The Maryland Standing Committee on Rules of Practice & Procedure (“Rules Committee”) met on May 19, 2023, and recommended a number of changes to the Maryland Rules. This blog is limited to proposed changes related to formal and informal discovery.
MARYLAND IS ONE-STEP CLOSER TO ABANDONING THE “SAFE HARBOR”
Maryland is one step closer to adopting a sanctions rule that parallels Fed.R.Civ.P. 37(e). At its recent meeting, the Maryland Rules Committee asked that I present the rationale for abandoning Maryland’s “safe harbor” sanctions rule and adopting an analog of Fed.R.Civ.P. 37(e).
I argued that: the shallow safe harbor puts both litigants and attorneys in a zone of uncertainty; and, equity demands clarity. The text of the proposed amendment is posted at agenda.pdf (mdcourts.gov). The only issue raised in the Rules Committee meeting was whether the Maryland pattern jury instruction on spoliation comports with the substantive law. The Rules Committee unanimously voted to approve my proposal and the recommendation will now go to the Supreme Court of Maryland for its consideration.
Michael D. Berman
My presentation followed my prior blogs and white paper. See, e.g., Maryland Moves Closer to Replacing the Obsolete “Safe Harbor” Rule and It’s Time to Replace Maryland’s “Safe Harbor” Rule.
I noted that the Maryland safe harbor rule, Md. Rule 2-433(b), was state-of-the-art when it was adopted in 2008 and it tracked the December 2006 federal safe harbor rule; however, the art has changed. The federal rule was subsequently amended in December 2015.
I suggested that Maryland should follow suit, not merely because the federal rule makers had changed the federal rule, but because it made sense to do so. I argued that: the shallow safe harbor puts both litigants and attorneys in a zone of uncertainty; and, equity demands clarity.
The text of the proposed amendment is posted at agenda.pdf (mdcourts.gov). The only issue raised in the Rules Committee meeting was whether the Maryland pattern jury instruction on spoliation comports with the substantive law.
The Rules Committee unanimously voted to approve my proposal and the recommendation will now go to the Supreme Court of Maryland for its consideration.
CLARIFICATION OF INFORMAL DISCOVERY
FROM AN OPPONENT’S FORMER EMPLOYEES
Significant amendments to the ethical rules concerning informal discovery from former employees of an adverse organization have been proposed. One proposed amendment makes it clear that contact with an opponent’s former employee is not per se prohibited. The second proposal discusses what happens if an opponent’s privileged information is disclosed during that contact.
The Assistant Reporter to the Rules Committee wrote: “To determine what communication with former employees is permissible under the Rules, attorneys must look to both Rule 19-304.2 and 19-304.4.” As to former employees, “[t]he main concern … was the potential for former employees to still possess privileged information.” Id. Maryland’s two Title 19 Rules are analogs to American Bar Association Model Rules of Professional Conduct 4.2 and 4.4.
Rule 4.2
Rule 4.2 addresses “Communications with Persons Represented by an Attorney.” The Rules Committee proposed a new comment to Rule 4.2, stating: “Consent of the [opposing, represented] organization’s attorney is not required for communication with a former employee.”[1]
The Assistant Reporter wrote that Maryland’s Rule 4.2 “has some clear deviations from the [ABA] Model Rule [4.2].” Maryland Rule 19-304.2 has “two additional sections.” Id. “In section (b), the Maryland Rule addresses communications when the represented person is an organization. Section (c) provides specific instructions for communications with government officials.” Id.
The Reporter’s memorandum added:
“Overall, the increased specificity in the Maryland Rule suggests that the [Maryland] Supreme Court aimed to provide more guidance to attorneys concerning communications with represented persons. Despite this increased detail, the Rule still provides little insight into communications with former employees…. The [ABA] Model Rule… includes slightly more information about contacting former attorneys [sic] in Comment 7.”
Proposed Section (c) is designed to provide more guidance in the context of former employees of an adverse, represented organization. It makes it clear that an opponent’s consent is not required prior to interviewing a former employee of that organization. It is implemented in Rule 4.4.
Rule 4.4
Maryland Rule 19-304.4 (ABA Rule 4.4) addresses “Respect for the Rights of Third Persons.” In pertinent part, current Section (a) states that an attorney shall not “use methods of obtaining evidence that violate the legal rights” of “a third person.” Current Section (b) provides that, if an attorney receives information that the recipient should know is privileged, or receives other information that was inadvertently sent, the recipient “shall promptly notify the sender.”
New Section (c), if approved by the Supreme Court, will state:
“In communicating with third persons, an attorney representing a client in a matter shall not seek information relating to the matter that the attorney knows or reasonably should know is protected from disclosure by statute or by an established evidentiary privilege, unless the protection has been waived. An attorney who receives information that is protected from disclosure shall (1) terminate the communication immediately and (2) give notice of the disclosure to the person entitled to enforce the protection against disclosure.” [emphasis added].
“Privilege” is defined broadly. The Comment to the proposed Rule would state:
“Third persons may possess information that is confidential to another person under an evidentiary privilege or under a law providing specific confidentiality protection, such as trademark, copyright, or patent law. For example, present or former organizational employees or agents may have information that is protected as a privileged attorney-client communication or as work product. An attorney may not knowingly seek to obtain confidential information from a person who the attorney knows or reasonably should know has no authority to waive the privilege…. Section (c) substantially restores to the Rule Maryland language as it existed prior to a 2017 amendment, with slight modification.” [emphasis added].
Importantly, the Reporter’s Note adds: “An attorney is no longer required to notify the tribunal of a disclosure.” The Assistant Reporter’s memorandum explains: “The person entitled to enforce the protection may then determine whether any action, such as a protective order, should be sought in court.”
The Assistant Reporter’s memorandum adds important information about the limit of the Rule under the “prompt notice” requirement. It states:
“No further remedial action is required of the receiving attorney. The Comments recognize that whether an attorney must take additional steps and whether privilege has been waived are issues beyond the Rule’s scope. In this manner, the Rules leave a lot open for attorneys to consider. Some attorneys may read the text of the Rule and believe that they can still use the privileged document if the sender is notified of the disclosure. Accordingly, although the Rule currently provides clear immediate instruction for receiving attorneys, it remains unclear whether an attorney should take additional action as a professional, ethical courtesy.”
The memo adds that: “Only requiring notice to the sender places minimal burden on the recipient. Once the sender is notified, he or she can seek appropriate relief, such as a protective order, in court. In other words, the sender, not the recipient, would need to take affirmative action to correct the error…. Keeping the Rule in its current form may remind attorneys that they are responsible for their own communications and need to be careful with privileged information.” Id.
Consideration was given to requiring a “mini-Miranda” warning by the interviewing attorney. That process would include asking, before the interview begins, whether the employee is represented by counsel or if they have spoken to the organization’s counsel prior to the interview. Ultimately, that requirement was not incorporated into the proposed amendment, although it may be prudent.
Even with the proposed amendments, and even after an optional “mini-Miranda” warning, there is reason for caution before interviewing a former employee in this context. For example, an interviewee could blurt out information that is so sensitive that the bell cannot be unrung. There is authority that Knowing Use of Privileged Materials Leads to Disqualification of Counsel. Further, if a clawback agreement is exercised, privileged documents cannot be used. Knowing Use of Privileged Materials Leads to Disqualification of Counsel.[2]
THE NUMBER OF PERMISSIBLE DOCUMENTS REQUESTS
WOULD BE LIMITED & ADDITIONAL MILESTONES
WOULD BE INCLUDED IN SCHEDULING ORDERS
The Rules Committee also proposed an amendment to the Maryland Rule on requests for production of documents and ESI. If promulgated by the State Supreme Court, Rule 2-422(b)(1) will limit litigants to no more than 30 requests, unless otherwise ordered by the Court or agreed upon by the parties. The Committee was told that some litigants were serving more than 100 requests for production.
The Rules Committee proposed two amendments to the scheduling order rule, Md. Rule 2-504. First, the amended rule will require that the order provide that all discovery must be served no later than 35 days before the discovery cutoff. Second, it provides that scheduling orders contain a milestone beyond which no discovery be had.
However, based on a suggestion at the Rules Committee meeting, an amendment to that inflexible deadline added a safety valve that will provide that the Court, or the parties by written agreement, may extend the deadline. The Committee Note makes clear that the deadline does not alter a party’s obligation to supplement discovery responses.
ADDITIONAL CLARITY TO CONFLICTS OF INTEREST
While it is not a discovery rule, another proposed amendment addressed the conflict-of-interest rule, Md. Rule 19-301.7 (1.7), in the context of a change of organizational structure:
“Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or realignment of parties in litigation, might create apparent conflicts in the midst of a representation, as when a company sued by the attorney on behalf of one client is bought by another client represented by the attorney in an unrelated matter. Depending on the circumstances, the attorney may have the option to withdraw from one of the representations in order to avoid the conflict a conflict under section (a) of this Rule, but the attorney may avoid withdrawal from the affected matter, if and only if each conflicted client provides a signed waiver of conflict after having been provided informed consent confirmed in writing.”
CONCLUSION
It does not appear that the Supreme Court has yet scheduled an open meeting on the proposed amendments.
[1] The agenda of the Rules Committee contains an extensive and comprehensive discussion of the history of the Rule and the proposals. Seeagenda.pdf (mdcourts.gov). ”
[2] Communications with third persons in this context do not include “Civil Vigilantism,” such as theft of an opponent’s information.
