.1; Appendix: Maryland Code of Conduct for Court Interpreters, Canon 3; and Rules 1, 6, 9, 13, and 22 of the Rules Governing Admission to the Bar of Maryland, all as set forth in that Report published in the Maryland Register, Vol. 34, Issue 21, pages 1845 - 1908 (October 12, 2007); and This Court having considered at an open meeting, notice of which was posted as prescribed by law, all those proposed rules changes, together with the comments received, and making certain amendments to the proposed rules changes on its own motion, it is this 4th day of December, 2007, ORDERED, by the Court of Appeals of Maryland, that new Title 7, Chapter 500 and Rule 6.1 of the Rules Governing Admission to the Bar of Maryland be, and they are hereby, adopted in the form previously published; and it is further ORDERED that amendments to Rules 1-101, 1-312, 1-326, 2-341, 2-402, 2-421, 2-422, 2-424, 2-432, 2-433, 2-504, 2-504.1, 2-509, 2-510, 2-511, 2-512, 2-521, 2-522, 3-510, 4-215, 4-217, 4-242, 4-264, 4-312, 4-313, 4-314, 4-326, 4-327, 4-341, 4-502, 4-503, 4-643, 5-101, 5-606, 5-609, 5-803, 5-902, 6-122, 6-413, 6-451, -2- 6-455, 6-463, 6-464, 8-111, 8-204, 10-202, 10-203, 10-205, 10-213, 10-301, 10-302, 10-304, 13-102, 16-107, 16-307, 16-308, 16-602, 16-608, 16-610, 16-735, 16-737, 16-743, 16-808, 16-815, 16-1004, and 16-1006; Forms 4-503.1 and 4-503.2; Appendix: Form Interrogatories, Form 3 and Form 7; Appendix: The Maryland Lawyers’ Rules of Professional Conduct, Rule 3.5; Appendix: Maryland Code of Conduct for Court Interpreters, Canon 3; and Rules 1, 6, 9, 13, and 22 of the Rules Governing Admission to the Bar of Maryland be, and they are hereby, adopted in the form previously published; and it is further ORDERED that amendments to Rules 4-246, 4-265, and 16-813 be, and they are hereby, adopted in the form attached to this Order; and it is further ORDERED that consideration of proposed amendments to Rules 4-262, 4-263, 4-301, 15-207, 16-701, 16-731, 16-751, and 16-771 and Rule 8.1 of the Maryland Lawyers’ Rules of Professional Conduct be, and they are hereby, deferred pending further study by this Court, and it is further -3- ORDERED that the amendments to Rules 16-602, 16-608, and 16610 hereby adopted by this Court shall take effect April 1, 2008; and it is further ORDERED that new Rule 6.1 and the amendments to Rules 1, 6, 9, and 13 of the Rules Governing Admission to the Bar of Maryland hereby adopted by this Court shall take effect June 1, 2008; and it is further ORDERED that all other rules changes hereby adopted by this Court shall govern the courts of this State and all parties and their attorneys in all actions and proceedings, and shall take effect and apply to all actions commenced on or after the 1st day of January, 2008, and insofar as practicable, to all actions then pending; and it is further -4- ORDERED that a copy of this Order be published in the next issue of the Maryland Register. /s/ Robert M. Bell ___________________________________ Robert M. Bell /s/ Irma S. Raker ___________________________________ Irma S. Raker /s/ Glenn T. Harrell, Jr. ___________________________________ Glenn T. Harrell, Jr. /s/ Lynne A. Battaglia ___________________________________ Lynne A. Battaglia /s/ Clayton Greene, Jr. ___________________________________ Clayton Greene, Jr. Filed: December 4, 2007 /s/ Alexander L. Cummings ______________________________ Clerk Court of Appeals of Maryland -5- MARYLAND RULES OF PROCEDURE TITLE 1 - GENERAL PROVISIONS CHAPTER 100 - APPLICABILITY AND CITATION AMEND Rule 1-101 to provide that the Rules in Title 4 apply to expungement of certain records of civil offenses or infractions, as follows: Rule 1-101. APPLICABILITY . . . (d) Title 4 Title 4 applies to criminal matters,; post conviction procedures,; and expungement of records in the District Court and the circuit courts, including records of civil offenses or infractions, except juvenile offenses, under a State or local law enacted as a substitute for a criminal charge. . . . -6- MARYLAND RULES OF PROCEDURE TITLE 1 - GENERAL PROVISIONS CHAPTER 300 - GENERAL PROVISIONS AMEND Rule 1-312 to correct internal references, as follows: Rule 1-312. (a) REQUIREMENTS OF SIGNING ATTORNEY General In addition to having been admitted to practice law in this State, an attorney signing a pleading or paper in compliance with Rule 1-311 shall comply with one of the following three requirements. The attorney shall: (1) maintain an office for the practice of law in the United States; (2) be a regular employee of an agency of government or of a business or other nongovernmental organization or association and be authorized to sign pleadings on behalf of the employer. The attorney shall not sign pleadings and papers on behalf of other clients unless both of the following requirements are met: (A) a substantial portion of the attorney's duties performed for the regular employer in the regular course of employment must constitute the practice of law, and (B) the office address as shown on the pleadings must be located in the United States and a substantial amount of the attorney's time must be spent in that office during ordinary business hours in the traditional work week; or -7- (3) have a practice limited exclusively to participation in a legal services or pro bono publico program sponsored or supported by a local Bar Association as defined by Rule 16-701 b 16-811 e 1, the Maryland State Bar Association, an affiliated bar foundation, or the Maryland Legal Services Corporation, and the attorney shall include on the pleading or paper the address and telephone number of (A) the legal services or pro bono publico program in which the attorney is practicing, or (B) the attorney's primary residence, which shall be in the United States. Cross reference: Rule 16-811 f 1 16-811 e 2. . . . -8- MARYLAND RULES OF PROCEDURE TITLE 1 - GENERAL PROVISIONS CHAPTER 300 - GENERAL PROVISIONS AMEND Rule 1-326 to add a reference to Title 8 in section (a), as follows: Rule 1-326. PROCEEDINGS REGARDING VICTIMS AND VICTIMS’ REPRESENTATIVES (a) Entry of Appearance An attorney may enter an appearance on behalf of a victim or a victim's representative in a proceeding under Title 4, Title 8, or Title 11 of these Rules for the purpose of representing the rights of the victim or victim's representative. . . . -9- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 300 - PLEADINGS AND MOTIONS AMEND Rule 2-341 to add clarifying language to section (e), as follows: Rule 2-341. AMENDMENT OF PLEADINGS . . . (e) Highlighting of Amendments Unless the court orders otherwise, a party filing an amended pleading also shall also file at the same time a comparison copy of the amended pleading showing by lining through or enclosing in brackets material that has been stricken and by underlining or setting forth in bold-faced type new material. . . . -10- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 400 - DISCOVERY AMEND Rule 2-402 to add a reference to “electronically stored information,” to delete certain language from subsection (b)(1) and add the word “modify” to it, to add a new subsection (b)(2) pertaining to electronically stored information not reasonably accessible, to add a new section (e) pertaining to claims of privilege or protection, to change internal references, to add Committee notes, and to make stylistic changes, as follows: Rule 2-402. SCOPE OF DISCOVERY Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (a) Generally A party may obtain discovery regarding any matter, that is not privileged, including the existence, description, nature, custody, condition, and location of any documents, electronically stored information, or other and tangible things and the identity and location of persons having knowledge of any discoverable matter, if the matter sought is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. It is not ground for objection that the information sought is already known to or otherwise obtainable by -11- the party seeking discovery or that the information will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. An interrogatory or deposition question otherwise proper is not objectionable merely because the response involves an opinion or contention that relates to fact or the application of law to fact. (b) Alterations Limitations and Modifications; Electronically Stored Information Not Reasonably Accessible (1) Generally In a particular case, the court, on motion or on its own initiative and after consultation with the parties, by order may limit or alter the limits in modify these rules on the length and number of depositions, the number of interrogatories, the number of requests for production of documents, and the number of requests for admissions. The court shall limit the frequency or extent of use of the discovery methods otherwise permitted under these rules if it determines that (1) (A) the discovery sought is unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) (B) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (3) (C) the burden or expense cost of the proposed discovery outweighs its likely benefit, taking into account the complexity of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the -12- litigation, and the importance of the proposed discovery in resolving the issues. (2) Electronically Stored Information Not Reasonably Accessible A party may decline to provide discovery of electronically stored information on the ground that the sources are not reasonably accessible because of undue burden or cost. A party who declines to provide discovery on this ground shall identify the sources alleged to be not reasonably accessible and state the reasons why production from each identified source would cause undue burden or cost. The statement of reasons shall provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information in the identified sources. On a motion to compel discovery, the party from whom discovery is sought shall first establish that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the party requesting discovery shall establish that its need for the discovery outweighs the burden and cost of locating, retrieving, and producing the information. If persuaded that the need for discovery does outweigh the burden and cost, the court may order discovery and specify conditions, including an assessment of costs. Committee note: The term “electronically stored information” has the same broad meaning in this Rule that it has in Rule 2-422, encompassing, without exception, whatever is stored electronically. Subsection (b)(2) addresses the difficulties -13- that may be associated with locating, retrieving, and providing discovery of some electronically stored information. Ordinarily, the reasonable costs of retrieving and reviewing electronically stored information are borne by the responding party. At times, however, the information sought is not reasonably available to the responding party in the ordinary course of business. For example, restoring deleted data, disaster recovery tapes, residual data, or legacy systems may involve extraordinary effort or resources to restore the data to an accessible format. This subsection empowers the court, after considering the factors listed in subsection (b)(1), to shift or share costs if the demand is unduly burdensome because of the nature of the effort involved to comply and the requesting party has demonstrated substantial need or justification. See, The Sedona Conference, The Sedona Principles: Best Practices Recommendations and Principles for Addressing Electronic Document Production, (2d ed. 2007), Principle 13 and related Comment. (c) Insurance Agreement A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business might be liable to satisfy part or all of a judgment that might be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this section, an application for insurance shall not be treated as part of an insurance agreement. (d) Trial Preparation - Materials Work Product Subject to the provisions of sections (e) and (f) (f) and (g) of this Rule, a party may obtain discovery of documents, electronically stored information, or other and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative -14- (including an attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the materials are discoverable under section (a) of this Rule and that the party seeking discovery has substantial need for the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of these materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. (e) Claims of Privilege or Protection (1) Information Withheld A party who withholds information on the ground that it is privileged or subject to protection shall describe the nature of the documents, electronically stored information, communications, or things not produced or disclosed in a manner that, without revealing the privileged or protected information, will enable other parties to assess the applicability of the privilege or protection. (2) Information Produced Within a reasonable time after information is produced in discovery that is subject to a claim of privilege or of protection, the party who produced the information shall notify each party who received the information of the claim and the basis for it. Promptly after being notified, each receiving -15- party shall return, sequester, or destroy the specified information and any copies and may not use or disclose the information until the claim is resolved. A receiving party who wishes to determine the validity of a claim of privilege shall promptly file a motion under seal requesting that the court determine the validity of the claim. A receiving party who disclosed the information before being notified shall take reasonable steps to retrieve it. The producing party shall preserve the information until the claim is resolved. Committee note: Subsection (e)(2) allows a producing party to assert a claim of privilege or work-product protection after production because it is increasingly costly and time-consuming to review all electronically stored information in advance. Unlike the corresponding federal rule, a party must raise a claim of privilege or work product protection within a “reasonable time.” See Elkton Care Center Associates v. Quality Care Management, Inc., 145 Md. App. 532 (2002). (3) Effect of Inadvertent Disclosure A disclosure of a communication or information covered by the attorney-client privilege or work product protection does not operate as a waiver if the holder of the privilege or work product protection (A) made the disclosure inadvertently, (B) took reasonable precautions to prevent disclosure, and (C) took reasonably prompt measures to rectify the error once the holder knew or should have known of the disclosure. Committee note: Courts in other jurisdictions are in conflict over whether an inadvertent disclosure of privileged information or work product constitutes a waiver. A few courts find that a disclosure must be intentional to be a waiver. Most courts find a waiver only if the disclosing party acted carelessly in disclosing the communication or information and failed to request its return in a timely manner. A few other courts hold that any -16- mistaken disclosure of protected information constitutes waiver without regard to the protections taken to avoid such a disclosure. See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D. Md. 2005) for a discussion of this case law. This subsection opts for the middle ground: inadvertent disclosure of privileged or protected information in connection with a state or federal proceeding constitutes a waiver only if the party did not take reasonable precautions to prevent disclosure and did not make reasonable and prompt efforts to rectify the error. This position is in accord with Maryland common law, see, e.g., Elkton Care Center Associates v. Quality Care Management, Inc., 145 Md. App. 532 (2002), and the majority view on whether inadvertent disclosure is a waiver. See, e.g., Zapata v. IBP, Inc., 175 F.R.D. 574, 576-77 (D. Kan. 1997) (work product); Hydraflow, Inc. v. Enidine, Inc., 145 F.R.D. 626, 637 (W.D.N.Y. 1993) (attorney-client privilege); Edwards v. Whitaker, 868 F.Supp. 226, 229 (M.D. Tenn. 1994) (attorney-client privilege). (4) Controlling Effect of Court Orders and Agreements Unless incorporated into a court order, an agreement as to the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection is binding on the parties to the agreement but not on other persons. If the agreement is incorporated into a court order, the order governs all persons or entities, whether or not they are or were parties. Committee note: Parties may agree to certain protocols to minimize the risk of waiver of a claim of privilege or protection. One example is a “clawback” agreement, meaning an agreement that production will occur without a waiver of privilege or protection as long as the producing party promptly identifies the privileged or protected documents that have been produced. See The Sedona Conference, The Sedona Principles: Best Practices Recommendations and Principles for Addressing Electronic Document Production, (2d ed. 2007), Comment 10.a. Another example is a “quick peek” agreement, meaning that the responding party provides certain requested materials for initial examination without waiving any privilege or protection. The requesting party then designates the documents it wishes to have -17- actually produced, and the producing party may assert any privilege or protection. Id., Comment 10.d. Subsection (e)(4) codifies the well-established proposition that parties can enter into an agreement to limit the effect of waiver by disclosure between or among them. See, e.g., Dowd v. Calabrese, 101 F.R.D. 427, 439 (D.D.C. 1984) (no waiver where the parties stipulated in advance that certain testimony at a deposition “would not be deemed to constitute a waiver of the attorney-client or work product privileges”); Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003) (noting that parties may enter into “so-called ‘claw-back’ agreements that allow the parties to forego privilege review altogether in favor of an agreement to return inadvertently produced privileged documents”). Of course, such an agreement can bind only the parties to the agreement. The subsection makes clear that if parties want protection from a finding of waiver by disclosure in separate litigation, the agreement must be made part of a court order. Confidentiality orders are important in limiting the costs of privilege review and retention, especially in cases involving electronic discovery. The utility of a confidentiality order is substantially diminished if it provides no protection outside the particular litigation in which the order is entered. Parties are unlikely to be able to reduce the costs of preproduction review for privilege and work product if the consequence of disclosure is that the information can be used by nonparties to the litigation. Subsection (e)(4) provides that an agreement of the parties governing confidentiality of disclosures is enforceable against nonparties only if it is incorporated in a court order, but there can be no assurance that this enforceability will be recognized by courts other than those of this State. There is some dispute as to whether a confidentiality order entered in one case can bind nonparties from asserting waiver by disclosure in separate litigation. See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D.Md. 2005), for a discussion of this case law. (e) (f) Trial Preparation - Party's or Witness' Own Statement A party may obtain a statement concerning the action or its subject matter previously made by that party without the showing required under section (d) of this Rule. A person who is not a party may obtain, or may authorize in writing a party to -18- obtain, a statement concerning the action or its subject matter previously made by that person without the showing required under section (d) of this Rule. For purposes of this section, a statement previously made is (1) a written statement signed or otherwise adopted or approved by the person making it, or (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, that is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. (f) (g) Trial Preparation - Experts (1) Expected to be Called at Trial (A) Generally A party by interrogatories may require any other party to identify each person, other than a party, whom the other party expects to call as an expert witness at trial; to state the subject matter on which the expert is expected to testify; to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion; and to produce any written report made by the expert concerning those findings and opinions. A party also may take the deposition of the expert. Committee note: This subsection requires a party to disclose the name and address of any witness who may give an expert opinion at trial, whether or not that person was retained in anticipation of litigation or for trial. Cf. Dorsey v. Nold, 362 Md. 241 (2001). See Rule 104.10 of the Rules of the U.S. District Court for the District of Maryland. The subsection does not require, however, that a party name himself or herself as an expert. See Turgut v. Levin, 79 Md. App. 279 (1989). -19- (B) Additional Disclosure with Respect to Experts Retained in Anticipation of Litigation or for Trial In addition to the discovery permitted under subsection (f)(1)(A) (g)(1)(A) of this Rule, a party by interrogatories may require the other party to summarize the qualifications of a person expected to be called as an expert witness at trial and whose findings and opinions were acquired or obtained in anticipation of litigation or for trial, to produce any available list of publications written by that expert, and to state the terms of the expert's compensation. (2) Not Expected to be Called at Trial When an expert has been retained by a party in anticipation of litigation or preparation for trial but is not expected to be called as a witness at trial, discovery of the identity, findings, and opinions of the expert may be obtained only if a showing of the kind required by section (d) of this Rule is made. (3) Fees and Expenses of Deposition Unless the court orders otherwise on the ground of manifest injustice, the party seeking discovery: (A) shall pay each expert a reasonable fee, at a rate not exceeding the rate charged by the expert for time spent preparing for a deposition, for the time spent in attending a deposition and for the time and expenses reasonably incurred in travel to and from the deposition; and (B) when obtaining discovery under subsection -20- (f)(2) (g)(2) of this Rule, shall pay each expert a reasonable fee for preparing for the deposition. -21- Source: This Rule is derived as follows: Section (a) is derived from former Rule 400 c and the 1980 version of Fed. R. Civ. P. 33 (b). Section (b) is new and is derived from the 2000 version of Fed. R. Civ. P. 26 (b) (2), except that subsection (b)(2) is derived from the 2006 Fed. R. Civ. P. 26 (b)(2)(B). Section (c) is new and is derived from the 1980 version of Fed. R. Civ. P. 26 (b) (2). Section (d) is derived from former Rule 400 d. Section (e) is new and is derived from the 2006 version of Fed. R. Civ. P. 26 (b)(5). Section (e) (f) is derived from former Rule 400 e. Section (f) (g) Subsection (f)(1) (g)(1) is derived in part from the 1980 version of Fed. R. Civ. P. 26 (b)(4) and former Rule 400 f and is in part new. Subsection (f)(2) (g)(2) is derived from the 1980 version of Fed. R. Civ. P. 26 (b)(4) and former Rule U12 b. Subsection (f)(3) (g)(3) is derived in part from the 1980 version of Fed. R. Civ. P. 26 (b)(4) and is in part new. -22- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 400 - DISCOVERY AMEND Rule 2-421 to add language to section (c) referring to “electronically stored information”, as follows: Rule 2-421. INTERROGATORIES TO PARTIES . . . (c) Option to Produce Business Records When (1) the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit, or inspection of those business records or a compilation, abstract, or summary of them, and (2) the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, and (3) the party upon whom the interrogatory has been served has not already derived or ascertained the information requested, it is a sufficient answer to the interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as -23- readily as can the party served, the records from which the answer may be ascertained. . . . -24- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 400 - DISCOVERY AMEND Rule 2-422 to add to section (a) a reference to “electronically stored information,” other language broadening the scope of discovery, and the word “designated” modifying the language “tangible things”; to add a sentence to section (b) allowing a discovery request to specify the form of electronically stored information; to delete certain language from section (c) and to add to it language pertaining to refusal of the requested form; to add a cross reference to Rule 2-402 at the end of section (c); to add to subsection (d)(1) a reference to “electronically stored information” and to add language pertaining to the form of production of that information; to add a new subsection (d)(2) stating that production of electronically stored information is only required in one form and to add a Committee note after it, as follows: Rule 2-422. DISCOVERY OF DOCUMENTS, ELECTRONICALLY STORED INFORMATION, AND PROPERTY (a) Scope Any party may serve one or more requests to any other party (1) as to items that are in the possession, custody, or control of the party upon whom the request is served, to produce and permit the party making the request, or someone acting on the -25- party's behalf, to inspect and, copy, test, or sample any designated documents or electronically stored information (including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form) or to inspect and copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 2-402 (a); or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on the property, within the scope of Rule 2-402 (a). (b) Request A request shall set forth the items to be inspected, either by individual item or by category, and shall; describe each item and category with reasonable particularity. The request shall ; and specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form in which electronically stored information is to be produced. (c) Response The party to whom a request is directed shall serve a written response within 30 days after service of the request or within 15 days after the date on which that party's initial -26- pleading or motion is required, whichever is later. The response shall state, with respect to each item or category, that (1) inspection and related activities will be permitted as requested, unless (2) the request is refused, in which event the reasons for refusal shall be stated or (3) the request for production in a particular form is refused. be fully stated. The grounds for each refusal shall If the refusal relates to part of an item or category, the part shall be specified. If a refusal relates to the form in which electronically stored information is requested to be produced (or if no form was specified in the request) the responding party shall state the form in which it would produce the information. Cross reference: See Rule 2-402 (b)(1) for a list of factors used by the court to determine the reasonableness of discovery requests and (b)(2) concerning the assessment of the costs of discovery. (d) Production (1) A party who produces documents or electronically stored information for inspection shall (A) produce them as they are the documents or information as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request, and (B) produce electronically stored information in the form specified in the request or, if the request does not specify a form, in the form in which it is ordinarily maintained or in a form that is reasonably usable. (2) A party need not produce the same electronically stored information in more than one form. -27- Committee note: Onsite inspection of electronically stored information should be the exception, not the rule, because litigation usually relates to the informational content of the data held on a computer system, not to the operation of the system itself. In most cases, there is no justification for direct inspection of an opposing party's computer system. See In re Ford Motor Co., 345 F. 3d 1315 (11th Cir. 2003) (vacating order allowing plaintiff direct access to defendant’s databases). To justify onsite inspection of a computer system and the programs used, a party should demonstrate a substantial need to discover the information and the lack of a reasonable alternative. The inspection procedure should be documented by agreement or in a court order and should be narrowly restricted to protect confidential information and system integrity and to avoid giving the discovering party access to data unrelated to the litigation. The data subject to inspection should be dealt with in a way that preserves the producing party’s rights, as, for example, through the use of neutral court-appointed consultants. See, generally, The Sedona Conference, The Sedona Principles: Best Practices Recommendations and Principles for Addressing Electronic Document Production (2d ed. 2007), Comment 6. c. Source: This Rule is derived from former Rule 419 and the 1980 and 2006 versions of Fed. R. Civ. P. 34. -28- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 400 - DISCOVERY AMEND Rule 2-424 to add a reference to “electronically stored information”, as follows: Rule 2-424. (a) ADMISSION OF FACTS AND GENUINENESS OF DOCUMENTS Request for Admission A party may serve one or more written requests to any other party for the admission of (1) the genuineness of any relevant documents or electronically stored information described in or exhibited with the request, or (2) the truth of any relevant matters of fact set forth in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Each matter of which an admission is requested shall be separately set forth. . . . -29- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE –- CIRCUIT COURT CHAPTER 400 - DISCOVERY AMEND Rule 2-432 (c) to conform to the relettering of Rule 2-402, as follows: Rule 2-432. MOTIONS UPON FAILURE TO PROVIDE DISCOVERY . . . (c) By Nonparty to Compel Production of Statement If a party fails to comply with a request of a nonparty made pursuant to Rule 2-402 (e) (f) for production of a statement, the nonparty may move for an order compelling its production. . . . -30- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 400 - DISCOVERY AMEND Rule 2-433 to add a new section (b) pertaining to loss of electronically stored information, as follows: Rule 2-433. (a) SANCTIONS For Certain Failures of Discovery Upon a motion filed under Rule 2-432 (a), the court, if it finds a failure of discovery, may enter such orders in regard to the failure as are just, including one or more of the following: (1) An order that the matters sought to be discovered, or any other designated facts shall be taken to be established for the purpose of the action in accordance with the claim of the party obtaining the order; (2) An order refusing to allow the failing party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; or (3) An order striking out pleadings or parts thereof, or staying further proceeding until the discovery is provided, or dismissing the action or any part thereof, or entering a judgment by default that includes a determination as to liability and all relief sought by the moving party against the failing party if the court is satisfied that it has personal jurisdiction over that party. If, in order to enable the court to enter default -31- judgment, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court may rely on affidavits, conduct hearings or order references as appropriate, and, if requested, shall preserve to the plaintiff the right of trial by jury. Instead of any order 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 expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (b) For Loss of Electronically Stored Information Absent exceptional circumstances, a court may not impose sanctions under these Rules on a party for failing to provide electronically stored information that is no longer available as a result of the routine, good-faith operations of an electronic information system. (b) (c) For Failure to Comply with Order Compelling Discovery If a person fails to obey an order compelling discovery, the court, upon motion of a party and reasonable notice to other parties and all persons affected, may enter such orders in regard to the failure as are just, including one or more of the orders set forth in section (a) of this Rule. If justice cannot otherwise be achieved, the court may enter an order in compliance -32- with Rule 15-206 treating the failure to obey the order as a contempt. (c) (d) Award of Expenses If a motion filed under Rule 2-432 or under Rule 2-403 is granted, the court, after opportunity for hearing, shall require the party or deponent whose conduct necessitated the motion or the party or the attorney advising the conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court, after opportunity for hearing, shall require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. Source: 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 from the 2006 version of Fed. R. Civ. P. 37 (f). -33- Section (b) (c) is derived from former Rule 422 b. Section (c) (d) is derived from the 1980 version of Fed. R. Civ. P. 37 (a) (4) and former Rule 422 a 5, 6 and 7. -34- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 500 - TRIAL AMEND Rule 2-504 to add a new subsection (b)(2)(G) referring to discovery of electronically stored information, to add a new subsection (b)(2)(H) referring to a process for asserting claims of privilege or of protection after production, and to reletter subsection (b)(2), as follows: Rule 2-504. (a) SCHEDULING ORDER Order Required (1) Unless otherwise ordered by the County Administrative Judge for one or more specified categories of actions, the court shall enter a scheduling order in every civil action, whether or not the court orders a scheduling conference pursuant to Rule 2504.1. (2) The County Administrative Judge shall prescribe the general format of scheduling orders to be entered pursuant to this Rule. A copy of the prescribed format shall be furnished to the Chief Judge of the Court of Appeals. (3) Unless the court orders a scheduling conference pursuant to Rule 2-504.1, the scheduling order shall be entered as soon as practicable, but no later than 30 days after an answer is filed by any defendant. If the court orders a scheduling conference, -35- the scheduling order shall be entered promptly after conclusion of the conference. (b) Contents of Scheduling Order (1) Required A scheduling order shall contain: (A) an assignment of the action to an appropriate scheduling category of a differentiated case management system established pursuant to Rule 16-202; (B) one or more dates by which each party shall identify each person whom the party expects to call as an expert witness at trial, including all information specified in Rule 2-402 (f) (1) (g)(1); (C) one or more dates by which each party shall file the notice required by Rule 2-504.3 (b) concerning computer-generated evidence; (D) a date by which all discovery must be completed; (E) a date by which all dispositive motions must be filed; and (F) any other matter resolved at a scheduling conference held pursuant to Rule 2-504.1. (2) Permitted A scheduling order may also contain: (A) any limitations on discovery otherwise permitted under these rules, including reasonable limitations on the number of interrogatories, depositions, and other forms of discovery; -36- (B) the resolution of any disputes existing between the parties relating to discovery; (C) a date by which any additional parties must be joined; (D) a specific referral to or direction to pursue an available and appropriate form of alternative dispute resolution, including a requirement that individuals with authority to settle be present or readily available for consultation during the alternative dispute resolution proceeding, provided that the referral or direction conforms to the limitations of Rule 2-504.1 (e); (E) an order designating or providing for the designation of a neutral expert to be called as the court's witness; (F) a further scheduling conference or pretrial conference date; and (G) provisions for discovery of electronically stored information; (H) a process by which the parties may assert claims of privilege or of protection after production; and (G) (I) any other matter pertinent to the management of the action. Cross reference: See Rule 5-706 for authority of the court to appoint expert witnesses. Source: This Rule is in part new and in part derived as follows: Subsection (b)(2)(G) is new and is derived from the 2006 version of Fed. R. Civ. P. 16 (b)(5). Subsection (b)(2)(H) is new and is derived from the 2006 version of Fed. R. Civ. P. 16 (b)(6). -37- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 500 - TRIAL AMEND Rule 2-504.1 to add language to section (b) expanding a scheduling order to include issues relating to preserving discoverable information, issues relating to discovery of electronically stored information, and issues relating to claims of privilege or of protection; and to add a Committee note at the end of that section pertaining to how discovery of electronically stored information is handled at a scheduling conference, as follows: Rule 2-504.1. (a) SCHEDULING CONFERENCE When Required In any of the following circumstances, the court shall issue an order requiring the parties to attend a scheduling conference: (1) in an action placed or likely to be placed in a scheduling category for which the case management plan adopted pursuant to Rule 16-202 b. requires a scheduling conference; (2) in an action in which an objection to computer-generated evidence is filed under Rule 2-504.3 (d); or (3) in an action, in which a party requests a scheduling conference and represents that, despite a good faith effort, the parties have been unable to reach an agreement (i) on a plan for -38- the scheduling and completion of discovery, (ii) on the proposal of any party to pursue an available and appropriate form of alternative dispute resolution, or (iii) on any other matter eligible for inclusion in a scheduling order under Rule 2-504. (b) When Permitted The court may issue an order in any action requiring the parties to attend a scheduling conference. (c) Order for Scheduling Conference An order setting a scheduling conference may require that the parties, at least ten days before the conference: (1) complete sufficient initial discovery to enable them to participate in the conference meaningfully and in good faith and to make decisions regarding (A) settlement, (B) consideration of available and appropriate forms of alternative dispute resolution, (C) limitation of issues, (D) stipulations, (E) any issues relating to preserving discoverable information, (F) any issues relating to discovery of electronically stored information, including the form in which it is to be produced, (G) any issues relating to claims of privilege or of protection, and (E) (H) other matters that may be considered at the conference; and (2) confer in person or by telephone and attempt to reach agreement or narrow the areas of disagreement regarding the matters that may be considered at the conference and determine whether the action or any issues in the action are suitable for -39- referral to an alternative dispute resolution process in accordance with Title 17, Chapter 100 of these rules. Committee note: Examples of matters that may be considered at a scheduling conference when discovery of electronically stored information is expected, include: (1) its identification and retention; (2) the form of production, such as PDF, TIFF, or JPEG files, or native form, for example, Microsoft Word, Excel, etc.; (3) the manner of production, such as CD-ROM; (4) any production of indices; (5) any electronic numbering of documents and information; (6) apportionment of costs for production of electronically stored information not reasonably accessible because of undue burden or cost; (7) a process by which the parties may assert claims of privilege or of protection after production; and (8) whether the parties agree to refer discovery disputes to a master or Special Master. The parties may also need to address any request for metadata, for example, information embedded in an electronic data file that describes how, when, and by whom it was created, received, accessed, or modified or how it is formatted. For a discussion of metadata and factors to consider in determining the extent to which metadata should be preserved and produced in a particular case, see, The Sedona Conference, The Sedona Principles: Best Practices Recommendations and Principles for Addressing Electronic Document Production, (2d ed. 2007), Principle 12 and related Comment. (d) Time and Method of Holding Conference Except (1) upon agreement of the parties, (2) upon a finding of good cause by the court, or (3) in an action assigned to a family division under Rule 16-204 (a)(2), a scheduling conference shall not be held earlier than 30 days after the date of the order. If the court requires the completion of any discovery pursuant to section (c) of this Rule, it shall afford the parties a reasonable opportunity to complete the discovery. -40- The court may hold a scheduling conference in chambers, in open court, or by telephone or other electronic means. (e) Scheduling Order Case management decisions made by the court at or as a result of a scheduling conference shall be included in a scheduling order entered pursuant to Rule 2-504. A court may not order a party or counsel for a party to participate in an alternative dispute resolution process under Rule 2-504 except in accordance with Rule 9-205 or Rule 17-103. Source: This Rule is new. -41- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 500 - TRIAL AMEND Rule 2-509 (b) to delete the word “compensation,” to add the words “reimbursement” and “qualified,” and to make stylistic changes, as follows: Rule 2-509. JURY TRIAL -- SPECIAL COSTS IN FIRST, SECOND, AND FOURTH JUDICIAL CIRCUITS . . . (b) Special Costs Imposed When a jury trial is removed from the assignment at the initiative of a party for any reason within the 48 hour period, not including Saturdays, Sundays, and holidays, prior to 10:00 a.m. on the date scheduled, the court in its discretion may assess as costs against a party or parties an amount equal to the total compensation reimbursement paid to qualified jurors who reported and were not otherwise utilized may be assessed as costs in the action against a party or parties in the discretion of the court and remitted by the used. The clerk shall remit to the county the costs received pursuant to this section. The County Administrative Judge may waive assessment of these costs for good cause shown. . . . -42- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE –- CIRCUIT COURT CHAPTER 500 - TRIAL AMEND Rule 2-510 to add a reference to “electronically stored information” to sections (a), (c), (e), and (f); to add language to section (a) requiring a subpoenaed party to permit testing or sampling of electronically stored information; to add to the contents of a subpoena in section (c) a description of electronically stored information, a description of any testing or sampling proposed, and a statement allowing the subpoena to specify the form of the information; to add two Code references to the cross reference after section (d); to add a sentence to section (e) referring to filing a motion objecting to a subpoena for certain information; to add a sentence to section (f) requiring support for a claim of privilege or protection as work product materials; to add a new section (g) pertaining to duties relating to the production of documents, electronically stored information, and tangible things; to change subsection (i)(1) by substituting the term “custodian of records” for the term “health care provider,” by deleting language relating to x-ray films, and by deleting language referring to “the patient;” to add a cross reference after subsection (i)(1); to add a tagline to subsection (i)(2) and to change the term “health care provider” to the word “custodian;” to add a tagline to subsection (i)(3), to delete a word, and to add language requiring that a subpoena state with -43- specificity the reason for the presence of the custodian; to delete a Code reference in the cross reference following subsection (i)(3); to add a new section (k) pertaining to information produced subject to a claim of privilege or protection as work product; to add a cross reference at the end of the Rule; and to reletter the Rule, as follows: Rule 2-510. (a) SUBPOENAS Use A subpoena is required to compel the person to whom it is directed to attend, give testimony, and produce designated documents, electronically stored information, or other tangible things at a court proceeding, including proceedings before a master, auditor, or examiner. A subpoena is also required to compel a nonparty and may be used to compel a party over whom the court has acquired jurisdiction to attend, give testimony, and produce and permit inspection, and copying, testing, or sampling of designated documents, electronically stored information, or other tangible things at a deposition. used for any other purpose. A subpoena shall not be If the court, on motion of a party alleging a violation of this section or on its own initiative, after affording the alleged violator a hearing, finds that a party or attorney used or attempted to use a subpoena for a purpose other than a purpose allowed under this section, the court may impose an appropriate sanction upon the party or attorney, including an award of a reasonable attorney's fee and -44- costs, the exclusion of evidence obtained by the subpoena, and reimbursement of any person inconvenienced for time and expenses incurred. (b) Issuance On the request of a person entitled to the issuance of a subpoena, the clerk shall issue a completed subpoena, or provide a blank form of subpoena which shall be filled in and returned to the clerk to be signed and sealed before service. On the request of an attorney or other officer of the court entitled to the issuance of a subpoena, the clerk shall issue a subpoena signed and sealed but otherwise in blank, which shall be filled in before service. (c) Form Every subpoena shall contain: (1) the caption of the action, (2) the name and address of the person to whom it is directed, (3) the name of the person at whose request it is issued, (4) the date, time, and place where attendance is required, (5) a description of any documents, electronically stored information, or other tangible things to be produced and if testing or sampling is to occur, a description of the proposed testing or sampling procedure, and (6) when required by Rule 2412 (d), a notice to designate the person to testify. A subpoena may specify the form in which electronically stored information is to be produced. (d) Service -45- A subpoena shall be served by delivering a copy to the person named or to an agent authorized by appointment or by law to receive service for the person named or as permitted by Rule 2-121 (a)(3). Service of a subpoena upon a party represented by an attorney may be made by service upon the attorney under Rule 1-321 (a). A subpoena may be served by a sheriff of any county or by any person who is not a party and who is not less than 18 years of age. Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing. Cross reference: See Code, Courts Article, §6-410, concerning service upon certain persons other than the custodian of public records named in the subpoena if the custodian is not known and cannot be ascertained after a reasonable effort. As to additional requirements for certain subpoenas, see Code, HealthGeneral Article, §4-306 (b)(6) and Code, Financial Institutions Article, §1-304. (e) Objection to Subpoena for Court Proceedings On motion of a person served with a subpoena to attend a court proceeding (including a proceeding before a master, auditor, or examiner) filed promptly and, whenever practicable, at or before the time specified in the subpoena for compliance, the court may enter an order that justice requires to protect the person from annoyance, embarrassment, oppression, or undue burden or expense cost, including one or more of the following: (1) that the subpoena be quashed or modified; (2) that the subpoena be complied with only at some designated time or place other than that stated in the subpoena; -46- (3) that documents, electronically stored information, or other tangible things designated in the subpoena be produced only upon the advancement by the party serving the subpoena of the reasonable costs of producing them; or (4) that documents, electronically stored information, or other tangible things designated in the subpoena be delivered to the court at or before the proceeding or before the time when they are to be offered in evidence, subject to further order of court to permit inspection of them. A motion filed under this section based on a claim that information is privileged or subject to protection as work product materials shall be supported by a description of the nature of each item that is sufficient to enable the demanding party to evaluate the claim. (f) Objection to Subpoena for Deposition A person served with a subpoena to attend a deposition may seek a protective order pursuant to Rule 2-403. If the subpoena also commands the production of documents, electronically stored information, or other tangible things at the deposition, the person served may seek a protective order pursuant to Rule 2-403 or may file, within ten days after service of the subpoena, an objection to production of any or all of the designated materials. The objection shall be in writing and shall state the reasons for the objection. If an objection is filed, the party serving the subpoena is not entitled to production of the materials except pursuant to an order of the court from which the -47- subpoena was issued. At any time before or within 15 days after completion of the deposition and upon notice to the deponent, the party serving the subpoena may move pursuant to Rule 2-432 for an order to compel the production. A claim that information is privileged or subject to protection as work product materials shall be supported by a description of each item that is sufficient to enable the demanding party to evaluate the claim. (g) Duties Relating to the Production of Documents, Electronically Stored Evidence, and Tangible Things (1) Generally A person responding to a subpoena to produce documents, electronically stored information, or tangible things at a court proceeding or deposition shall: (A) produce the documents or information as they are kept in the usual course of business or shall organize and label the documents or information to correspond with the categories in the subpoena; and (B) produce electronically stored information in the form specified in the subpoena or, if a form is not specified, in the form in which the person ordinarily maintains it or in a form that is reasonably usable. (2) Electronically Stored Information A person responding to a subpoena to produce electronically stored information at a court proceeding or deposition need not produce the same electronically stored -48- information in more than one form and may decline to produce the information on the ground that the sources are not reasonably accessible because of undue burden or cost. A person who declines to produce information on this ground shall identify the sources alleged to be not reasonably accessible and state the reasons why production from each identified source would cause undue burden or cost. The statement of reasons shall provide enough detail to enable the demanding party to evaluate the burdens and costs of complying with the subpoena and the likelihood of finding responsive information in the identified sources. Any motion relating to electronically stored information withheld on the ground that it is not reasonably accessible shall be decided in the manner set forth in Rule 2-402 (b). (g) (h) Protection of Persons Subject to Subpoenas A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense cost on a person subject to the subpoena. Cross reference: For the availability of sanctions for violations of this section, see Rules 1-201 (a) and 1-341. (h) (i) Records of Health Care Providers Produced by Custodians (1) Generally A health care provider, as defined by Code, Courts Article, §3-2A-01 (e), custodian of records served with a subpoena to produce at trial records, including x-ray films, -49- relating to the condition or treatment of a patient at trial may comply by delivering the records to the clerk of the court that issued the subpoena at or before the time specified for production. The health care provider custodian may produce exact copies of the records designated unless the subpoena specifies that the original records be produced. The records shall be delivered in a sealed envelope labeled with the caption of the action, the date specified for production, and the name and address of the person at whose request the subpoena was issued. The records shall be accompanied by a certificate of the custodian that they are the complete records for the patient requested for the period designated in the subpoena and that the records are maintained in the regular course of business of the health care provider. The certification shall be prima facie evidence of the authenticity of the records. Cross reference: Code, Health-General Article, §4-306 (b)(6); Code, Financial Institutions Article, §1-304. (2) During Trial Upon commencement of the trial, the clerk shall release the records only to the courtroom clerk assigned to the trial. The courtroom clerk shall return the records to the clerk promptly upon completion of trial or at an earlier time if there is no longer a need for them. Upon final disposition of the action the clerk shall return the original records to the health care provider custodian but need not return copies. (3) Presence of Custodian -50- When the actual presence of the custodian of medical records is required, the subpoena shall so state with specificity the reason for the presence of the custodian. Cross reference: Code, Courts Article, §10-104 includes an alternative method of authenticating medical records in certain cases transferred from the District Court upon a demand for a jury trial. Code, Health-General Article, §4-306 requires that a subpoena to produce medical records without the authorization of a person in interest be accompanied by a certification that a copy of the subpoena has been served on the person whose records are being sought or that the court has waived service for good cause. (i) (j) Attachment A witness served with a subpoena under this Rule is liable to body attachment and fine for failure to obey the subpoena without sufficient excuse. The writ of attachment may be executed by the sheriff or peace officer of any county and shall be returned to the court issuing it. The witness attached shall be taken immediately before the court if then in session. If the court is not in session, the witness shall be taken before a judicial officer of the District Court for a determination of appropriate conditions of release to ensure the witness' appearance at the next session of the court that issued the attachment. (k) Information Produced that is Subject to a Claim of Privilege or Work Product Protection Within a reasonable time after information is produced in response to a subpoena that is subject to a claim of privilege or of protection as work product material, the person who produced the information shall notify each party who received the -51- information of the claim and the basis for it. Promptly after being notified, each receiving party shall return, sequester, or destroy the specified information and any copies and may not use or disclose the information until the claim is resolved. A receiving party who wishes to determine the validity of a claim of privilege shall promptly file a motion under seal requesting that the court determine the validity of the claim. A receiving party who disclosed the information before being notified shall take reasonable steps to retrieve it. The person who produced the information shall preserve it until the claim is resolved. Cross reference: For issuing and enforcing legislative subpoenas, see Code, State Government Article, §§2-1802 and 2-1803. Source: This Rule is derived as follows: Section (a) is new but the first and second sentences are derived in part from the 2006 version of Fed. R. Civ. P. 45(a)(1)(C); the second sentence also is derived in part from former Rule 407 a. Section (b) is new. Section (c) is derived from former Rules 114 a and b, 115 a and 405 a 2 (b), and from the 2006 version of Fed. R. Civ. P. 45(a)(1)(D). Section (d) is derived from former Rules 104 a and b and 116 b. Section (e) is derived from former Rule 115 b and the 2006 version of Fed. R. Civ. P. 45 (d)(2)(A). Section (f) is derived from the 1980 version of Fed. R. Civ. P. 45 (d) (1), and the 2006 version of Fed. R. Civ. P. 45 (d)(2)(A). Section (g) is new and is derived from the 2006 version of Fed. R. Civ. P. 45 (d)(1). Section (g) (h) is derived from the 1991 version of Fed. R. Civ. P. 45 (c) (1). Section (h) (i) is new. Section (i) (j) is derived from former Rules 114 d and 742 e. Section (k) is new and is derived from the 2006 version of Fed. R. Civ. P. 45 (d)(2)(B). -52- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 500 - TRIAL AMEND Rule 2-511 to add a cross reference after section (d), as follows: Rule 2-511. (a) TRIAL BY JURY Right Preserved The right of trial by jury as guaranteed by the Maryland Constitution and the Maryland Declaration of Rights or as provided by law shall be preserved to the parties inviolate. (b) Number of Jurors The jury shall consist of six persons. With the approval of the court, the parties may agree to accept a verdict from fewer than six jurors if during the trial one or more of the six jurors becomes or is found to be unable or disqualified to perform a juror's duty. (c) Separation of Jury The court, either before or after submission of the case to the jury, may permit the jurors to separate or require that they be sequestered. (d) Advisory Verdicts Disallowed Issues of fact not triable of right by a jury shall be decided by the court and may not be submitted to a jury for an advisory verdict. -53- Cross reference: Md. Declaration of Rights, Article 5; Rule 2-325; and Code, Courts Article, §§8-421 (a) and 8-422. . . . -54- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE –- CIRCUIT COURT CHAPTER 500 - TRIAL AMEND Rule 2-512 by adding a new subsection (a)(1) and a new cross reference after subsection (a)(1), by adding a new subsection (a)(2), by adding to and deleting language from section (b), by adding to and deleting language from subsection (c)(1), by adding new subsections (c)(2) and (c)(3), by adding to and deleting language from subsection (d)(1), by renumbering section (e) as subsection (d)(2) with an additional word added to it, by deleting section (f), by renumbering section (g) as section (e), by adding to and deleting language from subsection (e)(1), by adding to and deleting language from subsection (e)(2), by relettering section (i) as section (f), by adding to and deleting language from subsection (f)(1), by adding new subsections (f)(2)and (f)(3), and by making stylistic changes, as follows: Rule 2-512. JURY SELECTION (a) Jury Size and Challenge to the Array (1) Size Before a trial begins, the judge shall decide (A) the required number of sworn jurors, including any alternates, and (B) the size of the array of qualified jurors needed. Cross reference: See Code, Courts Article, §8-421 (b). -55- (2) Insufficient Array If the array is insufficient for jury selection, the trial judge may direct that additional qualified jurors be summoned at random from the qualified juror pool as provided by statute. (3) Challenge to the Array A party may challenge the array of jurors on the ground that its members were not selected, drawn, or summoned according to law, or on any other ground that would disqualify the panel array as a whole. A challenge to the array shall be made and determined before any individual juror from that member of the array is examined, except that the court trial judge for good cause may permit it the challenge to be made after the jury is sworn but before any evidence is received. (b) Alternate Jurors General Requirements The court may direct that one or more jurors be called and impanelled to sit as alternate jurors. Any juror who, before the time the jury retires to consider its verdict, becomes or is found to be unable or disqualified to perform a juror’s duty shall be replaced by an alternate juror in the order of selection. An alternate juror All individuals to be impanelled on the jury, including any alternates, shall be drawn selected in the same manner, have the same qualifications, and be subject to the same examination, take the same oath, and have the same functions, powers, facilities, and privileges as a juror. An -56- alternate juror who does not replace a juror shall be discharged when the jury retires to consider its verdict. (c) Jury List (1) Contents Before the examination of qualified jurors, each party shall be provided with a list of jurors that includes the each juror’s name, address, age, sex, education, occupation, and spouse’s occupation, of spouse of each juror and any other information required by the county jury plan Rule. When the county jury plan requires the address of a juror, Unless the trial judge orders otherwise, the address need shall be limited to the city or town and zip code and shall not include the house street address or box number. (2) Dissemination (A) Allowed A party may provide the jury list to any person employed by the party to assist in jury selection. With permission of the trial judge, the list may be disseminated to other individuals such as the courtroom clerk or court reporter for use in carrying out official duties. (B) Prohibited Unless the trial judge orders otherwise, a party and any other person to whom the jury list is provided in accordance with subsection (c)(2)(A) of this Rule may not disseminate the list or the information contained on the list to any other person. -57- (3) Not Part of the Case Record; Exception Unless the court orders otherwise, copies of jury lists shall be returned to the jury commissioner. Unless marked for identification and offered in evidence pursuant to Rule 2-516, a jury list is not part of the case record. Cross reference: See Rule 16-1009 concerning motions to seal or limit inspection of a case record. (d) Examination of Jurors and Challenges for Cause (1) Examination The court trial judge may permit the parties to conduct an examination of qualified jurors or may itself conduct the examination after considering questions proposed by the parties. If the court judge conducts the examination, it the judge may permit the parties to supplement the examination by further inquiry or may itself submit to the jurors additional questions proposed by the parties. The jurors’ responses to any examination shall be under oath. Upon On request of any party, the court judge shall direct the clerk to call the roll of the panel array and to request each qualified juror to stand and be identified when called by name. (e) Challenge for Cause (2) Challenge for Cause A party may challenge an individual qualified juror for cause. A challenge for cause shall be made and determined before the jury is sworn, or thereafter for good cause shown. (f) Additional Jurors -58- When the number of jurors of the regular panel may be insufficient to allow for selection of a jury, the court may direct that additional jurors be summoned at random from the qualified jury wheel and thereafter at random in a manner provided by statute. (g) (e) Designation of List of Qualified Jurors Peremptory Challenges (1) Designation of Qualified Jurors; Order of Selection Before the exercise of peremptory challenges, the court trial judge shall designate from the jury list those jurors individuals on the jury list who have remain qualified after examination. The number designated shall be sufficient to provide the required number of sworn jurors, and including any alternates, to be sworn after allowing for the exercise of peremptory challenges. The court trial judge shall at the same time prescribe the order to be followed in selecting the jurors and alternate jurors individuals from the list. (h) (2) Peremptory Challenges Number; Exercise of Peremptory Challenges Each party is permitted four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors alternates to be impanelled. For purposes of this section, several all plaintiffs or several shall be considered as a single party and all defendants shall be considered as a single party unless the court trial judge determines that adverse or hostile interests between plaintiffs -59- or between defendants justify allowing to each one or more of them the separate peremptory challenges not exceeding the number available to a single party. The parties shall simultaneously exercise their peremptory challenges by striking names from the a copy of the jury list. (i) (f) Impanelling the Impanelled Jury (1) Impanelling The jurors and any alternates individuals to be impanelled as sworn jurors, including any alternates, shall be called from the qualified jurors remaining on the jury list in the order previously designated by the court trial judge and shall be sworn. (2) Oath; Functions, Powers, Facilities, and Privileges All sworn jurors, including any alternates, shall take the same oath and, until discharged from jury service, have the same functions, powers, facilities, and privileges. (3) Discharge of Jury Member At any time before the jury retires to consider its verdict, the trial judge may replace any jury member whom the trial judge finds to be unable or disqualified to perform jury service with an alternate in the order of selection set under subsection (e)(1). When the jury retires to consider its verdict, the trial judge shall discharge any remaining alternates who did not replace another jury member. (g) Foreperson -60- The court trial judge shall designate a sworn juror as foreman foreperson. Source: This Rule is derived as follows: Section (a) is in part derived from former Rules 754 a and is consistent with former Rule 543 c and in part new. Section (b) is derived from former Rule 751 b and is consistent with former Rule 543 b 3. Section (c) is new. Section (d) is derived from former Rules 752, 754 b, and 543 d. Section (e) is derived from former Rules 754 b 753 and 543 a 3 and 4. Section (f) is consistent with former Rule 543 a 5 and 6 new. Section (g) is new with exception of the last sentence which is derived from former Rule 753 b 1 is derived from former Rule 751 d. Section (h) is derived from former Rule 543 a 3 and 4. Section (i) is derived from the last sentence of former Rule 753 b 3 and former Rule 751 d. -61- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 500 - TRIAL AMEND Rule 2-521 by deleting language from section (a), by adding to section (a) the word “sworn” to modify the word “juror” and language to indicate that alternates are included during trial and deliberations, and by adding the word “sworn” to modify the word “juror” in section (b), as follows: Rule 2-521. (a) JURY - REVIEW OF EVIDENCE - COMMUNICATIONS Jurors' Notes The court may, and upon on request of any party shall, provide paper notepads for use by sworn jurors, including any alternates, during trial and deliberations. The court shall maintain control over the jurors’ notes during the trial and promptly destroy the jurors’ notes after the trial. A juror's notes Notes may not be reviewed or relied upon for any purpose by any person other than the juror author. If a sworn juror is unable to use a notepad because of a disability, the court shall provide a reasonable accommodation. (b) Items Taken to Jury Room Jurors Sworn jurors may take their notes with them when they retire for deliberation. Unless the court for good cause orders otherwise, the jury may also take exhibits that have been admitted in evidence, except that a deposition may not be taken into the jury room without the agreement of all parties and consent of the court. Written or electronically recorded -62- instructions may be taken into the jury room only with the permission of the court. Cross reference: See Rule 5-802.1 (e). . . . -63- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT CHAPTER 500 - TRIAL AMEND Rule 2-522 by deleting language from section (b), by adding the words “jury or stated majority” in place of the phrase “required number of jurors,” and by making stylistic changes, as follows: Rule 2-522. COURT DECISION - JURY VERDICT . . . (b) Verdict The verdict of a jury shall be unanimous unless the parties stipulate at any time that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. court. The verdict shall be returned in open Upon the On request of a party or upon on the court's own initiative, the jury shall be polled before it is discharged. If the poll discloses that the required number of jurors have jury, or stated majority, has not concurred in the verdict, the court may direct the jury to retire for further deliberation or may discharge the jury. . . . -64- MARYLAND RULES OF PROCEDURE TITLE 3 - CIVIL PROCEDURE -- DISTRICT COURT CHAPTER 500 - TRIAL AMEND Rule 3-510 to add two Code references to the cross reference after section (d), to change subsection (h)(1) by substituting the term “custodian of records” for the term “health care provider,” by deleting language relating to x-ray films, and by deleting language referring to “the patient;” to add a cross reference after subsection (h)(1); to add a tagline to subsection (h)(1) and to change the term “health care provider” to the word “custodian;” to add a tagline to subsection (h)(2) and to clarify that the District Court may enter an order allowing the inspection of certain records prior to trial; to add a tagline to subsection (h)(3), to delete a word, and to add language requiring that a subpoena state with specificity the reason for the presence of the custodian; to delete a Code Reference in the cross reference following subsection (h)(3), as follows: Rule 3-510. (a) SUBPOENAS Use A subpoena is required to compel the person to whom it is directed to attend, give testimony, and produce designated documents or other tangible things at a court proceeding, including proceedings before an examiner. A subpoena is also required to compel a nonparty and may be used to compel a party -65- over whom the court has acquired jurisdiction to attend, give testimony, and produce and permit inspection and copying of designated documents or other tangible things at a deposition taken pursuant to Rule 3-401 or 3-431. used for any other purpose. A subpoena shall not be If the court, on motion of a party alleging a violation of this section or on its own initiative, after affording the alleged violator a hearing, finds that a party or attorney used or attempted to use a subpoena for a purpose other than a purpose allowed under this section, the court may impose an appropriate sanction upon the party or attorney, including an award of a reasonable attorney's fee and costs, the exclusion of evidence obtained by the subpoena, and reimbursement of any person inconvenienced for time and expenses incurred. (b) Issuance On the request of a person entitled to the issuance of a subpoena, the clerk shall issue a completed subpoena, or provide a blank form of subpoena which shall be filled in and returned to the clerk to be signed and sealed before service. On the request of an attorney or other officer of the court entitled to the issuance of a subpoena, the clerk shall issue a subpoena signed and sealed but otherwise in blank, which shall be filled in before service. (c) Form Every subpoena shall contain: (1) the caption of the action, (2) the name and address of the person to whom it is -66- directed, (3) the name of the person at whose request it is issued, (4) the date, time, and place where attendance is required, (5) a description of any documents or other tangible things to be produced. (d) Service A subpoena shall be served by delivering a copy to the person named or to an agent authorized by appointment or by law to receive service for the person named or as permitted by Rule 3-121 (a)(3). Service of a subpoena upon a party represented by an attorney may be made by service upon the attorney under Rule 1-321 (a). A subpoena may be served by a sheriff of any county or by any person who is not a party and who is not less than 18 years of age. Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing. Cross reference: See Code, Courts Article, §6-410, concerning service upon certain persons other than the custodian of public records named in the subpoena if the custodian is not known and cannot be ascertained after a reasonable effort. As to additional requirements for certain subpoenas, see Code, HealthGeneral Article, §4-306 (b)(6) and Code, Financial Institutions Article, §1-304. (e) Objection to Subpoena for Court Proceedings On motion of a person served with a subpoena to attend a court proceeding (including a proceeding before an examiner) filed promptly and, whenever practicable, at or before the time specified in the subpoena for compliance, the court may enter an order that justice requires to protect the person from annoyance, -67- embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the subpoena be quashed or modified; (2) that the subpoena be complied with only at some designated time or place other than that stated in the subpoena; (3) that documents or other tangible things designated in the subpoena be produced only upon the advancement by the party serving the subpoena of the reasonable costs of producing them; or (4) that documents or other tangible things designated in the subpoena be delivered to the court at or before the proceeding or before the time when they are to be offered in evidence, subject to further order of court to permit inspection of them. (f) Objection to Subpoena for Deposition A person served with a subpoena to attend a deposition may seek a protective order pursuant to Rule 2-403. If the subpoena also commands the production of documents or other tangible things at the deposition, the person served may seek a protective order pursuant to Rule 2-403 or may file, within ten days after service of the subpoena, an objection to production of any or all of the designated materials. The objection shall be in writing and shall state the reasons for the objection. If an objection is filed, the party serving the subpoena is not entitled to production of the materials except pursuant to an order of the court from which the subpoena was issued. At any time before or within 15 days after completion of the deposition and upon notice -68- to the deponent, the party serving the subpoena may move for an order to compel the production. (g) Protection of Persons Subject to Subpoenas A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. Cross reference: For the availability of sanctions for violations of this section, see Rules 1-201 (a) and 1-341. (h) Records of Health Care Providers Produced by Custodians (1) Generally A health care provider, as defined by Code, Courts Article, §3-2A-01 (e), custodian of records served with a subpoena to produce at trial records, including x-ray films, relating to the condition or treatment of a patient at trial may comply by delivering the records to the clerk of the court that issued the subpoena at or before the time specified for production. The health care provider custodian may produce exact copies of the records designated unless the subpoena specifies that the original records be produced. The records shall be delivered in a sealed envelope labeled with the caption of the action, the date specified for production, and the name and address of the person at whose request the subpoena was issued. The records shall be accompanied by a certificate of the custodian that they are the complete records for the patient requested for the period designated in the subpoena and that the -69- records are maintained in the regular course of business of the health care provider. The certification shall be prima facie evidence of the authenticity of the records. Cross reference: Code, Health-General Article, §4-306 (b)(6); Code, Financial Institutions Article, §1-304. (2) During Trial Unless the court has ordered that the records may be inspected and copied prior to trial, Upon upon commencement of the trial, the clerk shall release the records only to the courtroom clerk assigned to the trial. The courtroom clerk shall return the records to the clerk promptly upon completion of trial or at an earlier time if there is no longer a need for them. Upon final disposition of the action, the clerk shall return the original records to the health care provider custodian but need not return copies. (3) Presence of Custodian When the actual presence of the custodian of medical records is required, the subpoena shall so state with specificity the reason for the presence of the custodian. Cross reference: Code, Courts Article, §10-104 includes an alternative method of authenticating medical records in certain cases. Code, Health-General Article, §4-306 requires that a subpoena to produce medical records without the authorization of a person in interest be accompanied by a certification that a copy of the subpoena has been served on the person whose records are being sought or that the court has waived service for good cause. (i) Attachment A witness served with a subpoena under this Rule is liable to body attachment and fine for failure to obey the subpoena -70- without sufficient excuse. The writ of attachment may be executed by the sheriff or peace officer of any county and shall be returned to the court issuing it. The witness attached shall be taken immediately before the court if then in session. If the court is not in session, the witness shall be taken before a judicial officer of the District Court for a determination of appropriate conditions of release to ensure the witness' appearance at the next session of the court that issued the attachment. Source: This Rule is derived as follows: Section (a) is new but the second sentence is derived in part from former Rule 407 a. Section (b) is new. Section (c) is derived from former M.D.R. 114 a and b and 115 a. Section (d) is derived from former M.D.R. 104 a and b and 116 b. Section (e) is derived from former M.D.R. 115 b. Section (f) is derived from the 1980 version of Fed. R. Civ. P. 45 (d)(1). Section (g) is derived from the 1991 version of Fed. R. Civ. P. 45 (c)(1). Section (h) is new. Section (i) is derived from former M.D.R. 114 d and 742 e. -71- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 200 - PRETRIAL PROCEDURES AMEND 4-215 by adding to section (b) a requirement that the court announce on the record a certain determination by the court, as follows: Rule 4-215. WAIVER OF COUNSEL . . . (b) Express Waiver of Counsel If a defendant who is not represented by counsel indicates a desire to waive counsel, the court may not accept the waiver until it determines, after an examination of the defendant on the record conducted by the court, the State's Attorney, or both, the court determines and announces on the record that the defendant is knowingly and voluntarily waiving the right to counsel. If the file or docket does not reflect compliance with section (a) of this Rule, the court shall comply with that section as part of the waiver inquiry. The court shall ensure that compliance with this section is noted in the file or on the docket. At any subsequent appearance of the defendant before the court, the docket or file notation of compliance shall be prima facie proof of the defendant's express waiver of counsel. After there has been an express waiver, no postponement of a scheduled trial or -72- hearing date will be granted to obtain counsel unless the court finds it is in the interest of justice to do so. . . . -73- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 200 - PRETRIAL PROCEDURES AMEND Rule 4-217 by adding a Code reference to section (g), as follows: Rule 4-217. BAIL BONDS . . . (g) Form and Contents of Bond - Execution Every pretrial bail bond taken shall be in the form of the bail bond set forth at the end of this Title as Form 4-217.2, and, except as provided in Code, Criminal Procedure Article, §5214, shall be executed and acknowledged by the defendant and any surety before the person who takes the bond. . . . -74- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 200 - PRETRIAL PROCEDURES AMEND Rule 4-242 by adding to sections (c) and (d) a requirement that the court announce on the record a certain determination by the court and by adding to section (e) a provision pertaining to the collateral consequences of pleading guilty to certain offenses, as follows: Rule 4-242. PLEAS . . . (c) Plea of guilty The court may not accept a plea of guilty only after it determines, upon until after an examination of the defendant on the record in open court conducted by the court, the State's Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that (1) the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea. In addition, before accepting the plea, the court shall comply with section (e) of this Rule. The court may accept the plea of guilty even though the defendant does not admit guilt. Upon refusal to accept a plea of guilty, the court shall enter a plea of not guilty. (d) Plea of Nolo Contendere -75- A defendant may plead nolo contendere only with the consent of court. The court may require the defendant or counsel to provide information it deems necessary to enable it to determine whether or not it will consent. The court may not accept the plea only after it determines, upon until after an examination of the defendant on the record in open court conducted by the court, the State's Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that the defendant is pleading voluntarily with understanding of the nature of the charge and the consequences of the plea. In addition, before accepting the plea, the court shall comply with section (e) of this Rule. Following the acceptance of a plea of nolo contendere, the court shall proceed to disposition as on a plea of guilty, but without finding a verdict of guilty. If the court refuses to accept a plea of nolo contendere, it shall call upon the defendant to plead anew. (e) Collateral Consequences of a Plea of Guilty or Nolo Contendere Before the court accepts a plea of guilty or nolo contendere, the court, the State's Attorney, the attorney for the defendant, or any combination thereof shall advise the defendant (1) that by entering the plea, if the defendant is not a United States citizen, the defendant may face additional consequences of deportation, detention, or ineligibility for citizenship, and (2) that by entering a plea to the offenses set out in Code, Criminal -76- Procedure Article, §11-701, the defendant shall have to register with the defendant’s supervising authority as defined in Code, Criminal Procedure Article, §11-701 (i), and (2) (3) that the defendant should consult with defense counsel if the defendant is represented and needs additional information concerning the potential consequences of the plea. The omission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid. . . . -77- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 200 - PRETRIAL PROCEDURES AMEND Rule 4-246 to make a stylistic change to section (a), to require that a court announce on the record a determination that a waiver is made knowingly and voluntarily, and to add a Committee note and a cross reference after section (b), as follows: Rule 4-246. (a) WAIVER OF JURY TRIAL – CIRCUIT COURT Generally In the circuit court, a defendant having a right to trial by jury shall be tried by a jury unless the right is waived pursuant to section (b) of this Rule. If the waiver is accepted by the court, the The State may does not have the right to elect a trial by jury. (b) Procedure for Acceptance of Waiver A defendant may waive the right to a trial by jury at any time before the commencement of trial. The court may not accept the waiver until, it determines, after an examination of the defendant on the record in open court conducted by the court, the State's Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that the waiver is made knowingly and voluntarily. Committee note: Although the law does not require the court to use a specific form of inquiry in determining whether a -78- defendant’s waiver of a jury trial is knowing and voluntary, the record must demonstrate an intentional relinquishment of a known right. What questions must be asked will depend upon the facts and circumstances of the particular case. In determining whether a waiver is knowing, the court should seek to ensure that the defendant understands that: (1) the defendant has the right to a trial by jury; (2) unless the defendant waives a trial by jury, the case will be tried by a jury; (3) a jury consists of 12 individuals who reside in the county where the court is sitting, selected at random from a list that includes registered voters, licensed drivers, and holders of identification cards issued by the Motor Vehicle Administration, seated as jurors at the conclusion of a selection process in which the defendant, the defendant’s attorney, and the State participate; (4) all 12 jurors must agree on whether the defendant is guilty or not guilty and may only convict upon proof beyond a reasonable doubt; (5) if the jury is unable to reach a unanimous decision, a mistrial will be declared and the State will then have the option of retrying the defendant; and (6) if the defendant waives a jury trial, the court will not permit the defendant to change the election unless the court finds good cause to permit the change. In determining whether a waiver is voluntary, the court should consider the defendant’s responses to questions such as: (1) Are you making this decision of your own free will?; (2) Has anyone offered or promised you anything in exchange for giving up your right to a jury trial?; (3) Has anyone threatened or coerced you in any way regarding your decision?; and (4) Are you presently under the influence of any medications, drugs, or alcohol?. Cross reference: See Kang v. State, 393 Md. 97 (2006) and Abeokuto v. State, 391 Md. 289 (2006). (c) Withdrawal of a Waiver After accepting a waiver of jury trial, the court may permit the defendant to withdraw the waiver only on motion made before trial and for good cause shown. In determining whether to allow a withdrawal of the waiver, the court may consider the extent, if any, to which trial would be delayed by the withdrawal. -79- Source: This Rule is derived from former Rule 735. MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 200 - PRETRIAL PROCEDURES AMEND Rule 4-264 to add a cross reference at the end of the Rule, as follows: Rule 4-264. SUBPOENA FOR TANGIBLE EVIDENCE BEFORE TRIAL IN CIRCUIT COURT On motion of a party, the circuit court may order the issuance of a subpoena commanding a person to produce for inspection and copying at a specified time and place before trial designated documents, recordings, photographs, or other tangible things, not privileged, which may constitute or contain evidence relevant to the action. Any response to the motion shall be filed within five days. Cross reference: As to additional requirements for certain subpoenas, see Code, Health-General Article, §4-306 (b)(6) and Code, Financial Institutions Article, §1-304. Source: This Rule is derived from former Rule 742 a. -80- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 200 - PRETRIAL PROCEDURES AMEND Rule 4-265 to add definitions to a new section (a); to delete language from section (b); to change the tagline of and delete language from section (c); to add a new section (d) providing that a subpoena include a designation of the materials, not privileged, that are to be produced by the witness; to add a new section (e) pertaining to filing and service; to add a cross reference after section (e); and to make stylistic changes, as follows: Rule 4-265. (a) SUBPOENA FOR HEARING OR TRIAL Definitions (1) Trial For purposes of this Rule, “trial” includes hearing. (2) Trial Subpoena For purposes of this Rule, “trial subpoena” includes hearing subpoena. (a) (b) Preparation by Clerk On request of a party, the clerk shall prepare and issue a subpoena commanding a witness to appear to testify at a hearing or trial. Unless the court waives the time requirements of this section, the request shall be filed at least nine days before trial in circuit court, or seven days before trial in District -81- Court, not including the day of trial and intervening Saturdays, Sundays, and holidays. The request for subpoena shall state the name, address, and county of the witness to be served, the date and hour when the attendance of the witness is required, and the which party requesting has requested the subpoena. If the request is for a subpoena duces tecum, the request also shall contain a designation of designate the relevant documents, recordings, photographs, or other tangible things, not privileged, which constitute or contain evidence relevant to the action, that are to be produced by the witness. At least five days before trial, not including the day of trial and intervening Saturdays, Sundays, or holidays, the clerk shall deliver the subpoena for service pursuant to Rule 4-266 (b). (b) (c) Preparation by Party or Officer of the Court On request of a party entitled to the issuance of a subpoena, the clerk shall provide a blank form of subpoena which shall be filled in and returned to the clerk to be signed and sealed before service. On request of an attorney or other officer of the court entitled to the issuance of a subpoena, the clerk shall issue a subpoena signed and sealed but otherwise in blank, which shall be filled in before service. Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing. (d) Issuance of Subpoena Duces Tecum -82- A subpoena duces tecum shall include a designation of the documents, recordings, photographs, or other tangible things, not privileged, that are to be produced by the witness. (e) Filing and Service Unless the court waives the time requirements of this section, a request for subpoena shall be filed at least nine days before trial in the circuit court, or seven days before trial in the District Court, not including the date of trial and intervening Saturdays, Sundays, and holidays. At least five days before trial, not including the date of the trial and intervening Saturdays, Sundays, or holidays, the clerk shall deliver the subpoena for service pursuant to Rule 4-266 (b). Unless impracticable, there must be a good faith effort to cause a trial subpoena to be served at least five days before the trial. Cross reference: As to additional requirements for certain subpoenas, see Code, Health-General Article, §4-306 (b)(6) and Code, Financial Institutions Article, §1-304. Source: This Rule is in part derived from former Rule 742 b and M.D.R. 742 a and in part new. -83- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 300 - TRIAL AND SENTENCING AMEND Rule 4-312 by adding a new subsection (a)(1) and a new cross reference after subsection (a)(1), by adding a new subsection (a)(2), by adding to and deleting language from section (b), by adding to and deleting language from subsection (c)(1), by adding new subsections (c)(2) and (c)(3), by adding to and deleting language from subsection (d)(1), by renumbering section (e) as subsection (d)(2) with an additional word added to it, by deleting section (f), by renumbering section (g) as section (e), by adding to and deleting language from section (e), by relettering section (h) as section (f), by adding to and deleting language from subsection (f)(1), by adding new subsections (f)(2)and (f)(3), by making the second sentence of section (h) into section (g) with language changes, and by making stylistic changes, as follows: Rule 4-312. JURY SELECTION (a) Jury Size and Challenge to the Array (1) Size Before a trial begins, the trial judge shall decide (A) the required number of sworn jurors, including any alternates and (B) the size of the array of qualified jurors needed. Cross reference: See Code, Courts Article, §8-420 (b) and Code, Criminal Law Article, §2-303 (d). -84- (2) Insufficient Array If the array is insufficient for jury selection, the trial judge may direct that additional qualified jurors be summoned at random from the qualified juror pool as provided by statute. (3) Challenge to the Array A party may challenge the array of jurors on the ground that its members were not selected, drawn, or summoned according to law, or on any other ground that would disqualify the panel array as a whole. A challenge to the array shall be made and determined before any individual juror from that member of the array is examined, except that the court trial judge for good cause may permit it the challenge to be made after the jury is sworn but before any evidence is received. (b) Alternate Jurors General Requirements (1) Generally An alternate juror All individuals to be impanelled on the jury, including any alternates, shall be drawn selected in the same manner, have the same qualifications, and be subject to the same examination, take the same oath, and have the same functions, powers, facilities, and privileges as a juror. (2) Capital Cases In cases in which the death penalty may be imposed, the court shall appoint and retain alternate jurors as required by Code, Criminal Law Article, §2-303 (d). (3) Non-capital Cases -85- In all other cases, the court may direct that one or more jurors be called and impanelled to sit as alternate jurors. Any juror who, before the time the jury retires to consider its verdict, becomes or is found to be unable or disqualified to perform a juror’s duty, shall be replaced by an alternate juror in the order of selection. An alternate juror who does not replace a juror shall be discharged when the jury retires to consider its verdict. (c) Jury List (1) Contents Before the examination of qualified jurors, each party shall be provided with a list of jurors that includes the each juror’s name, address, age, sex, education, and occupation, of each juror, the spouse’s occupation of each juror’s spouse, and any other information required by the county jury plan Rule. When the county jury plan requires the address of a juror, Unless the trial judge orders otherwise, the address shall be limited to the city or town and zip code and shall not include the juror’s street address or box number, unless otherwise ordered by the court. (2) Dissemination (A) Allowed A party may provide the jury list to any person employed by the party to assist in jury selection. With permission of the trial judge, the list may be disseminated to -86- other individuals such as the courtroom clerk or court reporter for use in carrying out official duties. (B) Prohibited Unless the trial judge orders otherwise, a party and any other person to whom the jury list is provided in accordance with subsection (c)(2)(A) of this Rule may not disseminate the list or the information contained on the list to any other person. (3) Not Part of the Case Record; Exception Unless the court orders otherwise, copies of jury lists shall be returned to the jury commissioner. Unless marked for identification and offered in evidence pursuant to Rule 4-322, a jury list is not part of the case record. Cross reference: See Rule 16-1009 concerning motions to seal or limit inspection of a case record. (d) Examination of Jurors and Challenges for Cause (1) Examination The court trial judge may permit the parties to conduct an examination of prospective qualified jurors or may itself conduct the examination after considering questions proposed by the parties. If the court judge conducts the examination, it the judge may permit the parties to supplement the examination by further inquiry or may itself submit to the jurors additional questions proposed by the parties. examination shall be under oath. The jurors’ responses to any Upon On request of any party, the court judge shall direct the clerk to call the roll of the -87- panel array and to request each qualified juror to stand and be identified when called by name. (e) (2) Challenges for Cause A party may challenge an individual qualified juror for cause. A challenge for cause shall be made and determined before the jury is sworn, or thereafter for good cause shown. (f) Additional Jurors When the number of jurors of the regular panel may be insufficient to allow for selection of a jury, the court may direct that additional jurors be summoned at random from the qualified jury wheel and thereafter at random in a manner provided by statute. (g) (e) Designation of List of Qualified Jurors Peremptory Challenges Before the exercise of peremptory challenges, the court trial judge shall designate from the jury list those jurors individuals on the jury list who have remain qualified after examination. The number designated shall be sufficient to provide the required number of sworn jurors, including any and alternates, to be sworn after allowing for the exercise of peremptory challenges pursuant to Rule 4-313. The court judge shall at the same time prescribe the order to be followed in selecting the jurors and alternate jurors individuals from the list. (h) (f) (1) Impanelling the Impanelled Jury Impanelling -88- The jurors and any alternates individuals to be impanelled as sworn jurors, including any alternates, shall be called from the qualified jurors remaining on the jury list in the order previously designated by the court trial judge and shall be sworn. (2) Oath; Functions, Powers, Facilities, and Privileges All sworn jurors, including any alternates, shall take the same oath and, until discharged from jury service, have the same functions, powers, facilities, and privileges. (3) Discharge of Jury Member At any time before the jury retires to consider its verdict, the trial judge may replace any jury member whom the trial judge finds to be unable or disqualified to perform jury service with an alternate in the order of selection set under section (e). When the jury retires to consider its verdict, the trial judge shall discharge any remaining alternates who did not replace another jury member. (g) Foreperson The court trial judge shall designate a sworn juror as foreman foreperson. Source: This Rule is derived as follows: Section (a) is in part derived from former Rule 754 a and in part new. Section (b) is derived from former Rule 751 b. Section (c) is new. Section (d) is derived from former Rules 752 and 754 b. Section (e) is derived from former Rule 754 b 753. Section (f) is new. Section (g) is derived from former Rule 753 b 1. Section (h) is derived from former Rule 751 c and d. Section (g) is derived from former Rule 751 d. -89- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 300 - TRIAL AND SENTENCING AMEND Rule 4-313 by adding the word “qualified” to modify the word “juror” in subsections (b)(1) and (b)(3), as follows: Rule 4-313. PEREMPTORY CHALLENGES . . . (b) Exercise of Challenges (1) By Alternating Challenges On request of any party for alternating challenges, the clerk shall call each qualified juror individually in the order previously designated by the court. When the first qualified juror is called, the State shall indicate first whether that qualified juror is challenged or accepted. When the second qualified juror is called, the defendant shall indicate first whether that qualified juror is challenged or accepted. When the third qualified juror is called, the State shall again indicate first whether that qualified juror is challenged or accepted, and the selection of a jury shall continue with challenges being exercised alternately in this fashion until the jury has been selected. (2) By Simultaneous Striking from a List -90- If no request is made for alternating challenges, each party shall exercise its challenges simultaneously by striking names from a copy of the jury list. (3) Remaining Challenges After the required number of qualified jurors has been called, a party may exercise any remaining peremptory challenges to which the party is entitled at any time before the jury is sworn, except that no challenge to the first 12 qualified jurors shall be permitted after the first alternate juror is called. . . . -91- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 300 - TRIAL AND SENTENCING AMEND Rule 4-314 by changing the word “prospective” to the word “qualified” in subsection (b)(3), as follows: Rule 4-314. DEFENSE OF NOT CRIMINALLY RESPONSIBLE . . . (b) Procedure for Bifurcated Trial (1) Generally For purposes of this Rule, a bifurcated trial is a single continuous trial in two stages. (2) Sequence The issue of guilt shall be tried first. The issue of criminal responsibility shall be tried as soon as practicable after the jury returns a verdict of guilty on any charge. The trial shall not be recessed except for good cause shown. (3) Examination of Jurors The court shall inform prospective qualified jurors before examining them pursuant to Rule 4-312 (d) that the issues of guilt or innocence and whether, if guilty, the defendant is criminally responsible will be tried in two stages. The examination of prospective qualified jurors shall encompass all issues raised. . . . -92- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 300 - TRIAL AND SENTENCING AMEND Rule 4-326 by deleting language from section (a), by adding the word “sworn” to modify the words “juror” and “jurors,” by adding language referring to alternates and by making stylistic changes in section (a), and by adding the word “sworn” to modify the word “jurors” and by making stylistic changes to section (b), as follows: Rule 4-326. (a) JURY - REVIEW OF EVIDENCE - COMMUNICATIONS Jurors' Notes The court may, and upon on request of any party shall, provide paper notepads for use by sworn jurors, including any alternates, during trial and deliberations. The court shall maintain control over the jurors’ notes during the trial and promptly destroy the jurors’ notes after the trial. A juror's notes Notes may not be reviewed or relied upon for any purpose by any person other than the juror author. If a sworn juror is unable to use a notepad because of a disability, the court shall provide a reasonable accommodation. (b) Items Taken to Jury Room Jurors Sworn jurors may take their notes with them when they retire for deliberation. Unless the court for good cause orders otherwise, the jury may also take the charging document and -93- exhibits which that have been admitted into in evidence, except that a deposition may not be taken into the jury room without the agreement of all parties and the consent of the court. Electronically recorded instructions or oral instructions reduced to writing may be taken into the jury room only with the permission of the court. On request of a party or on the court's own initiative, the charging documents shall reflect only those charges on which the jury is to deliberate. The court may impose safeguards for the preservation of the exhibits and the safety of the jurors jury. Cross reference: See Rule 5-802.1 (e). . . . -94- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 300 - TRIAL AND SENTENCING AMEND Rule 4-327 by changing the word “foreman” to the word “foreperson” in section (a) and by adding the word “sworn” to modify the word “jurors” in section (e), as follows: Rule 4-327. (a) VERDICT - JURY Return The verdict of a jury shall be unanimous and shall be returned in open court. (b) Sealed Verdict With the consent of all parties, the court may authorize the rendition of a sealed verdict during a temporary adjournment of court. A sealed verdict shall be in writing and shall be signed by each member of the jury. It shall be sealed in an envelope by the foreman foreperson of the jury who shall write on the outside of the envelope "Verdict Case No. ........" "State of Maryland vs. ...................." and deliver the envelope to the clerk. The jury shall not be discharged, but the clerk shall permit the jury to separate until the court is again in session at which time the jury shall be called and the verdict opened and received as other verdicts. . . . (e) Poll of Jury -95- On request of a party or on the court's own initiative, the jury shall be polled after it has returned a verdict and before it is discharged. If the sworn jurors do not unanimously concur in the verdict, the court may direct the jury to retire for further deliberation, or may discharge the jury if satisfied that a unanimous verdict cannot be reached. . . . -96- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 300 - TRIAL AND SENTENCING AMEND Rule 4-341 to include statutes that require presentence investigation and report, as follows: Rule 4-341. SENTENCING - PRESENTENCE INVESTIGATION AND REPORT Before imposing a sentence, if required by law the court in accordance with Code, Correctional Services Article, §6-112 (c) and Code, Criminal Procedure Article, §11-727 shall, and in other cases may, order a presentence investigation and report. A copy of the report, including any recommendation to the court, shall be mailed or otherwise delivered to the defendant or counsel and to the State's Attorney in sufficient time before sentencing to afford a reasonable opportunity for the parties to investigate the information in the report. Except for any portion of a presentence report that is admitted into evidence, the report, including any recommendation to the court, is not a public record and shall be kept confidential as provided in Code, Correctional Services Article, §6-112. Cross reference: See, e.g., As to mandatory presentence investigations, see Sucik v. State, 344 Md. 611 (1997). As to the handling of a presentence report victim impact statements in presentence reports, see Ware v. State, 348 Md. 19 (1997)., and As to the confidentiality and availability of presentence reports, see Haynes v. State, 19 Md. App. 428 (1973). Source: 771. This Rule is derived from former Rule 771 and M.D.R. -97- MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER 500 - EXPUNGEMENT OF RECORDS AMEND Rule 4-502 to expand the definitions in sections (d), (h), and (i) to include a reference to certain civil offenses and infractions and to delete section (g), as follows: Rule 4-502. EXPUNGEMENT DEFINITIONS The following definitions apply in this Chapter and in Forms 4-503.1 through 4-508.3: (a) Application "Application" means the written request for expungement of police records filed pursuant to Code, Criminal Procedure Article, §10-103 and Rule 4-503. (b) Central Repository "Central Repository" means the Criminal Justice Information System Central Repository of the Department of Public Safety and Correctional Services. (c) Court "Court" means the Court of Appeals, Court of Special Appeals, any circuit court, and the District Court. (d) Court Records "Court records" means all official records maintained by the clerk or other personnel pertaining to (1) any criminal action, (2) any action, except a juvenile proceeding, concerning -98- a civil offense or infraction under a State or local law enacted as a substitute for a criminal charge, or (3) any proceeding for expungement. It includes indices, docket entries, charging documents, pleadings, memoranda, assignment schedules, disposition sheets, transcriptions of proceedings, electronic recordings, orders, judgments, and decrees. It does not include: records pertaining to violations of the vehicle laws of the State or of any other traffic law, ordinance, or regulation; written opinions of a court; cash receipt and disbursement records necessary for audit purposes; or a court reporter's transcript of proceedings involving multiple defendants. (e) Expungement "Expungement" means the effective removal of police and court records from public inspection: (1) by obliteration; or (2) by removal to a separate secure area to which the public and other persons having no legitimate reason for being there are denied access; or (3) if effective access to a record can be obtained only by reference to other records, by the expungement of the other records or the part of them providing the access. (f) Law Enforcement Agency "Law enforcement agency" means any State, county, and municipal police department or agency, any sheriff's office, any State's Attorney's office, the Office of the State Prosecutor, and the Attorney General's office. -99- (g) Notice "Notice" means a written request for expungement of police records given by a person pursuant to the Code, Criminal Procedure Article, §10-103, unless the context clearly requires a contrary meaning. (h) (g) Petition "Petition" means a written request for expungement of court and police records filed by a person pursuant to Code, Criminal Procedure Article, §10-105 (a) and Rule 4-504. (i) (h) Police Records "Police records" means all official records maintained by a law enforcement agency, a booking facility, or the Central Repository pertaining to the arrest and detention of or further proceeding against an individual for a criminal charge; for a suspected violation of a criminal law, or; a violation of Code, Transportation Article for which a term of imprisonment may be imposed; or a civil offense or infraction, except a juvenile offense, under a State or local law enacted as a substitute for a criminal charge. "Police records" does not include investigatory files, police work-product records used solely for police investigation purposes, or records pertaining to nonincarcerable violations of the vehicle laws of the State or of any other traffic law, ordinance, or regulation. (j) (i) Probation Before Judgment "Probation before judgment" means disposition of a charge pursuant to Code, Criminal Procedure Article, §6-220 or a civil -100- offense or infraction, except a juvenile offense, under a State or local law enacted as a substitute for a criminal charge; it also means probation prior to judgment pursuant to former Code, Article 27, §641, a disposition pursuant to former Code, Article 27, §292 (b), probation without finding a verdict pursuant to former Code, Article 27, §641 prior to July 1, 1975, and a disposition pursuant to former Section 22-83 of the Code of Public Local Laws of Baltimore City (1969 Edition). (k) (j) Records "Records" means "police records" and "court records." (l) (k) Service "Service" with respect to the application or petition means mailing a copy by certified mail or delivering it to any person admitting service, and with respect to any answer, notice, or order of court required by this Rule or court order to be served means mailing by first class mail. (m) (l) Transfer "Transfer" means the act, done pursuant to an order of court, of removing an action or proceeding from the court or docket in which it was originally filed or docketed [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A0f72888102990148. Public record. Not legal advice.