Discovery Orders

• Jurisdiction: Maryland

B. [§ 26] Discovery Orders

Although discovery rulings are a frequent source of controversy under the collateral order doctrine, most discovery orders are not immediately appealable. See, e.g., Harris v. State, 420 Md. 300, 318-23 (2011); Cty. Comm'rs for St. Mary's Cty. v. Lacer, 393 Md. 415, 430-31 (2006) (County Commissioners could not immediately appeal order permitting former employee to depose them concerning statements and actions that occurred in meeting in executive session concerning termination of plaintiff's employment); In re Foley, 373 Md. 627, 635-36 (2003) (order requiring that incompetent person submit to medical examination was effectively reviewable on appeal; therefore it was not a collateral order); see also Hudson v. Hous. Auth. of Balt. City, 402 Md. 18, 26 (2007) (collateral order doctrine did not permit appeal of district court order allowing limited discovery in statutory action of breach of lease); Goodwich v. Nolan, 343 Md. 130, 141-42 (1996) (doctor could not invoke collateral order doctrine to take immediate appeal from order purportedly requiring production of privileged information).

As the Court of Appeals has explained, most discovery orders do not comply with the third requirement of the collateral order doctrine, as they generally are not completely separate from the merits of the lawsuit. Instead, "a typical discovery order [is] aimed at ascertaining critical facts upon which the outcome of the ... controversy might depend." St. Joseph Med. Ctr., Inc. v. Cardiac Surgery Assocs., P.A., 392 Md. 75, 87 (2006) (quoting In re Foley, 373 Md. at 635); accord Addison v. State, 173 Md. App. 138, 156 (2007). In addition, discovery orders fail to meet the collateral order doctrine's fourth element, as they are effectively reviewable on appeal from a final judgment. Cardiac Surgery Assocs., 392 Md. at 87 (quoting In re Foley, 373 Md. at 635). The Court of Appeals is said to have been "unswerving" in this position. Addison, 173 Md. App. at 156. A party may not take an immediate appeal even if the discovery ruling potentially requires the disclosure of privileged information. See, e.g., Kurstin v. Bromberg Rosenthal, LLP, 191 Md. App. 124, 148 (2010).

To take an appeal from an adverse discovery ruling (such as a ruling compelling discovery), a party's sole option ordinarily is to refuse to comply with the order and to be held in contempt. Because the finding of contempt is, itself, a final judgment, the party may then appeal. See, e.g., Goodwich, 343 Md. at 141-42; Sigma Reprod. Health Ctr. v. State, 297 Md. 660, 671-74 (1983). But see Ashcraft & Gerel v. Shaw, 126 Md. App. 325(1999), which arguably defies precedent by permitting a party to take an immediate appeal from an order requiring it to produce allegedly privileged information and thus effectively excusing the party from the obligation to take the appeal only after being held in contempt for failing to comply with the order.

On the other hand, if a circuit court compels a non-party to produce purportedly privileged documents, and thus effectively terminates the proceedings concerning the non-party in the circuit court, the non-party does not have to refuse compliance with an adverse order and be held in contempt before challenging the order on appeal. Cardiac Surgery Assocs., 392 Md. at 89; see also Falik v. Hornage, 413 Md. 163, 176-78 (2010). Nonetheless, only the non-party may appeal. Thus, when a circuit court compelled a non-party expert to produce his tax records, the expert could appeal, but the party who had employed the expert could not appeal. Id. at 176.

The federal courts have recognized the so-called "Perlman Doctrine," under which a person may take an immediate appeal of a ruling that compels a third party to produce documents that the appellant claims are privileged. See Perlman v. United States, 247 U.S. 7 (1918). The Perlman Doctrine's rationale is that the appellant must be permitted to...