STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

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NOTICE OF PROPOSED RULES CHANGES

The Rules Committee has submitted its Two Hundred and TwentyFourth Report to the Supreme Court of Maryland, transmitting thereby a

proposed new Preamble to the Maryland Rules; proposed new Rules 4-268, 9202.1, and 15-1601; and proposed amendments to current Rules 1-201, 1325, 1-332, 2-705, 3-711, 4-211, 4-213.1, 4-252, 4-262, 4-263, 4-271, 4-314,

5-606, 6-209, 6-311, 9-205.3, 10-108, 10-111, 10-201, 10-202, 10-402, 10403, 11-102, 11-302, 11-405, 11-406, 11-410, 11-419, 11-420.2, 11-422, 11423, 15-1302, 16-911, 16-912, 16-914, 16-915, 16-916, 16-933, 16-934, 17105, 18-101.2 (1.2), 18-201.2, 18-204.1, 18-305, 19-306.1, 19-504, 19-607,

19-737, 19-738, and 19-752.

The Committee’s Two Hundred and Twenty-Fourth Report and the

proposed Rules changes are set forth below.

Interested persons are asked to consider the Committee’s Report and

proposed Rules changes and to forward on or before May 2, 2025 any written

comments they may wish to make to rules@mdcourts.gov or:

Sandra F. Haines, Esquire

Reporter, Rules Committee

Judiciary A-POD

580 Taylor Avenue

Annapolis, Maryland 21401

Gregory Hilton

Clerk

Supreme Court of Maryland

THE SUPREME COURT OF MARYLAND

STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

Hon. YVETTE M. BRYANT, Chair

Hon. DOUGLAS R.M. NAZARIAN, Vice Chair

SANDRA F. HAINES, Reporter

COLBY L. SCHMIDT, Deputy Reporter

HEATHER COBUN, Assistant Reporter

MEREDITH A. DRUMMOND, Assistant Reporter

Judiciary A-POD

580 Taylor Avenue

Annapolis, Maryland 21401

(410) 260-3630

EMAIL: rules@mdcourts.gov

April 2, 2025

The Honorable Matthew J. Fader,

Chief Justice

The Honorable Shirley M. Watts

The Honorable Brynja M. Booth

The Honorable Jonathan Biran

The Honorable Steven B. Gould

The Honorable Angela M. Eaves,

The Honorable Peter K. Killough

Justices

The Supreme Court of Maryland

Robert C. Murphy Courts of Appeal Building

Annapolis, Maryland 21401

Honorable Justices:

The Rules Committee submits this, its Two Hundred and Twenty-Fourth

Report, and recommends that the Court adopt the new Rules and the proposed

amendments to existing Rules in the thirteen categories submitted in this

Report, which are as follows:

CATEGORY ONE consists of proposed changes to three Rules in Title 1 –

Rule 1-332, remanded following the Court’s March 19, 2024 open meeting on

the 221st Report; Rule 1-201, through which the Committee proposes adding a

new rule of construction; and Rule 1-325, which the Court referred to the

Committee following the Court’s consideration and adoption of amendments to

the “Waiver of Costs” Rule during its October 9, 2024 open meeting on the

223rd Report.

Following discussion of Rule 1-332 at its March 19, 2024 open meeting

on the 221st Report, the Court, having expressed concern that the definition of

“person with a disability” required clarification and that the language within

the Rule should be consistent with the Americans with Disabilities Act, 42

U.S.C. § 12101, et seq. (“ADA”), remanded the Rule for the Committee’s further

consideration. The General Court Administration Subcommittee of the Rules

Committee met on June 14, 2024 to address the remanded Rule. The

Subcommittee referred the Rule to an informal drafting group consisting of

local and national ADA experts, as well as representatives from the Maryland

Judicial Council Court Access Committee. The Subcommittee met again on

December 18, 2024 to review the work of the drafting group before

recommending changes to the full Rules Committee. The resultant product

reflects a consensus reached among the experts, internal stakeholders, and the

Rules Committee.

Having reconsidered and discussed its recommendation from the 221st

Report, the Committee, which addressed the Rule at its January 10, 2025

meeting, now recommends close adherence to the Federal Government’s

definition of persons who have disabilities, with one exception. The Committee

recommends using the term “person with a disability” rather than the term

“qualified person with a disability,” in an effort to avoid confusion over

individuals who may qualify for accommodations when accessing court

services. The proposed definition otherwise tracks the language set forth in the

ADA. As drafted, the definition is intended to apply to individuals who require

accommodations, and who can be accommodated.

Through the proposed change to Rule 1-201, the Committee proposes a

rule of construction to provide that the term “statute of limitations” includes a

statute of repose.

During its October 9, 2024 open meeting on the 223rd Report, the Court

adopted amendments to Rule 1-325, allowing for a self-represented litigant to

file one waiver request that encompasses both prepaid and final waivers of

open costs. Although the Maryland Legal Aid Bureau generally supported the

proposed amendments, it sought broader consideration by way of expanding

the Rule to allow legal service organizations to operate in like fashion when

requesting a waiver. Having taken the matter under consideration, the

Committee recommends extension of the “one-waiver request” process to

individuals represented by qualified attorneys or legal service organizations

that, as part of their services, apply a vetting process to ensure that the parties

they represent fall within indigency guidelines.

CATEGORY TWO consists of changes to Rules governing criminal and

juvenile causes. This category includes proposed amendments to Rules 4-262

and 4-263, as well as proposed new Rule 4-268, pertaining to discovery in

criminal proceedings, proposed amendments to Rules 4-213.1 and Rule 4-271

pertaining to the “Hicks” requirement, and proposed amendments to Rules 4252 and 11-419, pertaining to motions in criminal and juvenile causes.

Proposed amendments to the criminal discovery Rules were prompted by

the Report and Recommendations of the Committee on Equal Justice Rules

Review Subcommittee (hereinafter referred to as the “EJC Report”). In March

2023, the Judicial Council approved for dissemination the EJC Report. The

Rules Review Subcommittee had as its charge the identification of Rules which

“reflect, perpetuate, or fail to correct systemic biases.” The EJC Report offers

suggestions for improving the discovery processes outlined in Rules 4-262

(Discovery in District Court) and 4-263 (Discovery in Circuit Court).

Although the Committee did not adopt, wholesale, amendments

recommended in the EJC Report, and expressly declined to impose discovery

deadlines and required sanctions in the District Court, the Committee, after

considering both criminal discovery Rules, found value in recommending

inclusion of a Committee note that acknowledges “open file” discovery may not

be sufficient, in all cases, to satisfy the State’s discovery obligations. For

clarification, the Committee recommends outlining various sanctions that a

Court may impose upon determining there has been a failure of discovery in

Rule 4-262 (n). The Committee also recommends amending Rule 4-262

(d)(5)(C) and Rule 4-263 (d)(7)(C), to implement required disclosure of use of

facial recognition technology, as mandated by Code, Criminal Procedure

Article, § 2-504.

In addition to the above-recommended amendments, the Committee

recommends an amendment to Rule 4-263, suggested by the EJC Report, that

includes guidance related to requirements set forth in Code, Courts Article, §

10-924, pertaining to an in-custody witness who may receive a benefit in

exchange for testimony. Stylistic changes to both Rules also are recommended,

in order to conform various subsections to structural changes.

Finally, as pertains to discovery, the Committee proposes the addition of

Rule 4-268, implementing the mandate of Code, Courts Article, § 10-924(e)

that, upon request, a court must conduct a hearing prior to admitting

testimony of an in-custody witness to determine whether a State’s Attorney has

complied with disclosure requirements.

Amendments to Rules 4-213.1 and 4-271 are proposed as a result of a

question raised by a trial judge, primarily to clarify the intent to limit the

impact of limited appearances, such as appearances at bail hearings, on the

“Hicks Rule,” since neither Code, Criminal Procedure Article, § 6-103 nor Rule

4-271 directly address whether the “appearance of counsel” includes entry of a

limited appearance, as permitted in Rule 4-213.1.

In considering the proposed amendments, the Reporter’s staff recognized

that language regarding automatic termination of provisional representation by

the Public Defender was inadvertently removed from the Rule when, following

the 183rd Report, the language previously set forth in Rule 4-216 (e)(2) was

moved to new Rule 4-213.1 (g). The modification set forth in section (g) seeks

to correct this error, to conform the Rule to Code, Criminal Procedure Article,

§ 16-210(d)(3), and to correct the word “commission” to “commissioner.”

The proposed amendment to Rule 4-271 seeks to clarify that the time for

setting the trial date begins once an attorney enters an appearance pursuant to

Rule 4-214.

Amendments to Rules 4-252 and 11-419 are designed to bring attention

to Code, Criminal Procedure Article, § 2-502, which, with limited exceptions,

prohibits admissibility of facial recognition technology, and to raise awareness

of the potential need to raise admissibility concerns by way of a motion.

Proposed amendments to Rules 4-314, 11-102, 11-422, and 11-423

conform the Rules to Chapter 444, 2024 Laws of Maryland (HB 432), through

which the General Assembly made technical amendments to several statutes

by replacing the term “mental retardation” with the term “intellectual

disability.” Additionally, as pertains to Rule 11-102, a proposed amendment

adds to the cross-reference following section (a) the term “labor trafficking,”

following the General Assembly’s inclusion of that defined term in Code, Courts

Article, § 3-801. Finally, minor stylistic changes are made to the cross

references in Rule 11-422 and 11-423.

An amendment to Rule 11-302 conforms a cross reference in the Rule to

Chapters 348/349, 2024 Laws of Maryland (SB 550/HB 508), which shifted

the location of the “local department” in Code, Courts Article, § 3-801.

Proposed amendments to Rules 11-405 and 11-406 conform the Rules to

Code, Courts Article, §§ 3-8A-14 and 3-8A-15(k), which address requirements

for officers taking children into custody and waivers of required review hearings

for children taken into custody, respectively. An amendment to a cross

reference following Rule 11-420.2 (e) is offered to conform the reference to

Chapter 735, 2024 Laws of Maryland (HB 814), which changed the reference to

a new section in Code, Courts Article, § 3-8A-14.

CATEGORY THREE is a proposed amendment to Rule 5-606 that

emanates from the EJC Report and consideration of the impact of racial biases

on verdicts, as recognized in Peña-Rodriguez v. Colorado, 580 U.S. 206 (2017).

The proposed amendment carves out a limited exception to the prohibition

against jurors impeaching the verdict by allowing a juror to testify as to a clear

statement another juror made if the statement reveals the juror relied on a

racial or other unconstitutional stereotype or animus. Although the EJC

Report also recommended consideration of revelation of jurors’ notes, the

Committee declined to recommend any change to the manner in which courts

address jurors’ notes, choosing to continue to follow the American Bar

Association’s recommendation that jurors’ notes be collected and destroyed

post-trial.

CATEGORY FOUR addresses issues related to family law matters.

Proposed new Rule 9-202.1 and amendments to Rule 9-205.3 are in this

category.

Proposed new Rule 9-202.1 resulted from the EJC Report, which

suggested that the Committee, “in collaboration with the Child Support

Workgroup of the Domestic Law Committee,” review the service provisions of

Rule 1-321 to determine whether the existing procedural process is unfair to

low-income litigants. The Child Support Workgroup identified two barriers to

timely resolution of child support modifications: difficulty serving the motion

and the inability to file a modification motion as a counterclaim to a contempt

proceeding filed by the Child Support Administration. A key issue

undergirding the concern is the legislative prohibition against retroactive

modification of child support obligations. The prohibition against retroactivity,

in many instances, results in a lost opportunity to lower one’s support

obligation where a case cannot be completed due to a lack of service.

In an attempt to address the concern that cases are either dismissed or

bottle-necked due to service issues, the proposed new Rule establishes a path

to service via electronic means and permits counterclaims requesting

modification to be filed in contempt actions.

Proposed amendments to Rule 9-205.3 are designed to address bills

introduced in the General Assembly in 2024 (SB 365/HB 405) that outlined

qualifications and trainings for court-appointed custody evaluators, as well as

addressed the introduction of expert testimony in cases involving alleged abuse

by one parent. Similar bills were introduced in the 2025 Session of the

General Assembly (SB 25/HB 152). The proposed amendments to Rule 9205.3 are designed to address legislators’ desire to ensure that evaluators

receive appropriate training, including training in intimate partner violence,

child abuse, and related issues, as well as rework the Rule for purposes of

clarification.

Legislators also appeared to have a concern that educational and

training requirements should not be waived. The proposed amendments make

clear that while a waiver of educational and licensure requirements is possible

(a waiver of limited impact), training waivers are not permitted and continuing

education requirements must be met.

CATEGORY FIVE involves proposed amendments to various

guardianship rules.

A proposed amendment to Rule 10-111 was prompted by Chapters

11/12, 2024 Laws of Maryland (SB 411/HB 431), which renamed the Maryland

Department of Veterans Affairs to the Department of Veterans and Military

Families. Because the name mirrors that used by the federal government, the

Reporter undertook a contextual review of each reference to a “Department of

Veterans Affairs” in the Rules in an effort to determine whether any pertained

to the State agency. The Reporter determined that Rule 10-111 contains an

incorrect reference to an “Administrator” of the Department. Thus, the

Committee recommends this “housekeeping” amendment.

Amendments to Rules 10-201, 10-202, 10-402, and 10-403 result from

recommendations made by the Administrative Office of the Court’s Juvenile &

Family Services.

An amendment to Rule 10-201 seeks to clarify that a petition for an

expedited hearing in connection to a need for medical treatment may be filed

concurrently with or at any time following the filing of a petition for

guardianship. Amendments to Rule 10-202 replace the term “disabled person”

with the term “alleged disabled person,” which refers to the individual’s status,

pre-adjudication.

An amendment to Rule 10-402 would remove the requirement that a

candidate for standby guardianship disclose pending charges, since the

requirement, although added to the Rule, is not required by Code, Estates &

Trusts, § 11-114. The Code, rather, only imposes a prohibition on

appointment of individuals who have been convicted of certain crimes, absent a

showing of good cause. A second amendment to the Rule would eliminate a

reference in section (e) to the court ruling without a hearing, since Rule 10-404

requires a hearing on any petition filed pursuant to Rule 10-402. The

Committee recommends replacing the current language with an admonishment

that the court may rule on a petition without the recipient’s input if the

recipient fails to respond to the petition.

As is the case with Rule 10-402, the Committee recommends removing

from Rule 10-403 the requirement that a candidate for standby guardian

disclose pending charges.

CATEGORY SIX contains a proposed new Rule concerning derivative

actions. Senior Appellate Judge James Eyler suggested to the Committee that

a Rule concerning derivative actions would provide important guidance to

practitioners who could benefit from uniformity in understanding how best to

initiate and maintain derivative actions. Along with Senior Judge Ronald

Rubin and members of the Maryland State Bar Association’s Business Law

Section, Senior Appellate Judge Eyler presented to the Committee a proposed

new Rule, modeled after Fed. R. Civ. P. 23.1 and Delaware law. The

Committee, agreeing that such a Rule would provide guidance to attorneys as

well as promote uniformity in the State, recommends proposed new Rule 151601.

CATEGORY SEVEN comprises a proposed amendment to Rule 17-105,

involving confidentiality in mediation proceedings. The Administrative Office of

the Court’s Juvenile & Family Services requested clarification surrounding the

confidentiality of screening tools and the processes that courts use in

determining whether a matter should be referred for mediation, as may be

required by Rule 9-205.

The Committee learned that screening for potential abuse and/or

coercive control differs by jurisdiction, and the decision of whether to refer a

case to mediation could be based on paper screening, interviews, or use of the

piloted Mediators Assessment of Safety Issues and Concerns – Short (“MASICS”). Based on concerns raised by attorneys about confidentiality of screening

tools and information, Juvenile & Family Services requested clarification

concerning confidentiality of screening communications.

To eliminate confusion and to ensure that all jurisdictions hold

confidential all communications associated with the screening process, the

Committee recommends modifying Rule 17-105 by adding new section (f),

which generally provides that written documentation, as well as statements,

used to screen cases for mediation are confidential and disclosure of such

communications may not be compelled. The amendment also recognizes

section (f)’s subjectivity to section (b), which does prohibit parties from

disclosing details of mediation in court, but not in their personal lives.

CATEGORY EIGHT involves proposed amendments to several Rules in

Title 19, namely, Rules 19-737, 19-738, 19-752, 19-504, and 19-607. The

proposed amendments to Rules 19-737 (d)(1) and 19-738 (d), suggested by the

Clerk of the Supreme Court, seek to clarify that the time for an attorney to

respond to a show cause order runs from the time of service, rather than the

date the show cause order was issued.

Amendments to Rule 19-752 were borne of a listening session for the

EJC Report, at which time an attorney raised a concern that the reasons Bar

Counsel may oppose or support a petition for reinstatement are not always

discernable because the Rule, as currently drafted, does not require Bar

Counsel to include reasons for the opposition or support. The Committee

recommends amendment of section (e) to require Bar Counsel to provide the

reasons Bar Counsel opposes or supports a petition for reinstatement.

Additionally, in light of the fact that the Rule contains no mechanism for Bar

Counsel to seek an extension of time to respond, the EJC Report recommended

that Bar Counsel be permitted to seek an extension, but only for good cause

shown. The Committee recommends that Bar Counsel be permitted to request

an extension within the time period designated for a response; however, the

Committee does not recommend requiring a showing a good cause in the

language of the Rule. The Court may determine whether an extension is

appropriate.

Amendments to Rules 19-504 and 19-607 are recommended for

“housekeeping,” rather than substantive reasons. Rule 19-504 should be

amended to update internal references.

The amendment to 19-607 is also a “housekeeping” amendment;

however, it differs from Rule 19-504 in that the internal reference in need of

correction resulted from a 2016 typographical error that led the Rule to contain

an incorrect reference to payment methods, rather than a correct reference to

temporary suspension where an attorney fails to repay funds for a dishonored

check. The amendment will fix the typographical error by adding a correct

reference that pertains to temporary suspension.

CATEGORY NINE includes proposed amendments to Rules governing

access to judicial records.

Amendments to Rule 16-911 (f) implement Chapters 414/415, 2024

Laws of Maryland (HB 664/SB 575), the Judge Andrew F. Wilkinson Judicial

Security Act. The Act creates the Office of Information Privacy (“OIP”) in the

Administrative Office of the Courts. The Committee proposes the amendments

to ensure that the OIP’s records are treated as “administrative records” by

making clear that records created or maintained by the OIP are shielded from

public inspection.

Amendments to Rule 16-912 conform the Rule to a revision in Code,

Family Law Article, § 2-301, enacted as Chapter 175, 2022 Laws of Maryland

(HB 83), which prohibits minors under the age of 17 from marrying.

Amendments to Rule 16-914 implement Chapter 347, 2024 Laws of

Maryland (SB 19), codified as Code, Real Property Article, § 8-503, which

requires the District Court, without request, to shield certain landlord-tenant

actions if a failure to pay rent case does not result in a judgment of possession.

The proposed amendments require the custodian to deny inspection if the

records are shielded pursuant to the statute.

Amendments to Rule 4-211 implement Chapters 877/878, 2024 Laws of

Maryland (SB 111/HB 458), which prohibit public access to minor victims’

identifying information in criminal or delinquency matters. The proposed

change would implement a requirement that individuals filing such matters

must alert the Clerk of Court that filings contain non-public information that

must be redacted.

Amendments to Rule 11-410 also implement Chapters 877/878, 2024

Laws of Maryland (SB 111/HB 458). The proposed Rule change requires a

juvenile court, in a waiver order, to order the State’s Attorney or other filer to

ensure redaction of a minor victim’s identifying information or other restricted

information in a case record prior to transfer of the record to the court

exercising criminal jurisdiction.

An amendment to Rule 16-915 also implements the bill, by adding a

section that requires the custodian of records to deny inspection of a case

record that would reveal the name or other identifying information of a minor

victim in a criminal or delinquency action where the juvenile court waives

jurisdiction.

Rule 16-916 (b)(2) currently allows filers to notify the custodian that a

part of a case record filed prior to July 1, 2016 should be shielded from public

access. A proposed amendment to that Rule would permit either the filer, or

someone acting on behalf of the subject of a case record, to notify the clerk of

non-public information in the case record, regardless of when the record was

filed. The amendment also permits the Clerk of Court to refer the matter to a

judge for consideration if the Clerk requires guidance on whether a particular

record should be shielded.

In Rules 10-108 and 15-1302, cross-references are updated to conform

to the proposed amendments to Rule 16-915, which re-letter sections of that

Rule.

Amendments to Rule 16-933 are proposed to address vexatious,

frivolous, or repetitious requests for access to judicial records. Through new

subsection (a)(2), the Committee recommends permitting the State Court

Administrator (“SCA”) to seek relief pursuant to the Maryland Declaratory

Judgment Act. The proposed amendments also seek to make clear that both

the right to seek relief and the time for filing a response to a request apply

equally to the SCA and to the individual requesting access.

Amendments to Rule 16-934 are recommended at the behest of the Chief

Judge of the District Court. According to the Chief Judge, a process is

necessary to allow the District Court to rule on a motion to preclude or limit

inspection of a case record where there exists, on the face of the motion, no

basis to grant the motion. The amendment will help to address the significant

increase in the volume of non-meritorious motions now being presented to the

court.

CATEGORY TEN involves a recommendation for amendments to Rule 3711, predicated upon a concern raised by the Access to Counsel in Evictions

Task Force, established by Chapter 746, 2021 Laws of Maryland (HB 18). The

law requires landlords to provide a notice of intent to evict, and to notify

tenants of the right to speak with an attorney provided by a legal service

organization when facing an eviction proceeding. In enacting the legislation,

the General Assembly determined that the required written notice must be in a

form created by the Judiciary. A form was created for use by landlords;

however, the Task Force and service providers advised the Rules Committee

that landlords were not always using the standard form. The Court Access

Committee of the Judicial Council considered the concern and recommended a

Rule change requiring that notice be provided in the form approved by the

State Court Administrator.

The Rules Committee’s District Court Subcommittee considered the

request of the Task Force and Court Access Committee that the form approved

by the State Court Administrator be mandatory; however, the Subcommittee

preferred to allow use of a document “substantially in the form approved by the

State Court Administrator.” Representatives of the Task Force requested that

the Rules Committee remove the word “substantially,” arguing that Code, Real

Property, § 8-401 requires strict compliance by use of the Judiciary’s form.

The Committee recommends use of the Judiciary’s form, in deference to the

General Assembly’s intent, evidenced by language that reads “the notice shall

be in a form created by the Judiciary.”

The Court Access Committee also requested that Rule 3-711 require that

the landlord include a copy of the notice when filing a complaint, but a similar

provision was proposed during the 2024 Session of the General Assembly, and

was removed prior to the passage of Chapter 124, 2024 Laws of Maryland (HB

693). The Committee decided not to include such an amendment, since the

General Assembly opted out of adding that requirement.

CATEGORY ELEVEN consists of proposed amendments to Rules 6-209

and 6-311. The proposed amendments implement Chapters 318/319, 2024

Laws of Maryland (SB 80/HB 326), which limit those who may object to the

notice of appointment of a personal representative of a small or large estate to

“all interested persons and unpaid claimants.”

CATEGORY TWELVE brings before the Court proposals to amend Rules

18-101.2 and 18-201.2, which the Court remanded following consideration of

the Committee’s proposed amendments during the March 19, 2024 open

meeting on the 221st Report. The EJC Report recommended adding provisions

to various Rules in Title 4 to remind judges of the existence of implicit bias.

The Committee observed that implicit bias could affect other kinds of

proceedings, as well as criminal proceedings. Accordingly, the Committee

drafted the Title 1 and Title 18 Rules changes, which the Court considered

during the March open meeting.

At the March open meeting, the Court was asked to consider proposed

new Rule 1-342, which included a general reminder to judicial personnel of the

need for awareness of how the public may construe the manner in which

judicial statements or decisions are expressed and enforced and to avoid

making statements or taking actions others may feel indicates an unintended

bias. Additionally, the Court was asked to consider amendments to Rules 18102.3 and 18-202.3, which proposed adding comments discussing implicit

bias.

Upon remand, the Committee was charged to reconsider the language

used, in light of the Court’s discussion, as well as to relocate the contents of

proposed Rule 1-342 to Rules 18-101.2 and 18.201.2. Additionally, the

Committee was encouraged to consider developing a Title 1 Rule that serves as

an aspirational policy for the Judiciary. In lieu of a Title 1 Rule, the Committee

recommends the Preamble submitted for the Court’s consideration.

The proposed amendments to Rules 18-101.2 and 18.201.2 are modeled

after the existing provisions in the Rule but also caution judges and judicial

appointees to avoid conduct that would create in reasonable minds a

perception of bias based on certain enumerated traits. Proposed new Comment

6 provides judges guidance to remain alert for the potential for an appearance

of bias, guidance that is based in part on Belton v. State, 483 Md. 523 (2023),

and based in part on the Court’s comments during the March 2024 open

meeting.

CATEGORY THIRTEEN consists of proposed “housekeeping”

amendments to four Rules. The amendment to Rule 2-705 corrects a

grammatical error in section (a). Amendments to Rules 18-204.1 and 19-306.1

correct typographical errors. Amendments to Rule 18-305 replace several

incorrect references to Rules 18-703 and 18-704 with correct references to

Rules 18-603 and 18-604, respectively.

For the further guidance of the Court and the public, following the

proposed new Preamble, each proposed new Rule, and the proposed

amendments to each existing Rule is a Reporter’s note describing in further

detail the reasons for the proposals. We caution that the Reporter’s notes are

not part of the Rules, have not been debated or approved by the Committee,

and 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,

/s/

Yvette M. Bryant

Chair

cc: Hon. Douglas R. M. Nazarian, Vice Chair

Greg Hilton, Clerk

RULE 1-332

MARYLAND RULES OF PROCEDURE

TITLE 1 – GENERAL PROVISIONS

CHAPTER 300 – GENERAL PROVISIONS

AMEND Rule 1-332 by retitling the Rule “Reasonable Accommodations

for Persons with Disabilities”; by re-titling section (a) as “Applicability” and

adding a statement of applicability; by adding new section letter (b) before

“Definitions”; by adding new subsection (b)(2) defining “Person with a

Disability” with a cross reference following the subsection; by adding new

subsection (b)(3) defining “Reasonable Accommodation”; by renumbering

current subsection (a)(2) as (b)(4); by re-lettering current section (b) as section

deleting the tagline of re-lettered subsection (c)(1) and replacing it with

“Generally”; by clarifying in re-lettered subsection (c)(1) who may request a

reasonable accommodation; by adding a Committee note following re-lettered

subsection (c)(1); by creating new subsection (c)(2) containing provisions from

current subsection (b)(1), with amendments; by adding a Committee note after

new subsection (c)(2); by adding new section (d) governing the procedure when

a reasonable accommodation is requested; by adding new subsection (d)(1) and

a Committee note pertaining to the authority to make an accommodation

determination; by adding new subsection (d)(2) and a Committee note

pertaining to the interactive process; by adding new subsection (d)(3) and a

Committee note pertaining to the factors for consideration; by re-lettering

current subsection (b)(2) as new subsection (d)(4) and modifying the tagline; by

RULE 1-332

adding a provision to new subsection (d)(4) referring to compliance with Rule 1333 (c); by deleting current subsection (b)(3); by adding new subsection (d)(5)

pertaining to notice of the court’s determination; by adding new section (e)

requiring publication of data on accommodation requests; and by making

stylistic changes, as follows:

Rule 1-332. ACCOMMODATION UNDER THE AMERICANS WITH

DISABILITIES ACT REASONABLE ACCOMMODATIONS FOR PERSONS WITH

DISABILITIES

(a) Applicability

This Rule applies to accommodations for persons with disabilities.

(b) Definitions

In this Rule, the following definitions apply except as otherwise expressly

provided or as necessary implication requires:

(1) ADA

“ADA” means the Americans with Disabilities Act, 42 U.S.C. § 12101, et

seq.

(2) Person with a Disability

“Person with a disability” means an individual with a disability who

meets the essential eligibility requirements for the receipt of services or the

participation in court services, programs, or activities, with or without

reasonable modifications to policies, practices, or procedures, the removal of

RULE 1-332

architectural, communication, or transportation barriers, or the provision of

auxiliary aids and services.

Cross reference: See 42 U.S.C. § 12131.

(3) Reasonable Accommodation

“Reasonable accommodation” means a measure necessary to provide a

person with a disability the opportunity to access a court service, program, or

activity in a manner consistent with State and federal law. A reasonable

accommodation may include:

(A) a reasonable modification in policy, practice, or procedure;

(B) a reasonable modification to a deadline or time limit that Rule 1-204

permits to be modified but that does not alter a statutory deadline or a statute

of limitations;

these Rules;

(D) an auxiliary aid or service other than a personal device, including

equipment, that is made available without charge; and

Committee note: An auxiliary aid or service may include a qualified interpreter

or other effective method of making aurally delivered materials available to an

individual who is deaf or hard of hearing; a qualified reader, taped text, or

another effective method of making visually delivered materials available to an

individual who is blind or has low vision; acquisition or modification of

equipment or devices; and other similar services and actions. See 42 U.S.C. §

12103, 28 C.F.R. § 35.104, and 28 C.F.R. § 35.160.

(E) recognition of a supported decision-making arrangement entered

pursuant to Code, Estates and Trusts Article, Title 18.

(2)(4) Victim

RULE 1-332

“Victim” includes a victim's representative as defined in Code, Criminal

Procedure Article, § 11-104.

(b) Accommodation Under the ADA (c) Request for Reasonable

Accommodation

(1) Notification of Need for Accommodation Generally

A person An attorney, party, witness, victim, juror, prospective juror, or

member of the public requesting an a reasonable accommodation under the

ADA or other applicable Maryland or federal law for an attorney, a party, a

witness, a victim, a juror, or a prospective juror promptly shall notify the court

of the request.

Committee note: An individual authorized to act on behalf of the person with a

disability or with the permission of the person with a disability may request an

accommodation.

(2) Submission

To the extent practicable, a request for an a reasonable accommodation

shall be (1)(A) presented on a form approved by administrative order of the

Supreme Court the State Court Administrator, posted on the Judiciary website,

and available from the clerk of the court and on the Judiciary website and

(2)(B) submitted to the court not less than 30 days before the proceeding for

which the accommodation is requested. The request should include a case

number, if applicable, but need not be filed in a particular action or served on

any other party.

Committee note: This Rule does not impose a strict 30-day filing deadline and

recognizes that advance notice is not always practicable for all requests for

accommodation. Reasonable advance notice is required to the extent feasible

so that a court or staff can implement reasonable accommodations.

RULE 1-332

Insufficient advance notice may prevent the provision of a reasonable

accommodation.

(d) Determination of Request

(1) Authority to Determine

The court shall consider a reasonable accommodation request that

pertains to a motion before the court, the rescheduling of a case, or any other

matter that involves the administration of court proceedings or the substantive

rights of litigants. The court may approve the requested accommodation, deny

the requested accommodation, or offer an alternative accommodation. The

court may designate the ADA coordinator to consider and determine other

requests.

Committee note: Accommodation requests that may be considered and

determined administratively include requests that involve facilities, furniture,

and other available accommodations that do not involve substantive issues or

affect court procedure.

(2) Interactive Process

The court or designated ADA coordinator shall review the request and, if

appropriate, engage the requestor in an interactive process to determine a

reasonable accommodation.

Cross reference: See In the Matter of Chavis, 486 Md. 247 (2023), pertaining to

procedures and standards for evaluating a request for reasonable

accommodations under the ADA.

(3) Factors – Generally

In determining what, if any, accommodation to grant, the court or the

ADA coordinator shall:

RULE 1-332

(A) consider (i) the provisions of the ADA and applicable federal regulations

adopted under the ADA; (ii) Code, State Government Article, §§ 20-304 and 20901; (iii) Code, Courts Article, § 9-114; (iv) Code, Criminal Procedure Article, §§

1-202 and 3-103; and (v) other applicable Maryland and federal law;

(B) give primary consideration to the accommodation requested;

alteration of the nature of a court service, program, or activity or (ii) an undue

financial and administrative burden; and

(D) make the determination on an individual and case-specific basis, with

due regard to the nature of the disability and the feasibility of the requested

accommodation.

Committee note: In considering reasonable accommodations for a person with

a disability, the primary focus is on providing accommodations that enable the

individual to participate in or qualify for a program, service, or activity. The

focus must not be on the extent of the individual’s impairment.

(2)(4) Request for Sign Language Interpreter

The If the accommodation requested is the provision of a sign language

interpreter, the court shall determine whether a sign language interpreter is

needed in accordance with the requirements of the ADA;, Code, Courts Article,

§ 9-114;, and Code, Criminal Procedure Article, §§ 1-202 and 3-103. If the

request is granted, the court shall appoint a sign language interpreter in

accordance with Rule 1-333 (c).

(3) Provision of Accommodation

RULE 1-332

The court shall provide an accommodation if one is required under the

ADA. If the accommodation is the provision of a sign language interpreter, the

court shall appoint one in accordance with Rule 1-333 (c).

(5) Notification of Determination

The court or ADA coordinator promptly shall notify the requestor of its

accommodation determination. If a requested accommodation is denied, the

court or ADA coordinator shall specify the reason for the denial.

(e) Publication of Data on Accommodation Requests

Each court shall submit an annual report to the State Court

Administrator, without identifying information and in a manner that protects

the identities of those requesting accommodations, containing (1) data on the

number and types of reasonable accommodation requests submitted, (2) the

types of reasonable accommodations granted, and (3) the number of reasonable

accommodation requests denied. The State Court Administrator shall publish

a compilation of the data on the Judiciary website.

Source: This Rule is new.

REPORTER’S NOTE

Proposed amendments to Rule 1-332 update and clarify the procedures

for requesting, considering, and providing reasonable accommodations to

individuals with disabilities seeking to access Maryland courts. The Supreme

Court considered proposed amendments to Rule 1-332 at an open meeting on

the 221st Report on March 19, 2024. After discussion, the Court remanded the

Rule to the Committee for further study. The Court instructed the Committee

to ensure that the language in the proposed Rule is consistent with the

Americans with Disabilities Act (“the ADA”) and provides at least the same

minimum protections.

RULE 1-332

The General Court Administration Subcommittee discussed a proposed

draft in response to the remand at its June 14, 2024 meeting. After

considering the comments made by consultants, the Subcommittee referred the

Rule to an informal drafting group consisting of local and national ADA experts

and representatives from the Maryland Judicial Council Court Access

Committee. Rules Committee staff worked with subject matter experts over the

summer and the resulting draft generally reflects the consensus among these

experts as well as internal stakeholders. The General Court Administration

Subcommittee met again on December 18, 2024 and considered proposed

amendments recommended by the drafting group.

The Rule is proposed to be renamed to address accommodations more

broadly for persons with disabilities instead of only accommodations under the

ADA. New section (a) addresses the broader application.

Several definitions are added to new section (b). “Person with a

disability” is defined in new subsection (b)(2). The reworked definition is

derived from the ADA (42 U.S.C. § 12131). The ADA uses the term “qualified

person with a disability,” but the drafting group suggested avoidance of the

term “qualified” as it may lead to confusion. The Subcommittee discussed the

necessity and clarity of the definition, concluding that it is helpful to set forth

to whom the Rule applies. The Subcommittee was informed that an individual

may have a disability but not require any accommodation to access the courts.

Conversely, there may be individuals who cannot be accommodated due to the

various provisions of the ADA that rule out accommodations that would impose

a substantial burden on the court. The definition narrows the applicability of

the Rule to individuals who require accommodations and who can be

accommodated.

The proposed definition for “reasonable accommodation” in new

subsection (b)(3) is similar to the definition of “accommodation” proposed in the

221st Report, with some changes. “Reasonable accommodation” is a term used

throughout the ADA. It more accurately reflects the Act’s requirements since

an entity is only required to make accommodations that are reasonable,

meaning consistent with State and federal law. The drafting group suggested

the expansion of the Committee note following the subsection on auxiliary aids

and services to provide guidance on types of auxiliary aids and services,

derived in part from 42 U.S.C. § 12103. Statutory references are included in

the Committee note. A new subsection (b)(3)(E) pertaining to supported

decision-making arrangements was also suggested by the drafting group.

Section (c) governs the request for a reasonable accommodation. The

drafting group discussed how to permit a third party to make a request on

behalf of a person with a disability without encouraging unwanted intervention,

which undercuts the autonomy of the person with the disability. The group

ultimately recommended the addition of a provision that notice may come from

another individual authorized to act on that individual’s behalf. This is

RULE 1-332

reflected in the Committee note. The drafting group also suggested clarifying

that the request does not have to be filed in an action or served on any party.

The Committee note following subsection (c)(2) is rephrased from the way it was

presented in the 221st Report to clarify that an accommodation request is

allowed to be made less than 30 days before the proceeding but cautions that

insufficient notice may prevent the accommodation being provided.

Section (d) is significantly restructured from its 221st Report version.

Subsection (d)(1) sets forth the accommodation requests that must be

considered by a judge in contrast to accommodations that may be determined

by the designated ADA coordinator. Subsection (d)(2) adds the concept of an

interactive process. The drafting group advised that the prior proposed

language implied that the person with a disability made an accommodation

request and the court or ADA coordinator granted or denied that request. In

practice, if the request for accommodation cannot be granted, the court should

engage in a dialogue with the requester to consider alternatives. A cross

reference to a recent case on the procedures and standards for evaluating a

request for reasonable accommodations provides additional guidance. The

factors in subsection (d)(3) are modified from the 221st version to correct

citations and make stylistic changes. They are derived from State and federal

laws and regulations.

New section (e) establishes certain reporting requirements regarding

requests for reasonable accommodations and the accommodations granted and

denied.

RULE 1-201

MARYLAND RULES OF PROCEDURE

TITLE 1 – GENERAL PROVISIONS

CHAPTER 200 – CONSTRUCTION, INTERPRETATION, AND DEFINITIONS

AMEND Rule 1-201 by adding new section (f), as follows:

Rule 1-201. RULES OF CONSTRUCTION

(a) General

These rules shall be construed to secure simplicity in procedure, fairness

in administration, and elimination of unjustifiable expense and delay. When a

rule, by the word “shall” or otherwise, mandates or prohibits conduct, the

consequences of noncompliance are those prescribed by these rules or by

statute. If no consequences are prescribed, the court may compel compliance

with the rule or may determine the consequences of the noncompliance in light

of the totality of the circumstances and the purpose of the rule.

(b) Jurisdiction and Venue Unaffected

These rules shall not be construed to extend or limit the jurisdiction of any

court or, except as expressly provided, the venue of actions.

Neither these rules nor omissions from these rules supersede common law

or statute unless inconsistent with these rules.

(d) Singular and Plural – Gender

Words in the singular include the plural and words in any gender include

all genders except as necessary implication requires.

RULE 1-201

(e) Headings, References, and Notes Not Rules

Headings, subheadings, cross references, committee notes, source

references, and annotations are not part of these rules.

(f) Statute of Limitations

The term “statute of limitations” includes a statute of repose, except as

necessary implication requires.

Source: This Rule is derived as follows:

Section (a) is in part consistent with the 1966 version of Fed. R. Civ. P. 1 and is

derived from former Rule 701. The last two sentences are new.

Section (b) is derived from former Rule 1 h and i.

Section (c) is derived from former Rules 1 g and 701.

Section (d) is derived from former Rule 2 c.

Section (e) is derived from former Rule 2 b.

Section (f) is new.

REPORTER’S NOTE

The proposed amendment to Rule 1-201 adds a rule of constitution to

clarify that “statute of limitations” includes a statute of repose, except as

necessary implication requires. “Statute of limitations” is used in several

locations in the Rules and in most contexts would include a statute of repose

(e.g., Rules 2-101, 2-323, 2-506, 3-101, and 19-301.3). It is also used in the

proposed amendments to Rule 1-332.

RULE 1-325

MARYLAND RULES OF PROCEDURE

TITLE 1 – GENERAL PROVISIONS

CHAPTER 300 – GENERAL PROVISIONS

AMEND Rule 1-325 by adding “Request for Court Waiver of Open Costs”

to the tagline of section (d); by creating new subsection (d)(1) with the existing

provisions of section (d); by re-lettering current subsections (d)(1) and (d)(2) as

(d)(1)(A) and (d)(1)(B), respectively; by re-lettering current subsections (d)(1)(A)

and (d)(1)(B) as (d)(1)(A)(i) and (d)(1)(A)(ii), respectively; by re-lettering current

subsections (d)(1)(A)(i) through (d)(1)(A)(iii) as (d)(1)(A)(i)(a) through (d)(1)(A)(i)(c),

respectively; by adding new subsection (d)(2) governing a request for waiver of

open costs; by adding a reference to new subsection (d)(2) to subsections

(f)(2)(A) and (f)(2)(B); by updating the affidavit requirement in subsection

(f)(2)(B); and by making stylistic changes, as follows:

Rule 1-325. WAIVER OF COSTS DUE TO INDIGENCE – GENERALLY

(a) Scope

This Rule applies only to (1) original civil actions in a circuit court or the

District Court and (2) requests for relief that are civil in nature filed in a

criminal action.

Committee note: Original civil actions in a circuit court include actions

governed by the Rules in Title 7, Chapter 200, 300, and 400. Requests for

relief that are civil in nature filed in a criminal action include petitions for

expungement and requests to shield all or part of a record.

(b) Definition

RULE 1-325

In this Rule, “prepaid costs” means costs that, unless prepayment is

waived pursuant to this Rule, must be paid prior to the clerk's docketing or

accepting for docketing a pleading or paper or taking other requested action.

Committee note: “Prepaid costs” may include a fee to file an initial complaint

or a motion to reopen a case, a fee for entry of the appearance of an attorney,

and any prepaid compensation, fee, or expense of a magistrate or examiner.

See Rules 1-501, 2-541, 2-542, 2-603, and 9-208.

No filing fee shall be charged for the filing of the request for waiver of

prepaid costs pursuant to section (d) or (e) of this Rule.

(d) Waiver of Prepaid Costs by Clerk; Request for Court Waiver of Open Costs

(1) Prepaid Costs

On written request, the clerk shall waive the prepayment of prepaid

costs, without the need for a court order, if:

(1)(A) the party is an individual who is represented (A)(i) by an attorney

retained through a pro bono or legal services program on a list of programs

serving low income low-income individuals that is submitted by the Maryland

Legal Services Corporation to the State Court Administrator and posted on the

Judiciary website, provided that an authorized agent of the program provides

the clerk with a statement that (i)(a) names the program, attorney, and party;

(ii)(b) states that the attorney is associated with the program and the party

meets the financial eligibility criteria of the Corporation; and (iii)(c) attests that

the payment of filing fees is not subject to Code, Courts Article, § 5-1002 (the

Prisoner Litigation Act), or (B)(ii) by an attorney provided by the Maryland Legal

Aid Bureau, Inc. or the Office of the Public Defender, and

RULE 1-325

(2)(B) except for an attorney employed or appointed by the Office of the

Public Defender in a civil action in which that Office is required by statute to

represent the party, the attorney certifies that, to the best of the attorney's

knowledge, information, and belief, there is good ground to support the claim,

application, or request for process and it is not interposed for any improper

purpose or delay.

Committee note: The Public Defender represents indigent individuals in a

number of civil actions. See Code, Criminal Procedure Article, § 16-204(b).

Cross reference: See Rule 1-311 (b) and Rule 19-303.1 (3.1) of the Maryland

Attorneys’ Rules of Professional Conduct.

(2) Request for Waiver of Open Costs at Conclusion of Action

A request under subsection (d)(1) of this Rule may include a request for

final waiver of open costs by the court at the conclusion of the action. The

request for final waiver of open costs shall include the attorney’s certification

that the attorney’s client signed an affidavit stating that the client does not

anticipate a material change in the financial information contained in the

client’s application for representation. The court shall consider the request at

the conclusion of the action in accordance with section (f) of this Rule.

(e) Waiver of Costs by Court

(1) Prepaid Costs

(A) Request for Waiver

An individual unable by reason of poverty to pay a prepaid cost and not

subject to a waiver under section (d) of this Rule may file a request for an order

waiving the prepayment of the prepaid cost. The request shall be accompanied

RULE 1-325

by (i) the pleading or paper sought to be filed; (ii) an affidavit substantially in

the form approved by the State Court Administrator, posted on the Judiciary

website, and available in the Clerks' offices; and (iii) if the individual is

represented by an attorney, the attorney's certification that, to the best of the

attorney's knowledge, information, and belief, there is good ground to support

the claim, application, or request for process and it is not interposed for any

improper purpose or delay.

Cross reference: See Rule 1-311 (b) and Rule 19-303.1 (3.1) of the Maryland

Attorneys’ Rules of Professional Conduct.

(B) Review by Court; Factors to be Considered

The court shall review the papers presented and may require the

individual to supplement or explain any of the matters set forth in the papers.

In determining whether to grant a prepayment waiver, the court shall consider:

(i) whether the individual has a family household income that qualifies

under the client income guidelines for the Maryland Legal Services Corporation

for the current year, which shall be posted on the Judiciary website; and

(ii) any other factor that may be relevant to the individual's ability to

pay the prepaid cost.

If the court finds that the party is unable by reason of poverty to pay the

prepaid cost and that the pleading or paper sought to be filed does not appear,

on its face, to be frivolous, it shall enter an order waiving prepayment of the

prepaid cost. In its order, the court shall state the basis for granting or

denying the request for waiver. If the court denies, in whole or in part, a

RULE 1-325

request for the waiver of its prepaid costs, it shall permit the party, within 10

days, to pay the unwaived prepaid cost. If, within that time, the party pays the

full amount of the unwaived prepaid costs, the pleading or paper shall be

deemed to have been filed on the date the request for waiver was filed. If the

unwaived prepaid costs are not paid in full within the time allowed, the

pleading or paper shall be deemed to have been withdrawn.

(2) Request for Waiver of Open Costs at Conclusion of Action

A request under subsection (e)(1) of this Rule may include a request for

final waiver of open costs at the conclusion of the action. The request shall

indicate in the affidavit required by subsection (e)(1) of this Rule that the

individual does not anticipate a material change in the information provided in

the affidavit. The court shall consider the request at the conclusion of the

action in accordance with section (f) of this Rule.

(f) Award of Costs at Conclusion of Action

(1) Generally

At the conclusion of an action, the court and the clerk shall allocate and

award costs as required or permitted by law.

Cross reference: See Rules 2-603, 3-603, 7-116, and Mattison v. Gelber, 202

Md. App. 44 (2011).

(2) Waiver

(A) Request

At the conclusion of an action, a party who otherwise did not request a

final waiver of open costs pursuant to subsection (d)(2) or (e)(2) of this Rule

may seek a final waiver of open costs, including any unpaid appearance fee, by

RULE 1-325

filing a request for the waiver, together with (i) an affidavit substantially in the

form prescribed by subsection (e)(1)(B) of this Rule, or (ii) if the party was

granted a waiver of prepayment of prepaid costs by court order pursuant to

section (e) of this Rule and remains unable to pay the costs, an affidavit that

recites the existence of the prior waiver and the party's continued inability to

pay by reason of poverty.

(B) Determination by Court

In an action under Title 9, Chapter 200 of these Rules or Title 10 of

these Rules, the court shall grant a final waiver of open costs if the

requirements of Rules 2-603 (e) or 10-107 (b), as applicable, are met. In all

other civil matters, the court may grant a final waiver of open costs if the party

against whom the costs are assessed is unable to pay them by reason of

poverty. The court may require a party who requested a final waiver of open

costs pursuant to subsection (d)(2) or (e)(2) of this Rule to file the supplemental

affidavit required by subsection (f)(2)(A)(ii) of this Rule an affidavit stating that

the party (i) was granted a prior waiver of prepaid costs in the action pursuant

to this Rule and (ii) remains unable to pay the costs by reason of poverty.

Source: This Rule is new.

REPORTER’S NOTE

The Supreme Court considered proposed amendments to Rule 1-325 at

an open meeting on the 223rd Report on October 9, 2024. After discussion, the

Court adopted the proposed amendments, which generally allow for a selfrepresented litigant to file one request for both a waiver of prepaid costs and

final waiver of open costs.

RULE 1-325

The Court received a supportive comment on the amendments from

Maryland Legal Aid (see attached) but the comment also requested that the

proposed change be expanded to apply to waiver requests from parties

represented by qualified legal services organizations, such as Legal Aid. The

Court chose to enact the proposed amendments to Rule 1-325 as presented

and referred to the Committee the matter of expanding the applicability of the

new provisions.

Proposed amendments to Rule 1-325 extend the “one waiver request”

process to parties who are represented by qualified attorneys or legal services

organizations.

New subsection (d)(1) contains the current provisions of section (d)

governing waiver of prepaid costs. Subsections within new subsection (d)(1)

are adjusted.

New subsection (d)(2) permits a request for a waiver of prepaid costs to

include a request for final waiver of open costs. The request must include a

certification by the attorney that the client has averred that the client does not

anticipate a material change in the financial information provided to qualify for

representation by a Maryland Legal Services Corporation program. Subsection

(d)(2) instructs the court to consider the request for final waiver of open costs

at the conclusion of the action in accordance with section (f).

Subsection (f)(2) is amended to add references to a waiver requested

pursuant to subsection (d)(2). Subsection (f)(2)(B) is amended to delete

reference to the supplemental affidavit required by subsection (f)(2)(A)(ii) and

instead restates the required substance of the affidavit (“that the party (i) was

granted a prior waiver of prepaid costs in the action pursuant to this Rule and

(ii) remains unable to pay the costs by reason of poverty”). According to a Legal

Aid attorney, service providers like Legal Aid conduct a detailed review of the

income and assets of potential clients to determine their eligibility. These

reviews are done periodically during representation to ensure that clients

maintain their eligibility. Legal Aid requested that the supplemental affidavit

provision in subsection (f)(2) be stricken in light of the review process. The

provision was retained to permit judges to exercise discretion.

RULE 4-262

MARYLAND RULES OF PROCEDURE

TITLE 4 – CRIMINAL CAUSES

CHAPTER 200 – PRETRIAL PROCEDURES

AMEND Rule 4-262 by adding a Committee note after subsection (c)(2);

by deleting the current tagline of subsection (d)(1); by creating new subsections

(d)(1) and (d)(2) with the language of current subsection (d)(1); by deleting the

tagline and stem language of current subsection (d)(2) requiring a defendant to

submit a written request to obtain certain disclosures; by renumbering

subsections (d)(2)(A) though (d)(2)(F) as subsections (d)(3) through (d)(8),

respectively; by adding new subsection (d)(5)(C) pertaining to facial recognition

technology; by adding clarifying language and deleting language referring to

discovery requests in section (i); by adding new language to section (n)

concerning sanctions; and by making stylistic changes, as follows:

Rule 4-262. DISCOVERY IN DISTRICT COURT

(a) Applicability

This Rule governs discovery and inspection in the District Court.

Discovery is available in the District Court in actions that are punishable by

imprisonment.

Committee note: This Rule also governs discovery in actions transferred from

District Court to circuit court upon a jury trial demand made in accordance

with Rule 4-301 (b)(1)(B). See Rule 4-301 (c).

(b) Definitions

RULE 4-262

In this Rule, the terms “defense,” “defense witness,” “oral statement,”

“provide,” “State's witness,” and “written statement” have the meanings stated

in Rule 4-263 (b).

Cross reference: For the definition of “State's Attorney,” see Rule 4-102 (l).

(1) Due Diligence

The State's Attorney and defense shall exercise due diligence to identify all

of the material and information that must be disclosed under this Rule.

(2) Scope of Obligations

The obligations of the State's Attorney and the defense extend to material

and information that must be disclosed under this Rule and that are in the

possession or control of the attorney, members of the attorney's staff, or any

other person who either reports regularly to the attorney's office or has

reported to the attorney's office in regard to the particular case.

Committee note: In many jurisdictions, the State complies with discovery

requirements imposed under Rules 4-262 and 4-263 through “open file”

discovery. While, in appropriate cases, “open file” discovery may satisfy the

State’s discovery obligation, the full scope of discovery may require provision of

additional discovery material beyond that contained in the “open file,” as

expressly outlined in Rules 4-262 (c) and 4-263 (c).

Cross reference: For the obligations of the State's Attorney, see State v.

Williams, 392 Md. 194 (2006).

(d) Disclosure by the State's Attorney

(1) Without Request

Without the necessity of a request, the State's Attorney shall provide to

the defense:

RULE 4-262

(1) Exculpatory Information

all All material or information in any form, whether or not admissible,

that tends to exculpate the defendant or negate or mitigate the defendant's

guilt or punishment as to the offense charged;

(2) Impeachment Information

and all All material or information in any form, whether or not admissible,

that tends to impeach a State's witness.;

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); U.S. v. Agurs, 427 U.S.

97 (1976); Thomas v. State, 372 Md. 342 (2002); Goldsmith v. State, 337 Md.

112 (1995); and Lyba v. State, 321 Md. 564 (1991).

(2) On Request

On written request of the defense, the State's Attorney shall provide to the

defense:

(A)(3) Statements of Defendant and Co-defendant

All written and all oral statements of the defendant and of any codefendant that relate to the offense charged and all material and information,

including documents and recordings, that relate to the acquisition of such

statements;

(B)(4) Written Statements, Identity, and Telephone Numbers of State's

Witnesses

As to each State's witness the State's Attorney intends to call to prove

the State's case in chief or to rebut alibi testimony: (i)(A) the name of the

witness; (ii)(B) except as provided under Code, Criminal Procedure Article, § 11205 or Rule 16-934, the address and, if known to the State's Attorney, the

RULE 4-262

telephone number of the witness,; and (iii)(C) the statements of the witness

relating to the offense charged that are in a writing signed or adopted by the

witness or are in a police or investigative report;

(C)(5) Searches, Seizures, Surveillance, and Pretrial Identification

All relevant material or information regarding:

(i)(A) specific searches and seizures, eavesdropping, or electronic

surveillance including wiretaps; and

(ii)(B) pretrial identification of the defendant by a State's witness; and

Criminal Procedure Article, § 2-504;

Committee note: In addition to disclosure of a pretrial identification of a

defendant by a State's witness, in some cases, disclosure of a pretrial

identification of a co-defendant by a State's witness also may be required. See

Green v. State, 456 Md. 97 (2017).

(D)(6) Reports or Statements of Experts

As to each State's witness the State's Attorney intends to call to testify as

an expert witness other than at a preliminary hearing:

(i)(A) the expert's name and address, the subject matter on which the

expert is expected to testify, the substance of the expert's findings and

opinions, and a summary of the grounds for each opinion;

(ii)(B) the opportunity to inspect and copy all written reports or statements

made in connection with the action by the expert, including the results of any

physical or mental examination, scientific test, experiment, or comparison; and

(iii)(C) the substance of any oral report and conclusion by the expert;

(E)(7) Evidence for Use at Trial

RULE 4-262

The opportunity to inspect, copy, and photograph all documents,

computer-generated evidence as defined in Rule 2-504.3 (a), recordings,

photographs, or other tangible things that the State's Attorney intends to use

at a hearing or at trial; and

(F)(8) Property of the Defendant

The opportunity to inspect, copy, and photograph all items obtained

from or belonging to the defendant, whether or not the State's Attorney intends

to use the item at a hearing or at trial.

(e) Disclosure by Defense

On written request of the State's Attorney, the defense shall provide to the

State's Attorney:

(1) Reports or Statements of Experts

As to each defense witness the defense intends to call to testify as an

expert witness:

(A) 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;

(B) the opportunity to inspect and copy all written reports or statements

made in connection with the action by the expert, including the results of any

physical or mental examination, scientific test, experiment, or comparison; and

(2) Defense of Duress

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Notice of an intention to rely on a defense of duress pursuant to Code,

Criminal Law Article, § 11-306(c).

(3) Documents, Computer-Generated Evidence, and Other Things

The opportunity 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 defense intends to use at a

hearing or at trial.

(f) Person of the Defendant

(1) On Request

On written request of the State's Attorney that includes reasonable notice

of the time and place, the defendant shall appear for the purpose of:

(A) providing fingerprints, photographs, handwriting exemplars, or voice

exemplars;

(B) appearing, moving, or speaking for identification in a lineup; or

(2) On Motion

On motion filed by the State's Attorney, with reasonable notice to the

defense, the court, for good cause shown, shall order the defendant to appear

and (A) permit the taking of buccal samples, samples of other materials of the

body, or specimens of blood, urine, saliva, breath, hair, nails, or material under

the nails or (B) submit to a reasonable physical or mental examination.

(g) Matters Not Discoverable

(1) By Any Party

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Notwithstanding any other provision of this Rule, neither the State's

Attorney nor the defense is required to disclose (A) the mental impressions,

trial strategy, personal beliefs, or other privileged attorney work product or (B)

any other material or information if the court finds that its disclosure is not

constitutionally required and would entail a substantial risk of harm to any

person that outweighs the interest in disclosure.

(2) By the Defense

The State's Attorney is not required to disclose the identity of a

confidential informant unless the State's Attorney intends to call the informant

as a State's witness or unless the failure to disclose the informant's identity

would infringe a constitutional right of the defendant.

(h) Continuing Duty to Disclose

Each party is under a continuing obligation to produce discoverable

material and information to the other side. A party who has responded to a

request or order for discovery and who obtains further material information

shall supplement the response promptly.

(i) Procedure

To the extent practicable, the discovery and inspection required or

permitted by this Rule shall be completed before the hearing or trial date,

except that asserting a defense pursuant to subsection (e)(2) of this Rule shall

be made at least 10 days before the trial. If a request was made before the date

of the hearing or trial and the request was refused or denied, or pretrial

compliance was impracticable If compliance was refused, denied, or

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impracticable, the court may grant a delay or continuance in the hearing or

trial to permit the inspection or discovery.

(j) Requests, Motions, and Responses to be filed with the Court

Requests for discovery, motions for discovery, and any responses to the

requests or motions shall be filed with the court.

(k) Discovery Material not to be Filed with the Court

Except as otherwise provided in these Rules or by order of court, discovery

material shall not be filed with the court. This section does not preclude the

use of discovery material at trial or as an exhibit to support or oppose a

motion.

(l) Retention; Inspection of Original

The party generating discovery material shall retain the original until the

expiration of any sentence imposed on the defendant and, on request, shall

make the original available for inspection and copying by the other party.

(m) Protective Orders

On motion of a party, a person from whom discovery is sought, or a person

named or depicted in an item sought to be discovered, the court, for good cause

shown, may order that specified disclosures be denied or restricted in any

manner that justice requires.

(n) Failure to Comply With Discovery Obligation

If at any time during the proceedings the court finds that a party has failed

to comply with this Rule or an order issued pursuant to this Rule, the court

may order that party to permit the discovery of the matters not previously

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disclosed, strike the testimony to which the undisclosed matter relates, grant a

reasonable continuance, prohibit the party from introducing in evidence the

matter not disclosed, grant a mistrial, or enter any other order appropriate

under the circumstances. The failure of a party to comply with a discovery

obligation in this Rule does not automatically disqualify a witness from

testifying. If a motion is filed to disqualify the witness's testimony,

disqualification is within the discretion of the court.

Source: This Rule is new.

REPORTER’S NOTE

In March 2023, the Judicial Council approved for dissemination the

Report and Recommendations of the Committee on Equal Justice Rules Review

Subcommittee (hereinafter “the EJC Report”). The Rules Review Subcommittee

was tasked with identifying instances in the Rules which “reflect, perpetuate,

or fail to correct systemic biases.” The EJC Report includes suggestions to

improve the process of criminal discovery, impacting Rules 4-262 and 4-263.

Rule 4-262 concerns discovery for criminal cases in the District Court.

The EJC Report discussed a proposed amendment that would institute a fixed

deadline for providing discovery before trial in the District Court and would

compel sanctions if the deadline was not met. The EJC Report acknowledged

that the turnaround time from forensic laboratories must be considered when

modifying discovery timeframes. In addition, sanctions are not intended as

punishment, but primarily aim to ensure a fair trial. Although the imposition

of sanctions is within the discretion of the court, there are well-established

principles that a court should apply before determining a proper sanction.

The concept of a discovery deadline in the District Court has been

discussed several times by the Rules Committee in the last two decades. For

example, in its 163rd Report, the Rules Committee proposed amendments to

section (i) of Rule 4-262 governing discovery procedure in the District Court.

The proposed amendment added the phrase “to the extent practicable” before

language requiring discovery and inspection to be completed before the hearing

or trial. Similar new language in that section permitted a delay or continuance

if “pretrial compliance was impracticable.” The Reporter’s note to Rule 4-262

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explained, “The Rules Committee believes that specific deadlines for requesting

and providing discovery would not be compatible with District Court practice,

and therefore declines to recommend the addition of discovery deadlines to

Rule 4-262.” The proposed amendments to section (i) were adopted by Rules

Order filed on March 9, 2010.

The Rules Committee has determined that a discovery deadline is not

practicable at this time and declined the EJC Report’s suggestion to add a

deadline to Rule 4-262. However, several other amendments are proposed to

Rule 4-262, primarily addressing additional concerns raised by the EJC

Report.

A new Committee note after subsection (c)(2) acknowledges that some

prosecutors comply with their discovery obligations by using “open file”

discovery. The Committee note highlights that additional materials may still be

required as outlined in the Rule. A parallel Committee note is proposed in Rule

4-263.

Rule 4-262 sets forth mandatory disclosures to the defendant in the

District Court. Certain additional materials must be provided if a written

request is made by the defendant. The EJC Report noted that requiring a

written request may present an obstacle for unrepresented defendants and

recommended that the Rules Committee consider expanding the list of

mandatory disclosures provided without request.

In current Rule 4-262, subsection (d)(1) addresses discovery materials

that must be provided without request and subsection (d)(2) lists materials that

must be provided after a written request. Proposed amendments to section (d)

in effect combine the two sections, making all of the discovery materials listed

in section (d) required without the necessity of a request.

Proposed new subsection (d)(5)(C) implements Chapters 808/809, 2024

Laws of Maryland (SB 182/HB338). The new legislation adds a subtitle to the

Criminal Procedure Article governing the use of facial recognition technology.

Code, Criminal Procedure Article, § 2-504 requires that the State disclose in

discovery certain information if facial recognition technology was used in an

investigation. New subsection (d)(5)(C) in Rule 4-262 explicitly incorporates

this mandatory disclosure.

Stylistic changes are made as needed in section (d) to conform the

subsections to the structural change.

Clarifying language is added to section (i), noting that discovery and

inspection shall, if practicable, be completed before the date of the hearing or

trial. This change aims to limit the cases where discovery is completed on the

same day as a scheduled proceeding, often prompting a postponement request.

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The second sentence of the section is amended to reflect that discovery

pursuant to section (d) no longer requires a request.

Section (n) concerns sanctions if a party fails to comply with discovery

obligations. Despite comments received from some justice partners, the EJC

Report discouraged the use of mandatory sanctions for discovery violations in

the circuit court, but recommended that the Rules Committee consider

whether a postponement should be the presumptive remedy for a failure to

timely meet discovery obligations in the District Court.

In regard to sanctions, the Rules Committee determined that the current

Rule allows the court to fashion an appropriate response to a discovery

violation. The Committee declined to limit the court’s discretion by creating

presumptive remedies for discovery violations.

A proposed amendment to section (n) instead adds the same language that

appears in the parallel section of Rule 4-263, enumerating some possible

sanctions.

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MARYLAND RULES OF PROCEDURE

TITLE 4 – CRIMINAL CAUSES

CHAPTER 200 – PRETRIAL PROCEDURES

AMEND Rule 4-263 by adding a Committee note after subsection (c)(2),

by deleting the cross reference after subsection (d)(6), by adding new

subsection (d)(7)(C) pertaining to facial recognition technology, by adding

subsection (d)(11) addressing disclosures concerning in-custody witness

testimony, by adding a cross reference after new subsection (d)(11), by deleting

a Committee note at the end of section (n), and by making stylistic changes, as

follows:

Rule 4-263. DISCOVERY IN CIRCUIT COURT

...

(1) Due Diligence

The State's Attorney and defense shall exercise due diligence to identify all

of the material and information that must be disclosed under this Rule.

(2) Scope of Obligations

The obligations of the State's Attorney and the defense extend to material

and information that must be disclosed under this Rule and that are in the

possession or control of the attorney, members of the attorney's staff, or any

other person who either reports regularly to the attorney's office or has

reported to the attorney's office in regard to the particular case.

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Committee note: In many jurisdictions, the State complies with discovery

requirements imposed under Rules 4-262 and 4-263 through “open file”

discovery. While, in appropriate cases, “open file” discovery may satisfy the

State’s discovery obligation, the full scope of discovery may require provision of

additional discovery material beyond that contained in the “open file,” as

expressly outlined in Rules 4-262 (c) and 4-263 (c).

Cross reference: For the obligations of the State's Attorney, see State v.

Williams, 392 Md. 194 (2006).

(d) Disclosure by the State's Attorney

Without the necessity of a request, the State's Attorney shall provide to the

defense:

(1) Statements

All written and all oral statements of the defendant and of any codefendant that relate to the offense charged and all material and information,

including documents and recordings, that relate to the acquisition of such

statements;

(2) Criminal Record

Prior criminal convictions, pending charges, and probationary status of

the defendant and of any co-defendant;

(3) State's Witnesses

As to each State's witness the State's Attorney intends to call to prove the

State's case in chief or to rebut alibi testimony: (A) the name of the witness; (B)

except as provided under Code, Criminal Procedure Article, § 11-205 or Rule

16-912 (b), the address and, if known to the State's Attorney, the telephone

number of the witness; and (C) all written statements of the witness that relate

to the offense charged;

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(4) Prior Conduct

All evidence of other crimes, wrongs, or acts committed by the defendant

that the State's Attorney intends to offer at a hearing or at trial pursuant to

Rule 5-404 (b);

(5) Exculpatory Information

All material or information in any form, whether or not admissible, that

tends to exculpate the defendant or negate or mitigate the defendant's guilt or

punishment as to the offense charged;

(6) Impeachment Information

All material or information in any form, whether or not admissible, that

tends to impeach a State's witness, including:

(A) evidence of prior conduct to show the character of the witness for

untruthfulness pursuant to Rule 5-608 (b);

(B) a relationship between the State's Attorney and the witness, including

the nature and circumstances of any agreement, understanding, or

representation that may constitute an inducement for the cooperation or

testimony of the witness;

Cross reference: For the requirement to disclose a “benefit” to an “in-custody

witness,” see Code, Courts Article, § 10-924.

may be used to impeach the witness, but the State's Attorney is not required to

investigate the criminal record of the witness unless the State's Attorney knows

or has reason to believe that the witness has a criminal record;

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(D) an oral statement of the witness, not otherwise memorialized, that is

materially inconsistent with another statement made by the witness or with a

statement made by another witness;

(E) a medical or psychiatric condition or addiction of the witness that may

impair the witness's ability to testify truthfully or accurately, but the State's

Attorney is not required to inquire into a witness's medical, psychiatric, or

addiction history or status unless the State's Attorney has information that

reasonably would lead to a belief that an inquiry would result in discovering a

condition that may impair the witness's ability to testify truthfully or

accurately;

(F) the fact that the witness has taken but did not pass a polygraph

examination; and

(G) the failure of the witness to identify the defendant or a co-defendant;

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); U.S. v. Agurs, 427 U.S.

97 (1976); Thomas v. State, 372 Md. 342 (2002); Goldsmith v. State, 337 Md.

112 (1995); and Lyba v. State, 321 Md. 564 (1991).

(7) Searches, Seizures, Surveillance, and Pretrial Identification

All relevant material or information regarding:

(A) specific searches and seizures, eavesdropping, and electronic

surveillance including wiretaps; and

(B) pretrial identification of the defendant by a State's witness including, if

the pretrial identification involved participation by personnel from a law

enforcement agency, (i) a copy of or an electronic link to the written policies

relating to eyewitness identification required by Code, Public Safety Article,

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§§ 3-506 and 3-506.1, and (ii) documents or other evidence indicating

compliance or non-compliance with the requirements of Code, Public Safety

Article, §§ 3-506 and 3-506.1; and

Criminal Procedure Article, § 2-504;

Committee note: In addition to disclosure of a pretrial identification of a

defendant by a State's witness, in some cases, disclosure of a pretrial

identification of a co-defendant by a State's witness also may be required. See

Green v. State, 456 Md. 97 (2017).

(8) Reports or Statements of Experts

As to each expert consulted by the State's Attorney in connection with the

action:

(A) 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;

(B) the opportunity to inspect and copy all written reports or statements

made in connection with the action by the expert, including the results of any

physical or mental examination, scientific test, experiment, or comparison; and

(9) Evidence for Use at Trial

The opportunity to inspect, copy, and photograph all documents,

computer-generated evidence as defined in Rule 2-504.3 (a), recordings,

photographs, or other tangible things that the State's Attorney intends to use

at a hearing or at trial; and

(10) Property of the Defendant

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The opportunity to inspect, copy, and photograph all items obtained from

or belonging to the defendant, whether or not the State's Attorney intends to

use the item at a hearing or at trial.; and

(11) In-custody Witness Testimony

If the State’s Attorney intends to introduce testimony of an in-custody

witness:

(A) any benefits an in-custody witness has received, or expects to receive, in

exchange for providing testimony;

(B) the substance, time, and place of any statement (i) allegedly made by a

suspect or defendant to the in-custody witness or (ii) made by an in-custody

witness to law enforcement implicating the suspect or defendant; and

testimony can be ascertained through reasonable inquiry, and whether the incustody witness received a benefit in exchange for providing testimony in those

other cases.

Cross reference: See Rule 4-268 concerning pre-trial hearings prior to the

admission of in-custody witness testimony.

(e) Disclosure by Defense

Without the necessity of a request, the defense shall provide to the State's

Attorney:

(1) Defense Witness

The name and, except when the witness declines permission, the address

of each defense witness other than the defendant, together with all written

statements of each such witness that relate to the subject matter of the

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testimony of that witness. Disclosure of the identity and statements of a

person who will be called for the sole purpose of impeaching a State's witness

is not required until after the State's witness has testified at trial.

(2) Reports or Statements of Experts

As to each defense witness the defense intends to call to testify as an

expert witness:

(A) 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;

(B) the opportunity to inspect and copy all written reports or statements

made in connection with the action by the expert, including the results of any

physical or mental examination, scientific test, experiment, or comparison; and

(3) Character Witnesses

As to each defense witness the defense intends to call to testify as to the

defendant's veracity or other relevant character trait, the name and, except

when the witness declines permission, the address of that witness;

(4) Alibi Witnesses

If the State's Attorney has designated the time, place, and date of the

alleged offense, the name and, except when the witness declines permission,

the address of each person other than the defendant whom the defense intends

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to call as a witness to show that the defendant was not present at the time,

place, or date designated by the State's Attorney;

(5) Insanity Defense

Notice of any intention to rely on a defense of not criminally responsible

by reason of insanity, and the name and, except when the witness declines

permission, the address of each defense witness other than the defendant in

support of that defense; and

Committee note: The address of an expert witness must be provided. See

subsection (e)(2)(A) of this Rule.

(6) Defense of Duress

Notice of an intention to rely on a defense of duress pursuant to Code,

Criminal Law Article, § 11-306(c).

(7) Documents, Computer-Generated Evidence, and Other Things

The opportunity 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 defense intends to use at a

hearing or at trial.

(f) Person of the Defendant

(1) On Request

On request of the State's Attorney that includes reasonable notice of the

time and place, the defendant shall appear for the purpose of:

(A) providing fingerprints, photographs, handwriting exemplars, or voice

exemplars;

(B) appearing, moving, or speaking for identification in a lineup; or

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(2) On Motion

On motion filed by the State's Attorney, with reasonable notice to the

defense, the court, for good cause shown, shall order the defendant to appear

and (A) permit the taking of buccal samples, samples of other materials of the

body, or specimens of blood, urine, saliva, breath, hair, nails, or material under

the nails or (B) submit to a reasonable physical or mental examination.

(g) Matters Not Discoverable

(1) By Any Party

Notwithstanding any other provision of this Rule, neither the State's

Attorney nor the defense is required to disclose (A) the mental impressions,

trial strategy, personal beliefs, or other privileged attorney work product or (B)

any other material or information if the court finds that its disclosure is not

constitutionally required and would entail a substantial risk of harm to any

person that outweighs the interest in disclosure.

(2) By the Defense

The State's Attorney is not required to disclose the identity of a

confidential informant unless the State's Attorney intends to call the informant

as a State's witness or unless the failure to disclose the informant's identity

would infringe a constitutional right of the defendant.

(h) Time for Discovery

Unless the court orders otherwise:

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(1) the State's Attorney shall make disclosure pursuant to section (d) of this

Rule within 30 days after the earlier of the appearance of counsel or the first

appearance of the defendant before the court pursuant to Rule 4-213 (c), and

(2) the defense shall make disclosure pursuant to section (e) of this Rule no

later than 30 days before the first scheduled trial date, except that asserting a

defense pursuant to subsection (e)(6) of this Rule shall be made at least 10

days before the first scheduled trial date.

(i) Motion to Compel Discovery

(1) Time

A motion to compel discovery based on the failure to provide discovery

within the time required by section (h) of this Rule shall be filed within ten days

after the date the discovery was due. A motion to compel based on inadequate

discovery shall be filed within ten days after the date the discovery was

received.

(2) Content

A motion shall specifically describe the information or material that has

not been provided.

(3) Response

A response may be filed within five days after service of the motion.

(4) Certificate

The court need not consider any motion to compel discovery unless the

moving party has filed a certificate describing good faith attempts to discuss

with the opposing party the resolution of the dispute and certifying that they

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are unable to reach agreement on the disputed issues. The certificate shall

include the date, time, and circumstances of each discussion or attempted

discussion.

(j) Continuing Duty to Disclose

Each party is under a continuing obligation to produce discoverable

material and information to the other side. A party who has responded to a

request or order for discovery and who obtains further material information

shall supplement the response promptly.

(k) Manner of Providing Discovery

(1) By Agreement

Discovery may be accomplished in any manner mutually agreeable to the

parties. The parties shall file with the court a statement of their agreement.

(2) If No Agreement

In the absence of an agreement, the party generating the discovery

material shall (A) serve on the other party copies of all written discovery

material, together with a list of discovery materials in other forms and a

statement of the time and place when these materials may be inspected,

copied, and photographed, and (B) promptly file with the court a notice that (i)

reasonably identifies the information provided and (ii) states the date and

manner of service. On request, the party generating the discovery material

shall make the original available for inspection and copying by the other party.

(3) Requests, Motions, and Responses to Be Filed With the Court

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Requests for discovery, motions for discovery, motions to compel

discovery, and any responses to the requests or motions shall be filed with the

court.

(4) Discovery Material Not to Be Filed With the Court

Except as otherwise provided in these Rules or by order of court,

discovery material shall not be filed with the court. This section does not

preclude the use of discovery material at trial or as an exhibit to support or

oppose a motion.

(l) Retention

The party generating discovery material shall retain the original until the

earlier of the expiration of (i) any sentence imposed on the defendant or (ii) the

retention period that the material would have been retained under the

applicable records retention and disposal schedule had the material been filed

with the court.

(m) Protective Orders

(1) Generally

On motion of a party, a person from whom discovery is sought, or a

person named or depicted in an item sought to be discovered, the court, for

good cause shown, may order that specified disclosures be denied or restricted

in any manner that justice requires.

(2) In Camera Proceedings

On request of party, or a person from whom discovery is sought, or a

person named or depicted in an item sought to be discovered, the court may

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permit any showing of cause for denial or restriction of disclosures to be made

in camera. A record shall be made of both in court and in camera proceedings.

Upon the entry of an order granting relief in an in camera proceeding, all

confidential portions of the in camera portion of the proceeding shall be sealed,

preserved in the records of the court, and made available to the appellate court

in the event of an appeal.

(n) Sanctions