Scope

• Jurisdiction: Maryland

II. SCOPE

Maryland Rule 2-402 sets forth the scope of discovery in the Maryland Circuit Courts. Generally, full disclosure of all non-privileged matters which are relevant to the subject matter involved in the action is required. If information requested appears reasonably calculated to lead to the discovery of admissible evidence, the discovery must be made.¹⁰⁰ It is not objectionable merely because a response involves an opinion or contention that relates to a fact or application of law to fact.¹⁰¹

Notwithstanding the broad scope of discovery and its purpose of full disclosure, a court has discretion to place limits, including time restraints, on discovery. The rules listed below apply to discovery in the Maryland Circuit Courts, not the District Court of Maryland. Discovery in the District Court of Maryland is very limited in that cases in the District Court are supposed to move from filing to completion in a matter of months.¹⁰² Irrespective of the court in which your case is pending, it is important to commence discovery promptly and to finish it well before trial or by the date set in any scheduling order.

A. Insurance

Pursuant to Md. Rule 2-402(c):

A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business might be liable to satisfy part or all of a judgment that might be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

However, even though disclosure of insurance agreements may be required, they are usually inadmissible at trial.¹⁰³ This example of a distinction between matters and things which are discoverable, on one hand, and matters and things which are admissible at trial, on the other, is an important difference between discovery and trial. Generally, the distinction can be brought into focus when one thinks of the discovery process as a gathering of all information and the trial process as the final product of the "honing down" of the mass of information obtained during discovery.

B. Party's Own Statement

Pursuant to Md. Rule 2-402(f), "[a] party may obtain a statement concerning the action or its subject matter previously made by that party. ..."

Additionally, pursuant to Md. Rule 2-402(d):

[A] party may obtain discovery of documents, electronically stored information, and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative ... only upon a showing that the materials are discoverable under [Md. Rule 2-402(a)] 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.¹⁰⁴

In such situations, the attorney's work product shall be protected by the court.¹⁰⁵

C. Experts

Discovery from experts is discussed in Md. Rule 2-402(g). Experts' findings and opinions may be discovered by interrogatories. The identity of the expert, the subject matter on which the expert is expected to testify, the substance of the expert's findings and opinions, a summary of the grounds for each opinion, and any written reports made by the expert must be provided. A deposition of an expert may also be taken in order to discover the findings and opinions to which the expert is expected to testify at trial as well as written reports containing those findings and opinions.¹⁰⁶ Experts not expected to be called at trial (consulting or non-testifying experts) ordinarily need not be identified absent a showing of substantial need and undue hardship.¹⁰⁷ The party seeking discovery from the expert has the obligation to pay the expert a reasonable fee for time spent in responding to discovery, unless manifest injustice would result.¹⁰⁸

A prudent Maryland attorney should assume that any documents given to an expert are subject to discovery by the other side. While Maryland courts have not opined directly on this issue, some federal courts historically had required disclosure of documents provided to experts.¹⁰⁹ Compare Bogosian v. Gulf Oil Corp.¹¹⁰ (holding that documents shown to expert containing attorney work product, including mental impressions and theory...