[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]

Maryland has promulgated rules expressly governing how “digital media” is entered into the court record when presented in either motions or open court. The rules also govern the record on appeal.

DIGITAL MEDIA OFFERED IN OPEN COURT

Paper exhibits are the default choice.  Maryland Rule 20-106(e)(1) states: “Unless otherwise approved by the court, a document offered into evidence as an exhibit in open court shall be offered in paper form. The document shall be appropriately marked.”

However, Maryland’s Digital Media Rule, Rule 20-106(e)(3), states: “Digital media offered in open court and included in the record pursuant to Rule 2-516, 3-516, or 4-322 shall be (A) submitted using a digital storage platform approved by the State Court Administrator and (B) referenced in the MDEC system by docket entry.”  [emphasis added].

Rule 1-202(j) defines digital media as “material in an audio, audiovisual, or video format that can be transmitted and stored electronically.”

The Rule applies to “digital media” included in the record under Rule 2-516, Rule 3-516, or Rule 4-322.  The first two Rules address civil lawsuit. Rule 4-322 applies to criminal cases.

• In courts of general jurisdiction, the Circuit Courts, Rule 2-516(b)(1)(A) states that: “A party who offers or uses an audio, audiovisual, or video recording at a hearing or trial shall: (A) ensure that the recording is marked for identification and made part of the record and that an additional copy is provided to the court….”
  • The Committee Note to Rule 2-516 adds: “A party may provide the court with a copy of a recording in a physical media format or in a digital media format using a digital storage platform approved by the State Court Administrator.”
  • The Rule states: “A party who offers or uses a transcript of the recording at a hearing or trial shall ensure that the transcript is made part of the record.”
  • The circuit court can appoint an alternate custodian under Rule 2-516(a)(2): “Unless the court orders otherwise, all exhibits shall remain in the custody of the clerk.  If the court orders that the custodian of an exhibit be someone other than the clerk, the court shall: (A) state the identity of the custodian on the record; (B) instruct the custodian, until relieved of the responsibility by law or by court order, to secure the exhibit until final determination of the action, including all appellate proceedings, and retain the exhibit as required by Rule 16-405 and any statutory retention provisions; and (C) instruct the clerk to make a docket entry identifying the court-ordered custodian of the exhibit.” [emphasis added].
• In the State of Maryland courts of limited jurisdiction, the District Courts, Rule 3-516(a) states
  • That “[a]ll exhibits marked for identification at hearing or trial, whether or not offered in evidence and, if offered, whether or not admitted, form part of the record.”
  • Subsection (a) adds: “With leave of court, a party may substitute a photograph or copy for any exhibit.”
  • The new Rule also states in Subsection (b): “In an action where an appeal would be tried de novo, exhibits shall be returned to the parties at the conclusion of the proceeding unless the court orders otherwise.” 
  • Under Subsection (c), in an action where an appeal would be heard on the record made in the District Court, exhibits shall remain in the custody of the District Court clerk unless the court orders otherwise.” [emphasis added].

Rule 7-109 addresses use of digital media in on-the-record appeal. A Committee Note states: “Exhibits that are audio, audiovisual, or video recordings may be stored and accessed using a digital storage platform approved by the State Court Administrator.  Absent any dispute as to the authenticity or accuracy of the file, the file stored on the approved digital storage platform is considered the original for the purposes of this Rule.”

• Rule 4-322(c) applies in criminal matters. 
  • It generally tracks Rule 2-516 and permits an alternative custodian. It provides for the return of exhibits in the case of a de novo appeal.
  • Subsection (b) adds: “A party who offers or uses computer-generated evidence at any proceeding shall preserve the computer-generated evidence, furnish it to the clerk in a manner suitable for transmittal as a part of the record on appeal, and present the computer-generated evidence to an appellate court if the court so requests.”

Notably, under Rule 20-301(b): “A hyperlink embedded in a submission is not a part of the official record unless it is linked to another document that is a part of the official record.”

DIGITAL MEDIA SUBMITTED WITH MOTIONS

Under Rule 1-322(a), filing of pleadings, papers, and other items, is with the Clerk and “[n]o item may be filed directly by electronic transmission, except…  (6) digital media submitted using a digital storage platform approved by the State Court Administrator.” The Reporter’s Note added: “Proposed new subsection (a)(6) authorizes digital media, as defined by Rule 1-202, to be transmitted using a digital storage platform approved by the State Court Administrator.”

Rule 20-301(a)(4) (“official record”) states that the official record of an action will include all “audio, audiovisual, or video recording exhibits, including digital media,” that are made part of the record under Rule 2-516, 3-516, or 4-322. 

The Reporter’s Note added: “Recordings made part of the record pursuant to Rule 2-516, Rule 3-516, or Rule 4-322 may be on physical media, such as a hard drive, disc, or flash drive, but also may be submitted digitally using an approved platform. The current provisions of Rule 20-301 do not incorporate a digital submission that is stored outside of MDEC¹ into the official record in an action.”  [emphasis added].

RECORD IN APPELLATE COURTS

The Committee Note to Rule 8-413(a)(4) (contents of the record on appeal) states that “the original of any audio, audiovisual, or video recording made part of the record pursuant to Rules 2-516, 3-516, or 4-322” is part of the record on appeal.  The Committee Note adds: “Exhibits that are audio, audiovisual, or video recordings may be stored and accessed using a digital storage platform approved by the State Court Administrator. Absent any dispute as to the authenticity or accuracy of the file, the file stored on the approved digital storage platform is considered the original for the purposes of this Rule.”

It adds that: “A party who offers or uses an audio, audiovisual, or video recording in a format not in common use by the general public is required to provide the recording to the clerk in a medium and format suitable for transmittal as part of the record. See Rule 2-516 (b) and Rule 4-322 (c) pertaining to the use of a recording at a hearing or trial.”

Further, the certificate of the clerk of the lower court shall identify “any digital media included in the record and instructions for access by the appellate court….”

MDEC Rule 16-905(d) states: “If a case record consists of digital media, a copy of the record shall consist of a document containing instructions for accessing the digital media.” 

Rule 20-101(f) states: “Electronic filing” does not include digital media submitted and maintained on a digital storage platform approved by the State Court Administrator. 

Rule 16-918(a, c) provides for public access to digital media at court kiosks. However, Rule 16-905(e) provides: “A custodian may remove metadata from an electronic document before providing the electronic document to an applicant by using a software program or function or converting the electronic document into a different format.”

Note

1. “MDEC” is the Maryland court’s electronic filing system.  See Rule 20-101(m).  “MDEC” is the acronym for “Maryland Electronic Courts.”  It has two components: 1) electronic filing; and, 2) electronic case management. ↩︎

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