The proposed rules changes fall into 18 categories. A brief description of each category appears in the transmittal letter to the Court.
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The proposed rules changes fall into 18 categories. A brief description of each category appears in the transmittal letter to the Court.
STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
NOTICE OF PROPOSED RULES CHANGES
The Rules Committee has submitted its One Hundred FiftySecond Report to the Court of Appeals, transmitting thereby
proposed new Rules 1-104, 2-232, 6-456, 6-464, 16-821, 16-822,
16-823, 16-824, 17-105.1 and proposed amendments to Rules 1-201,
1-202, 1-203, 1-204, 1-301, 1-311, 1-321, 1-322, 1-404, 2-101,
2-112, 2-121, 2-124, 2-126, 2-201, 2-211, 2-212, 2-213, 2-214,
2-221, 2-231, 2-241, 2-301, 2-302, 2-303, 2-304, 2-305, 2-311,
2-321, 2-322, 2-323, 2-324, 2-325, 2-326, 2-327, 2-401, 2-402,
2-403, 2-404, 2-411, 2-412, 2-414, 2-415, 2-418, 2-419, 2-421,
2-422, 2-424, 2-432, 2-433, 2-501, 2-504, 2-504.2, 2-506, 2-510,
2-511, 2-512, 2-519, 2-520, 2-521, 2-522, 2-532, 2-533, 2-534,
2-535, 2-541, 2-601, 2-602, 2-613, 2-632, 2-633, 2-644, 2-645,
2-648, 2-649, 3-101, 3-102, 3-112, 3-121, 3-124, 3-126, 3-201,
3-211, 3-212, 3-213, 3-214, 3-241, 3-301, 3-302, 3-303, 3-305,
3-307, 3-326, 3-506, 3-510, 3-519, 3-533, 3-534, 3-535, 3-601,
3-602, 3-632, 3-633, 3-645, 3-648, 3-649, 3-701, 3-731, 4-102,
4-213, 4-216, 4-217, 4-222, 4-231, 4-254, 4-261, 4-312, 4-313,
4-314, 4-326, 4-342, 4-349, 4-354, 4-505, 5-407, 5-412, 5-606,
6-105, 6-107, 6-122, 6-209, 6-211, 6-411, 6-452, 6-454, 6-455,
6-461, 7-112, 7-115, 8-114, 8-207, 8-301, 8-305, 8-431, 8-501,
8-503, 8-504, 8-608, 9-208, 10-202, 10-301, 12-103, 14-206,
14-306, 15-502, 15-504, 15-505, 16-101, 16-108, 16-401, 16-406,
16-723, 16-751, 16-760, 16-761, 16-771, 16-773, 16-775, 16-781,
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16-808, 17-104, 17-105, 17-107, 17-108, and 17-109; Forms 4217.1, 4-503.4, 4-504.1; and Appendix: Form Interrogatories, Form
Nos. 3, 5, and 7 of the Maryland Rules of Procedure and Rules 6
and 9 of the Rules Governing Admission to the Bar of Maryland.
The Committee’s One Hundred Fifty-Second Report and the
proposed new rules and amendments are set forth below.
Interested persons are asked to consider the Committee’s
Report and proposed rules changes and to forward on or before
September 22, 2003 any written comments they may wish to make to:
Sandra F. Haines, Esq.
Reporter, Rules Committee
Room 1.517
100 Community Place
Crownsville, Maryland 21032-2030
ALEXANDER L. CUMMINGS
Clerk
Court of Appeals of Maryland
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July 30, 2003
ONE HUNDRED FIFTY-SECOND REPORT
OF THE
STANDING COMMITTEE ON RULES
OF PRACTICE AND PROCEDURE
The Honorable Robert M. Bell,
Chief Judge
The Honorable John C. Eldridge
The Honorable Irma S. Raker
The Honorable Alan M. Wilner
The Honorable Dale R. Cathell
The Honorable Glenn T. Harrell, Jr.
The Honorable Lynne A. Battaglia,
Judges
The Court of Appeals of Maryland
Robert C. Murphy Courts of
Appeal Building
Annapolis, Maryland 21401
Your Honors:
The Rules Committee submits this, its One Hundred FiftySecond Report, and recommends that the Court adopt the proposed
rules changes transmitted with this Report. The proposed changes
fall into eighteen categories. Following is a brief description
of the principal proposals in each category.
In Category One are five rules pertaining to the transfer of
actions between courts. Proposed amendments to Rules 2-101 and
3-101 allow a plaintiff who timely filed an action in the
District Court that should have been filed in a circuit court, or
vice versa, 30 days after the order of dismissal to file the
action in the correct court. Amendments to the sections of Rules
2-327 and 3-326 that allow certain transfers of domestic violence
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actions conform the terminology of the sections to recent
Constitutional and statutory changes. An additional amendment to
Rule 3-326, together with an amendment to Rule 2-326, implement
the provisions of Chapter 275, Acts of 2003, concerning the
transfer of an action for damages exceeding $25,000 for a
dishonored check from the District Court to an appropriate
circuit court.
Category Two comprises a proposed amendment to Rule 2-231
and proposed new Rule 2-232. The amendment to Rule 2-231 allows
a party to appeal an order of a circuit court granting or denying
class action certification, and new Rule 2-232 adds a procedure
for derivative actions by stockholders. Both are based on
comparable federal rules, Fed. R. Civ. P. 23 (f) and 23.1,
respectively.
Category Three contains proposed rules changes relating to
discovery, summary judgment, and other pretrial procedure.
Amendments to Rule 2-501 are proposed to encourage disposition of
actions by summary judgment in appropriate cases and, together
with amendments to Rule 2-415, discourage the use of “sham
affidavits” to defeat motions for summary judgment. Amendments
to section (b) of Rule 2-501 require greater specificity and
documentation in a response to a motion for summary judgment and
allow the court, on motion, to strike all or part of an affidavit
or other statement under oath that contradicts a prior sworn
statement of the affiant. Amendments to Rule 2-415 allow for
changes to the form and substance of deposition testimony within
thirty days after submission of the transcript to the deponent
and provide for further deposition on the subject matter of any
substantive changes.
An amendment limiting the length of depositions is proposed
to be added to Rule 2-411, and a new section (b) allowing the
court in a particular case to set limits on discovery that is
otherwise permitted is proposed to be added to Rule 2-402. Also
added to Rule 2-402 and to Rule 2-412, and described in detail in
the Reporter’s notes to those Rules, are new provisions
concerning discovery from an expert witness and the fees and
expenses of the expert. A proposed amendment to Rule 2-401
encourages parties to supply discovery materials in a word
processing file or other electronic format, upon request.
Amendments to section (a) of Rules 2-501, 2-421, 2-422, and 2-424
delete the phrase “at any time” to make clear that a motion for
summary judgment or a discovery request may not be made at any
time if the timing is not in accordance with a scheduling order
entered under Rule 2-504. An amendment to Rule 2-504.2 adds to
the list of matters that may be considered at a pretrial
conference two categories consistent with those of Fed. R. Civ.
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P. 26 (a)(3). New Committee notes proposed to be added to Rules
2-633 and 3-633 clarify that post-judgment discovery is in
addition to pre-judgment discovery.
Additional Rules changes in Category Three are amendments to
Rules 2-311, 8-431, 2-419, 2-432, 2-504, 4-261, 16-808, and Form
Nos. 3 and 7 in the Appendix of Form Interrogatories, which are
proposed as conforming amendments to the principal changes in the
Category or as otherwise described in the Reporter’s note that
follows each Rule or Form.
Proposed Rules changes pertaining to jury trials are set
forth in Category Four. The proposals include new provisions
pertaining to the discharge of alternate jurors, the completion
of advance questionnaires by jurors, the selection of the jury
foreperson, and the use of juror notes and notepads. The six
Rules in this Category that are proposed to be amended are Rules
2-512, 4-312, 4-314, 2-521, 4-326, and 5-606.
In Category Five are amendments to six rules pertaining to
service of process and the time within which a defendant must
file a response to an original pleading. Proposed amendments to
Rules 3-102, 3-701, and 3-307 delete the term “statutory agent,”
which has caused some confusion among practitioners, and
generally clarify provisions as to the setting of the original
trial date and the filing of a notice of intention to defend.
Amendments to Rules 2-321, 2-124, and 3-124 are proposed for the
reasons stated in the Reporter’s notes to those Rules.
Category Six comprises proposed amendments to Rule 4-216,
Pretrial Release, and related amendments to Rules 4-213, 4-222,
4-231, and 4-349. Many of the proposals are in response to
recommendations contained in the October 11, 2001 Report of the
Pretrial Release Advisory Committee. Where the recommendation of
the Rules Committee differs from that of the Advisory Committee,
such as on the topics of the so-called “10% Option” and when a
judicial officer must provide written reasons for a
determination, the proposals are set forth as alternative
versions in the Rule or noted in the Reporter’s note that follows
the Rule.
Rules changes pertaining to procedure in criminal causes,
other than pretrial release procedures, are in Category Seven.
Amendments to Rules 4-102, 4-217, 4-254, 4-313, 4-342, 4-354, and
4-505 and Forms 4-217.1, 4-503.4, and 4-504.1 are proposed for
the reasons stated in the Reporter’s note that follows each Rule
or Form.
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Category Eight consists of two new Rules proposed to be
added to Title 6 and proposed amendments to ten existing Rules.
New Rule 6-456 provides a form of consent for an extension of
time to file a final report and make distribution in a modified
administration of an estate. New Rule 6-464, based upon Rule 7105, allows an orphans’ court to strike a notice of appeal under
certain circumstances. Proposed amendments to Rule 6-105 modify
the definition of “certified mail” and add a definition of
“petition.” Provisions pertaining to limited orders to locate
assets or to locate a will are proposed to be added to Rule 6122. New sections (b) and (c) are proposed to be added to Rule
6-461 to allow motions for summary judgment and motions to alter,
amend, or revise a final order to be filed in the orphans’ court
by following the procedure set forth in the applicable Rule in
Title 2, rather than the procedure set forth in Rule 6-461 (d).
Amendments to Rules 6-209, 6-211, 6-411, 6-452, 6-454, 6-455, and
6-107 are proposed for the reasons stated in the Reporter’s note
that follows each Rule, primarily to conform to statutory
changes.
Category Nine consists of two Rules changes pertaining to
de novo appeals in the circuit court. Proposed amendments to
Rule 7-112 require the clerk of the circuit court to notify the
clerk of the District Court when the circuit court enters a
superseding judgment and add a procedure to solve the problem
caused by the lack of a means to take custody of a defendant who
has withdrawn or dismissed an appeal in circuit court after
having been convicted in the District Court, sentenced to a term
of confinement, and released pending appeal. A proposed
amendment to Rule 7-115 makes clear that Rule 7-115 does not
apply to de novo appeals.
Rules changes pertaining to practice in the Court of Appeals
and Court of Special Appeals and the citation of opinions of the
appellate courts are in Category Ten. An amendment to Rule 8-114
and proposed new Rule 1-104 are proposed to govern the citation
of unreported appellate opinions. To address the problem of
under-inclusion of material in the record extract, proposed
amendments to Rule 8-501 include deleting from section (b) a
provision that allows a party to rely on a part of the record
that is not included in the record extract and adding to section
(j) a provision that allows material inadvertently omitted from
the record extract to be included in an appendix to a brief,
including a reply brief. To facilitate reimbursement of expenses
incurred by the Office of the Public Defender, a proposed
amendment to Rule 8-608 requires the Clerk to identify if a
transcript was paid for by that Office. Other Rules changes in
Category Ten are amendments to Rules 8-207, 8-301, 8-305, 8-503,
and 8-504, which are proposed for the reasons set forth in the
Reporter’s note following each Rule.
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In Category Eleven are a proposed amendment to Rule 10-301
(d) that allows a certificate of the Administrator of the United
States Department of Veterans Affairs stating that a person has
been rated by the Department as disabled to be substituted for
the physician’s or psychologist’s certificates otherwise required
by the Rule and a conforming stylistic amendment to Rule 10-202.
Category Twelve contains proposed amendments to Rules 16723, 16-751, 16-760, 16-761, 16-771, 16-773, 16-775, and 16-781.
The amendments clarify that all records of an investigation by
Bar Counsel, including the existence and content of any
complaint, are confidential; add certain notice provisions; and
allow Bar Counsel to file a Petition for Disciplinary or Remedial
Action without prior approval of the Attorney Grievance
Commission when an attorney has been disciplined or placed on
inactive status in another jurisdiction or convicted of a serious
crime.
Category Thirteen comprises new Rules 16-821, 16-822, 16823, and 16-824. The proposed new Rules contain certain
proscriptions and provide procedural details that apply to the
performance of marriage ceremonies by judges. The Rules are
based on the recommendations of the Conference of Circuit Judges.
In Category Fourteen are proposed amendments to two
additional Rules in Title 16. Amendments to Rule 16-101,
proposed at the request of the Conference of Circuit Judges, (1)
provide for the recommendation of the Circuit Administrative
Judge in the appointment process of county administrative judges,
(2) clarify the supervisory role of the Circuit Administrative
Judge, and (3) restate the provision relating to the appointment
and discharge of court personnel in the event a majority of a
bench is not attained in such matters. An amendment to Rule 16406, proposed at the request of the Commission on Judicial
Disabilities, permits the Commission or its designee access to
videotape recordings of circuit court proceedings.
Category Fifteen consists of proposed new Rule 17-105.1 and
proposed amendments to Rules 17-104, 17-105, 17-107, 17-108, 17109, and 16-108. Amendments to Rule 17-104 broaden the scope of
the continuing mediation-related requirements in the Rule and add
new requirements for mediators in actions assigned to the
Business and Technology Case Management Program. New Rule 17105.1 defines “neutral expert” and addresses the selection of and
confidentiality requirements applicable to a neutral expert in an
alternative dispute resolution proceeding. A new section in Rule
17-107, together with a related amendment to Rule 16-108,
establish a procedure for the approval of persons seeking
designation to conduct alternative dispute resolution proceedings
in actions assigned to the Business and Technology Case
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Management Program. Amendments to Rule 17-108 provide that fee
schedules for persons conducting alternative dispute proceedings
are set by the circuit administrative judge, rather than the
county administrative judge.
The two Rules changes in Category Sixteen are proposed at
the request of the State Board of Law Examiners. Proposed
amendments to Rules 6 and 9 of the Rules Governing Admission to
the Bar of Maryland allow the Board additional time to process a
petition to take an examination and modify the provisions
pertaining to certification of eligibility to take the
examination.
In Category Seventeen are amendments to Rules 1-201, 1-202,
1-203, 1-204, 1-301, 1-311, 1-321, 1-404, 2-112, 2-121, 2-126,
2-201, 2-211, 2-212, 2-213, 2-214, 2-221, 2-241, 2-301, 2-302,
2-303, 2-304,2-305, 2-322, 2-323, 2-324, 2-325, 2-403, 2-404,
2-414, 2-418, 2-433, 2-506, 2-510, 2-511, 2-519, 2-520, 2-522,
2-532, 2-533, 2-534, 2-535, 2-601, 2-602, 2-613, 2-632, 2-648,
3-112, 3-121, 3-126, 3-201, 3-211, 3-212, 3-213, 3-214 3-241,
3-301, 3-302, 3-303, 3-305, 3-506, 3-510, 3-519, 3-533, 3-534,
3-535, 3-601, 3-602, 3-632, 3-648, 15-504, and 15-505. All are
proposed to clarify the source of Maryland Rules that are derived
from or otherwise based on federal rules. Because some federal
rules have been renumbered, the source notes to some Maryland
Rules no longer are accurate. By adding to the source note the
date of the version of the federal rule that corresponds to the
Maryland Rule, the source notes are made historically accurate.
The final category, Category Eighteen, contains
miscellaneous, mostly “housekeeping,” amendments to sixteen Rules
and one Form. Most of the proposed changes conform the Rule or
Form to a statute, a case, or another Rule or clarify, correct,
or restyle it. In this Category are Rules 1-322, 2-541, 2-644,
2-645, 3-645, 2-649, 3-649, 3-731, 5-407, 5-412, 9-208, 12-103,
14-206, 14-306, 15-502, and 16-401 and Form No. 5 in the Appendix
of Form Interrogatories. Three of the proposals go beyond mere
“housekeeping.” The proposed amendment to Rule 1-322 makes clear
that when a rule requires that a pleading, motion, or other paper
be “filed,” the pleading, motion, or other paper must be in
writing and delivered to the clerk of the court or a judge of
that court. The addition of the word “only” to subsection (b)(1)
of Rule 2-541 is proposed to close a potential loophole that
could provide a way around the limitations imposed by Rule 9-208.
The proposed amendments to Rule 15-502 conform the Rule to the
“separate document” requirement of Rule 2-601 and require that
the reasons for the issuance or denial of an injunction be stated
in writing or on the record.
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For the guidance of the Court and the public, following each
proposed rules change is a Reporter’s Note describing the reasons
for the proposal and any changes that would be effected in
current law or practice. We caution that these Reporter’s Notes
were prepared initially for the benefit of the Rules Committee;
they are not part of the Rules and have not been debated or
approved by the Committee; and they are not to be regarded as any
kind of official comment or interpretation. They are included
solely to assist the Court in understanding some of the reasons
for the proposed changes.
Respectfully submitted,
Joseph F. Murphy, Jr.
Chairpersons
Linda M. Schuett
Vice Chairperson
JFM/LMS:cdc
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE — CIRCUIT COURT
CHAPTER 100 - COMMENCEMENT OF ACTION AND PROCESS
AMEND Rule 2-101 to allow a certain action to be filed in a
circuit court within 30 days after a certain order of dismissal
in the District Court and to make certain stylistic changes, as
follows:
Rule 2-101.
(a)
COMMENCEMENT OF ACTION
Generally
A civil action is commenced by filing a complaint with a
court.
(b)
After Certain Dismissals by a Federal District Court or a
Court of Another State
Except as otherwise provided by statute, if an action is
filed in a United States District Court federal district court or
a court of another state within the period of limitations
prescribed by Maryland law and the foreign that court enters an
order of dismissal (1) for lack of jurisdiction, (2) because the
court declines to exercise jurisdiction, or (3) because the
action is barred by the statute of limitations required to be
applied by that court, an action filed in this State a circuit
court within 30 days after the foreign court's order of dismissal
shall be treated as timely filed in this State.
Cross reference:
§5-115.
Code, Courts and Judicial Proceedings Article,
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(c)
After Dismissal by the District Court for Lack of Subject
Matter Jurisdiction
If an action is filed in the District Court of this State
within the period of limitations prescribed by Maryland law and
the District Court dismisses the action for lack of subject
matter jurisdiction, an action filed in a circuit court within 30
days after the District Court enters the order of dismissal shall
be treated as timely filed in the circuit court.
Source: This Rule is derived as follows:
Section (a) is derived from FRCP 3 the 1937 version of Fed. R.
Civ. P. 3 and former Rules 140 a and 170 a.
Section (b) is new.
Section (c) is new.
REPORTER’S NOTE
The proposed amendment to Rule 2-101 allows a plaintiff who
has timely filed an action in the District Court that should have
been filed in a circuit court to file a new complaint in the
correct court within 30 days after an order of dismissal for lack
of jurisdiction is entered in the District Court.
The Committee initially had considered a rule change that
would give the District Court the discretion to transfer the
action to a circuit court in a manner similar to the transfer
that is allowed from a circuit court to the District Court under
Rule 2-327 (a). The Committee believes that that approach is
inadvisable due to the higher filing fees and more stringent
pleading requirements in circuit court, as well as timing issues
pertaining to the filing of the defendant’s first responsive
pleading to the complaint.
The Committee also has considered the problem of the timely
filing in a circuit court of an action that is within the
exclusive jurisdiction of the District Court. Although the
Committee believes that under the circumstances described in Rule
2-327 (a) (“the [circuit] court determines that ... the action
should not be dismissed”) it may be an abuse of discretion not to
transfer the action to the District Court (see, e.g., Safe
Deposit Co. v. Cahn, 102 Md. 530 (1906) and Corkran v. Zoning
Comm’r., 41 Md. App. 437 (1979)), the Committee also believes
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it appropriate to put the onus for filing an action in the
correct court on the party, rather than on the judiciary.
Accordingly, the Committee recommends the addition of a new
section (c) to Rule 3-101 to provide as to actions that were
incorrectly filed in the circuit court a procedure similar to
proposed new section (c) of Rule 2-101, which applies to actions
that were incorrectly filed in the District Court.
Additionally, stylistic changes to Rules 2-101 and 3-101 are
proposed.
The Committee also proposes the addition of a cross
reference to Rule 3-101 (c) following subsection (a)(1) of Rule
2-327.
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MARYLAND RULES OF PROCEDURE
TITLE 3 - CIVIL PROCEDURE--DISTRICT COURT
CHAPTER 100 - COMMENCEMENT OF ACTION AND PROCESS
AMEND Rule 3-101 to allow a certain action to be filed in
the District Court within 30 days after a certain order of
dismissal in a circuit court and to make certain stylistic
changes, as follows:
Rule 3-101.
(a)
COMMENCEMENT OF ACTION
Generally
A civil action is commenced by filing a complaint with a
court.
(b)
After Certain Dismissals by a Federal District Court or a
Court of Another State
Except as otherwise provided by statute, if an action is
filed in a United States District Court federal district court or
a court of another state within the period of limitations
prescribed by Maryland law and the foreign that court enters an
order of dismissal (1) for lack of jurisdiction, (2) because the
court declines to exercise jurisdiction, or (3) because the
action is barred by the statute of limitations required to be
applied by that court, an action filed in this State the District
Court within 30 days after the foreign court’s order of dismissal
shall be treated as timely filed in this State.
Cross reference:
§5-115.
Code, Courts and Judicial Proceedings Article,
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(c)
After Dismissal by the Circuit Court for Lack of Subject
Matter Jurisdiction
If an action is filed in the circuit court within the
period of limitations prescribed by Maryland law and the circuit
court dismisses the action for lack of subject matter
jurisdiction, an action filed in the District Court within 30
days after the circuit court enters the order of dismissal shall
be treated as timely filed in the District Court.
Source: This Rule is derived as follows:
Section (a) is derived from FRCP 3 the 1937 version of Fed. R.
Civ. P. 3 and former M.D.R. 100.
Section (b) is new.
Section (c) is new.
REPORTER’S NOTE
See the Reporter’s note to the proposed amendment to Rule
2-101.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE--CIRCUIT COURT
CHAPTER 300 - PLEADINGS AND MOTIONS
AMEND Rule 2-327 to add a certain cross reference and to
conform subsection (a)(3) to a certain constitutional amendment
and legislation, as follows:
Rule 2-327.
(a)
TRANSFER OF ACTION
Transfer to District Court
(1)
If Circuit Court Lacks Jurisdiction
If an action within the exclusive jurisdiction of the
District Court is filed in the circuit court but the court
determines that in the interest of justice the action should not
be dismissed, the court may transfer the action to the District
Court sitting in the same county.
Cross reference: See Rule 3-101 (c) concerning complaints that
are timely filed in the circuit court and dismissed for lack of
subject matter jurisdiction.
(2)
If Circuit Court Has Jurisdiction -- Generally
Except as otherwise provided in subsection (a)(3) of
this Rule, the court may transfer an action within its
jurisdiction to the District Court sitting in the same county if
all parties to the action (A) consent to the transfer, (B) waive
any right to a jury trial they currently may have and any right
they may have to a jury trial following transfer to the District
Court, including on appeal from any judgment entered, and (C)
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make any amendments to the pleadings necessary to bring the
action within the jurisdiction of the District Court.
(3)
If Circuit Court Has Jurisdiction -- Domestic Violence
Actions
(A)
In an action under Code, Family Law Article, Title 4,
Subtitle 5, after entering a temporary protective order granting
ex parte relief, a circuit court, on motion or on its own
initiative, may transfer the action to the District Court for the
protective order hearing if, after inquiry, the court finds that
(i) there is no other action between the parties pending in the
circuit court, (ii) the respondent has sought relief under Code,
Family Law Article, Title 4, Subtitle 5, in the District Court,
and (iii) in the interests of justice, the action should be heard
in the District Court.
(B)
In determining whether a hearing in the District Court
is in the interests of justice, the court shall consider (i) the
safety of each person eligible for relief, (ii) the convenience
of the parties, (iii) the pendency of other actions involving the
parties or children of the parties in one of the courts, (iv)
whether a transfer will result in undue delay, (v) the services
that may be available in or through each court, and (vi) the
efficient operation of the courts.
(C)
The consent of the parties is not required for a
transfer under this subsection.
(D)
After the action is transferred, the District Court
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has jurisdiction for the purposes of enforcing and extending the
temporary ex parte protective order as allowed by law.
Cross reference: See Code, Family Law Article, §4-505 (c)
concerning the duration and extension of a temporary ex parte
protective order.
. . .
REPORTER’S NOTE
Concerning the proposed new cross reference following
subsection (a)(1) of Rule 2-327, see the Reporter’s Note to the
proposed amendment to Rule 2-101.
The proposed amendments to Rules 2-327 (a)(3) and 3-326 (c)
conform the terminology of the Rules to a recent Constitutional
amendment (Chapter 587, Acts of 2002), which was ratified by the
voters in the November 2002 election, and implementing
legislation (Chapter 235, Acts of 2002). The Constitutional
amendment and amendments to Code, Family Law Article, Title 4,
Subtitle 5 allow a District Court Commission to issue an “interim
protective order” under certain circumstances when the District
Court clerk’s office is not open for business. Only a judge may
issue a “temporary protective order” or a “final protective
order.”
Rules 2-327 (a)(3) and 3-326 (c) allow domestic violence
actions to be transferred from the District Court to a circuit
court, or vice versa, under certain circumstances. The
amendments conform the Rules to the new “temporary protective
order” and “final protective order” terminology.
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MARYLAND RULES OF PROCEDURE
TITLE 3 - CIVIL PROCEDURE -- DISTRICT COURT
CHAPTER 300 - PLEADINGS AND MOTIONS
AMEND Rule 3-326 to conform section (c) to a certain
Constitutional amendment and legislation and to add a new section
(d) referring to actions for dishonored checks, as follows:
Rule 3-326.
DISMISSAL OR TRANSFER OF ACTION
. . .
(c)
Domestic Violence Action
(1) In an action under Code, Family Law Article, Title 4,
Subtitle 5, after entering a temporary protective order granting
ex parte relief, the District Court, on motion or on its own
initiative, may transfer the action to a circuit court for the
final protective order hearing if, after inquiry, the District
Court finds that (A) there is an action in the circuit court
involving one or more of the parties in which there is an
existing order or request for relief similar to that being sought
in the District Court and (B) in the interests of justice, the
action should be heard in the circuit court.
(2) In determining whether a hearing in the circuit court is
in the interests of justice, the Court shall consider (A) the
safety of each person eligible for relief, (B) the convenience of
the parties, (C) the pendency of other actions involving the
parties or children of the parties in one of the courts, (D)
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whether a transfer will result in undue delay, (E) the services
that may be available in or through each court, and (F) the
efficient operation of the courts.
(3) The consent of the parties is not required for a transfer
under this section.
(4) After the action is transferred, the circuit court has
jurisdiction for the purposes of enforcing and extending the
temporary ex parte protective order as allowed by law.
Cross reference: See Code, Family Law Article, §4-505 (c)
concerning the duration and extension of a temporary ex parte
protective order.
(d)
Action for Dishonored Check
(1)
Transfer to Circuit Court
In an action for damages exceeding $25,000 for a
dishonored check or other instrument pursuant to Code, Commercial
Law Article, §15-802, the District Court shall transfer the
action to an appropriate circuit court upon a separate written
demand filed by a defendant within 10 days after the time for
filing a notice of intention to defend pursuant to Rule 3-307.
Failure to file a timely demand constitutes a waiver of the right
to transfer the case to a circuit court.
(2)
Transmittal of Record to Circuit Court
When a timely demand is filed, the clerk shall transmit
the record to the circuit court within 15 days.
At any time
before the record is transmitted pursuant to this section, the
District Court may determine on motion or on its own initiative
-19-
that the demand for transfer was not timely filed or that the
-20-
action was not entitled to be transferred pursuant to Code,
Courts Article, §4-402 (f).
Source: This Rule is derived as follows:
Section (a) is derived from former M.D.R. 317.
Section (b) is derived from U.S. C. Title 28, §1404 (a).
Section (c) is new.
Section (d) is new.
REPORTER’S NOTE
Concerning the proposed amendment to section (c) of Rule 3326, see the Reporter’s note to the proposed amendment to Rule
2-327.
Chapter 275 (HB 97), Acts of 2003 provides that an action
for damages for a dishonored check may be filed in the District
Court regardless of the amount in controversy, and if the action
for damages exceeds $25,000, the defendant is allowed to transfer
the action to an appropriate circuit court by filing a timely
demand as prescribed by the Maryland Rules. Accordingly, a
change to Rule 3-326 is being proposed that would include a new
section (d) providing for a procedure to transfer an action for
damages exceeding $25,000 for a dishonored check to the circuit
court. Also, a change to Rule 2-326 is being proposed so that
the procedures for transferring a case to the circuit court on
demand for a jury trial apply to transfer of a dishonored check
action to the circuit court.
-21-
MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE--CIRCUIT COURT
CHAPTER 300 - PLEADINGS AND MOTIONS
AMEND Rule 2-326 by adding to section (a) language referring
to section (d) of Rule 3-326, as follows:
Rule 2-326.
CERTAIN TRANSFERS FROM DISTRICT COURT ON DEMAND FOR
JURY TRIAL
(a)
Notice
Upon entry on the docket of an action transferred from the
District Court pursuant to a demand for jury trial or a demand
for transfer pursuant to section (d) of Rule 3-326, the clerk
shall send to the plaintiff and each party that who has been
served in the District Court action a notice that states the date
of entry and the assigned docket reference and includes a "Notice
to Defendant" in substantially the following form:
Notice to Defendant
If you are a "defendant," “counter-defendant,"
“cross defendant," or “third-party defendant"
in this action and you wish to contest the
case against you, you must file in this court
an answer or other response to the complaint,
counterclaim, cross-claim, or third-party
claim within 30 days after the date of this
notice, regardless of whether you filed a
-22-
notice of intention to defend or other
response in the District Court.
Committee note: If an action is transferred and a defendant or
third-party defendant has not been served with process, the
burden is on the plaintiff or third-party plaintiff to obtain
service, as if the action were originally filed in a circuit
court.
(b)
Answer or Other Response; Subsequent Proceedings
Regardless of whether a notice of intention to defend or
other response was filed in the District Court, a defendant,
counter-defendant, cross defendant, or third-party defendant
shall file an answer or other response to the complaint,
counterclaim, cross-claim, or third-party claim within 30 days
after the clerk sends the notice required by section (a) of this
Rule.
Following the expiration of the 30-day period, the action
shall thereafter proceed as if originally filed in the circuit
court.
Source:
This Rule is new.
REPORTER’S NOTE
See the Reporter’s note to the proposed amendments to Rule
3-326.
-23-
MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE – CIRCUIT COURT
CHAPTER 200 - PARTIES
AMEND Rule 2-231 to add certain provisions concerning an
appeal of the grant or denial of a class action certification and
to make certain stylistic changes to the source note, as follows:
Rule 2-231.
(a)
CLASS ACTIONS
Prerequisites to a Class Action
One or more members of a class may sue or be sued as
representative parties on behalf of all only if (1) the class is
so numerous that joinder of all members is impracticable, (2)
there are questions of law or fact common to the class, (3) the
claims or defenses of the representative parties are typical of
the claims or defenses of the class, and (4) the representative
parties will fairly and adequately protect the interests of the
class.
Cross reference: See Code, Courts Article, §4-402 (d), regarding
aggregation of claims for jurisdictional amount.
(b)
Class Actions Maintainable
Unless justice requires otherwise, an action may be
maintained as a class action if the prerequisites of section (a)
are satisfied, and in addition:
(1) the prosecution of separate actions by or against
individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to
-24-
individual members of the class that would establish incompatible
standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the
class that would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications
or substantially impair or impede their ability to protect their
interests; or
(2) the party opposing the class has acted or refused to act
on grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common
to the members of the class predominate over any questions
affecting only individual members and that a class action is
superior to other available methods for the fair and efficient
adjudication of the controversy. The matters pertinent to the
findings include: (A) the interest of members of the class in
individually controlling the prosecution or defense of separate
actions, (B) the extent and nature of any litigation concerning
the controversy already commenced by or against members of the
class, (C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum, (D) the
difficulties likely to be encountered in the management of a
class action.
(c)
Certification
On motion of any party or on the court's own initiative,
-25-
the court shall determine by order as soon as practicable after
commencement of the action whether it is to be maintained as a
class action.
party.
A hearing shall be granted if requested by any
The order shall include the court's findings and reasons
for certifying or refusing to certify the action as a class
action.
The order may be conditional and may be altered or
amended before the decision on the merits.
(d)
Partial Class Actions; Subclasses
When appropriate, an action may be brought or maintained
as a class action with respect to particular issues, or a class
may be divided into subclasses and each subclass treated as a
class.
(e)
Notice
In any class action, the court may require notice pursuant
to subsection (f)(2).
In a class action maintained under
subsection (b)(3), notice shall be given to members of the class
in the manner the court directs.
The notice shall advise that
(1) the court will exclude from the class any member who so
requests by a specified date, (2) the judgment, whether favorable
or not, will include all members who do not request exclusion,
and (3) any member who does not request exclusion and who desires
to enter an appearance through counsel may do so.
(f)
Orders in Conduct of Actions
In the conduct of actions to which this Rule applies, the
court may enter appropriate orders: (1) determining the course of
proceedings or prescribing measures to prevent undue repetition
-26-
or complication in the presentation of evidence or argument, (2)
requiring, for the protection of the members of the class or
otherwise for the fair conduct of the action, that notice be
given in the manner the court directs to some or all of the
members of any step in the action, or of the proposed extent of
the judgment, or of the opportunity of members to signify whether
they consider the representation fair and adequate, to intervene
and present claims or defenses, or otherwise to come into the
action, (3) imposing conditions on the representative parties or
intervenors, (4) requiring that the pleadings be amended to
eliminate allegations as to representation of absent persons, and
that the action proceed accordingly, (5) dealing with similar
procedural matters.
The orders may be combined with an order
under Rule 2-504, and may be altered or amended as may be
desirable from time to time.
(g)
Discovery
For purposes of discovery, only representative parties
shall be treated as parties.
On motion, the court may allow
discovery by or against any other member of the class.
(h)
Dismissal or Compromise
A class action shall not be dismissed or compromised
without the approval of the court.
Notice of a proposed
dismissal or compromise shall be given to all members of the
class in the manner the court directs.
(i)
Judgment
The judgment in an action maintained as a class action
-27-
under subsections (b)(1) and (2), whether or not favorable to the
class, shall include and describe those whom the court finds to
be members of the class.
The judgment in an action maintained as
a class action under subsection (b)(3), whether or not favorable
to the class, shall include and specify or describe those to whom
the notice provided in subsection (e)(1) was directed, and who
have not requested exclusion, and whom the court finds to be
members of the class.
(j)
Appeals
A party may appeal an order of a circuit court granting or
denying class action certification under this Rule if a notice of
appeal is filed within 30 days after entry of the order.
An
appeal does not stay proceedings in the circuit court unless the
circuit court or the appellate court so orders.
Source: This Rule is derived as follows:
Section (a) is derived from FRCP 23 (a) the 1966 version of
Fed. R. Civ. P. 23 (a) and former Rule 209 a.
Section (b) is derived from FRCP 23 (b)(1), (2) and (3) the
1966 version of Fed. R. Civ. P. 23 (b)(1), (2) and (3).
Section (c) is derived from FRCP 23 (c)(1) the 1966 version of
Fed. R. Civ. P. 23 (c)(1).
Section (d) is derived from FRCP 23 (c)(4) the 1966 version of
Fed. R. Civ. P. 23 (c)(4).
Section (e) is derived from FRCP 23 (c)(2) the 1966 version of
Fed. R. Civ. P. 23 (c)(2).
Section (f) is derived from FRCP 23 (d) the 1966 version of
Fed. R. Civ. P. 23 (d).
Section (g) is new.
Section (h) is derived from FRCP 23 (e) the 1966 version of
Fed. R. Civ. P. 23 (e) and former Rule 209 d.
Section (i) is derived from FRCP 23 (c)(3) the 1966 version of
Fed. R. Civ. P. 23 (c)(3).
Section (j) is derived from the 1998 version of Fed. R. Civ. P.
23 (f).
-28-
REPORTER’S NOTE
The Rules Committee recommends amending Rule 2-231 by adding
a new section dealing with interlocutory appeals of orders
granting or denying class action certification. This conforms
the Rule to Fed. R. Civ. P. 23, Class Actions, which was amended
in 1998 by the addition of a similar provision. The federal
decision to allow interlocutory appeals from orders denying or
granting class action certification stemmed from an effort to
avoid the situation (1) where a plaintiff who has been denied
certification is forced to proceed to final judgment on the
merits of an individual claim that is far smaller than the costs
of litigation or (2) where a defendant in a class action suit
which has been certified is forced to settle rather than incur
the costs of defending a class action and run the risk of
potentially ruinous liability. Based on the federal experience,
James K. Archibald, Esq. wrote a letter suggesting that Maryland
Rule 2-231 be conformed to the federal rule. He noted that
currently in Maryland, interlocutory appeals of class action
certification rulings can only be accomplished by a petition for
a writ of mandamus and that following the federal procedure would
provide significant guidance to practitioners and to the Maryland
courts.
The Committee recommends that adoption of the proposed Rule
change be coordinated with a legislative initiative for a like
amendment to Code, Courts Article, §12-303, Appeals from Certain
Interlocutory Orders.
The stylistic change to the source note distinguishes the
source of proposed new section (j) (the 1998 version of Fed. R.
Civ. P. 23) from the source of the other sections of the Rule (in
part, the 1966 version of Fed. R. Civ. P. 23).
-29-
MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE – CIRCUIT COURT
CHAPTER 200 - PARTIES
ADD new Rule 2-232, as follows:
Rule 2-232.
DERIVATIVE ACTIONS
In a derivative action brought by one or more stockholders
or members to enforce a right of a corporation or of an
unincorporated association that has failed to enforce a right
that properly may be asserted by it, the complaint shall be
verified and shall allege that the plaintiff was a stockholder or
member at the time of the transaction of which the plaintiff
complains or that the plaintiff’s share or membership devolved on
the plaintiff by operation of law after the transaction.
The
complaint shall also allege with particularity (1) any efforts
made by the plaintiff to obtain the desired action from the
directors or comparable authority and, if necessary, from the
stockholders or members, and (2) the reasons for the plaintiff’s
failure to obtain the action or for not making the effort.
The
court shall dismiss the derivative action if it finds that the
plaintiff does not fairly and adequately represent the interests
of the stockholders or members similarly situated in enforcing
the right of the corporation or association.
The action shall
not be dismissed or compromised by the parties without the
approval of the court, and notice of the proposed dismissal or
-30-
compromise shall be given to stockholders or members in such
manner as the court directs.
Source: This Rule is new and derived from the 1987 version of
Fed. R. Civ. P. 23.1.
REPORTER’S NOTE
The Rules Committee recommends the addition of a new rule
based on Fed. R. Civ. P. 23.1, Derivative Actions by
Shareholders. Because of increased stockholder litigation in
Maryland, the Committee believes that it would be beneficial to
have a rule governing stockholder derivative actions. See for
example, Werbowsky v. Collomb, 362 Md. 581 (2001).
-31-
MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE – CIRCUIT COURT
CHAPTER 500 - TRIAL
AMEND Rule 2-501 to delete the phrase “at any time” from
section (a), to revise the requirements of a response to a motion
for summary judgment, to require the court to strike a certain
statement under oath under certain circumstances, to delete
certain language from section (f), and to make certain stylistic
changes, as follows:
Rule 2-501.
(a)
MOTION FOR SUMMARY JUDGMENT
Motion
Any party may file at any time a motion for summary
judgment on all or part of an action on the ground that there is
no genuine dispute as to any material fact and that the party is
entitled to judgment as a matter of law.
The motion shall be
supported by affidavit if it is (1) filed before the day on which
the adverse party's initial pleading or motion is filed or (2)
based on facts not contained in the record.
(b)
Response
The A response to a motion for summary judgment shall
identify with particularity the material facts that are disputed.
When a motion for summary judgment is supported by an affidavit
or other statement under oath, be in writing and shall (1)
identify with particularity each material fact as to which it is
-32-
contended that there is a genuine dispute and (2) as to each such
fact, identify and attach the relevant portion of the specific
document, discovery response, transcript of testimony (by page
and line), or other statement under oath that demonstrates the
dispute.
A response asserting the existence of a material fact
or controverting any fact contained in the record shall be
supported by an opposing party who desires to controvert any fact
contained in it may not rest solely upon allegations contained in
the pleadings, but shall support the response by an affidavit or
other written statement under oath.
A party may file a motion to
strike all or part of an affidavit or statement that contradicts
(1) the deposition testimony of the person making the affidavit
or statement unless the contradiction has been resolved by
changes made within the time allowed by Rule 2-415 (d), or (2)
any other prior sworn statement of the affiant, including
testimony at a prior hearing or an answer to an interrogatory.
If the court finds that the affidavit or statement is
contradictory, the court shall strike it unless the court
determines that manifest injustice would result.
(c)
Form of Affidavit
An affidavit supporting or opposing a motion for summary
judgment shall be made upon personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated in the affidavit.
(d)
Affidavit of Defense Not Available
-33-
If the court is satisfied from the affidavit of a party
opposing a motion for summary judgment that the facts essential
to justify the opposition cannot be set forth for reasons stated
in the affidavit, the court may deny the motion or may order a
continuance to permit affidavits to be obtained or discovery to
be conducted or may enter any other order that justice requires.
(e)
Entry of Judgment
The court shall enter judgment in favor of or against the
moving party if the motion and response show that there is no
genuine dispute as to any material fact and that the party in
whose favor judgment is entered is entitled to judgment as a
matter of law.
By order pursuant to Rule 2-602 (b), the court
may direct entry of judgment (1) for or against one or more but
less than all of the parties to the action, (2) upon one or more
but less than all of the claims presented by a party to the
action, or (3) for some but less than all of the amount requested
when the claim for relief is for money only and the court
reserves disposition of the balance of the amount requested.
If
the judgment is entered against a party in default for failure to
appear in the action, the clerk promptly shall send a copy of the
judgment to that party at the party's last known address
appearing in the court file.
Cross reference: Section 200 of the Soldiers' and Sailors'
Relief Act of 1940, 50 U.S.C. Appendix, §520, imposes specific
requirements that must be fulfilled before a default judgment may
be entered.
(f)
Order Specifying Issues or Facts Not in Dispute
-34-
When a ruling upon on a motion for summary judgment does
not dispose of the entire action and a trial is necessary, the
court, on the basis of the pleadings, depositions, answers to
interrogatories, admissions, and affidavits and, if necessary,
after interrogating counsel on the record, may enter an order
specifying the issues or facts that are not in genuine dispute.
The order controls the subsequent course of the action but may be
modified by the court to prevent manifest injustice.
Source: This Rule is derived as follows:
Section (a) is derived from former Rule 610 a 1 and 3.
Section (b) is new.
Section (c) is derived from former Rule 610 b.
Section (d) is derived from former Rule 610 d 2.
Section (e) is derived in part from former Rules 610 d 1 and
611 and is, in part, new.
Section (f) is derived from former Rule 610 d 4.
REPORTER’S NOTE
As a method of encouraging judges to grant more motions for
summary judgment, the Rules Committee recommends the addition of
language to section (b) which states affirmatively that the
response to a motion for summary judgment must contain specific
references to transcripts or other documents that demonstrate a
genuine dispute of material fact. The new language is derived
from District Court Local Rule 56.1 (b) for the District of
Nebraska. The Committee also recommends deleting the
introductory language of the second sentence of section (b),
because the Committee feels that the requirement to cite to
specific facts in the record that demonstrate a genuine dispute
should apply even when the motion for summary judgment is not
supported by a statement under oath. The second sentence of
section (b) addresses when the response must be supported by
affidavit or other statement under oath, which, as the rule is
proposed to be amended, would include the responding party’s
assertion of a material fact that the moving party contends does
not exist. The proposed amendments to Rule 2-501 (b), in
conjunction with proposed amendments to Rule 2-415 (d), are
intended to respond to the invitation of the Court of Appeals in
Pittman v. Atlantic Realty Co., 359 Md. 513 (2000) for the Rules
Committee to study the issue of “sham affidavits” and “recommend
-35-
appropriate adjustments in other Rules of Procedure if the trial
courts were given the discretion under Rule 2-501 to strike a
sham affidavit.” Id. at 542.
Additionally, certain deletions and other amendments to
sections (a) and (f) are proposed.
The deletion of the phrase “at any time” from section (a) is
in response to Pittman, supra, and makes clear that the motion
may not be filed “at any time” if the filing is not in accordance
with a scheduling order entered under Rule 2-504. The addition
of the phrase “or ... based on facts not contained in the record”
makes clear that the affidavit requirement of Rule 2-311 (f),
applicable to motions, generally, also applies to motions for
summary judgment.
The deletion of language from section (f) conforms that
section to section (e), from which similar language previously
was deleted. The change of the word “upon” to “on” is stylistic,
only.
-36-
MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE--CIRCUIT COURT
CHAPTER 300 - PLEADINGS AND MOTIONS
AMEND Rule 2-311 to delete certain language from section
(d), as follows:
Rule 2-311.
MOTIONS
. . .
(d)
Affidavit
A motion or a response to a motion that is based on facts
not contained in the record or papers on file in the proceeding
shall be supported by affidavit and accompanied by any papers on
which it is based.
. . .
REPORTER’S NOTE
The proposed amendments to Rules 2-311 and 8-431 conform the
language of the Rules to the terminology of a proposed amendment
to Rule 2-501 (a) by deleting from Rule 2-311 (d) the phrase “or
papers on file in the proceeding” as superfluous. Any such paper
is part of the record.
-37-
MARYLAND RULES OF PROCEDURE
TITLE 8 - APPELLATE REVIEW IN COURT OF APPEALS
AND COURT OF SPECIAL APPEALS
CHAPTER 400 - PRELIMINARY MOTIONS
AMEND Rule 8-431 to delete certain language from section
(c), as follows:
Rule 8-431.
MOTIONS
. . .
(c)
Affidavit
A motion or a response to a motion that is based on facts
not contained in the record or papers on file in the proceeding
shall be supported by affidavit and accompanied by any papers on
which it is based.
. . .
REPORTER’S NOTE
See the Reporter’s Note to the proposed amendment to Rule
2-311.
-38-
MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT
CHAPTER 400 - DISCOVERY
AMEND Rule 2-401 to add language to the Committee note after
subsection (d)(2) that encourages parties to provide discovery
material in an electronic format upon request and to make a
certain stylistic change, as follows:
Rule 2-401.
(a)
GENERAL PROVISIONS GOVERNING DISCOVERY
Discovery Methods
Parties may obtain discovery by one or more of the
following methods: (1) depositions upon oral examination or
written questions, (2) written interrogatories, (3) production or
inspection of documents or other tangible things or permission to
enter upon land or other property, (4) mental or physical
examinations, and (5) requests for admission of facts and
genuineness of documents.
(b)
Sequence and Timing of Discovery
Unless the court orders otherwise, methods of discovery
may be used in any sequence and the fact
that a party is
conducting discovery, whether by deposition or otherwise, shall
not operate to delay any other party's discovery.
The court may
at any time order that discovery be completed by a specified date
or time, which shall be a reasonable time after the action is at
issue.
-39-
(c)
Discovery Plan
The parties are encouraged to reach agreement on a plan
for the scheduling and completion of discovery.
(d)
Discovery Material
(1)
Defined
For purposes of this section, the term "discovery
material" means a notice of deposition, an objection to the form
of a notice of deposition, the questions for a deposition upon
written questions, an objection to the form of the questions for
a deposition upon written questions, a deposition transcript,
interrogatories, a response to interrogatories, a request for
discovery of documents and property, a response to a request for
discovery of documents and property, a request for admission of
facts and genuineness of documents, and a response to a request
for admission of facts and genuineness of documents.
(2)
Not to be Filed with Court
Except as otherwise provided in these rules or by order
of court, discovery material shall not be filed with the court.
Instead, the party generating the discovery material shall serve
the discovery material on all other parties and shall file with
the court a notice stating (A) the type of discovery material
served, (B) the date and manner of service, and (C) the party or
person served.
The party generating the discovery material shall
retain the original and shall make it available for inspection by
any other party.
This section does not preclude the use of
discovery material at trial or as exhibits to support or oppose
-40-
motions.
Cross reference:
Rule 2-311 (c).
Committee note: Rule 1-321 requires that the notice be served on
all parties. Rule 1-323 requires that it contain a certificate
of service. Parties exchanging discovery material are encouraged
to comply with requests that the material be provided in a word
processing file or other electronic format.
(e)
Supplementation of Responses
Except in the case of a deposition, a party who has
responded to a request or order for discovery and who obtains
further material information before trial shall supplement the
response promptly.
(f)
Substitution of a Party
Substitution of a party pursuant to Rule 2-241 does not
affect the conduct of discovery previously commenced or the use
of the product of discovery previously conducted.
(g)
Stipulations Regarding Discovery Procedure
Unless the court orders otherwise, the parties by written
stipulation may (1) provide that a deposition may be taken before
any person, at any time or place, upon any notice, and in any
manner and, when so taken, may be used like other depositions and
(2) modify the procedures provided by these rules for other
methods of discovery, except that the parties may not modify any
discovery procedure if the effect of the modification would be to
impair or delay a scheduled court proceeding or conference or
delay the time specified in a court order for filing a motion or
other paper.
-41-
Source: This Rule is derived as follows:
Section (a) is derived from FRCP 26 (a) the 1980 version of
Fed. R. Civ. P. 26 (a).
Section (b) is derived from FRCP 26 (d) the 1980 version of
Fed. R. Civ. P. 26 (d).
Section (c) is new.
Section (d) is new.
Section (e) is derived from former Rule 417 a 3.
Section (f) is derived from former Rule 413 a 5.
Section (g) is derived in part from FRCP 29 the 1993 version of
Fed. R. Civ. P. 29 and former Rule 404 and is in part new.
REPORTER’S NOTE
In response to a suggestion from Michael C. Worsham, Esq.,
the Rules Committee recommends the addition of language to the
Committee note after subsection (d)(2) to encourage parties
exchanging discovery material to provide the material in a word
processing file or other electronic format, upon request. Mr.
Worsham pointed out that providing an electronic copy of a
document would save typing and document scanning, which is
especially helpful in a small law office or the office of a solo
practitioner.
The Committee also suggests that this recommendation be
incorporated into the Discovery Guidelines of the Maryland State
Bar Association.
-42-
MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE--CIRCUIT COURT
CHAPTER 400 - DISCOVERY
AMEND Rule 2-402 to add a new section (b) concerning
limitations on discovery, to expand the scope of discovery by
interrogatory concerning expert witnesses, to specify that any
discovery beyond interrogatories concerning expert witnesses will
consist of depositions, to add a new category of expert witness,
to add certain provisions concerning expert witness fees, and to
add a Committee note, as follows:
Rule 2-402.
SCOPE OF DISCOVERY
Unless otherwise limited by order of the court in accordance
with these rules, the scope of discovery is as follows:
(a)
Generally
A party may obtain discovery regarding any matter, not
privileged, including the existence, description, nature,
custody, condition, and location of any documents or other
tangible things and the identity and location of persons having
knowledge of any discoverable matter, if the matter sought is
relevant to the subject matter involved in the action, whether it
relates to the claim or defense of the party seeking discovery or
to the claim or defense of any other party.
It is not ground for
objection that the information sought is already known to or
otherwise obtainable by the party seeking discovery or that the
-43-
information will be inadmissible at the trial if the information
sought appears reasonably calculated to lead to the discovery of
admissible evidence.
An interrogatory or deposition question
otherwise proper is not objectionable merely because the response
involves an opinion or contention that relates to fact or the
application of law to fact.
(b)
Limitations
In a particular case, the court, on motion or on its own
initiative and after consultation with the parties, by order may
limit or alter the limits in these rules on the length and number
of depositions, the number of interrogatories, the number of
requests for production of documents, and the number of requests
for admissions.
The court shall limit the frequency or extent of
use of the discovery methods otherwise permitted under these
rules if it determines that (1) the discovery sought is
unreasonably cumulative or duplicative or is obtainable from some
other source that is more convenient, less burdensome, or less
expensive; (2) the party seeking discovery has had ample
opportunity by discovery in the action to obtain the information
sought; or (3) the burden or expense of the proposed discovery
outweighs its likely benefit, taking into account the complexity
of the case, the amount in controversy, the parties’ resources,
the importance of the issues at stake in the litigation, and the
importance of the proposed discovery in resolving the issues.
(b) (c) Insurance Agreement
A party may obtain discovery of the existence and contents
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of any insurance agreement under which any person carrying on an
insurance business might be liable to satisfy part or all of a
judgment that might be entered in the action or to indemnify or
reimburse for payments made to satisfy the judgment.
Information
concerning the insurance agreement is not by reason of disclosure
admissible in evidence at trial.
For purposes of this section,
an application for insurance shall not be treated as part of an
insurance agreement.
(c) (d) Trial Preparation – Materials
Subject to the provisions of sections (d) (e) and (e) (f)
of this Rule, a party may obtain discovery of documents or other
tangible things prepared in anticipation of litigation or for
trial by or for another party or by or for that other party’s
representative (including an attorney, consultant, surety,
indemnitor, insurer, or agent) only upon a showing that the
materials are discoverable under section (a) of this Rule and
that the party seeking discovery has substantial need for the
materials in the preparation of the case and is unable without
undue hardship to obtain the substantial equivalent of the
materials by other means.
In ordering discovery of these
materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.
(d) (e) Trial Preparation – Party’s or Witness’ Own Statement
A party may obtain a statement concerning the action or
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its subject matter previously made by that party without the
showing required under section (c) (d) of this Rule.
A person
who is not a party may obtain, or may authorize in writing a
party to obtain, a statement concerning the action or its subject
matter previously made by that person without the showing
required under section (c) (d) of this Rule.
For purposes of
this section, a statement previously made is (1) a written
statement signed or otherwise adopted or approved by the person
making it, or (2) a stenographic, mechanical, electrical, or
other recording, or a transcription thereof, that is a
substantially verbatim recital of an oral statement by the person
making it and contemporaneously recorded.
(e) (f) Trial Preparation--Experts
(1)
Expected to Be Called at Trial
(A) Generally
Discovery of findings and opinions of experts, otherwise
discoverable under the provisions of section (a) of this Rule and
acquired or developed in anticipation of litigation or for trial,
may be obtained without the showing required under section (c) of
this Rule only as follows:
(A) A party by interrogatories may
require any other party to identify each person, other than a
party, whom the other party expects to call as an expert witness
at trial,; to state the subject matter on which the expert is
expected to testify,; to state the substance of the findings and
the opinions to which the expert is expected to testify and a
summary of the grounds for each opinion,; and to produce any
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written report made by the expert concerning those findings and
opinions; (B) a party may obtain further discovery, by deposition
or otherwise, of the findings and opinions to which an expert is
expected to testify at trial, including any written reports made
by the expert concerning those findings and opinions.
A party
also may take the deposition of the expert.
Committee note: This subsection requires a party to disclose the
name and address of any witness who may give an expert opinion at
trial, whether or not that person was retained in anticipation of
litigation or for trial. Cf. Dorsey v. Nold, 362 Md. 241 (2001).
See Rule 104.10 of the Rules of the U.S. District Court for the
District of Maryland. The subsection does not require, however,
that a party name himself or herself as an expert. See Turgut v.
Levin, 79 Md. App. 279 (1989).
(B)
Additional Disclosure With Respect to Experts Retained
in Anticipation of Litigation or for Trial
In addition to the discovery permitted under
subsection (f)(1)(A) of this Rule, a party by interrogatories may
require the other party to summarize the qualifications of a
person expected to be called as an expert witness at trial and
whose findings and opinions were acquired or obtained in
anticipation of litigation or for trial, to produce any available
list of publications written by that expert, and to state the
terms of the expert’s compensation.
(2)
Not Expected to Be Called at Trial
When an expert has been retained by a party in
anticipation of litigation or preparation for trial but is not
expected to be called as a witness at trial, discovery of the
identity, findings, and opinions of the expert may be obtained
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only if a showing of the kind required by section (c) (d) of this
Rule is made.
(3)
Fees and Expenses of Deposition
Unless the court orders otherwise on the ground of
manifest injustice would result, the party seeking discovery: (A)
the court shall require that the party seeking discovery shall
pay the each expert a reasonable fee, at a rate not exceeding the
rate charged by the expert for time spent in responding to
discovery under subsections (e)(1)(B) and (e)(2) of this Rule
preparing for a deposition, for the time spent in attending a
deposition and for the time and expenses reasonably incurred in
travel to and from the deposition; and (B) with respect to
discovery obtained under subsection (e)(1)(B) of this Rule the
court may require, and with respect to discovery obtained under
subsection (e)(2) of this Rule the court shall require, the party
seeking discovery to pay the other party a fair portion of the
fees and expenses reasonably incurred by he latter party in
obtaining findings and opinions from experts when obtaining
discovery under subsection (f)(2) of this Rule, shall pay each
expert a reasonable fee for preparing for the deposition.
Source: This Rule is derived as follows:
Section (a) is derived from former Rule 400 c and FRCP the 1980
version of Fed. R. Civ. P. 33 (b).
Section (b) is new and is derived from the 2000 version of Fed.
R. Civ. P. 26 (b)(2).
Section (b) (c) is new and is derived from FRCP the 1980
version of Fed. R. Civ. P. 26 (b)(2).
Section (c) (d) is derived from former Rule 400 d.
Section (d) (e) is derived from former Rule 400 e.
Section (e) (f)
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Subsection (f)(1) is derived in part from FRCP the 1980
version of Fed. R. Civ. P. 26 (b)(4) and former Rule 400 f and is
in part new.
Subsection (f)(2) is derived from FRCP the 1980 version of
Fed. R. Civ. P. 26 (b)(4) and former Rule U12 b.
Subsection (f)(3) is derived in part from FRCP the 1980
version of Fed. R. Civ. P. 26 (b)(4) and is in part new.
REPORTER'S NOTE
The Rules Committee recommends the addition of a new section
(b) to Rule 2-402, allowing the court by order in a particular
case to alter the limits provided for in the Discovery Rules.
This provision is derived from Fed. R. Civ. P. 26 (b)(2).
Rule 2-402 (f) is proposed to be modified and expanded. The
language “acquired or developed in anticipation of litigation or
for trial” has been deleted from subsection (f)(1)(A) to
eliminate, as to the provisions of that subsection, the
distinction between an expert who was specifically acquired to
testify for the trial and one who was otherwise involved in the
case and is expected to testify. This solves the problem in the
case of Dorsey v. Nold, 362 Md. 241 (2001), in which the court
made that distinction in terms of the medical examiner in a case
who did not develop his opinion as to the cause of death in
anticipation of litigation or for trial and thus did not have to
be disclosed to the other side as a witness. Subsection
(f)(1)(A) clarifies that further discovery (beyond
interrogatories) will consist of the deposition of the expert.
See Fed. R. Civ. P. 26 (b)(4)(A), allowing a party to “depose any
person who has been identified as an expert whose opinions may be
presented at trial.”
The Committee proposes the addition of a Committee note
following subsection (f)(1)(A) to make clear that the subsection
requires a party to disclose each person, other than the party
himself or herself, who may give an expert opinion at trial,
regardless of whether that person was retained in anticipation of
litigation or for trial. This concept is borrowed from Rule
104.10 of the Rules of the U.S. District Court for the District
of Maryland, which uses the term “hybrid fact/expert witness.”
A new subsection (f)(1)(B) sets forth additional provisions
for disclosures with respect to persons expected to be called as
expert witnesses at trial whose findings and opinions were
acquired or obtained in anticipation of litigation or for trial.
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Rule 2-402 (f)(3) is proposed to be amended with respect to
the allocation of expert fees and expenses. The fee and expense
provisions set forth in the amendment are applicable "unless the
court orders otherwise on the ground of manifest injustice."
Instead of the vague allowance of a fee for time spent "in
responding to discovery," subsection (f)(3)(A) authorizes a fee
only for time spent in attending the deposition and in traveling
to and from the deposition, plus travel expenses. Subsection
(f)(3)(A) further limits the rate that a party seeking discovery
must pay to an expert for attending a deposition to the rate
charged by the expert for time spent preparing for the
deposition. This is similar to the policy reflected in Local
Rule 104.11.a. of the Rules of the United States District Court
for the District of Maryland.
Additionally, with respect to the rare occurrence of
discovery that is allowed under subsection (f)(2), subsection
(f)(3)(B) requires the party seeking discovery to pay the expert
a reasonable fee for preparing for the deposition.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT
CHAPTER 400 - DISCOVERY
AMEND Rule 2-411 to provide generally for a seven-hour
limitation on the duration of a deposition and to add language
referring to section (i) of Rule 2-415, as follows:
Rule 2-411.
DEPOSITION — RIGHT TO TAKE
Any party to an action may cause the testimony of a person,
whether or not a party, to be taken by deposition for the purpose
of discovery or for use as evidence in the action or for both
purposes.
Leave of court must be obtained to take a deposition
(a) before the earliest day on which any defendant’s initial
pleading or motion is required; or (b) that is longer than one
seven-hour day; (c) of an individual confined in prison; or (b)
(d) of an individual who has previously been deposed in the same
action; or (c) of an individual confined in prison unless further
deposition is permitted under Rule 2-415 (i) because substantive
changes have been made to the deposition transcript.
Leave of
court may be granted on such terms as the court prescribes.
Source: This Rule is derived from former Rule 401 and the 2000
version of Fed. R. Civ. P. 30 (d)(2).
REPORTER’S NOTE
A proposed amendment to Rule 2-411 adds a new provision that
limits the duration of a deposition to one day of seven hours,
with additional time allowed by the court under certain
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circumstances. This would make the Rule consistent with Fed. R.
Civ. P. 30 (d)(2).
Proposed new section (i) of Rule 2-415 allows a party to
serve notice of a further deposition on a deponent who files a
correction sheet with substantive changes. This procedure is an
exception to part (c) of Rule 2-411, which requires leave of
court before a party can take a deposition of an individual who
has previously been deposed in the same action. The Rules
Committee recommends that language be added to Rule 2-411 that
refers to the exception in Rule 2-415 (i).
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE--CIRCUIT COURT
CHAPTER 400 - DISCOVERY
AMEND Rule 2-412 to add a new section (e) concerning
depositions of treating physicians, to redesignate former
section (e) as section (f), and to make certain stylistic
changes, as follows:
Rule 2-412.
DEPOSITION--NOTICE
. . .
(e)
Treating Physician
A party serving a notice to take the deposition of a
treating physician shall confer with opposing counsel and in the
notice advise the physician of the total number of hours that
will be required for the deposition, including travel time.
The
treating physician (1) may not charge a fee for attending the
deposition that is higher than the hourly fee customarily charged
by the physician for in-office patient consultation, (2) may not
charge for any hours exceeding the time estimate set forth in the
notice if the deposition is completed within the estimate, and
(3) may terminate the deposition when the estimated time has
elapsed.
Cross reference:
(e) (f)
See Rule 2-402 (f).
Objection to Form
. . .
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Source: This Rule is derived as follows:
Section (a) is derived from former Rule 405 a 1 and a 2 (a) and
FRCP 30 (b)(1) the 1980 version of Fed. R. Civ. P. 30 (b)(1).
Section (b) is derived from Rule 410 c.
Section (c) is derived from FRCP 30 (b)(5) the 1980 version of
Fed. R. Civ. P. 30 (b)(5).
Section (d) is derived from FRCP 30 (b)(6) the 1980 version of
Fed. R. Civ. P. 30 (b)(6) and former Rule 405 a 2 (b).
Section (e) is new.
Section (e) (f) is derived from former Rule 412 a.
REPORTER'S NOTE
A treating physician may be considered both a fact witness
and an expert whose loss of time in deposition is recognized as
deserving of compensation.
New section (e) is derived in part from Local Rule 104.11.b.
of the Rules of the United States District Court for the District
of Maryland. It is intended to require a discovering party (1)
to reimburse the physician for time spent attending a deposition
and traveling to and from the deposition and (2) to estimate the
total number of hours that will be required. The section also
provides that the physician may not charge a fee higher than the
hourly fee customarily charged for in-office patient
consultation, and it allows the physician to terminate the
deposition when the estimated time has elapsed.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT
CHAPTER 400 - DISCOVERY
AMEND Rule 2-415 to allow for changes in form and substance
of testimony contained in deposition transcripts and to add a new
section (i) providing a procedure for further deposition
following substantive change to a transcript, as follows:
Rule 2-415.
DEPOSITION -– PROCEDURE
. . .
(d)
Correction and Signature and Changes
The officer shall submit the transcript to the deponent
for correction and signing, unless Unless changes and signing are
waived by the deponent and the parties, the officer shall submit
the transcript to the deponent, accompanied by a notice in
substantially the following form:
[Caption of case]
NOTICE TO
[name of deponent]
The enclosed transcript of your
deposition in the above-captioned case is
submitted to you on [date of submission of
the transcript to the deponent] for your
signature and any corrections or other
changes you wish to make. All corrections
and other changes will become part of your
sworn testimony.
After you have read the transcript, sign
it and, if you are making changes, attach to
the transcript a separate correction sheet
stating the changes and the reason why each
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change is being made. Return the signed
transcript and any correction sheet to [name
and address of officer before whom the
deposition was taken] no later than 30 days
after the date stated above.
If you fail to return the signed
transcript and any correction sheet within
the time allowed, the transcript may be used
as if signed by you. See Rules 2-415 and 2501 of the Maryland Rules of Procedure.
Any corrections desired by the deponent to conform the transcript
to the testimony shall be made on a separate sheet and attached
by the officer to the transcript.
Corrections made by the
deponent become part of the transcript unless the court orders
otherwise on a motion to suppress under section (i) of this Rule.
If the transcript is not signed by the deponent within 30 days
after its submission, the officer shall sign it and state why the
deponent has not signed.
Within 30 days after the date the
officer mails or otherwise submits the transcript to the
deponent, the deponent shall (1) sign the transcript and (2) note
any changes to the form or substance of the testimony in the
transcript on a separate correction sheet, stating the reason why
each change is being made.
The officer promptly shall serve a
copy of the correction sheet on the parties and attach the
correction sheet to the transcript.
The changes contained on the
correction sheet become part of the transcript.
If the deponent
does not timely sign the transcript, the officer shall sign the
transcript, certifying the date that the transcript was submitted
to the deponent with the notice required by this section and that
the transcript was not signed and returned within the time
-56-
allowed.
The transcript may then be used as if signed by the
deponent, unless the court finds, on a motion to suppress under
section (i) (j) of this Rule, that the reason for refusal the
failure to sign requires rejection of all or part of the
transcript.
Cross reference: See Rule 2-501 (b) for the consequences of
filing an affidavit or other written statement under oath that
contradicts deposition testimony that was not changed within the
time allowed by this section.
. . .
(i)
Further Deposition Upon Substantive Changes to Transcript
If a correction sheet contains substantive changes, any
party may serve notice of a further deposition of the deponent
limited to the subject matter of the substantive changes made by
the deponent unless the court, on motion of a party pursuant to
Rule 2-403, enters a protective order precluding the further
deposition.
(i) (j)
Motions to Suppress
An objection to the manner in which testimony is
transcribed, videotaped, or audiotaped, or to the manner in which
a transcript is prepared, signed, certified, sealed, endorsed,
transmitted, filed, or otherwise dealt with by the officer is
waived unless a motion to suppress all or part of the deposition
is made promptly after the defect is or with due diligence might
have been ascertained.
An objection to corrections made to the
transcript by the deponent is waived unless a motion to suppress
all or part of the corrections is filed within sufficient time
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before trial to allow for a ruling by the court and, if
appropriate, further deposition.
In ruling on a motion to
suppress, the court may grant leave to any party to depose the
deponent further on terms and conditions the court deems
appropriate.
Source: This Rule is derived as follows:
Section (a) is derived from former Rule 409 c.
Section (b) is derived from former Rule 409 a.
Section (c) is derived from former Rule 411 b 3.
Section (d) is derived in part from former Rules 411 a and 412
e and in part from the 1993 version of Fed. R. Civ. P. 30 (e).
Section (e) is derived from former Rule 411 b 1, 2 and 5.
Section (f) is derived from former Rule 411 b 4.
Section (g) is derived from former Rules 409 c 2, and 412 c 1
and 2.
Section (h) is derived from former Rule 422 a 2.
Section (i) is new.
Section (i) (j) is derived from former Rule 412 d and e.
REPORTER’S NOTE
The Rules Committee recommends that section (d) of Rule 2415 be amended to allow for changes to form and substance of
testimony contained in deposition transcripts. The amendments
are derived from Fed. R. Civ. P. 30 (e). The proposed amendments
to Rule 2-415(d), in conjunction with proposed amendments to Rule
2-501, are intended to respond to the invitation of the Court of
Appeals in Pittman v. Atlantic Realty Co., 359 Md. 513 (2000) for
the Rules Committee to study the issue of “sham affidavits” and
“recommend appropriate adjustments in other Rules of Procedure if
the trial courts were given the discretion under Rule 2-501 to
strike a sham affidavit.” Id. at 542.
If changes and signing are not waived by the deponent and
the parties, the deponent, within 30 days after the transcript is
mailed or submitted to him or her, may make changes to the
transcript and shall sign it. The changes may be to the form or
substance of the testimony and must be set forth on a separate
correction sheet, together with the reason for each change. If
the deponent does not timely sign the transcript, the officer
before whom the deposition was taken shall sign it, certifying
the date that the transcript, together with the notice required
by section (d), was submitted to the deponent and that the
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transcript was not signed and returned within the allowed time.
The requirement in current section (d) that the officer state why
the deponent has not signed is proposed to be deleted because the
officer usually does not know why.
Proposed new section (i), pertaining to substantive changes,
allows a further deposition on the subject matter of the change
and a mechanism for objecting to the further deposition by filing
a motion for a protective order pursuant to Rule 2-403.
Section (j), pertaining to objections as to the manner of
recording and the manner of preparing transcripts, retains the
motion to suppress as the mechanism for filing objections
concerning these matters. The sentence pertaining to motions to
suppress corrections is proposed to be deleted in light of the
proposed changes set forth above.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE--CIRCUIT COURT
CHAPTER 400 - DISCOVERY
AMEND Rule 2-419 to allow a deposition transcript and
any correction sheets to be used to contradict or impeach the
testimony of a deponent and to conform the Rule to proposed
amendments to Rules 2-412 and 2-415, as follows:
Rule 2-419.
(a)
DEPOSITION –- USE
When May be Used
(1)
Contradiction and Impeachment
A party may use A a deposition transcript and any
correction sheets to may be used by any party for the purpose of
contradicting or impeaching contradict or impeach the testimony
of the deponent as a witness.
(2)
By Adverse Party
The deposition of a party or of anyone who at the time
of taking the deposition was an officer, director, managing
agent, or a person designated under Rule 2-412 (d) to testify on
behalf of a public or private corporation, partnership,
association, or governmental agency which is a party may be used
by an adverse party for any purpose.
(3)
Witness Not Available or Exceptional Circumstances
The deposition of a witness, whether or not a party, may
be used by any party for any purpose against any other party who
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was present or represented at the taking of the deposition or who
had due notice thereof, if the court finds:
(A) that the witness is dead; or
(B) that the witness is out of the State, unless it appears
that the absence of the witness was procured by the party
offering the deposition; or
(C) that the witness is unable to attend or testify because
of age, mental incapacity, sickness, infirmity, or imprisonment;
or
(D) that the party offering the deposition has been unable
to procure the attendance of the witness by subpoena; or
(E) upon motion and reasonable notice, that such exceptional
circumstances exist as to make it desirable, in the interest of
justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the
deposition to be used.
(4)
Videotape Deposition of Expert
A videotape deposition of a treating or consulting
physician or of any expert witness may be used for any purpose
even though the witness is available to testify if the notice of
that deposition specified that it was to be taken for use at
trial.
. . .
(d)
Objection to Admissibility
Subject to Rules 2-412 (e) (f), 2-415 (g) and (i) (j),
2-416 (g), and 2-417 (c), an objection may be made at a hearing
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or trial to receiving in evidence all or part of a deposition for
any reason that would require the exclusion of the evidence if
the witness were then present and testifying.
. . .
REPORTER’S NOTE
The Rules Committee recommends the addition of language to
section (a) of Rule 2-419 to state that a deposition transcript
and any correction sheets attached to it may be used to impeach
or contradict the deponent’s testimony. As amended, the Rule
allows not only the corrected deposition but also the original
deposition to be used for these purposes. For example, if in the
original deposition the deponent states a certain fact and then
files a correction sheet that states the opposite of that fact,
both versions of the deponent’s testimony may be used for the
purposes set forth in section (a).
The proposed amendment to section (d) of Rule 2-419 conforms
the Rule to proposed changes to Rules 2-412 and 2-415.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT
CHAPTER 400 - DISCOVERY
AMEND Rule 2-421 to delete the phrase “at any time” from
section (a) and to make a certain stylistic change, as follows:
Rule 2-421.
(a)
INTERROGATORIES TO PARTIES
Availability; Number
Any party may serve at any time written interrogatories
directed to any other party.
Unless the court orders otherwise,
a party may serve one or more sets having a cumulative total of
not more than 30 interrogatories to be answered by the same
party.
Interrogatories, however grouped, combined, or arranged
and even though subsidiary or incidental to or dependent upon
other interrogatories, shall be counted separately.
Each form
interrogatory contained in the Appendix to these Rules shall
count as a single interrogatory.
. . .
Source: This Rule is derived as follows:
Section (a) is derived in part from former Rule 417 a 1 and 2
and is in part new.
Section (b) is derived from former Rule 417 b 1 and 2.
Section (c) is derived from former Rule 417 f and FRCP 33 (c)
the 1980 version of Fed. R. Civ. P. 33 (c).
Section (d) is derived from former Rule 417 d.
REPORTER’S NOTE
The proposed deletion of the phrase “at any time” from
section (a) of Rules 2-421 and 2-422 is in response to Pittman v.
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Atlantic Relaty Co., 359 Md. 513 (2000) and makes clear that
interrogatories and requests for discovery of documents and
property may not be served “at any time” if the timing is not in
accordance with a scheduling order entered under Rule 2-504.
Similar amendments to section (a) of Rule 2-501, Motion for
Summary Judgment, and Rule 2-424, Admission of Facts and
Genuineness of Documents, also are proposed by the Committee.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT
CHAPTER 400 - DISCOVERY
AMEND Rule 2-422 to delete the phrase “at any time” from
section (a) and to make a certain stylistic change, as follows:
Rule 2-422.
(a)
DISCOVERY OF DOCUMENTS AND PROPERTY
Scope
Any party may serve at any time one or more requests to
any other party (1) as to items that are in the possession,
custody, or control of the party upon whom the request is served,
to produce and permit the party making the request, or someone
acting on the party's behalf, to inspect and copy any designated
documents (including writings, drawings, graphs, charts,
photographs, recordings, and other data compilations from which
information can be obtained, translated, if necessary, by the
respondent through detection devices into reasonably usable form)
or to inspect and copy, test, or sample any tangible things which
constitute or contain matters within the scope of Rule 2-402 (a);
or (2) to permit entry upon designated land or other property in
the possession or control of the party upon whom the request is
served for the purpose of inspection, measuring, surveying,
photographing, testing, or sampling the property or any
designated object or operation on the property, within the scope
of Rule 2-402 (a).
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. . .
Source: This Rule is derived from former Rule 419 and FRCP 34
the 1980 version of Fed. R. Civ. P. 34.
REPORTER’S NOTE
See the Reporter’s Note to the proposed amendment to Rule
2-421.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT
CHAPTER 400 - DISCOVERY
AMEND Rule 2-424 to delete the phrase “at any time” from
section (a), to add language to section (b) requiring parties
responding to requests for admissions to set forth the request
with the response, and to make a certain stylistic change, as
follows:
Rule 2-424.
(a)
ADMISSION OF FACTS AND GENUINENESS OF DOCUMENTS
Request for Admission
A party may serve at any time one or more written requests
to any other party for the admission of (1) the genuineness of
any relevant documents described in or exhibited with the
request, or (2) the truth of any relevant matters of fact set
forth in the request.
Copies of documents shall be served with
the request unless they have been or are otherwise furnished or
made available for inspection and copying.
Each matter of which
an admission is requested shall be separately set forth.
(b)
Response
Each matter of which an admission is requested shall be
deemed admitted unless, within 30 days after service of the
request or within 15 days after the date on which that party's
initial pleading or motion is required, whichever is later, the
party to whom the request is directed serves a response signed by
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the party or the party's attorney.
As to each matter of which an
admission is requested, the response shall set forth each request
for admission and shall specify an objection, or shall admit or
deny the matter, or shall set forth in detail the reason why the
respondent cannot truthfully admit or deny it. The reasons for
any objection shall be stated.
A denial shall fairly meet the
substance of the requested admission, and when good faith
requires that a party qualify an answer or deny only a part of
the matter of which an admission is requested, the party shall
specify so much of it as is true and deny or qualify the
remainder.
A respondent may not give lack of information or
knowledge as a reason for failure to admit or deny unless the
respondent states that after reasonable inquiry the information
known or readily obtainable by the respondent is insufficient to
enable the respondent to admit or deny.
A party who considers
that a matter of which an admission is requested presents a
genuine issue for trial may not, on that ground alone, object to
the request but the party may, subject to the provisions of
section (e) of this Rule, deny the matter or set forth reasons
for not being able to admit or deny it.
. . .
Source: This Rule is derived as follows:
Section (a) is derived from former Rule 421 a and FRCP 36 (a)
the 1970 version of Fed. R. Civ. P. 36 (a).
Section (b) is derived from former Rule 421 b 1 and 2 and FRCP
36 (a) the 1970 version of Fed. R. Civ. P. 36 (a).
Section (c) is derived from former Rule 421 d.
Section (d) is derived from FCRP 36 (b) the 1970 version of
Fed. R. Civ. P. 36 (b) and former Rule 421 c and f.
Section (e) is derived from former Rule 421 e.
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REPORTER’S NOTE
The proposed deletion of the phrase “at any time” from
section (a) of Rule 2-424 is in response to Pittman v. Atlantic
Relaty Co., 359 Md. 513 (2000), and makes clear that a request
may not be filed “at any time” if the filing is not in accordance
with a scheduling order entered under Rule 2-504.
The Committee also recommends an amendment to section (b) of
the Rule, suggested by Michael C. Worsham, Esq. The proposed
amendment adds language that requires a party responding to a
request for admissions to include the original request with the
response. This will make the responses more meaningful for all
parties and the court. Mr. Worsham also points out that this
procedure will allow parties to attach the response including the
original request for admission to motions or responses to
motions.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT
CHAPTER 400 - DISCOVERY
AMEND 2-432 (c) for conformity with proposed amendments to
Rule 2-402, as follows:
Rule 2-432.
MOTIONS UPON FAILURE TO PROVIDE DISCOVERY
. . .
(c)
By Nonparty to Compel Production of Statement
If a party fails to comply with a request of a nonparty
made pursuant to Rule 2-402 (d) (e) for production of a
statement, the nonparty may move for an order compelling its
production.
. . .
REPORTER’S NOTE
The proposed amendment to Rule 2-432 conforms the Rule to
proposed changes to Rule 2-402.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT
CHAPTER 500 - TRIAL
AMEND Rule 2-504 (b)(1)(B) for conformity with proposed
amendments to Rule 2-402, as follows:
Rule 2-504.
SCHEDULING ORDER
. . .
(b)
Contents of Scheduling Order
(1)
Required
A scheduling order shall contain:
(A) an assignment of the action to an appropriate
scheduling category of a differentiated case management system
established pursuant to Rule 16-202;
(B) one or more dates by which each party shall identify
each person whom the party expects to call as an expert witness
at trial, including all information specified in Rule 2-402 (e)
(1)(A) (f)(1);
(C) one or more dates by which each party shall file the
notice required by Rule 2-504.3 (b) concerning computer-generated
evidence;
(D) a date by which all discovery must be completed;
(E) a date by which all dispositive motions must be filed;
and
(F) any other matter resolved at a scheduling conference
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held pursuant to Rule 2-504.1.
. . .
REPORTER’S NOTE
The proposed amendment to Rule 2-504 conforms the Rule to
proposed changes to Rule 2-402.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT
CHAPTER 500 - TRIAL
AMEND Rule 2-504.2 by adding language to subsection (b)(8)
and adding new subsections (b)(9) and (b)(10) to conform the Rule
to Fed. R. Civ. P. 26 (a)(3), as follows:
Rule 2-504.2.
(a)
PRETRIAL CONFERENCE
Generally
The court, on motion or on its own initiative, may direct
all parties to appear before it for a conference before trial.
If the court directs, each party shall file not later than five
days before the conference a written statement addressing the
matters listed in section (b) of this Rule.
(b)
Matters to be Considered
The following matters may be considered at a pretrial
conference:
(1) A brief statement by each plaintiff of the facts to be
relied on in support of a claim;
(2) A brief statement by each defendant of the facts to be
relied on as a defense to a claim;
(3) Similar statements as to any counterclaims, cross-claim,
or third-party claim;
(4) Any amendments required of the pleadings;
(5) Simplification or limitation of issues;
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(6) Stipulations of fact or, if unable to agree, a statement
of matters of which any party requests an admission;
(7) The details of the damage claimed or any other relief
sought as of the date of the pretrial conference;
(8) A listing of the documents and records to be offered in
evidence by each party at the trial, other than those expected to
be used solely for impeachment, indicating which documents the
parties agree may be offered in evidence without the usual
authentication and separately identifying those that the party
may offer only if the need arises;
(9) A listing by each party of the name, address, and
telephone number of each non-expert whom the party expects to
call as a witness at trial (other than those expected to be used
solely for impeachment) separately identifying those whom the
party may call only if the need arises;
(10) A listing by each party of those witnesses whose
testimony is expected to be presented by means of a deposition
(other than those expected to be used solely for impeachment) and
a transcript of the pertinent portions of any deposition
testimony that was not taken stenographically;
(9) (11) A listing by each party of the names and specialties
of experts the party proposes to call as witnesses;
(10) (12) Any other matter that the party wishes to raise at
the conference.
(c)
Pretrial Order
The court shall enter an order that recites in detail the
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decisions made at the conference.
The order controls the
subsequent course of the action but may be modified by the court
to prevent manifest injustice.
Source: Prior to 1994, this Rule was numbered Rule 2-504. It is
derived from former Rule 504 a, b, and c, and FRCP 16 the 1937
version of Fed. R. Civ. P. 16, and the 2000 version of Fed. R.
Civ. P. 26 (a)(3).
REPORTER’S NOTE
The Rules Committee recommends that categories of
information consistent with those of Fed. R. Civ. P. 26 (a)(3) be
disclosed to parties and that this be accomplished by amending
the list of matters that can be considered at the pretrial
conference.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE – CIRCUIT COURT
CHAPTER 600 - JUDGMENT
AMEND Rule 2-633 to add a Committee note following section
(a) to clarify that post-judgment discovery is in addition to
pre-judgment discovery, as follows:
Rule 2-633.
DISCOVERY IN AID OF ENFORCEMENT
. . .
(a)
Methods
A judgment creditor may obtain discovery to aid
enforcement of a money judgment (1) by use of depositions,
interrogatories, and requests for documents, and (2) by
examination before a judge or an examiner as provided in section
(b) of this Rule.
Committee note: The discovery permitted by this Rule is in
addition to the discovery permitted before the entry of judgment,
and the limitations set forth in Rules 2-411 (d) and 2-421 (a)
apply separately to each. Thus, a second deposition of an
individual previously deposed before the entry of judgment may be
taken after the entry of judgment without leave of court. A
second post-judgment deposition of that individual, however,
would require leave of court. Melnick v. New Plan Realty, 89 Md.
App. 435 (1991). Furthermore, leave of court is not required
under Rule 2-421 to serve interrogatories on a judgment debtor
solely because 30 interrogatories were served upon that party
before the entry of judgment.
. . .
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REPORTER’S NOTE
The proposed amendment to Rule 2-633 makes clear that
discovery in aid of enforcement is allowed in addition to any
pre-judgment discovery that may have been obtained. As stated in
the proposed new Committee note following section (a), a second
deposition of an individual previously deposed before the entry
of judgment may be taken after the entry of judgment without the
leave of court otherwise required by Rule 2-411. A second postjudgment deposition of that individual, however, would require
leave of court. Melnick v. New Plan Realty, 89 Md. App. 435
(1991). Furthermore, leave of court is not required under Rule
2-421 to serve interrogatories on a judgment debtor solely
because 30 interrogatories were served upon that party before the
entry of judgment.
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MARYLAND RULES OF PROCEDURE
TITLE 3 - CIVIL PROCEDURE -- DISTRICT COURT
CHAPTER 600 - JUDGMENT
AMEND Rule 3-633 to add a Committee note following section
(a) to clarify that post-judgment discovery is in addition to
pre-judgment discovery, as follows:
Rule 3-633.
(a)
DISCOVERY IN AID OF ENFORCEMENT
Methods
A judgment creditor may obtain discovery to aid
enforcement of a money judgment (1) by use of interrogatories
pursuant to Rule 3-421, and (2) by examination before a judge or
an examiner as provided in section (b) of this Rule.
Committee note: The discovery permitted by this Rule is in
addition to the discovery permitted before the entry of judgment,
and the limitations set forth in Rule 3-421 (b) apply separately
to each. Thus, leave of court is not required under Rule 3-421
to serve one set of not more than 15 interrogatories on a
judgment debtor solely because interrogatories were served upon
that party before the entry of judgment.
. . .
REPORTER’S NOTE
The proposed amendment to Rule 3-633 makes clear that
discovery in aid of enforcement is allowed in addition to any
pre-judgment discovery that may have been obtained. As stated in
the proposed new Committee note following section (a), leave of
court is not required under Rule 3-421 to serve one set of not
more than 15 interrogatories on a judgment debtor solely because
interrogatories were served upon that party before the entry of
judgment.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 200 - PRETRIAL PROCEDURES
AMEND Rule 4-261 (h)(4) for conformity with proposed
amendments to Rules 2-412 and 2-415, as follows:
Rule 4-261.
DEPOSITIONS
. . .
(h)
Use
(1)
Substantive Evidence
At a hearing or trial, all or part of a deposition, so
far as otherwise admissible under the rules of evidence, may be
used as substantive evidence if the court finds that the witness:
(A) is dead, or (B) is unable to attend or testify because of
age, mental incapacity, sickness, or infirmity, or (C) is present
but refuses to testify and cannot be compelled to testify, or (D)
is absent from the hearing or trial and that the party offering
the deposition has been unable to procure the witness' attendance
by subpoena or other reasonable means, unless the absence was
procured by the party offering the deposition.
(2)
Impeachment
At a hearing or trial, a deposition may be used by any
party for the purpose of contradicting or impeaching the
testimony of the deponent as a witness to the extent permitted by
the rules of evidence.
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(3)
Partial Use
If only part of a deposition is offered in evidence by a
party, an adverse party may require the offering party to
introduce at that time any other part that in fairness ought to
be considered with the part offered, so far as otherwise
admissible under the rules of evidence, and any party may
introduce any other part in accordance with this Rule.
(4)
Objection to Admissibility
Subject to Rules 2-412 (e) (f), 2-415 (g) and (h) (j),
2-416 (g), and 2-417 (c), an objection may be made at the hearing
or trial to receiving in evidence all or part of a deposition for
any reason that would require the exclusion of the evidence if
the witness were then present and testifying.
. . .
REPORTER’S NOTE
The proposed amendment to Rule 4-261 conforms the Rule to
proposed changes to Rules 2-412 and 2-415.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 800 - MISCELLANEOUS
AMEND Rule 16-808 (g)(1) for conformity with proposed
amendments to Rule 2-402, as follows:
Rule 16-808.
PROCEEDINGS BEFORE COMMISSION
. . .
(g)
Exchange of Information
(1)
Upon request of the judge at any time after service of
charges upon the judge, Investigative Counsel shall promptly (A)
allow the judge to inspect the Commission Record and to copy all
evidence accumulated during the investigation and all statements
as defined in Rule 2-402 (d) (e) and (B) provide to the judge
summaries or reports of all oral statements for which
contemporaneously recorded substantially verbatim recitals do not
exist, and
(2)
Not later than 30 days before the date set for the
hearing, Investigative Counsel and the judge shall each provide
to the other a list of the names, addresses, and telephone
numbers of the witnesses that each intends to call and copies of
the documents that each intends to introduce in evidence at the
hearing.
(3)
Discovery is governed by Title 2, Chapter 400 of these
Rules, except that the Chair of the Commission, rather than the
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court, may limit the scope of discovery, enter protective orders
permitted by Rule 2-403, and resolve other discovery issues.
(4)
When disability of the judge is an issue, on its own
initiative or on motion for good cause, the Chair of the
Commission may order the judge to submit to a mental or physical
examination pursuant to Rule 2-423.
. . .
REPORTER’S NOTE
The proposed amendment to Rule 16-808 conforms the Rule to
proposed changes to Rule 2-402.
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MARYLAND RULES OF PROCEDURE
APPENDIX:
FORMS
FORM INTERROGATORIES
AMEND Form No. 3 -- General Interrogatories, to conform
Standard General Interrogatory No. 2 to an amendment to Rule
2-402 which expands the scope of discovery by interrogatory
concerning expert witnesses, as follows:
Form No. 3 - General Interrogatories
Interrogatories
1.
Identify each person, other than a person intended to
be called as an expert witness at trial, having discoverable
information that tends to support a position that you have taken
or intend to take in this action, including any claim for
damages, and state the subject matter of the information
possessed by that person.
(Standard General Interrogatory No.
1.)
2.
Identify each person whom you expect to call as an expert
witness at trial, state the subject matter on which the expert is
expected to testify, state the substance of the findings and
opinions to which the expert is expected to testify and a summary
of the grounds for each opinion, and, with respect to an expert
whose findings and opinions were acquired in anticipation of
litigation or for trial, summarize the qualifications of the
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expert, state the terms of the expert's compensation, and attach
to your answers any available list of publications written by the
expert and any written report made by the expert concerning those
the expert's findings and opinions.
(Standard General
Interrogatory No. 2.)
3.
If you intend to rely upon any documents or other
tangible things to support a position that you have taken or
intend to take in the action, including any claim for damages,
provide a brief description, by category and location, of all
such documents and other tangible things, and identify all
persons having possession, custody, or control of them.
(Standard General Interrogatory No. 3.)
4.
Itemize and show how you calculate any economic damages
claimed by you in this action, and describe any non-economic
damages claimed.
5.
(Standard General Interrogatory No. 4.)
If any person carrying on an insurance business might be
liable to satisfy part or all of a judgment that might be entered
in this action or to indemnify or reimburse for payments made to
satisfy the judgment, identify that person, state the applicable
policy limits of any insurance agreement under which the person
might be liable, and describe any question or challenge raised by
the person relating to coverage for this action.
(Standard
General Interrogatory No. 5.)
Committee note: These interrogatories are general in nature and
are designed to be used in a broad range of cases.
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REPORTER'S NOTE
The proposed amendment to Standard General Interrogatory No.
2 conforms the language of that Interrogatory to the language of
the proposed amendment to Rule 2-402 (f)(1)(B), which allows a
party by interrogatories (1) to require the other party to
summarize the qualifications of an expert, (2) to produce any
available list of publications written by the expert, and (3) to
state the terms of the expert’s compensation, all of which apply
when the expert is one whose findings and opinions were acquired
or obtained in anticipation of litigation or for trial.
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MARYLAND RULES OF PROCEDURE
APPENDIX: FORMS
FORM INTERROGATORIES
AMEND Form No. 7 - Motor Vehicle Tort Interrogatories, for
conformity with proposed amendments to Rule 2-402, as follows:
Form 7.
Motor Vehicle Tort Interrogatories.
Interrogatories
. . .
12.
Identify all persons who have given you "statements,"
as that term is defined in Rule 2-402 (d) (e), concerning the
action or its subject matter.
For each statement, state the date
on which it was given and identify the custodian. (Standard Motor
Vehicle Tort Interrogatory No. 12.)
. . .
REPORTER’S NOTE
The proposed amendment to Form No. 7 conforms the Form to
proposed changes to Rule 2-402.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE — CIRCUIT COURT
CHAPTER 500 - TRIAL
AMEND Rule 2-512 to change a certain provision concerning
the discharge of alternate jurors, to add a new section (d) that
provides for an advance questionnaire to be completed by
prospective jurors, to delete a certain phrase concerning the
identification of jurors, and to clarify that the jury foreperson
may be selected either by the court or by the jury, as follows:
Rule 2-512.
(a)
JURY SELECTION
Challenge to the Array
A party may challenge the array of jurors on the ground
that its members were not selected, drawn, or summoned according
to law or on any other ground that would disqualify the panel as
a whole.
A challenge to the array shall be made and determined
before any individual juror from that array is examined, except
that the court for good cause may permit it to be made after the
jury is sworn but before any evidence is received.
(b)
Alternate Jurors
(1)
Generally
The court may direct that one or more jurors be called
and impanelled to sit as alternate jurors.
Any juror who, before
the time the jury retires to consider its verdict, juror’s
service is completed, becomes or is found to be unable or
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disqualified to perform a juror's duty shall be replaced by an
alternate juror in the order of selection.
An alternate juror
shall be drawn in the same manner, have the same qualifications,
be subject to the same examination, take the same oath, and have
the same functions, powers, facilities, and privileges as a
juror.
An alternate juror who does not replace a juror shall be
discharged when the jury retires to consider its verdict at such
time as the court concludes that the juror’s service is
completed.
Cross reference: See Rule 2-511 (b).
(2)
Retaining Alternate Jurors
The court may retain alternate jurors after the jury
retires to deliberate.
The court shall ensure that a retained
alternate does not discuss the case with anyone until that
alternate replaces a juror or is discharged.
If an alternate
replaces a juror after deliberations have begun, the court shall
instruct the jury to begin its deliberations anew.
(c)
Jury List
Before the examination of jurors, each party shall be
provided with a list of jurors that includes the name, age, sex,
education, occupation, and occupation of spouse of each juror and
any other information required by the county jury plan.
When the
county jury plan requires the address of a juror, the address
need not include the house or box number.
(d)
Advance Questionnaire
Before the jury selection process takes place, the court
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may direct that prospective jurors answer questions in writing
under oath.
Before the questionnaire is submitted to the
prospective jurors, the court shall give the parties a reasonable
opportunity to propose questions to be included in the
questionnaire and to object to questions proposed by another
party or the court.
Except as otherwise provided in this section
or ordered by the court, the responses are confidential and not
available for public inspection.
The court may require
appropriate safeguards to protect against the disclosure of the
identities of the prospective jurors, including identification of
responses to the questionnaires only by juror numbers.
The court
shall provide the responses to each party before beginning the
jury selection process.
The court shall give the parties an
opportunity to be heard before it excuses a prospective juror on
the basis of a fact-specific, case-related response.
The Clerk
of the Court shall pay the cost of the questionnaires.
Committee note: The use of advance questionnaires is recommended
in complex or multi-defendant cases. The questionnaire is
intended to reduce the time required for the examination of
jurors under section (e) of this Rule and respect the privacy of
jurors who may be reluctant to respond to certain questions in
open court.
(d) (e) Examination of Jurors
The court may permit the parties to conduct an examination
of jurors or may itself conduct the examination after considering
questions proposed by the parties.
If the court conducts the
examination, it may permit the parties to supplement the
examination by further inquiry or may itself submit to the jurors
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additional questions proposed by the parties.
The jurors'
responses to any examination shall be under oath.
Upon request
of any party the court shall direct the clerk to call the roll of
the panel and to request each juror to stand and be identified
when called by name.
(e) (f) Challenges for Cause
A party may challenge an individual juror for cause.
A
challenge for cause shall be made and determined before the jury
is sworn, or thereafter for good cause shown.
(f) (g) Additional Jurors
When the number of jurors of the regular panel may be
insufficient to allow for selection of a jury, the court may
direct that additional jurors be summoned at random from the
qualified jury wheel and thereafter at random in a manner
provided by statute.
(g) (h) Designation of List of Qualified Jurors
Before the exercise of peremptory challenges, the court
shall designate from the jury list those jurors who have
qualified after examination.
The number designated shall be
sufficient to provide the number of jurors and alternates to be
sworn after allowing for the exercise of peremptory challenges.
The court shall at the same time prescribe the order to be
followed in selecting the jurors and alternate jurors from the
list.
(h) (i) Peremptory Challenges
Each party is permitted four peremptory challenges plus
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one peremptory challenge for each group of three or less
alternate jurors to be impanelled.
For purposes of this section,
several plaintiffs or several defendants shall be considered as a
single party unless the court determines that adverse or hostile
interests between plaintiffs or between defendants justify
allowing to each of them separate peremptory challenges not
exceeding the number available to a single party.
The parties
shall simultaneously exercise their peremptory challenges by
striking from the list.
(i) (j) Impanelling the Jury
The jurors and any alternates to be impanelled shall be
called from the qualified jurors remaining on the list in the
order previously designated by the court and shall be sworn.
The
court shall either designate a juror as foreman foreperson or
direct that the jurors select a foreperson.
Source: This Rule is derived as follows:
Section (a) is derived from former Rule 754 a and is consistent
with former Rule 543 c.
Section (b) is derived from former Rule 751 b and is
consistent with former Rule 543 b 3.
Section (c) is new.
Section (d) is new.
Section (d) (e) is derived from former Rules 752 and 543 d.
Section (e) (f) is derived from former Rule 754 b.
Section (f) (g) is consistent with former Rule 543 a 5 and 6.
Section (g) (h) is new with exception of the last sentence
which is derived from former Rule 753 b 1.
Section (h) (i) is derived from former Rule 543 a 3 and 4.
Section (i) (j) is derived from the last sentence of former
Rule 753 b 3 and former Rule 751 d.
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REPORTER’S NOTE
Amendments to Rules 2-512 and 4-312 are proposed by the
Rules Committee.
The Committee proposes a change as to when an alternate
juror is discharged, allowing the judge to keep the alternates as
such until all of the jurors have been discharged. If, for
example, in a case in which punitive damages may be awarded, one
of the original jurors becomes ill and is unable to serve during
the punitive damage phase of the case, the alternate would be
available to serve in place of that juror.
At the request of the Council on Jury Use and Management,
the Committee also recommends the addition of a new subsection
that goes one step further and expressly allows an alternate
juror to replace a juror who, during deliberations, becomes
unable or disqualified to serve. The Committee notes that the
addition reflects a change in the policy underlying the current
rule as enunciated in Hayes v. State, 355 Md. 615 (1999), a
change that would be coming “through the normal rule-making
process.” Id. at 635. Proposed new subsection (b)(2) of Rule
2-512 and subsection (b)(3)(C) of Rule 4-312 that implement the
Council’s suggested change are based on Fed. R. Crim. P. 24
(c)(2).
The Committee is recommending that Rules 2-512 and 4-312 be
amended to add to each Rule a provision for an advance
questionnaire for jurors, based on the recommendation of the
Council on Jury Use and Management. One of the benefits of the
questionnaire is the protection of privacy for potential jurors
who will be able to answer questions, which may be of a personal
nature, in writing instead of orally in front of an entire array
of jurors. Another benefit is a reduction in the amount of time
needed for the examination of jurors under Rules 2-512 (e) and 4312 (e).
Additional proposed amendments to the two Rules allow jurors
to be identified by a method other than by the juror’s name
during a roll call, and the amendments make clear that the jury
foreperson may be selected either by the court or by the jury.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-312 to change a certain provision concerning
the discharge of alternate jurors, to add a new section (d) that
provides for an advance questionnaire to be completed by
prospective jurors, to delete a certain phrase concerning the
identification of jurors, and to clarify that the jury foreperson
may be selected either by the court or by the jury, as follows:
Rule 4-312.
(a)
JURY SELECTION
Challenge to the Array
A party may challenge the array of jurors on the ground
that its members were not selected, drawn, or summoned according
to law or on any other ground that would disqualify the panel as
a whole.
A challenge to the array shall be made and determined
before any individual juror from that array is examined, except
that the court for good cause may permit it to be made after the
jury is sworn but before any evidence is received.
(b)
Alternate Jurors
(1)
Generally
An alternate juror shall be drawn in the same manner,
have the same qualifications, be subject to the same examination,
take the same oath, and have the same functions, powers,
facilities, and privileges as a juror.
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(2)
Capital Cases
In cases in which the death penalty may be imposed, the
court shall appoint and retain alternate jurors as required by
Code, Criminal Law Article, §2-303 (d).
(3)
Non-Capital Cases
(A)
Applicability
Subsection (b)(3) of this Rule applies in cases other
than cases in which the death penalty may be imposed.
(B)
Generally
In all other cases, the The court may direct that one
or more jurors be called and impanelled to sit as alternate
jurors.
Any juror who, before the time the jury retires to
consider its verdict juror’s service is completed, becomes or is
found to be unable or disqualified to perform a juror's duty,
shall be replaced by an alternate juror in the order of
selection.
An alternate juror who does not replace a juror shall
be discharged when the jury retires to consider its verdict at
such time as the court concludes that the juror’s service is
completed.
(C)
Retaining Alternate Jurors
The court may retain alternate jurors after the jury
retires to deliberate.
The court shall ensure that a retained
alternate does not discuss the case with anyone until that
alternate replaces a juror or is discharged.
If an alternate
replaces a juror after deliberations have begun, the court shall
instruct the jury to begin its deliberations anew.
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(c)
Jury List
Before the examination of jurors, each party shall be
provided with a list of jurors that includes the name, age, sex,
education, and occupation of each juror, the occupation of each
juror's spouse, and any other information required by the county
jury plan.
When the county jury plan requires the address of a
juror, the address shall be limited to the city or town and zip
code and shall not include the juror's street address or box
number, unless otherwise ordered by the court.
(d)
Advance Questionnaire
Before the jury selection process takes place, the court
may direct that prospective jurors answer questions in writing
under oath.
Before the questionnaire is submitted to the
prospective jurors, the court shall give the parties a reasonable
opportunity to propose questions to be included in the
questionnaire and to object to questions proposed by another
party or the court.
Except as otherwise provided in this section
or ordered by the court, the responses are confidential and not
available for public inspection.
The court may require
appropriate safeguards to protect against the disclosure of the
identities of the prospective jurors, including identification of
responses to the questionnaires only by juror numbers.
The court
shall provide the responses to each party before beginning the
jury selection process.
The court shall give the parties an
opportunity to be heard before it excuses a prospective juror on
the basis of a fact-specific, case-related response.
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The Clerk
of the Court shall pay the cost of the questionnaires.
Committee note: The use of advance questionnaires is recommended
in complex, multi-defendant, or death penalty cases. The
questionnaire is intended to reduce the time required for the
examination of jurors under section (e) of this Rule and respect
the privacy of jurors who may be reluctant to respond to certain
questions in open court.
(d) (e) Examination of Jurors
The court may permit the parties to conduct an examination
of prospective jurors or may itself conduct the examination after
considering questions proposed by the parties.
If the court
conducts the examination, it may permit the parties to supplement
the examination by further inquiry or may itself submit to the
jurors additional questions proposed by the parties.
responses to any examination shall be under oath.
The jurors'
Upon request
of any party the court shall direct the clerk to call the roll of
the panel and to request each juror to stand and be identified
when called by name.
(e) (f) Challenges for Cause
A party may challenge an individual juror for cause.
A
challenge for cause shall be made and determined before the jury
is sworn, or thereafter for good cause shown.
(f) (g) Additional Jurors
When the number of jurors of the regular panel may be
insufficient to allow for selection of a jury, the court may
direct that additional jurors be summoned at random from the
qualified jury wheel and thereafter at random in a manner
provided by statute.
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(g) (h) Designation of List of Qualified Jurors
Before the exercise of peremptory challenges, the court
shall designate from the jury list those jurors who have
qualified after examination.
The number designated shall be
sufficient to provide the number of jurors and alternates to be
sworn after allowing for the exercise of peremptory challenges
pursuant to Rule 4-313.
The court shall at the same time
prescribe the order to be followed in selecting the jurors and
alternate jurors from the list.
(h) (i) Impanelling the Jury
The jurors and any alternates to be impanelled shall be
called from the qualified jurors remaining on the list in the
order previously designated by the court and shall be sworn.
The
court shall either designate a juror as foreman foreperson or
direct that the jurors select a foreperson.
Source: This Rule is derived as follows:
Section (a) is derived from former Rule 754 a.
Section (b) is derived from former Rule 754 b.
Section (c) is new.
Section (d) is new.
Section (d) (e) is derived from former Rule 752.
Section (e) (f) is derived from former Rule 754 b.
Section (f) (g) is new.
Section (g) (h) is derived from former Rule 753 b 1.
Section (h) (i) is derived from former Rule 751 c and d.
REPORTER’S NOTE
See the Reporter’s Note to the proposed amendments to Rule
2-512.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-314 to conform it to the relettering of Rule
4-312, as follows:
Rule 4-314.
DEFENSE OF NOT CRIMINALLY RESPONSIBLE
. . .
(b)
Procedure for Bifurcated Trial
(1)
Generally
For purposes of this Rule, a bifurcated trial is a
single continuous trial in two stages.
(2)
Sequence
The issue of guilt shall be tried first. The issue of
criminal responsibility shall be tried as soon as practicable
after the jury returns a verdict of guilty on any charge. The
trial shall not be recessed except for good cause shown.
(3)
Examination of Jurors
The court shall inform prospective jurors before
examining them pursuant to Rule 4-312 (d) (e) that the issues of
guilt or innocence and whether, if guilty, the defendant is
criminally responsible will be tried in two stages. The
examination of prospective jurors shall encompass all issues
raised.
(4)
Appointment of Alternate Jurors
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The court shall appoint at least two alternate jurors,
who shall be retained throughout the trial.
(5)
Trial of Issue of Criminal Responsibility
(A)
Except as otherwise provided in paragraph (B) or (C)
of this subsection, the issue of criminal responsibility shall be
tried before the same jury that tried the issue of guilt.
Any
juror who dies, becomes incapacitated or disqualified, or is
otherwise discharged before the jury begins to deliberate in the
criminal responsibility stage shall be replaced by an alternate
juror in the order of selection.
(B)
The defendant may move to have the issue of criminal
responsibility tried without a jury by the judge who presided
over the first stage of the trial.
The court shall grant a
motion made by the defendant unless it finds and states on the
record a compelling reason to deny the motion.
(C)
If an appellate court affirms the judgment of guilt
but remands for a new trial on the issue of criminal
responsibility, that issue shall be re-tried by a jury impaneled
for the purpose or by the court pursuant to paragraph (B) of this
subsection.
(6)
Order of Proof
(A)
Evidence of mental disorder or mental retardation as
defined in Code, Health General Article, §12-108 shall not be
admissible in the guilt stage of the trial for the purpose of
establishing the defense of lack of criminal responsibility. This
evidence shall be admissible for that purpose only in the second
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stage following a verdict of guilty.
(B) In the criminal responsibility stage of the trial, the
order of proof and argument shall reflect that the defendant has
the burden of establishing the lack of criminal responsibility.
The defendant and the State may rely upon evidence admitted
during the first stage and may recall witnesses.
(7)
Motion by State
The State may move for judgment on the issue of criminal
responsibility at the close of the evidence offered by the
defendant.
In ruling on the motion, the court shall consider all
evidence and inferences in the light most favorable to the
defendant.
The court may grant the motion if it finds no legally
sufficient evidence from which a rational trier of fact could
find that the defendant was not criminally responsible.
. . .
REPORTER’S NOTE
The proposed amendment to Rule 4-314 conforms the Rule to
the proposed relettering of Rule 4-312.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE -- CIRCUIT COURT
CHAPTER 500 - TRIAL
AMEND Rule 2-521 to add certain provisions concerning juror
notes and notepads, as follows:
Rule 2-521. JURY - REVIEW OF EVIDENCE - COMMUNICATIONS
(a)
Jurors' Notes
The court may, and upon request of any party shall,
provide paper notepads for use by jurors during trial and
deliberations.
The court shall maintain control over the
notepads during the trial and promptly destroy them after the
trial.
A juror's notes may not be reviewed or relied upon for
any purpose by any person other than the juror.
If a juror is
unable to use a notepad because of a disability, the court shall
provide a reasonable accommodation.
(a) (b)
Items Taken to Jury Room
Jurors may take notes regarding the evidence and may keep
the notes their notepads with them when they retire for their
deliberation.
Unless the court for good cause orders otherwise,
the jury may also take exhibits that have been admitted in
evidence, except that a deposition may not be taken into the jury
room without the agreement of all parties and consent of the
court.
Written or electronically recorded instructions may be
taken into the jury room only with the permission of the court.
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Cross reference:
(b) (c)
See Rule 5-802.1 (e).
Jury Request to Review Evidence
The court, after notice to the parties, may make available
to the jury testimony or other evidence requested by it.
In
order that undue prominence not be given to the evidence
requested, the court may also make available additional evidence
relating to the same factual issue.
(c) (d)
Communications With Jury
The court shall notify the parties of the receipt of any
communication from the jury pertaining to the action before
responding to the communication.
All such communications between
the court and the jury shall be on the record in open court or
shall be in writing and filed in the action.
Source:
This Rule is derived as follows:
Section (a) is new.
Section (a) (b) is derived from former Rules 558 a, b and d and
758 b.
Section (b) (c) is derived from former Rule 758 c.
Section (c) (d) is derived from former Rule 758 d.
REPORTER'S NOTE
At the request of Chief Judge Bell, the Rules Committee
considered the matter of control of jurors' notes, in light of
Aron v. Brock, 118 Md. App. 475 (1997), cert. denied, 346 Md. 629
(1997).
Proposed amendments to Rules 2-521, 4-326, and 5-606
pertaining to jurors’ notes that were included in the One Hundred
Forty-First Report of the Rules Committee were remanded to the
Committee, pending completion of the Report of the Council on
Jury Use and Management. The Committee has considered the
Council’s Report and has incorporated into the Rules the
Council’s additional suggestions as to jurors’ notes.
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Proposed amendments to Rules 2-521 and 4-326 provide for
notepads to be distributed by the court to jurors for notetaking
during the trial and for use during deliberations, upon the
request of any party or sua sponte by the court. Notes may be
reviewed and relied upon only by the juror who makes them, and
the court maintains control over the notepads during the trial.
After the trial, the notepads are promptly destroyed. The
amendments also require the court to provide a reasonable
accommodation under the Americans with Disabilities Act, 42
U.S.C. §12101, et. seq., for any juror who is unable to use a
notepad because of a disability.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-326 to add certain provisions concerning the
use of juror notes and notepads, as follows:
Rule 4-326. JURY - REVIEW OF EVIDENCE - COMMUNICATIONS
(a)
Jurors' Notes
The court may, and upon request of any party shall,
provide paper notepads for use by jurors during trial and
deliberations.
The court shall maintain control over the
notepads during the trial and promptly destroy them after the
trial.
A juror's notes may not be reviewed or relied upon for
any purpose by any person other than the juror.
If a juror is
unable to use a notepad because of a disability, the court shall
provide a reasonable accommodation.
(a) (b)
Items Taken to Jury Room
Jurors may take notes regarding the evidence and they may
keep the notes their notepads with them when they retire for
their deliberations.
Unless the court for good cause orders
otherwise, the jury may also take the charging document and
exhibits which have been admitted in evidence, except that a
deposition may not be taken into the jury room without the
agreement of all parties and the consent of the court.
Electronically recorded instructions or oral instructions reduced
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to writing may be taken into the jury room only with the
permission of the court.
On request of a party or on the court's
own initiative, the charging documents shall reflect only those
charges on which the jury is to deliberate.
The court may impose
safeguards for the preservation of the exhibits and the safety of
the jurors.
Cross reference:
(b) (c)
See Rule 5-802.1 (e).
Jury Request to Review Evidence
The court, after notice to the parties, may make available
to the jury testimony or other evidence requested by it.
In
order that undue prominence not be given to the evidence
requested, the court may also make available additional evidence
relating to the same factual issue.
(c) (d)
Communications With Jury
The court shall notify the defendant and the State's
Attorney of the receipt of any communication from the jury
pertaining to the action before responding to the communication.
All such communications between the court and the jury shall be
on the record in open court or shall be in writing and filed in
the action.
Source: This Rule is derived as follows:
Section (a) is new.
Section (a) (b) is derived from former Rules 758 a and b and
757 e.
Section (b) (c) is derived from former Rule 758 c.
Section (c) (d) is derived from former Rule 758 d.
REPORTER'S NOTE
See the Reporter's Note to the proposed amendment to Rule
2-521.
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MARYLAND RULES OF PROCEDURE
TITLE 5 - EVIDENCE
CHAPTER 600 - WITNESSES
AMEND Rule 5-606 to prohibit impeachment of a verdict by a
juror's notes, as follows:
Rule 5-606.
(a)
COMPETENCY OF JUROR AS WITNESS
At the Trial
A member of a jury may not testify as a witness before the
jury in the trial of the case in which the juror is sitting.
If
the juror is called to testify, the opposing party shall be
afforded an opportunity to object out of the presence of the
jury.
(b)
Inquiry Into Validity of Verdict
(1)
In any inquiry into the validity of a verdict, a juror
may not testify as to (A) any matter or statement occurring
during the course of the jury's deliberations, (B) the effect of
anything upon that or any other juror's mind or emotions as
influencing the juror to assent or dissent from the verdict, or
(C) the juror's mental processes in connection with the verdict.
(2)
A juror's affidavit or evidence of any statement by the
juror concerning a matter about which the juror would be
precluded from testifying may not be received for these purposes.
(3)
A juror's notes made in accordance with Rule 2-521 (a)
or Rule 4-326 (a) may not be used to impeach a verdict.
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(c)
"Verdict" Defined
For purposes of this Rule, "verdict" means (1) a verdict
returned by a petit jury or (2) a sentence returned by a jury in
a sentencing proceeding conducted pursuant to Code, Criminal Law
Article, §2-303 or 2-304.
Committee note: This Rule does not address or affect the secrecy
of grand jury proceedings.
Source:
This Rule is derived in part from F.R.Ev. 606.
REPORTER'S NOTE
The proposed amendment to Rule 5-606 prohibits impeachment
of a verdict by the use of a juror's notes made in accordance
with Rule 2-521 (a) or Rule 4-326 (a).
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MARYLAND RULES OF PROCEDURE
TITLE 3 - CIVIL PROCEDURE--DISTRICT COURT
CHAPTER 100 - COMMENCEMENT OF ACTION AND PROCESS
AMEND Rule 3-102 to clarify section (a) and to add a certain
cross reference, as follows:
Rule 3-102.
(a)
TRIAL DATE AND TIME
Fixed by Clerk
At the time the complaint is filed, the Upon the filing of
the complaint, the clerk shall fix the date and time for trial of
the action. which shall be not less than 60 days after the date
of filing,
When the notice of intention to defend is due within
15 days after service, the original trial date shall be not less
than 60 days after the complaint was filed. or not less than 90
days after filing when service of process is to be made out of
State or upon a statutory agent for a nonresident.
When the
notice of intention to defend is due within 60 days after
service, the original trial date shall be not less than 90 days
after the complaint was filed.
With leave of court, an action
may be tried at an earlier sooner than on the date than that
originally fixed.
Cross reference: See Rule 3-307 concerning the time for filing a
notice of intention to defend.
(b)
Reassignment
Subject to section (c) of this Rule, when service of
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process is not made and the summons becomes dormant pursuant to
Rule 3-113, the clerk shall cancel the assigned trial date.
If
the summons is renewed pursuant to Rule 3-113, the clerk shall
assign a new trial date and shall notify the plaintiff of the
reassignment.
(c)
Multiple Defendants
When multiple defendants are joined in the action and one
or more, but not all, are served, the action shall be tried as to
those served on the assigned trial date unless continued pursuant
to Rule 3-508.
Source: This Rule is derived as follows:
Section (a) is derived from former M.D.R. 101 a.
Section (b) is in part new and in part derived from former
M.D.R. 103 e.
Section (c) is derived from former M.D.R. 103 g.
REPORTER’S NOTE
Proposed amendments to Rules 3-102 (a) and 3-701 (c) delete
references to the term “statutory agent” and clarify the
sections. The phrase “statutory agent” has caused some confusion
as to whether it includes a resident agent for a domestic
corporation or partnership or for a governmental entity.
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MARYLAND RULES OF PROCEDURE
TITLE 3 - CIVIL PROCEDURE -- DISTRICT COURT
CHAPTER 700 - SPECIAL PROCEEDINGS
AMEND Rule 3-701 to clarify section (c) and to add a certain
cross reference, as follows:
Rule 3-701.
(a)
SMALL CLAIM ACTIONS
Applicable Rules
The rules of this Title apply to small claim actions,
except as provided in this Rule.
Cross reference:
(b)
Code, Courts Article, §4-405.
Forms
Forms for the commencement and defense of a small claim
action shall be prescribed by the Chief Judge of the District
Court and used by persons desiring to file or defend such an
action.
(c)
Trial Date and Time
The original trial date for a small claim action shall be
within 60 days after the filing of the complaint, except that the
original trial date shall be within 90 days after the filing of
the complaint if service of the complaint is to be made outside
this State or on a statutory agent for the defendant.
The
A
small claim action shall be tried at a special session of the
court designated for the trial of small claim actions.
Upon the filing of the complaint, the clerk shall fix the date
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and time for trial of the action.
When the notice of intention
to defend is due within 15 days after service, the original trial
date shall be not less than 60 days after the complaint was
filed.
When the notice of intention to defend is due within 60
days after service, the original trial date shall be not less
than 90 days after the complaint was filed.
With leave of court,
an action may be tried sooner than on the date originally fixed.
Cross reference: See Rule 3-307 concerning the time for filing a
notice of intention to defend.
(d)
Counterclaims -- Cross-claims -- Third-party Claims
If a counterclaim, cross-claim, or third-party claim in an
amount exceeding the jurisdictional limit for a small claim
action (exclusive of interest, costs, and attorney's fees and
exclusive of the original claim) is filed in a small claim
action, this Rule shall not apply and the clerk shall transfer
the action to the regular civil docket.
Cross reference:
(e)
Rule 3-331 (f).
Discovery Not Available
No pretrial discovery under Chapter 400 of this Title
shall be permitted in a small claim action.
(f)
Conduct of Trial
The court shall conduct the trial of a small claim action
in an informal manner.
Title 5 of these rules does not apply to
proceedings under this Rule.
Cross reference:
See Rule 5-101 (b)(4).
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Source: This Rule is derived in part from former M.D.R. 568 and
401 a and is in part new.
REPORTER’S NOTE
See the Reporter’s note to the proposed amendment to Rule
3-102.
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MARYLAND RULES OF PROCEDURE
TITLE 3 - CIVIL PROCEDURE -- DISTRICT COURT
CHAPTER 300 - PLEADINGS AND MOTIONS
AMEND Rule 3-307 to clarify the service requirement in
section (a) and to clarify section (b), as follows:
Rule 3-307.
(a)
NOTICE OF INTENTION TO DEFEND
To be Filed with Court - When Service Not Required
The defendant, including a counter-defendant,
cross-defendant, and third-party defendant, shall file with the
court a notice of intention to defend which may include any
explanation or ground of defense.
The When the defendant is
represented by an attorney, the notice shall be served in
accordance with Rule 1-321.
A defendant not represented by an
attorney need not serve the notice on any party.
(b)
Time for Filing
(1)
Generally
Except as provided by subsection (b)(2) of this Rule,
The the notice shall be filed within 15 days after service of the
complaint, counterclaim, cross-claim, or third-party claim,
except if service is made outside this State or upon a statutory
agent for a defendant, the notice shall be filed within 60 days
after service.
(2)
Exceptions
A defendant shall file the notice within 60 days after
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being served if the defendant is:
(A) served outside of the State;
(B) a person who is required by statute of this State to
have a resident agent and who is served by service upon the State
Department of Assessments and Taxation, the Insurance
Commissioner, or some other agency of the State authorized by
statute to receive process; or
(C) the United States or an officer or agency of the United
States served pursuant to Rule 3-124 (m) or (n).
(c)
Identity of Attorney
If the defendant is represented by an attorney, the notice
shall contain the attorney's name, office address and telephone
number.
(d)
Notice to Parties
When the defendant files a notice pursuant to this Rule,
the clerk promptly shall mail notice of the filing to other
parties.
(e)
Effect of Failure to File Notice
If a defendant fails to file a timely notice of intention
to defend pursuant to this Rule, the court, on the date set for
trial, may determine liability and assess damages based on ex
parte proof by the plaintiff, unless the defendant appears and
the court is satisfied that the defendant may have a defense to
the claim.
In that event, the court shall proceed with trial or,
upon request of the plaintiff, may grant a continuance for a time
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sufficient to allow the plaintiff to prepare for trial on the
merits.
Source: This Rule is derived in part from former M.D.R. 302 and
is in part new.
REPORTER’S NOTE
The proposed amendment to section (a) of Rule 3-307, while
retaining the policy that an unrepresented defendant is not
required to serve a copy of the notice of intention to defend, is
amended to note that an attorney who represents the defendant is
required to serve other parties.
The proposed amendments to section (b) delete a reference to
the term “statutory agent” and revise the section to clarify it.
The phrase “statutory agent” has caused some confusion as to
whether it includes a resident agent for a domestic corporation
or partnership or for a governmental entity. The revision of
section (b) is patterned upon Rule 2-321 (a) and (b).
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE--CIRCUIT COURT
CHAPTER 300 - PLEADINGS AND MOTIONS
AMEND Rule 2-321 (b) to correct an internal reference and to
make certain stylistic changes, as follows:
Rule 2-321.
TIME FOR FILING ANSWER
. . .
(b)
Exceptions
(1) A defendant who is served with an original pleading
outside of the State but within the United States shall file an
answer within 60 days after being served.
(2) A defendant who is served with an original pleading by
publication or posting, pursuant to Rule 2-122, shall file an
answer within the time specified in the notice.
(3) A person who is required by statute of this State to have
a resident agent that and who is served with an original pleading
by service upon the State Department of Assessments and Taxation,
the Insurance Commissioner, or some other agency of the State
authorized by statute to receive process shall file an answer
within 60 days after being served.
(4) The United States or an officer or agency of the United
States served with an original pleading pursuant to Rule 2-124
(f) (m) or (n) shall file an answer within 60 days after being
served.
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(5) A defendant who is served with an original pleading
outside of the United States shall file an answer within 90 days
after being served.
(6) If rules for special proceedings, or statutes of this
State or of the United States, provide for a different time to
answer, the answer shall be filed as provided by those rules or
statutes.
. . .
Source: This Rule is derived as follows:
Section (a) is new.
Section (b)
Subsection (b)(1) is derived from former Rules 107 b and 307
c (4).
Subsection (b)(2) is derived from former Rule 307 a 2.
Subsection (b)(3) is derived from former Rule 106 e 3 as
cross referenced in former Rule 307 c (6).
Subsection (b)(4) is derived from former Rule 108 d as cross
referenced in former Rule 307 c (5).
Subsection (b)(5) is derived from former Rule 107 b as cross
referenced in former Rule 307 c (4).
Subsection (b)(6) is new.
Section (c) is new but is consistent with the concept of FRCP
12 the 1966 version of Fed. R. Civ. P. 12.
REPORTER’S NOTE
The proposed amendments to Rule 2-321 correct an incorrect
reference to “section (f)” of Rule 2-124, which should be to
“section (m) or (n)” of that Rule and make stylistic changes to
conform subsection (b)(3) to the style of proposed new subsection
(b)(2)(B) of Rule 3-307.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT
CHAPTER 100 - COMMENCEMENT OF ACTION AND PROCESS
AMEND Rule 2-124 by adding a reference to Code, Business
Regulation Article, §4-402 to the Committee note, as follows:
Rule 2-124.
(a)
PROCESS - PERSONS TO BE SERVED
Statutes Not Abrogated
The provisions of this Rule do not abrogate any statute
permitting or requiring service on a person.
Committee note: Examples of statutes permitting or requiring
service on a person include the Maryland Tort Claims Act, Code,
State Government Article, §12-108 (a) (service of a complaint is
sufficient only when made upon the Treasurer of the State); Code,
Insurance Article, §4-107 (service on certain insurance companies
is effected by serving the Insurance Commissioner); Code,
Business Regulation Article, §4-402 (service on a non-resident
“athlete agent” is effected by serving the Secretary of Labor,
Licensing, and Regulation); Code, Business Regulation Article,
§6-202 (service on certain nonresident charitable organizations
is effected by serving the Secretary of State); and Code, Courts
Article, §3-405 (notice to the Attorney General is required
immediately after a declaratory judgment action is filed alleging
that a statute, municipal or county ordinance, or franchise is
unconstitutional).
. . .
REPORTER’S NOTE
The Rules Committee recommends the addition of a reference
to a new statute to the Committee note after section (a) of Rules
2-124 and 3-124 that lists examples of statutes permitting or
requiring service on a person. The new statute is Code, Business
Regulation Article, §4-402 that was created by Chapter 421 (HB
361), Acts of 2003 pertaining to athlete agents.
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MARYLAND RULES OF PROCEDURE
TITLE 3 - CIVIL PROCEDURE - DISTRICT COURT
CHAPTER 100 - COMMENCEMENT OF ACTION AND PROCESS
AMEND Rule 3-124 by adding a reference to Code, Business
Regulation Article, §4-402 to the Committee note, as follows:
Rule 3-124.
(a)
PROCESS - PERSONS TO BE SERVED
Statutes Not Abrogated
The provisions of this Rule do not abrogate any statute
permitting or requiring service on a person.
Committee note: Examples of statutes permitting or requiring
service on a person include the Maryland Tort Claims Act, Code,
State Government Article, §12-108 (a) (service of a complaint is
sufficient only when made upon the Treasurer of the State); Code,
Insurance Article, §4-107 (service on certain insurance companies
is effected by serving the Insurance Commissioner); Code,
Business Regulation Article, §4-402 (service on a non-resident
“athlete agent” is effected by serving the Secretary of Labor,
Licensing, and Regulation); Code, Business Regulation Article,
§6-202 (service on certain nonresident charitable organizations
is effected by serving the Secretary of State); and Code, Courts
Article, §3-405 (notice to the Attorney General is required
immediately after a declaratory judgment action is filed alleging
that a statute, municipal or county ordinance, or franchise is
unconstitutional).
. . .
REPORTER’S NOTE
See the Reporter’s Note to Rule 2-124.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 200 - PRETRIAL PROCEDURES
AMEND Rule 4-216 to delete current section (a); to change
the tagline of new section (a); to add new language to section
(a) pertaining to a judicial officer determining probable cause
for a warrantless arrest; to require the release of a defendant
on personal recognizance with no other conditions of release if
there was no probable cause for a warrantless arrest; to add
certain statutory references to section (b); to add language in
section (b) clarifying that a judicial officer who releases a
defendant in accordance with that section on personal
recognizance or on bail may impose conditions in either case; to
eliminate a certain cross reference; to conform certain language
in sections (c), (d), and (e) to language in section (b); to
require the judicial officer under certain circumstances to take
into account certain information to the extent available; to
require the judicial officer to state in writing or on the record
the amount and terms of any bail; to expand on the bail bond
provisions of subsection (e)(4); to conform statutory references
to recent legislation; to add clarifying language to section (h)
concerning the power of a judge to alter conditions set by
another judge or by a commissioner; to add cross references to
Rules 1-361 and 4-347 following section (j); and to make certain
stylistic changes, as follows:
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Rule 4-216.
(a)
PRETRIAL RELEASE
Interim Bail
Pending an initial appearance by the defendant before a
judicial officer pursuant to Rule 4-213 (a), the defendant may be
released upon execution of a bond in an amount and subject to
conditions specified in a schedule that may be adopted by the
Chief Judge of the District Court for certain offenses.
The
Chief Judge may authorize designated court personnel or peace
officers to release a defendant by reference to the schedule.
(b) (a) Probable Cause Determination Arrest Without Warrant
A defendant arrested without a warrant shall be released
on personal recognizance under terms that do not significantly
restrain the defendant's liberty unless the judicial officer
determines that there is probable cause to believe that the
defendant committed an offense.
If a defendant was arrested
without a warrant, the judicial officer shall determine whether
there was probable cause for the arrest.
If there was probable
cause, the judicial officer shall implement the remaining
sections of this Rule.
If there was no probable cause, the
judicial officer shall release the defendant on personal
recognizance, with no other conditions of release, and the
remaining sections of this Rule are inapplicable.
Cross reference: See Rule 4-213 (a)(4).
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(c) (b) Defendants Eligible for Release by Commissioner or
Judge
Except In accordance with this Rule and Code, Criminal
Procedure Article, §§5-101 and 5-201 and except as otherwise
provided in section (d) (c) of this Rule or by law Code, Criminal
Procedure Article, §§5-201 and 5-202, a defendant is entitled to
be released before verdict in conformity with this Rule on
personal recognizance or with on bail, in either case with or
without conditions imposed, one or more conditions imposed unless
the judicial officer determines that no condition of release will
reasonably assure ensure (1) the appearance of the defendant as
required and (2) the safety of the alleged victim, another
person, and the community.
Cross reference: See Code, Criminal Procedure Article, §5-101
(c) concerning defendants who may not be released on personal
recognizance.
(d) (c) Defendants Eligible for Release Only by a Judge
A defendant charged with an offense for which the maximum
penalty is death or life imprisonment or with an offense listed
under Code, Criminal Procedure Article, §5-202 (a), (b), (c),
(d), or (e) may not be released by a District Court Commissioner,
but may be released before verdict or pending a new trial, if a
new trial has been ordered, if a judge determines that all
requirements imposed by law have been satisfied and that one or
more conditions of release will reasonably assure ensure (1) the
appearance of the defendant as required and (2) if the defendant
is charged with an offense listed under Code, Criminal Procedure
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Article, §5-202 (b), (c), (d), or (e), that the defendant will
not pose a danger to another person or the safety of the alleged
victim, another person, and the community while released.
(e) (d) Duties of Judicial Officer
(1)
Consideration of Factors
In determining whether a defendant should be released
and the conditions of release, the judicial officer, on the basis
of information available or developed in a pretrial release
inquiry, may shall take into account the following information,
to the extent available:
(A)
The the nature and circumstances of the offense
charged, the nature of the evidence against the defendant, and
the potential sentence upon conviction, insofar as these factors
are relevant to the risk of nonappearance;
(B)
The the defendant's prior record of appearance at
court proceedings or flight to avoid prosecution or failure to
appear at court proceedings;
(C)
The the defendant's family ties, employment status and
history, financial resources, reputation, character and mental
condition, length of residence in the community, and length of
residence in this State;
(D)
The any recommendation of an agency which that
conducts pretrial release investigations;
(E)
The any recommendation of the State's Attorney;
(F)
Information any information presented by the defendant
or defendant's counsel;
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(G)
The the danger of the defendant to the alleged victim,
another person, or to the community;
(H)
The the danger of the defendant to himself or herself;
(I)
Any any other factor bearing on the risk of a wilful
and
failure to appear and the safety of the alleged victim, another
person, or the community, including all prior convictions and any
prior adjudications of delinquency that occurred within three
years of the date the defendant is charged as an adult and prior
convictions.
(2)
Statement of Reasons - When Required
Upon determining to release a defendant to whom section
(d) (c) of this Rule applies or to refuse to release a defendant
to whom section (c) (b) of this Rule applies, the judicial
officer shall state the reasons in writing or on the record.
(3)
Imposition of Conditions of Release
If the judicial officer determines that the defendant
should be released other than on personal recognizance without
any additional conditions imposed, the judicial officer shall
impose on the defendant the least onerous condition or
combination of conditions of release set out in section (f) (e)
of this Rule that will reasonably:
(A)
Assure ensure the appearance of the defendant as
required,
(B)
Protect protect the safety of the alleged victim by
ordering the defendant to have no contact with the alleged victim
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or the alleged victim’s premises or place of employment or by
other appropriate order, and
(C)
Assure ensure that the defendant will not pose a
danger to another person or to the community if the charge
against the defendant is an offense listed under Code, Criminal
Procedure Article, §5-202 (b), (c), (d), or (e).
(4)
Advice of Conditions; and Consequences of Violation;
Amount and Terms of Bail
The judicial officer shall advise the defendant in
writing or on the record of the conditions of release imposed and
of the consequences of a violation of any condition.
When bail
is required, the judicial officer shall state in writing or on
the record the amount and any terms of the bail.
(f) (e) Conditions of Release
The conditions of release imposed by a judicial officer
under this Rule may include:
(1)
Committing committing the defendant to the custody of a
designated person or organization that agrees to supervise the
defendant and assist in assuring ensuring the defendant’s
appearance in court;
(2)
Placing placing the defendant under the supervision of a
probation officer or other appropriate public official;
(3)
Subjecting subjecting the defendant to reasonable
restrictions with respect to travel, association, or residence
during the period of release;
(4)
Requiring requiring the defendant to post a bail bond
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complying with Rule 4-217 in an amount and on conditions
specified by the judicial officer, including any of the
following:
(A)
without collateral security,;
Recommendation of the Rules Committee
as to subsection (e)(4)(B):
(B)
with collateral security of the kind specified in Rule
4-217 (e)(1)(A) equal in value to the greater of $25.00 $100.00
or 10% of the full penalty amount, or a larger percentage as may
be fixed by the judicial officer and if the judicial officer sets
bail at $2500 or less, the judicial officer shall advise the
defendant that the defendant may post a bail bond secured by
either a corporate surety or a cash deposit of 10% of the full
penalty amount,;
Alternate Version
of subsection (e)(4)(B):
(B)
with collateral security of the kind specified in Rule
4-217 (e)(1)(A) equal in value to the greater of $25.00 $100.00
or 10% of the full penalty amount, or a larger percentage as may
be fixed by the judicial officer,;
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Recommendation of the Rules Committee
as to subsections (e)(4)(C), (D), and (E)
(C)
with collateral security of the kind specified in Rule
4-217 (e)(1)(A) equal in value to a percentage greater than 10%
but less than the full penalty amount;
(C) (D) with collateral security of the kind specified in
Rule 4-217 (e)(1) equal in value to the full penalty amount,; or
(D) (E) with the obligation of a corporation that is an
insurer or other surety in the full penalty amount;
Alternate Version of subsections (e)(4)(C), (D), and (E)
(Adding “for reasons stated in writing” to
subsections (C), (D), and (E)):
(C) for reasons stated in writing, with collateral security
of the kind specified in Rule 4-217 (e)(1)(A) equal in value to a
percentage greater than 10% but less than the full penalty
amount;
(C) (D) for reasons stated in writing, with collateral
security of the kind specified in Rule 4-217 (e)(1) equal in
value to the full penalty amount
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