STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
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STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
NOTICE OF PROPOSED RULES CHANGES
The Rules Committee has submitted its One Hundred FiftyEighth Report to the Court of Appeals, transmitting thereby
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, 10304, 13-102, 15-207, 16-107, 16-307, 16-308, 16-602, 16-608, 16610, 16-701, 16-731, 16-735, 16-737, 16-743, 16-751, 16-771, 16808, 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.
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The Committee’s One Hundred Fifty-Eighth Report and the
proposed new rules, forms, and amendments are set forth below.
Interested persons are asked to consider the Committee’s
Report and proposed rules changes and to forward on or before
November 13, 2007 any written comments they may wish to make to:
Sandra F. Haines, Esq.
Reporter, Rules Committee
2011-D Commerce Park Drive
Annapolis, Maryland 21401
ALEXANDER L. CUMMINGS
Clerk
Court of Appeals of Maryland
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September 26, 2007
ONE HUNDRED FIFTY-EIGHTH REPORT
OF THE
STANDING COMMITTEE ON RULES
OF PRACTICE AND PROCEDURE
The Honorable Robert M. Bell,
Chief Judge
The Honorable Irma S. Raker
The Honorable Glenn T. Harrell, Jr.
The Honorable Lynne A. Battaglia
The Honorable Clayton Greene, Jr.,
Judges
The Court of Appeals of Maryland
Robert C. Murphy Courts of Appeal Building
Annapolis, Maryland 21401
Your Honors:
The Rules Committee submits this, its One Hundred FiftyEighth Report, and recommends that the Court adopt the proposed
Rules changes transmitted with this Report. The proposed changes
fall into fifteen categories. Following is a brief description
of the principal proposals in each category.
In Category One are proposed amendments to Rules 2-402, 2421, 2-422, 2-424, 2-433, 2-504, 2-504.1, and 2-510 that relate
to discovery of electronically stored information (“E.S.I.”).
The primary sources reviewed by the Committee in drafting the
Rules include the 2006 amendments to the Federal Rules of Civil
Procedure1 and proposed amendments to Federal Rule of Evidence
502; the Sedona Conference, The Sedona Principles: Best Practices
Recommendations and Principles for Addressing Electronic Document
Production (2d ed. 2007); Conference of Chief Justices,
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Guidelines for State Trial Courts Regarding Discovery of
Electronically Stored Information; and Maryland Business and
Technology Case Management Program, Electronic Data Discovery
Guidelines. After the Committee approved its recommendations,
the Discovery and Style Subcommittees also reviewed the Uniform
Rules Relating to Discovery of E.S.I., which were adopted by the
National Conference of Commissioners on Uniform State Laws at its
July-August 2007 meeting. In the Committee’s opinion, the
amendments transmitted with this Report represent the best of the
sources reviewed.
Also in this Category are conforming amendments to Rules 2432 and 16-808, Forms 3 and 7 of the Form Interrogatories, and
Rule 22 of the Rules Governing Admission to the Bar of Maryland.
Included in the proposed changes to Rule 2-510 is an amendment to
section (i), unrelated to E.S.I., that expands upon a procedure
currently applicable solely to custodians of records of health
care providers to allow all custodians of records to respond to a
subpoena to produce records at trial by providing the records to
the clerk of the court in lieu of the custodian appearing in
person, unless expressly commanded to do so by the subpoena.
Category Two consists of amendments to Rules 2-509, 2-511,
2-512, 2-521, 2-522, 4-312, 4-313, 4-314, 4-326, 4-327, 4-643, 5606, 16-107, and 16-1004; Rule 3.5 of the Maryland Lawyers’ Rules
of Professional Conduct; and Canon 3 of the Maryland Code of
Conduct for Court Interpreters. The proposed amendments
implement and supplement statutory changes concerning jury
selection and service made by Chapter 372, Acts of 2006 (HB
1024), and are more fully described in a Reporter’s Note
following each Rule.
The three Rules in Category Three pertain to discovery in
criminal cases. Under a proposed amendment to Rule 4-301,
discovery in an action transferred to a circuit court upon a jury
trial demand made in accordance with subsection (b)(1)(A) of the
Rule is governed by Rule 4-263; in all other actions transferred
to a circuit court upon a jury trial demand, discovery is
governed by Rule 4-262. Amendments to Rule 4-263 are proposed to
clarify the State’s discovery obligations under Brady v.
Maryland, 373 U.S. 83 (1963) and its progeny and make other
changes to discovery in a criminal action in a circuit court, as
explained in the Reporter’s note that follows the Rule. Proposed
amendments to Rule 4-262 track the amendments to Rule 4-263 to
the extent the Committee believes desirable in the District
Court.
Category Four comprises proposed amendments to seven other
Rules in Title 4. A reference to a new statute, Code, Criminal
Procedure Article, §5-214, concerning posting bond, is added to
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Rule 4-217 (g). An amendment to Rule 4-246 (b) requires that a
circuit court, in accepting a defendant’s waiver of the right to
a trial by jury, determine and announce on the record that the
waiver is made knowingly and voluntarily. A Committee note and
cross reference following the section provide guidance to the
trial court in making the determination. The requirement of a
determination by the court and announcement on the record also is
added to Rule 4-215, as to a defendant’s waiver of counsel, and
Rule 4-242, as to the entry of a plea of guilty or nolo
contendere. Additionally, Rule 4-242 is amended by the addition
of an advisement concerning the collateral consequence of
registration as a sexual offender after entry of a plea of guilty
or nolo contendere to a sexual offense. Proposed amendments to
Rules 4-265, 4-264, and 4-341 also are included in this category.
Amendments to conform Rules 1-101, 4-502, and 4-503 and
Forms 4-503.1 and 4-503.2 to recent statutory changes pertaining
to expungements are in Category Five. The proposed Rules changes
address expungement of certain records of civil offenses or
infractions, as authorized by Chapter 388, Acts of 2007 (HB 278),
and the automatic expungement of records of arrests, detentions,
or confinements occurring after October 1, 2007 where no charges
were filed, as required by Chapter 63, Acts of 2007 (HB 10).
Category Six consists of amendments to four Rules in Title
6, suggested by the Maryland Register of Wills Association. The
Committee recommends adoption of the Association’s suggested
changes to Rules 6-122, 6-413, 6-451, and 6-455.
Category Seven comprises new Title 7, Chapter 500, Appeals
from the Orphans’ Court to the Circuit Court, and related
amendments to Rules 6-463 and 6-464. The new Chapter is proposed
so that these appeals will be handled more uniformly throughout
the State.
Category Eight contains proposed amendments to Rules 8-204,
8-111, and 1-326 that conform the Rules to Chapter 260, Acts of
2006 (SB 508), which amended Code, Criminal Procedure Article,
§11-103 by extending the right to file an application for leave
to appeal to a victim of a delinquent act that would be a violent
crime if committed by an adult.
In Category Nine are proposed amendments to Rules 10-202,
10-203, 10-205, 10-301, 10-302, and 10-304. The Rules changes
reflect the addition, by Chapter 250, Acts of 2007 (HB 672), of
licensed certified clinical social workers to the list of health
care professionals who may evaluate the competency of alleged
disabled persons of whom a guardianship is sought.
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Category Ten contains Rules changes to implement Chapter
256, Acts of 2007 (HB 792), which amended Code, Family Law
Article, §10-119.3 to include the Court of Appeals as one of the
licensing authorities that can issue a sanction against an
obligor who is in arrears in paying child support. The statute
provides that if the person in arrears is an attorney, the Child
Support Enforcement Administration may refer the matter to the
Attorney Grievance Commission for disciplinary action. To make
the Rules consistent with the statutory change, amendments to
Rules 15-207, 16-701, 16-731, and 16-751 and conforming
amendments to Rule 16-771 and Rule 8.1 of the Maryland Lawyers’
Rules of Professional Conduct are proposed.
In Category Eleven are proposed amendments to Rules 16-610,
16-602, and 16-608, pertaining to Interest on Lawyer Trust
Accounts (“IOLTA”). The amendments require a financial
institution that wishes to be an “approved financial
institution,” as defined in Rule 16-602 a, to enter into an
agreement to pay on IOLTA accounts interest computed in
accordance with Rule 16-610 b 1 (D). The amendments are intended
to provide to the Maryland Legal Services Fund a rate of interest
on IOLTA accounts that is comparable to the rate offered on
similar non-IOLTA accounts.
Proposed amendments to Rules 16-743, 16-735, and 16-737 that
clarify provisions concerning recommendations by a Peer Review
Panel are contained in Category Twelve. The amendments require
the Panel to transmit to the Attorney Grievance Commission any
recommended disposition that is agreed upon by Bar Counsel and
the attorney who is the subject of the Panel proceeding. If
there is no agreement, the Panel transmits to the Commission the
Panel’s independent recommendation, which must be one of the four
dispositions listed in new subsection (e)(2) of Rule 16-643.
In Category Thirteen are proposed Rules changes concerning
retired judges approved for recall for temporary service under
Maryland Constitution, Article IV, §3A. Amendments to Rule 16813 permit a former judge approved for recall to conduct
alternative dispute proceedings in a private capacity, subject to
certain restrictions, many of which are based upon Florida’s
Canon 5F 2. The amendments also make the entire Maryland Code of
Judicial Conduct, other than Canon 4C, applicable to former
judges approved for recall and clarify the recusal obligations of
a former judge. Rule 16-815 is amended to require the filing of
a financial disclosure statement by a former judge approved for
recall.
Category Fourteen consists of proposed new Rule 6.1 and
amendments to Rules 1, 6, 9, and 13 of the Rules Governing
Admission to the Bar (“RGAB”). The Rules changes add to the RGAB
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a procedure by which an applicant for admission to the bar may
appeal a decision of the Board of Law Examiners denying the
applicant’s request for a testing accommodation under the
Americans with Disabilities Act, 42 U.S.C. §12101, et seq. New
Rule 6.1 creates a nine-member Accommodation Review Committee. A
panel of three members (two lawyers and one non-lawyer) conducts
an evidentiary hearing and makes its recommendation, to which the
applicant or the Board may file exceptions. The Court of Appeals
hears the exceptions on the record made before the panel. If no
exceptions are filed, the Board provides the accommodation, if
any, recommended by the panel.
The final category, Category Fifteen, contains miscellaneous
Rules changes, mostly “housekeeping” amendments, that do not fall
into any of the other categories. Included in this category are
proposed amendments to Rules 1-312, 2-341, 3-510, 5-101, 5-609,
5-803, 5-902, 10-213, 13-102, 16-307, 16-308, and 16-1006.
For the guidance of the Court and the public, following each
proposed rules change is a Reporter’s Note describing the reasons
for the proposal and any changes that would be effected in
current law or practice. We caution that these Reporter’s Notes
were prepared initially for the benefit of the Rules Committee;
they are not part of the Rules and have not been debated or
approved by the Committee; and they are not to be regarded as any
kind of official comment or interpretation. They are included
solely to assist the Court in understanding some of the reasons
for the proposed changes.
Respectfully submitted,
Joseph F. Murphy, Jr.
Chairperson
Linda M. Schuett
Co-Chairperson
1
/ Attached as an Appendix to this Report is a chart comparing
the proposed changes to the Maryland Rules with recent changes
to the Federal Rules.
JFM/LMS:cdc
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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
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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
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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
that may be associated with locating, retrieving, and providing
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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
(including an attorney, consultant, surety, indemnitor, insurer,
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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)
(1)
Claims of Privilege or Protection
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
party shall return, sequester, or destroy the specified
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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
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
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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
actually produced, and the producing party may assert any
privilege or protection. Id., Comment 10.d.
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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
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
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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).
(B)
Additional Disclosure with Respect to Experts Retained
in Anticipation of Litigation or for Trial
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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
(f)(2) (g)(2) of this Rule, shall pay each expert a reasonable
fee for preparing for the deposition.
Source:
This Rule is derived as follows:
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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.
REPORTER’S NOTE
Several of the Rules of Procedure for Maryland are proposed
for amendment to conform to changes in the federal rules
pertaining to e-discovery. The primary sources reviewed by the
Discovery Subcommittee when it drafted the Rules include the 2006
amendments to the Federal Rules of Procedure and proposed
amendments to Federal Rule of Evidence 502; the Sedona
Conference, The Sedona Principles: Best Practices Recommendations
and Principles for Addressing Electronic Document Production (2d
ed. 2007); Conference of Chief Justices, Guidelines for State
Trial Courts Regarding Discovery of Electronically-Stored
Information; and Maryland Business and Technology Case Management
Program, Electronic Data Discovery Guidelines.
Section (a) of Rule 2-402 is amended to parallel Rule 2-422
(a) by recognizing that the scope of discovery encompasses
electronically stored information as well as documents and other
tangible things relevant to the subject matter involved in the
action. The language is taken from the 2006 amendments to
Fed. R. Civ. P. 26 (a)(1)(B).
The Rules Committee changed the language in subsection
(b)(1), which had been borrowed from Fed. R. Civ. P. 26
(b)(2)(A), for clarity. The language of subsection (b)(2) is
derived from the language of Fed. R. Civ. P. 26 (b)(2)(B).
Consistent with parallel changes to other sections of this
Rule and other Rules, section (d) has been amended to add
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electronically stored information to the list of types of
discovery a party may obtain.
Subsections (e)(1) and (e)(2) adopt the procedure
established in Fed. R. Civ. P. 26 (b)(5) to allow the responding
party to assert a claim of privilege or work product protection
after production. It is a procedural device for addressing the
increasing costly and time-consuming efforts to reduce the number
of inevitable mistakes because of the amount and nature of
electronically stored information available in the present age.
Subsection (e)(3) was added by the Rules Committee to conform to
the common law in Maryland as set out in Elkton Case Center
Associates v. Quality Case Management, Inc., 145 Md. App. 532
(2002). Subsection (e)(4) and the Committee note following it
were added by the Rules Committee as a result of Hopson v. City
of Baltimore, 232 F. R. D. 228 (D. Md. 2005), which pointed out
that a confidentiality agreement between parties does not
necessarily apply to third persons.
-19-
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
-20-
readily as can the party served, the records from which the
answer may be ascertained.
. . .
REPORTER'S NOTE
The amendment to Rule 2-421 clarifies how the option to
produce business records to respond to an interrogatory operates
in the information age. The amendment makes clear that the
option to produce business records includes electronically stored
information.
-21-
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
-22-
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
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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)
(1)
Production
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.
-24-
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.
REPORTER'S NOTE
The amendment to Rule 2-422 (a) adds “electronically stored
information” as a category subject to production, in addition to
documents and other tangible things. The amendments make clear
that parties may request an opportunity to test or sample
materials sought under the rule in addition to inspecting and
copying them.
Section (b) is amended to permit the requesting party to
designate the form in which it wants electronically stored
information produced. The form of production typically is more
important to the exchange of electronically stored information
than of hard-copy materials. Specifying the form should
facilitate the orderly, efficient, and cost-effective discovery
of electronically stored information. Different forms of
production may be appropriate for different types of
electronically stored information, so the requesting party may
ask for this.
Section (c) requires that if the responding party objects to
responding or objects to the form stated by the requesting party,
the responding party shall state fully the reasons for refusing
-25-
to respond to the request. Section (c) also requires that if the
responding party objects to the form of production, or if no form
was specified in the request, the responding party shall state
the form in which it would produce the information. Stating the
responding party’s intended form before the production occurs may
permit the parties to identify and seek to resolve disputes
before the cost and work of the production occurs.
A new cross reference after section (c) points out that Rule
2-402 (b)(1) contains a list of factors used by the court in
determining the reasonableness of discovery requests and that
Rule 2-402 (b)(2) concerns the assessment of the costs of
discovery.
Subsection (d)(1) is amended to require that, just as with
paper documents, if electronically stored information is
organized for production in a manner different from which it is
kept in the ordinary course of business, it must be organized and
labeled to correspond with the categories of the request for
production. This subsection also provides that if the form of
production is not specified by the parties, agreement, or court
order, the responding party shall produce electronically stored
information in a form that is reasonably usable. Under some
circumstances, the responding party may need to provide some
reasonable amount of technical support, information on
application software, or other reasonable assistance to enable
the requesting party to use the information. The Committee note
after section (d) provides that to justify onsite inspection of a
computer system and the programs used, a party should demonstrate
a substantial need to discover the information and a lack of a
reasonable alternative.
-26-
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.
. . .
REPORTER'S NOTE
The amendment to Rule 2-424 (a) adds a reference to
“electronically stored information” to clarify that parties may
request the admission of the genuineness of this type of
information as well as relevant documents. Corollary Fed. R.
Civ. P. 36 (a) does not expressly address electronically stored
information. The Committee believes this to be an inadvertent
omission in the federal drafting process.
-27-
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
-28-
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
-29-
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).
Section (b) (c) is derived from former Rule 422 b.
-30-
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.
REPORTER'S NOTE
The addition of section (b) focuses on a distinctive feature
of computer operations, the routine alteration and deletion of
information that goes along with ordinary use. Many steps
essential to computer operation may alter or destroy information
for reasons that have nothing to do with how that information
might relate to litigation. The new language applies only to
information lost due to the routine operation of an electronic
information system, and only if the operation was in good faith.
This means that a party is not permitted to exploit the routine
operation of an information system to thwart discovery
obligations by allowing that operation to continue in order to
destroy specific stored information that it is required to
preserve. Whether good faith would call for steps to prevent the
loss of information on sources that the party believes are not
reasonably accessible under Rule 2-402 (b)(2) depends on the
circumstances of each case. The Rule restricts the imposition of
sanctions, but it does not prevent a court from making the kinds
of adjustments frequently used in managing discovery if a party
is unable to provide relevant responsive information.
-31-
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,
-32-
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;
-33-
(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).
-34-
REPORTER'S NOTE
The amendment to Rule 2-504 (b)(2) is designed to alert the
court to the possible need to address the handling of discovery
of electronically stored information early in the litigation if
this discovery is expected to occur. It also adds to the list of
topics that may be addressed in the scheduling order a process by
which the parties may assert claims of privilege or of protection
after production. The federal rule uses the language “any
agreements the parties reach for asserting claims of privilege
...,” but Rule 2-504 (b)(2)(H) broadens this concept to include
any process for asserting claims of privilege or of protection
after production.
-35-
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
-36-
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
-37-
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.
The court may hold a scheduling conference in chambers, in open
court, or by telephone or other electronic means.
-38-
(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.
REPORTER'S NOTE
The amendments to Rule 2-504.1 (c) allow a scheduling order
to direct the parties to discuss discovery of electronically
stored information during their scheduling conference. When
parties anticipate such discovery, discussion at the outset may
avoid later difficulties or ease their resolution. When a case
involves discovery of electronically stored information, the
issues to be addressed during the scheduling conference depend on
the nature and extent of the contemplated discovery and of the
parties’ information systems. The requirement that the parties
discuss any issues regarding preservation of discoverable
information is particularly important with regard to
electronically stored information, the volume and dynamic nature
of which may complicate preservation obligations. New language
has been added providing that the parties should discuss any
issues relating to assertions of privilege or of protection. See
the Committee note after Rule 2-402 (e) for a discussion of
certain protocols to minimize the risk of waiver of privilege or
of protection.
-39-
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
-40-
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
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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
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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;
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(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
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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
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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,
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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
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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
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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).
REPORTER'S NOTE
Section (a) is amended to recognize that electronically
stored information as defined in Rule 2-422 (a) can also be
sought by subpoena. Section (a) of Rule 2-510 is also amended,
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as in Rule 2-422 (a), to provide that a subpoena is available to
permit testing and sampling as well as inspection and copying.
As in Rule 2-422, this change recognizes that in some
circumstances the opportunity to perform testing or sampling may
be important, both for documents and for electronically stored
information. In light of this, section (c) is changed to include
a description of electronically stored information and a
description of a proposed testing or sampling procedure as items
to add to the subpoena itself. As in Rule 2-422 (b), language
has been added to provide that a subpoena may specify the form in
which electronically stored information is to be produced.
Because testing and sampling may present particular issues of
burden or intrusion for the person served with the subpoena, the
protective provisions of section (h) must be enforced when these
demands are made. Inspection or testing of certain types of
electronically stored information or of a person’s electronic
information system may raise issues of confidentiality or
privacy. “Inspection” should be the exception and not the rule
for the subpoenaing of electronically stored information, just as
it is with respect to discovery of electronically stored
information under Rule 2-422. See the Committee note after
subsection (d)(2) of Rule 2-422.
Following section (d) and subsection (i)(1), cross
references to Code, Health-General Article, §4-306 (b)(6) and
Code, Financial Institutions Article, §1-304 are added to
highlight additional statutory requirements for certain
subpoenas.
Section (g) is amended, as in Rule 2-422 (d), to provide that
if the subpoena does not specify the form for electronically
stored information, the person served with the subpoena must
produce electronically stored information in a form in which it
is usually maintained or in a form that is reasonably usable.
As with discovery of electronically stored information from
parties, complying with a subpoena for such information may
impose burdens on the responding person. Sections (e) through
(g) provide protection against undue impositions on persons
responding to subpoenas, and section (f) incorporates by
reference the protections of Rules 2-403 and 2-432 with respect
to motions for protective orders and motions to compel
production, respectively.
The amendments to subsection (g)(2) largely parallel the
amendments to Rule 2-402 (b) in addressing issues raised by
difficulties in providing discovery of electronically stored
information because of undue burden or cost. However, as already
provided in section (h), a person responsible for issuance of a
subpoena must take reasonable steps to avoid imposing undue
burden or cost on a person subject to the subpoena. Indeed, a
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witness’s nonparty status is an important factor to be considered
in determining whether to allocate costs on the demanding or
producing party. See, United States v. Columbia Broad. Sys.,
Inc., 666 F.2d 364, 371 (9th Cir.), cert. denied, 457 U.S. 1118
(1982). Whether a subpoena imposes an undue burden on a third
party should be determined on a case-by-case analysis of factors
such as: relevance, the need of the party for the documents, the
breadth of the document request, the time period covered by it,
the particularity with which the documents are described, the
extent to which the producing party must separate responsive from
privileged or irrelevant matter, the burden imposed, the
possibility of decreasing the burden through an appropriate
protective order, the financial resources of the nonparty, the
interest of the nonparty in the final outcome of the litigation,
and the reasonableness of the costs involved in making the
production. See, The Sedona Conference, The Sedona Principles:
Best Practices Recommendations and Principles for Addressing
Electronic Document Production, (2d ed. 2007), Comment 13 c.
Section (i) is amended to provide a procedure for all
custodians of records, not merely those for records of health
care providers, to respond to a subpoena for records by providing
the records to the clerk in lieu of the custodian appearing in
person, unless expressly commanded to do so by the subpoena.
Representatives of the banking industry had asked the Committee
to amend section (i), so as to permit financial institutions to
respond to records subpoenas in a manner similar to that provided
for custodians of records of health care providers under current
section (i). After studying the request, the Committee
recommends expanding the benefits of such a procedure to all
custodians of records, rather than limit it to custodians of only
certain industries.
Section (k) is new and, like Rule 2-402 (e)(1), adds a
procedure for assertion of privilege or of protection as work
product materials after production. The responding party may
submit the information to the court for resolution of the
privilege claim, as under Rule 2-402 (e)(2). If information is
produced in response to a subpoena that is subject to a claim of
privilege or protection as work product material, the person
making the claim shall notify a party that received the
information within a reasonable time after the information was
produced. See Elkton Care Center Associates v. Quality Care
Management, Inc., 145 Md. App. 532 (2002).
At the end of the Rule is a new cross reference to Code,
State Government Article, §§2-1802 and 2-1803, added to draw
attention to procedures for issuing and enforcing legislative
subpoenas. The new statutory provisions were added by Chapter
546, Acts of 2007 (SB 384).
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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.
. . .
REPORTER’S NOTE
Section (c) of Rule 2-432 contains a “housekeeping”
amendment to change the reference from “Rule 2-402 (e)” to “Rule
2-402 (f),” because of proposed changes to the latter Rule.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 800 - MISCELLANEOUS
AMEND Rule 16-808 to conform to the relettering of Rule
2-402, as follows:
Rule 16-808.
PROCEEDINGS BEFORE COMMISSION
. . .
(g)
Exchange of Information
(1) Upon request of the judge at any time after service of
charges upon the judge, Investigative Counsel shall promptly (A)
allow the judge to inspect the Commission Record and to copy all
evidence accumulated during the investigation and all statements
as defined in Rule 2-402 (e) (f) and (B) provide to the judge
summaries or reports of all oral statements for which
contemporaneously recorded substantially verbatim recitals do not
exist, and
(2) Not later than 30 days before the date set for the
hearing, Investigative Counsel and the judge shall each provide
to the other a list of the names, addresses, and telephone
numbers of the witnesses that each intends to call and copies of
the documents that each intends to introduce in evidence at the
hearing.
(3) Discovery is governed by Title 2, Chapter 400 of these
Rules, except that the Chair of the Commission, rather than the
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court, may limit the scope of discovery, enter protective orders
permitted by Rule 2-403, and resolve other discovery issues.
(4) When disability of the judge is an issue, on its own
initiative or on motion for good cause, the Chair of the
Commission may order the judge to submit to a mental or physical
examination pursuant to Rule 2-423.
. . .
REPORTER’S NOTE
Section (g) of Rule 16-808 contains a “housekeeping”
amendment to change the reference from “Rule 2-402 (e)” to “Rule
2-402 (f),” because of proposed changes to the latter Rule.
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MARYLAND RULES OF PROCEDURE
APPENDIX:
FORM INTERROGATORIES
AMEND Form 3 to conform to terminology used in amendments to
certain Rules in Title 2, Chapters 400 and 500, as follows:
Form 3.
General Interrogatories.
Interrogatories
1. Identify each person, other than a person intended to be
called as an expert witness at trial, having discoverable
information that tends to support a position that you have taken
or intended to take in this action, including any claim for
damages, and state the subject matter of the information
possessed by that person. (Standard General Interrogatory No. 1.)
2. Identify each person whom you expect to call as an expert
witness at trial, state the subject matter on which the expert is
expected to testify, state the substance of the findings and
opinions to which the expert is expected to testify and a summary
of the grounds for each opinion, and, with respect to an expert
whose findings and opinions were acquired in anticipation of
litigation or for trial, summarize the qualifications of the
expert, state the terms of the expert’s compensation, and attach
to your answers any available list of publications written by the
expert and any written report made by the expert concerning the
expert’s findings and opinions. (Standard General Interrogatory
No. 2.)
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3. If you intend to rely upon any documents, electronically
stored information, or other tangible things to support a
position that you have taken or intend to take in the action,
including any claim for damages, provide a brief description, by
category and location, of all such documents, electronically
stored information, and other tangible things, and identify all
persons having possession, custody, or control of them. (Standard
General Interrogatory No. 3.)
4. Itemize and show how you calculate any economic damages
claimed by you in this action, and describe any non-economic
damages claimed. (Standard General Interrogatory No.4.)
5. If any person carrying on an insurance business might be
liable to satisfy part or all of a judgment that might be entered
in this action or to indemnify or reimburse for payments made to
satisfy the judgment, identify that person, state the applicable
policy limits of any insurance agreement under which the person
might be liable, and describe any question or challenge raised by
the person relating to coverage for this action. (Standard
General Interrogatory No. 5.)
REPORTER’S NOTE
The proposed amendments to Form 3, General Interrogatories,
conform the Form to terminology used in the proposed amendments
to the Rules in Title 2, Chapters 400 and 500, recommended by the
Rules Committee.
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MARYLAND RULES OF PROCEDURE
FORM INTERROGATORIES
AMEND Form 7 to conform to the relettering of Rule 2-402, as
follows:
Form 7.
Motor Vehicle Tort Interrogatories.
Interrogatories
. . .
12.
Identify all persons who have given you "statements,"
as that term is defined in Rule 2-402 (e) (f), concerning the
action or its subject matter.
For each statement, state the date
on which it was given and identify the custodian. (Standard Motor
Vehicle Tort Interrogatory No. 12.)
. . .
REPORTER’S NOTE
Section 12 of Form 7 contains a “housekeeping” amendment to
change the reference from “Rule 2-402 (e)” to “Rule 2-402 (f),”
because of proposed changes to the Rule.
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MARYLAND RULES OF PROCEDURE
RULES GOVERNING ADMISSION TO THE BAR OF MARYLAND
AMEND Rule 22 of the Rules Governing Admission to Bar of
Maryland to conform to the relettering of Rule 2-510, as follows:
Rule 22.
SUBPOENA POWER OF BOARD AND CHARACTER COMMITTEES
. . .
(b)
Sanctions
If a person is subpoenaed to appear and give testimony or
to produce books, documents, or other tangible things and fails
to do so, the party who requested the subpoena, by motion that
does not divulge the name of the applicant (except to the extent
that this requirement is impracticable), may request the court to
issue an attachment pursuant to Rule 2-510 (h) (j), or to cite
the person for contempt pursuant to Title 15, Chapter 200 of the
Maryland Rules, or both.
. . .
REPORTER’S NOTE
Section (b) of Rule 22 contains a “housekeeping” amendment
to change the reference from “Rule 2-510 (h)” to “Rule 2-510
(j),” because of proposed changes to the latter Rule.
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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.
. . .
REPORTER’S NOTE
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In section (b), the word “reimbursement” is substituted for
the former reference to “compensation,” to reflect the practice
of treating payments as expense reimbursement.
Also in section (b), the word “qualified” is added to modify
“jurors” to reflect the addition of a defined term “qualified
juror” in Code, Courts Article, §8-101, to distinguish among
prospective, qualified, and sworn jurors.
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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.
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Cross reference: Md. Declaration of Rights, Article 5; Rule
2-325; and Code, Courts Article, §§8-421 (a) and 8-422.
. . .
REPORTER’S NOTE
The proposed amendment to Rule 2-511 adds to the cross
reference a reference to Article 5 of the Maryland Declaration of
Rights and §§8-421 (a) and 8-422 of Code, Courts Article.
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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).
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(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
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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.
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(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)
(1)
Examination of Jurors and Challenges for Cause
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
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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
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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
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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.
REPORTER’S NOTE
Subsection (a)(1) is added to state expressly that a trial
judge sets the size of the jury to be impanelled (including
alternates) and the size of the initial array before jury
selection begins. Accordingly, the former first sentence of
section (b) is deleted.
Subsection (a)(2) is derived from former section (f) with
substitution of the term “trial judge” for the word “court” to
avoid the inference that a majority of the bench must concur;
substitution of the word “array” for the words “regular panel”
for internal consistency and consistency with revised Code,
Courts Article, Title 8; and substitution of “qualified juror
pool” for “qualified jury wheel” for consistency with revised
Code, Courts Article, Title 8, which reflects the use of
computers for selection instead of the former practice of drawing
numbers from a wheel.
Subsection (a)(3) is derived from former section (a), with
deletion of the word “drawn” for consistency with revised Code,
Courts Article, Title 8, which reflects the use of computers for
selection as opposed to the former practice of drawing numbers
from a wheel, and substitution of the word “array” for the word
“panel,” for internal consistency and consistency with revised
Code, Courts Article, Title 8.
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The former second sentence of section (b) is restated as an
affirmative statement applicable to all impanelled jurors,
including alternates. The word “selected” is substituted for the
word “drawn,” for consistency with revised Code, Courts Article,
Title 8, which reflects the use of computers for selection,
instead of the former practice of drawing numbers from a wheel.
Former section (c) is renumbered as subsection (c)(1), with
the addition of “qualified” to modify “jurors” to reflect the
addition of a defined term “qualified juror” in Code, Courts
Article, §8-101 and to distinguish among prospective, qualified,
and sworn jurors. Subsection (c)(1) is revised to require the
jury list to include an address for a qualified juror but limited
to a city or town and zip code to afford qualified jurors in a
civil trial with the same protection for identifying information
as that afforded to qualified jurors in a criminal trial. See
Rule 4-312. Additionally, the requirement that additional
information is to be set by rule rather than individual jury plan
reflects Code, Courts Article, §8-105.
Subsection (c)(2) is added to set forth the manner in which
jury lists are to be distributed and protected against
unnecessary dissemination of juror information.
Subsection (c)(3) is added to clarify the circumstances
under which the jury list becomes part of the case record.
Subsections (d)(1) and (2) are derived from former sections
(d) and (e) with addition of the term “qualified” to modify
“jurors” to reflect the addition of a defined term “qualified
juror” in Code, Courts Article, §8-101 and to distinguish among
prospective, qualified, and sworn jurors; and substitution of the
word “array” for the word “panel” for internal consistency and
consistency with revised Code, Courts Article, Title 8.
Subsection (e)(1) is derived from former section (g), with
substitution of “individuals” for “jurors” and “alternate
jurors,” as these individuals are winnowed from among the
“qualified jurors” – as categorized in Code, Courts Article,
Title 8 – but may not be sworn as jurors. Accordingly, in
subsection (e)(1), reference to “remain qualified” after
examination is substituted for “have qualified”.
Subsection (e)(2) is derived from former section (h).
Subsection (f)(1) is derived from the former first sentence
of section (i), with substitution of “individuals” to be
impanelled “as sworn jurors” for “jurors and any alternates,” as
these individuals are winnowed from among the “qualified jurors”
– as categorized in Code, Courts Article, Title 8 – but are not
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yet sworn as jurors; and with the addition of “jury” to modify
the word “list” for internal consistency.
Subsection (f)(2) is derived from the former third sentence
of section (b), as it related to being sworn and serving as a
sworn juror.
Subsection (f)(3) is derived from the former second and
fourth sentences of section (b), with substitution of “the trial
judge ... finds” for “becomes or is found” and the substitution
of “the trial judge shall discharge” for the passive “shall be
discharged,” since the judge’s ruling is determinative. The
substitution also avoids the inference that a majority of the
bench must concur.
Section (g) is derived from the former second sentence of
section (i), with substitution of “foreperson” for “foreman,” to
reflect the Judiciary’s policy to use gender neutral words where
practicable.
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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
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instructions may be taken into the jury room only with the
permission of the court.
Cross reference:
See Rule 5-802.1 (e).
. . .
REPORTER’S NOTE
In sections (a) and (b), the word “sworn” is added to modify
“juror[s]” to distinguish among prospective, qualified, and sworn
jurors.
In section (a), the phrase “including any alternates” is
added to reflect that Rule 2-512 (f)(2) requires an alternate to
“take the same oath” as other sworn jurors.
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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.
The verdict shall be returned in open
Upon the On request of a party or upon on the court's own
court.
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.
. . .
REPORTER’S NOTE
In section (b), the phrase “required number of jurors,” is
replaced by the phrase, “jury, or stated majority,” to avoid the
awkwardness of the term “sworn juror” otherwise used throughout
these rules. Other stylistic changes also are made.
-74-
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).
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(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
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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
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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)
(1)
Examination of Jurors and Challenges for Cause
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
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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
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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.
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REPORTER’S NOTE
Subsection (a)(1) is added to state expressly that a trial
judge sets the size of the jury to be impanelled (including
alternates) and the size of the initial array before jury
selection begins. Accordingly, former subsection (b)(2) and the
first sentence of subsection (b)(3) is deleted, with the addition
of the cross references.
Subsection (a)(2) is derived from former section (f), with
substitution of the word “array” for the words “regular panel”
for internal consistency and consistency with revised Code,
Courts Article, Title 8; substitution of the term “trial judge”
for the word “court” to avoid the inference that a majority of
the bench must concur; and substitution of the reference to a
“qualified juror pool” for “qualified jury wheel” for consistency
with revised Code, Courts Article, Title 8, which reflects the
use of computers for selection instead of the former practice of
drawing numbers from a wheel.
Subsection (a)(3) is derived from former section (a), with
deletion of the word “drawn” for consistency with revised Code,
Courts Article, Title 8, which reflects the use of computers for
selection as opposed to the former practice of drawing numbers
from a wheel; substitution of the word “array” for the word
“panel,” for internal consistency and consistency with revised
Code, Courts Article, Title 8; addition of the word “qualified”
to modify “juror” to reflect the addition of a defined term
“qualified juror” in Code, Courts Article, §8-101 and to
distinguish among prospective, qualified, and sworn jurors; and
substitution of the term “trial judge” for the word “court” to
avoid the inference that a majority of the bench must concur.
Former subsection (b)(1), except as it related to the oath
and powers, is renumbered as section (b) and is restated as an
affirmative statement applicable to all impanelled jurors,
including alternates. The word “selected” is substituted for the
word “drawn,” for consistency with revised Code, Courts Article,
Title 8, which reflects the use of computers for selection,
instead of the former practice of drawing numbers from a wheel.
Former section (c) is renumbered as subsection (c)(1), with
the addition of “qualified” to modify “jurors” to reflect the
addition of a defined term “qualified juror” in Code, Courts
Article, §8-101 and to distinguish among prospective, qualified,
and sworn jurors. Subsection (c)(1) is revised to require the
jury list to include an address for a qualified juror with the
current limitation as to a city or town and zip code.
Additionally, the requirement that additional information is to
be set by rule rather than individual jury plan reflects Code,
Courts Article, §8-105.
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Subsection (c)(2) is added to set forth the manner in which
jury lists are to be distributed and protected against
unnecessary dissemination of juror information.
Subsection (c)(3) is added to clarify the circumstances
under which the jury list becomes part of the case record.
Subsections (d)(1) and (2) are derived from former sections
(d) and (e), with substitution of the terms “trial judge” and
“judge” for the words “court” and “it,” and deletion of “itself,”
to avoid the inference that a majority of the bench must concur;
addition of the term “qualified” to modify “jurors” to reflect
the addition of a defined term “qualified juror” in Code, Courts
Article, §8-101 and to distinguish among prospective, qualified,
and sworn jurors; and substitution of the word “array” for the
word “panel” for internal consistency and consistency with
revised Code, Courts Article, Title 8.
Section (e) is derived from former section (g), with
substitution of “trial judge” for “court” to avoid the inference
that a majority of the bench must concur and substitution of
references to “individuals” for the references to “jurors” and
“alternate jurors,” as these individuals are winnowed from among
the “qualified jurors” – as categorized in Code, Courts Article,
Title 8 – but are not yet sworn as jurors. Accordingly, in
section (e), reference to “remain qualified” after examination is
substituted for “have qualified.”
Subsection (f)(1) is derived from the former first sentence
of section (h), with substitution of “individuals” to be
impanelled “as sworn jurors” for “jurors and any alternates,” as
these individuals are winnowed from among the “qualified jurors”
– as categorized in Code, Courts Article, Title 8 – but are not
yet sworn as jurors; and with the addition of “jury” to modify
the word “list” for internal consistency.
Subsection (f)(2) is derived from the former subsection
(b)(1), as it related to being sworn and serving as a sworn
juror.
Subsection (f)(3) is derived from the former second and
third sentences of subsection (b)(3), with substitution of “the
trial judge ... finds” for “becomes or is found” and the
substitution of “the trial judge shall discharge” for the passive
“shall be discharged,” since the judge’s ruling is determinative.
The substitution also avoids the inference that a majority of the
bench must concur.
Section (g) is derived from the former second sentence of
section (h), with substitution of “trial judge” for “court” to
avoid the inference that a majority of the bench must concur;
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addition of the word “sworn” to modify “juror” to distinguish
among prospective, qualified, and sworn jurors in accordance with
revised Code, Courts Article, Title 8; and substitution of
“foreperson” for “foreman,” to reflect the Judiciary’s policy to
use gender neutral words where practicable.
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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
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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.
. . .
REPORTER’S NOTE
In subsections (b)(1) and (3), the word “qualified” is added
to modify “juror” to reflect the addition of a defined term
“qualified juror” in Code, Courts Article, §8-101, to distinguish
among prospective, qualified, and sworn jurors.
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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.
. . .
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REPORTER’S NOTE
In subsection (b)(3), the word “qualified” is substituted
for the former word “prospective”, to reflect the addition of
defined terms “prospective juror” and “qualified juror” in Code,
Courts Article, §8-101.
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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
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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).
. . .
REPORTER’S NOTE
In sections (a) and (b), the word “sworn” is added to modify
“juror” to distinguish among prospective, qualified, and sworn
jurors. Accordingly, in section (b), the word “jury” is
substituted for the former word “jurors” to avoid awkward
repetition of “sworn jurors”.
In section (a), the phrase “including any alternates” is
added to reflect that Rule 4-312 (f)(2) requires an alternate to
“take the same oath” as other sworn jurors.
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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
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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.
. . .
REPORTER’S NOTE
In section (b), the word “foreperson” is substituted for
“foreman,” to reflect the Judiciary’s policy to use gender
neutral words where practicable.
In section (e), the word “sworn” is added to modify “jurors”
to distinguish among prospective, qualified, and sworn jurors.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 600 - CRIMINAL INVESTIGATIONS AND
MISCELLANEOUS PROVISIONS
AMEND Rule 4-643 to change the word “foreman” to the word
“foreperson” in section (a), as follows:
Rule 4-643.
(a)
SUBPOENA
To Appear Before the Grand Jury
Any subpoena to appear before the grand jury shall be
issued: (1) by the clerk of a circuit court on request of the
State's Attorney or the grand jury; or (2) by the grand jury
through its foreman foreperson or deputy foreman foreperson.
The
subpoena shall contain the information required by Rule 4-266
(a).
(b)
Enforcement - Protective Order
A subpoena to appear before the grand jury or pursuant to
Article 10, §39A is enforceable only in circuit court in the
manner set forth in Rule 4-266 (d) and the witness or a person
asserting a privilege to prevent disclosure by the witness may
apply for a protective order pursuant to Rule 4-266 (c).
Source:
This Rule is new.
REPORTER’S NOTE
In section (a), the word “foreperson” is substituted for
“foreman,” to reflect the Judiciary’s policy to use gender
neutral words where practicable.
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MARYLAND RULES OF PROCEDURE
TITLE 5 - EVIDENCE
CHAPTER 600 - WITNESSES
AMEND Rule 5-606 by adding the word “sworn” to modify the
word “juror” in section (a) and subsections (b)(1) and (b)(2), by
deleting language from subsection (b)(3) and making style
changes, and by changing the word “petit” to the word “trial” and
adding the word “trial” to modify the word “jury” in section (c),
as follows:
Rule 5-606.
(a)
COMPETENCY OF JUROR AS WITNESS
At the Trial
A member of a jury may not testify as a witness before
that jury in the trial of the case in which the sworn juror is
sitting.
If the sworn juror is called to testify, the opposing
party shall be afforded an opportunity to object out of the
presence of the jury.
(b)
(1)
Inquiry into Validity of Verdict
In any inquiry into the validity of a verdict, a sworn
juror may not testify as to (A) any matter or statement occurring
during the course of the jury's deliberations, (B) the effect of
anything upon that or any other sworn juror's mind or emotions as
influencing the sworn juror to assent or dissent from the
verdict, or (C) the sworn juror's mental processes in connection
with the verdict.
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(2)
A sworn juror's affidavit or evidence of any statement
by the juror concerning a matter about which the juror would be
precluded from testifying may not be received for these purposes.
(3)
A juror's notes Notes made in accordance with under Rule
2-521 (a) or Rule 4-326 (a) may not be used to impeach a verdict.
(c)
"Verdict" Defined
For purposes of this Rule, "verdict" means (1) a verdict
returned by a petit trial jury or (2) a sentence returned by a
trial jury in a sentencing proceeding conducted pursuant to Code,
Criminal Law Article, §2-303 or §2-304.
Committee note: This Rule does not address or affect the secrecy
of grand jury proceedings.
Source:
This Rule is derived in part from F.R.Ev. 606.
REPORTER’S NOTE
In sections (a) and (b), the word “sworn” is added to modify
“jurors” to distinguish among prospective, qualified, and sworn
jurors.
In subsection (b)(3), the word “under” is substituted for
“in accordance with” to cover all notes whether made in
accordance with or contravention of the referenced rules.
In section (c), “trial jury” is substituted for “petit
jury,” in accordance with the Council on Jury Use and
Management’s preference for language more understandable to the
public.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 100 - COURT ADMINISTRATIVE STRUCTURE, JUDICIAL
DUTIES, ETC.
AMEND Rule 16-107 to amend the title of the Rule and to
delete section b., as follows:
Rule 16-107.
a.
SINGLE TERM OF COURT AND JURY TERMS
Term of Court.
For accounting and statistical reporting purposes, each
circuit court shall hold a single term each year beginning on
July 1 and ending on the following June 30.
b.
Term of Jury.
The County Administrative Judge shall set the terms of the
petit and grand juries for that county in the juror selection
plan authorized by Code, Courts Article, §8-201.
Source:
This Rule is derived from former Rule 1206.
REPORTER’S NOTE
Former section b is deleted as inaccurate as the circuit
court, rather than the County Administrative Judge, adopts, and
modifies, the jury plan, and Code, Courts Article, §8-207 (a)
provides for the plan to specify intervals for creation of juror
pools – rather than “terms”.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 1000 - ACCESS TO COURT RECORDS
AMEND Rule 16-1004 by expanding subsection (b)(2) to allow
disclosure of certain information about jurors under certain
circumstances, as follows:
Rule 16-1004.
ACCESS TO NOTICE, ADMINISTRATIVE, AND BUSINESS
LICENSE RECORDS
(a)
Notice Records
A custodian may not deny inspection of a notice record
that has been recorded and indexed by the clerk.
(b)
Administrative and Business License Records
(1) Except as otherwise provided by the Rules in this
Chapter, the right to inspect administrative and business license
records is governed by Code, State Government Article, §§10-611
through 10-626.
(2) (A) Except as provided by Code, Courts Article, §8-212
(b) or (c), a A custodian shall deny inspection of an
administrative record used by the jury commissioner or clerk in
connection with the jury selection process.
Except as otherwise
provided by court order, a custodian may not deny inspection of
a jury list sent to the court pursuant to Rules 2-512 or 4-312
after the jury has been empaneled and sworn., except (i) as a
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trial judge orders in connection with a challenge under Code,
Courts Article, §§8-408 and 8-409; and (ii) as provided in (B)
and (C) of this subsection.
(B) A custodian shall, upon request, disclose the names and
zip codes of the sworn jurors contained on a jury list after the
jury has been impaneled and sworn, unless otherwise ordered by
the trial judge.
(C) After a source pool of qualified jurors has been
emptied and re-created in accordance with Code, Courts Article,
§8-207, and after every person selected to serve as a juror from
that pool has completed the person’s service, a trial judge
shall, upon request, disclose the name, zip code, age, sex,
education, occupation, and spouse’s occupation of each person
whose name was selected from that pool and placed on a jury list,
unless, in the interest of justice, the trial judge determines
that this information remain confidential in whole or in part.
(D) A jury commissioner may provide jury lists to the
Health Care Alternative Dispute Resolution Office as required by
that Office in carrying out its duties, subject to that Office
adopting regulations to ensure against improper dissemination of
juror data.
(E) At intervals acceptable to the jury commissioner, a
jury commissioner shall provide the State Board of Elections and
State Motor Vehicle Administration with data about prospective,
qualified, or sworn jurors needed to correct erroneous or
obsolete information, such as that related to a death or change
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of address, subject to the Board’s and Administration’s adoption
of regulations to ensure against improper dissemination of juror
data.
. . .
REPORTER’S NOTE
To conform to recent statutory changes, several Rules
pertaining to jury trials have been proposed for modification.
Rules 2-512 and 4-312 have been proposed to be changed to require
the jury list to include the addresses of qualified jurors and to
state that any need for additional information regarding jurors
is to be set by rule and not by individual jury plan. The
proposed changes to Rule 16-1004 include language stating that
the jury commissioner shall provide a jury list as required under
Rules 2-512 and 4-312 and that a custodian may disclose only the
names of sworn jurors. Eric Lieberman, Esq., counsel to the
Washington Post, expressed a concern that access to juror
information would be too limited by the changes to Rule 16-1004
that originally had been proposed. He has requested that
language be added to section (b) of Rule 16-1004 providing that a
judge may order inspection of an administrative record used by
the jury commissioner and that after the pool of qualified jurors
has been emptied and all jurors have completed their service,
upon request, a trial judge shall disclose information about the
jurors unless, in the interest of justice, the judge determines
that this information should remain confidential. The requested
new language also provides that a custodian shall disclose the
names and zip codes of the sworn jurors, unless otherwise ordered
by the trial judge.
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MARYLAND RULES OF PROCEDURE
APPENDIX: THE MARYLAND LAWYERS’ RULES OF PROFESSIONAL CONDUCT
ADVOCATE
AMEND Appendix: the Maryland Lawyers’ Rules of Professional
Conduct, Rule 3.5 to delete language from paragraph (a)(1), to
add the words “qualified” and “sworn” to modify the word “juror”
in paragraph (a)(1), to delete language from paragraph (a)(2),
to delete language from paragraph (a)(5), to add the word “jury”
to modify the word “member” and to change the word “juror” to the
words “jury member” in paragraph (a)(5), and to add the words
“qualified” and “sworn” to modify the word “juror” in paragraph
(a)(6) and paragraph (b), as follows:
Rule 3.5.
(a)
IMPARTIALITY AND DECORUM OF THE TRIBUNAL
A lawyer shall not:
(1) seek to influence a judge, prospective, qualified, or
sworn juror, prospective juror, or other official by means
prohibited by law;
(2) before the trial of a case with which the lawyer is
connected, communicate outside the course of official proceedings
with anyone known to the lawyer to be on the jury list from which
the jurors will be selected for the trial of the case;
(3) during the trial of a case with which the lawyer is
connected, communicate outside the course of official proceedings
with any member of the jury;
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(4) during the trial of a case with which the lawyer is not
connected, communicate outside the course of official proceedings
with any member of the jury about the case;
(5) after discharge of a jury from further consideration of a
case with which the lawyer is connected, ask questions of or make
comments to a jury member of that jury that are calculated to
harass or embarrass the juror jury member or to influence the
juror's jury member’s actions in future jury service;
(6) conduct a vexatious or harassing investigation of any
prospective, qualified, or sworn juror or prospective juror;
(7) communicate ex parte about an adversary proceeding with
the judge or other official before whom the proceeding is
pending, except as permitted by law;
(8) discuss with a judge potential employment of the judge if
the lawyer or a firm with which the lawyer is associated has a
matter that is pending before the judge; or
(9) engage in conduct intended to disrupt a tribunal.
(b)
A lawyer who has knowledge of any violation of section
paragraph (a) of this Rule, any improper conduct by a
prospective, qualified, or sworn juror or prospective juror, or
any improper conduct by another towards a juror or prospective,
qualified, or sworn juror, shall report it promptly to the court
or other appropriate authority.
COMMENT
[1] Many forms of improper influence upon a tribunal are
proscribed by criminal law. Others are specified in Rule 16-813,
Maryland Code of Judicial Conduct, with which an advocate should
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be familiar. A lawyer is required to avoid contributing to a
violation of such provisions.
[2] The advocate's function is to present evidence and
argument so that the cause may be decided according to law.
Refraining from abusive or obstreperous conduct is a corollary of
the advocate's right to speak on behalf of litigants. A lawyer
may stand firm against abuse by a judge but should avoid
reciprocation; the judge's default is no justification for
similar dereliction by an advocate. An advocate can present the
cause, protect the record for subsequent review and preserve
professional integrity by patient firmness no less effectively
than by belligerence or theatrics.
[3] With regard to the prohibition in subsection paragraph
(a)(2) of this Rule against communications with anyone on "the
jury list from which the jurors will be selected," see Md. Rules
2-512 (c) and 4-312 (c).
Model Rules Comparison.-- Rule 3.5 retains the former Maryland
Rule text and comments, except that paragraph (a)(8) is new and
the reference in Comment [1] is to the Code of Judicial Conduct.
Changes in ABA Model Rule 3.5 were not adopted.
REPORTERS NOTE
In paragraphs (a)(1) and (6) and (b), references to
“prospective, qualified, or sworn juror” is substituted for the
former references to “juror, prospective juror,” to conform to
the terminology in Code, Courts Article, Title 8.
In paragraph (a)(2) and the Comment, references to the “jury
list” are substituted for the former references to the “list from
which the jurors will be selected,” for brevity and consistency
with Rules 2-512 and 4-312.
In paragraph (a)(5), references to a “jury member” are
substituted for the former references to a “member of that jury,”
“juror,” and “juror’s,” for consistency.
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MARYLAND RULES OF PROCEDURE
APPENDIX: MARYLAND CODE OF CONDUCT FOR COURT INTERPRETERS
AMEND Appendix: Maryland Code of Conduct for Court
Interpreters, Canon 3 to add the words “prospective, qualified,
or sworn” to modify the word “jurors” to the Commentary, as
follows:
MARYLAND CODE OF CONDUCT FOR COURT INTERPRETERS
. . .
Canon 3
Impartiality and Avoidance of Conflict of Interest
Interpreters shall be impartial and unbiased and shall
refrain from conduct that may give an appearance of bias.
Interpreters shall disclose any real or perceived conflict of
interest.
Commentary
The interpreter serves as an officer of the court, and the
interpreter's duty in a court proceeding is to serve the court
and the public to which the court is a servant. This is true
regardless of whether the interpreter is retained publicly at
government expense or privately at the expense of one of the
parties.
Interpreters should avoid any conduct or behavior that
presents the appearance of favoritism toward any of the parties.
Interpreters should maintain professional relationships with the
participants and should not take an active part in any of the
proceedings.
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During the course of the proceedings, interpreters should
not converse with parties, witnesses, prospective, qualified, or
sworn jurors, attorneys, or law enforcement officers or with
friends or relatives of any party, except in the discharge of
official functions. It is especially important that interpreters
who are familiar with courtroom personnel refrain from casual and
personal conversations that may convey an appearance of a special
relationship with or partiality to any of the court participants.
. . .
REPORTER’S NOTE
In the Comment, the words “prospective, qualified, and
sworn” are added to modify “jurors,” to emphasize that all three
categories of jurors are covered by the statement.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-301 to provide for discovery under Rule 4-263
under certain circumstances and for discovery under Rule
4-262 in all other actions transferred to a circuit court upon a
jury trial demand under this Rule, as follows:
Rule 4-301.
(a)
BEGINNING OF TRIAL IN DISTRICT COURT
Initial Procedures
Immediately before beginning a trial in District Court,
the court shall (1) make certain the defendant has been furnished
a copy of the charging document; (2) inform the defendant of each
offense charged; (3) inform the defendant, when applicable, of
the right to trial by jury; (4) comply with Rule 4-215, if
necessary; and (5) thereafter, call upon the defendant to plead
to each charge.
(b)
Demand for Jury Trial
(1)
Form and Time of Demand
A demand in the District Court for a jury trial shall be
made either
(A) in writing and, unless otherwise ordered by the court
or agreed by the parties, filed no later than 15 days before the
scheduled trial date, or
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(B) in open court on the trial date by the defendant and
the defendant's counsel, if any.
(2)
Procedure Following Demand
Upon a demand by the defendant
for jury trial that
deprives the District Court of jurisdiction pursuant to law, the
clerk may serve a circuit court summons on the defendant
requiring an appearance in the circuit court at a specified date
and time.
The clerk shall promptly transmit the case file to the
clerk of the circuit court, who shall then file the charging
document and, if the defendant was not served a circuit court
summons by the clerk of the District Court, notify the defendant
to appear before the circuit court.
The circuit court shall
proceed in accordance with Rule 4-213 (c) as if the appearance
were by reason of execution of a warrant.
Thereafter, except for
the requirements of Code, Criminal Procedure Article, §6-103 and
Rule 4-271 (a), or unless the circuit court orders otherwise,
pretrial procedures shall be governed by the rules in this Title
applicable in the District Court.
(c)
Discovery
Discovery in an action transferred to a circuit court upon
a jury trial demand made in accordance with subsection (b)(1)(A)
of this Rule is governed by Rule 4-263.
In all other actions
transferred to a circuit court upon a jury trial demand,
discovery is governed by Rule 4-262.
Source: This Rule is derived as follows:
Section (a) is derived from former M.D.R. 751.
Section (b) is new.
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Section (c) is new.
REPORTER’S NOTE
Rule 4-301 is proposed to be amended to provide that
discovery under Rule 4-263 (Discovery in Circuit Court) is
available in cases transferred to a circuit court upon a jury
trial demand only when the demand is made in accordance with
subsection (b)(1)(A) of Rule 4-301, i.e., only when a written
demand is filed no later than 15 days before a scheduled trial
date. In all other cases transferred pursuant to Rule 4-301,
discovery is governed by Rule 4-262 (Discovery in District
Court).
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 200 - PRETRIAL PROCEDURES
AMEND Rule 4-263 to require each party to exercise due
diligence in identifying material and information to be
disclosed, to extend the obligations of the parties under the
Rule to staff members of the defendant and certain others, to
reletter the sections, to add a cross reference following section
(a), to add to section (b) a required disclosure of certain witness
statements, to delete the requirement of a request by the
defendant from the provision concerning the State’s obligation to
disclose the identity of certain witnesses, to add language to
subsection (b)(1) referring to a certain statute and Rule, to
clarify the disclosure obligation of the State’s Attorney under
subsections (b)(2) and (3), to add a Committee note and cross
reference following section (b), to add to subsection (c)(1) a
provision concerning the State’s consultation with an expert, to
add to subsection (c)(2)(B) requirements concerning an expert
that the defendant expects to call as a witness at a hearing or
trial, to add a new subsection (c)(2)(D) concerning disclosure of
the defendant’s character witnesses, to expand the definition
of “work product” in subsection (d)(1), to change the time
allowed in section (e) for the State’s initial disclosure
pursuant to section (b), to add the phrase “or required” to
section (f), to provide generally that there is no requirement to
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file discovery material with the court, to require the filing of
a notice by the party generating discovery material and retention
of the material for a period of time if the material is not filed
with the court, to require the filing of a statement if the
parties agree to provide discovery or disclosures in a manner
different than set forth in the Rule, to clarify provisions
pertaining to protective orders, to add a provision pertaining to
disqualification of witnesses, and to make certain stylistic
changes, as follows:
Rule 4-263.
DISCOVERY IN CIRCUIT COURT
Discovery and inspection in a circuit court shall be as
follows:
(g) (a) Obligations of State's Attorney the Parties
(1)
Generally
Each party obligated to provide material or information
under this Rule shall exercise due diligence to identify all of
the material and information that must be disclosed.
(2)
Obligations of the Parties Extend to Staff and Others
The obligations of the State's Attorney parties under
this Rule extend to material and information in the possession or
control of the State's Attorney a party and staff members and any
others who have participated in the investigation or evaluation
of the action and who either regularly report, or with reference
to the particular action have reported have a duty to report, to
the office of the State's Attorney party.
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Cross reference: For the obligations of the State, see State v.
Williams, 392 Md. 194 (2006).
(a) (b) Disclosure Without Request
Except for the privileged work product of the State’s
Attorney as defined in subsection (d)(1) of this Rule, Without
without the necessity of a request, the State's Attorney shall
furnish provide to the defendant:
(1) The name and, except as provided under Code, Criminal
Procedure Article, §11-205 or Rule 16-1009 (b), the address of
each person whom the State intends to call as a witness at the
hearing or trial to prove its case in chief or to rebut alibi
testimony and, as to all statements about the action made by the
witness to a State agent: (A) a copy of each written or recorded
statement by the witness, regardless of when made, and (B) a copy
of all reports of each oral statement by the witness, or, if not
available, the substance of each oral statement made before
charges were filed in the circuit court;
(1) (2) Any material or information tending to in any form,
whether or not admissible, in the possession or control of the
State, including staff and others as described in subsection
(a)(2) of this Rule, that tends to exculpate the defendant or
negate or mitigate the defendant’s guilt or punishment of the
defendant as to the offense charged;
(3)
Any material or information in any form, whether or not
admissible, in the possession or control of the State, as
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described in subsection (a)(2) of this Rule, that tends to
impeach a witness by proving:
(A) the character of the witness for untruthfulness, by
establishing prior conduct as permitted under Rule 5-608 (b) or a
prior conviction as permitted under Rule 5-609,
(B) that the witness is biased, prejudiced, or interested
in the outcome of the proceeding or has a motive to testify
falsely, or
(C) that the facts differ from the witness’s expected
testimony; and
(2) (4) Any relevant material or information regarding: (A)
specific searches and seizures, wiretaps, or eavesdropping,; (B)
the acquisition of statements made by the defendant to a State
agent that the State intends to use at a hearing or trial,; and
(C) pretrial identification of the defendant by a witness for the
State.
Committee note: Examples of material and information that must
be disclosed pursuant to subsections (b)(2) and (3) of this Rule
if within the possession or control of the State, as described in
subsection (a)(2) of this Rule, include: each statement made by
a witness that is inconsistent with another statement made by the
witness or with a statement made by another witness; the medical
or psychiatric condition of a witness that may impair his or her
ability to testify truthfully or accurately; pending charges
against a witness for whom no deal is being offered at the time
of trial; the fact that a witness has taken but did not pass a
polygraph examination; the failure of a witness to make an
identification; and evidence that might adversely impact the
credibility of the State’s evidence. The due diligence required
by subsection (a)(1) does not require affirmative inquiry by the
State with regard to the listed examples in all cases, but would
require such inquiry into a particular area if information
possessed by the State, as described in subsection (a)(2), would
reasonably lead the State to believe that affirmative inquiry
would result in discoverable information. Due diligence does not
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require the State to obtain a copy of the criminal record of a
State’s witness unless the State is aware of the criminal record.
If, upon inquiry by the State, a witness denies having a criminal
record, the inquiry and denial generally satisfy due diligence
unless the State has reason to question the denial.
Cross reference: See Brady v. Maryland, 373 U.S. 83 (1963); Kyles
v. Whitley, 514 U.S. 419 (1995); Giglio v. U.S., 405 U.S. 150
(1972); and U.S. v. Agurs, 427 U.S. 97 (1976).
(b) (c) Disclosure Upon Request
(1)
Disclosure By State
Upon request of the defendant, the State's Attorney
shall provide to the defendant the information set forth in this
section:
(1)
Witnesses
Disclose to the defendant the name and address of each
person then known whom the State intends to call as a witness at
the hearing or trial to prove its case in chief or to rebut alibi
testimony;
(2) (A) Statements of the Defendant
As to all statements made by the defendant to a State
agent that the State intends to use at a hearing or trial, the
State shall furnish provide to the defendant, but not file unless
the court so orders: (A) (i) a copy of each written or recorded
statement, and (B) (ii) the substance of each oral statement and
a copy of all reports of each oral statement;
(3) (B) Statements of Codefendants
As to all statements made by a codefendant to a State
agent which that the State intends to use at a joint hearing or
trial, the State shall furnish provide to the defendant, but not
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file unless the court so orders: (A) (i) a copy of each written
or recorded statement, and (B) (ii) the substance of each oral
statement and a copy of all reports of each oral statement;
(4) (C) Reports or Statements of Experts
As to each expert consulted by the State in connection
with the action the State shall: (i) provide to the defendant the
expert’s name and address, the subject matter of the
consultation, the substance of the expert’s findings and
opinions, and a summary of the grounds for each opinion, and (ii)
Produce produce and permit the defendant to inspect and copy all
written reports or statements made in connection with the action
by each the expert, consulted by the State, including the results
of any physical or mental examination, scientific test,
experiment, or comparison, and furnish provide the defendant with
the substance of any such oral report and conclusion;
(5) (D) Evidence for Use at Trial
Produce and permit the defendant to inspect, copy, and
photograph any documents, computer-generated evidence as defined
in Rule 2-504.3 (a), recordings, photographs, or other tangible
things that the State intends to use at the hearing or trial;
(6) (E) Property of the Defendant
Produce and permit the defendant to inspect, copy, and
photograph any item obtained from or belonging to the defendant,
whether or not the State intends to use the item at the hearing
or trial.
(2)
Disclosure By Defendant
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Upon the request of the State, the defendant shall:
(A)
As to the Person of the Defendant
Appear in a lineup for identification; speak for
identification; be fingerprinted; pose for photographs not
involving reenactment of a scene; try on articles of clothing;
permit the taking of specimens of material under fingernails;
permit the taking of samples of blood, hair, and other material
involving no unreasonable intrusion upon the defendant's person;
provide handwriting specimens; and submit to reasonable physical
or mental examination;
(B)
Reports of Experts
As to each expert the defendant expects to call as a
witness at a hearing or trial: (i) provide to the State the
expert’s name and address, the subject matter on which the expert
is expected to testify, 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 (ii) produce and
permit the State to inspect and copy all written reports made in
connection with the action by the expert, including the results
of any physical or mental examination, scientific test,
experiment, or comparison, and provide the State with the
substance of any such oral report and conclusion.
(C)
Alibi Witnesses
Upon designation by the State of the time, place, and
date of the alleged occurrence, provide the name and address of
each person other than the defendant whom the defendant intends
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to call as a witness to show that the defendant was not present
at the time, place, and date designated by the State in its
request.
(D)
Character Witnesses
As to each witness the defendant expects to call to
testify as to the defendant’s veracity or other relevant
character trait, provide the name and address of that witness.
(E)
Computer-generated Evidence
Produce and permit the State to inspect and copy any
computer-generated evidence as defined in Rule 2-504.3 (a) that
the defendant intends to use at the hearing or trial.
(c) (d) Matters Not Subject to Discovery by the Defendant
This Rule does not require the State to disclose:
(1) Any documents to the extent that they contain the
opinions, theories, conclusions, or other work product of the
State's Attorney, or
(1)
By any Party
This Rule does not require the State or the defendant to
disclose (A) the mental impressions, trial strategy, personal
beliefs, or other privileged work product of counsel or (B) any
other matter if the court finds that its disclosure would entail
a substantial risk of harm to any person that outweighs the
interest in disclosure.
(2)
By Defendant
This Rule does not require the State to disclose
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(2) The the identity of a confidential informant, so long
as unless the State’s Attorney intends to call the informant as a
witness or unless the failure to disclose the informant's
identity does not would infringe a constitutional right of the
defendant and the State's Attorney does not intend to call the
informant as a witness, or.
(3) Any other matter if the court finds that its disclosure
would entail a substantial risk of harm to any person outweighing
the interest in disclosure.
(d) Discovery by the State
Upon the request of the State, the defendant shall:
(1)
As to the Person of the Defendant
Appear in a lineup for identification; speak for
identification; be fingerprinted; pose for photographs not
involving reenactment of a scene; try on articles of clothing;
permit the taking of specimens of material under fingernails;
permit the taking of samples of blood, hair, and other material
involving no unreasonable intrusion upon the defendant's person;
provide handwriting specimens; and submit to reasonable physical
or mental examination;
(2)
Reports of Experts
Produce and permit the State to inspect and copy all
written reports made in connection with the action by each exp
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