“Discovery” is the formal process of obtaining information in litigation. Maryland Rule 2-401(a) sets forth the following methods that the Rules permit a party to pursue to obtain information:
1. Depositions upon oral examination or written questions (Rule 2-411 – Rule 2-419);
2. Written interrogatories (Rule 2-421); 3. Production or inspection of documents or other tangible things or permission to enter upon land or property (Rule 2-422); 4. Mental or physical examinations (Rule 2-423); 5. Requests for admissions of facts and genuineness of documents (Rule 2-424).
The following describes the three most frequently used discovery methods: interrogatories, requests for production of documents, and depositions.
1.Can be served at any time in the litigation process, subject to discovery completion deadlines established by the Court. Note that if the Court sets a deadline for completion of discovery, the interrogatories should be served on the other side at least 30 days (33 days if mailed to the other side) prior to the cut-off date.
2. 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.” Note: The sample Interrogatories in the Appendix to the Maryland Rules each constitute only one Interrogatory. The attached sample Interrogatories includes both examples from the Appendix to the Maryland Rules, as well as numerous other examples. It is important to serve no more than the allowed number of interrogatories, and to use only those Interrogatories that are pertinent to your family law case.
3.Subparts will be counted separately.
4.Response time is later of 30 days after service of the interrogatories or 15 days after the party’s initial pleading or motion is due.
5. Response should set forth the interrogatory followed by its answer.
6.If interrogatory is not answered you must state fully the grounds for refusal to answer.
7.An answer shall include all information available to the party directly or through agents, representatives, or attorneys.
1.Can be served at any time during the litigation process, subject to discovery completion deadlines established by the Court. Note that if the Court sets a deadline for completion of discovery, the requests for production of documents should be served on the other side at least 30 days (33 days if mailed to the other side) prior to the cut-off date.
2.Multiple requests are permitted.
3.No limitation on items requested or category of documents, but the request "shall describe each item and category with reasonable particularity."
4.Request can be for inspection or copying of documents.
5.Request can be to inspect and copy, test or sample any tangible things.
6.Request can be to enter land or property to inspect, photograph, survey, etc.
7.Location for production not specified - only states reasonable time, place and manner.
8.Written response required in addition to production.Response is due later of 30 days after service of request or 15 days after date when party’s initial pleading or motion due.
9.Refusal to produce must set forth reasons. If the refusal relates to part of an item or category, the part must be specified. 10.Production shall be organized and labeled to correspond with categories in the request or as they are kept in the usual course of business. 11. "Possession, custody or control" is construed very broadly - see Pleasant v. Pleasant, 97 Md. App. 711, 632 A.2d 202 (1993).
DEPOSITION TESTIMONY - PREPARATION
When preparing for your deposition, it is important to review the pleadings filed in the case, your answers to interrogatories, your financial statement, and other significant documents so that you are familiar and consistent with what you have already claimed in the case. As you review these matters you may find it necessary to update certain information or you may remember other important facts. While there are some general Deposition Testimony Guidelines that may come in handy during preparation, it is important that a client seek the advise of her or his attorney concerning preparation.
DEPOSITIONS– Rule 2-411-Rule 2-419. See Use of Depositionsfor additional discussion about this topic.
1.Right to take deposition "for the purpose of discovery or for use as evidence in the action, or for both purposes." Rule 2-411.
2.Leave of court is required to take a deposition "that is longer than one seven-hour day" or "of an individual who has previously been deposed in the same action." Rule 2-411. Thus, a deposition of the adverse party is essentially a one-time, one-day event.
3.Notice of deposition, stating the deposition's time and date and deponent's name and address, to be served at least 10 days prior to deposition date, and any necessary subpoena to be served on deponent at least 10 days prior to deposition date. Rule 2-412(a). Note that if a subpoena requiring production of documents at a deposition is to be served, the subpoena the designation of materials to be produced at the deposition must be attached to or included in the notice of deposition and the subpoena must be served at least 30 days prior to the deposition. Rule 2-412(c). Objections to form of notice of deposition are waived unless promptly served in writing. Rule 2-412(e). 4.Designation of person to testify for an organization. Rule 2-412(d). 5.Rules 2-413 through Rule 2-418 address other deposition matters including place of deposition (2-413), officer before whom deposition taken (2-414), deposition procedure (2-415), audio and audio-video recording depositions (2-416), deposition upon written questions (Rule 2-417), and deposition by telephone (2-417). 6.Objections made during depositions. Rule 2-415(h). When objecting during a deposition to questions, answers, or any other error or irregularity that may be cured at the deposition, the objecting party must state the ground for the objection or the objection is waived. See Mayor and City Council of Baltimore v. Theiss, 354 Md. 234, 729 A.2d 965 (1999); and Davis v. Goodman, 117 Md. App. 378, 700 A.2d 798 (1997). The Committee note to Rule 2-415(h) states that "[d]uring the taking of a deposition, it is presumptively improper for an attorney to make objections that are not consistent with Rule 2-415(h). Objections should be stated as simply, concisely, and non-argumentatively as possible to avoid coaching or making suggestions to the deponent and to minimize interruptions in the questioning of the deponent. Examples include "objection, leading;" "objection, asked and answered;" and "objection, compound question." 7.Rule 2-419(a) states that a deposition may be used (1) for contradiction and impeachment, (2) by an adverse party for any purpose, (3) by any party for any purpose where witness not available or exceptional circumstances exist, (4) expert's electronic audio-video deposition regardless of expert's availability if deposition notice specified that it was taken for use at trial. 8.If a party offers in evidence only part of a deposition, the other party may require the offering party to also introduce any part of the deposition that in fairness ought to be considered with the offered part. Rule 2-419(b). 9.Deposition taken in another action (2-419(c)), objection to admissibility (2-419(d)), and whether offering the deposition in evidence makes the deponent the offering party's witness. Rule 2-419(e). 10.If a party gives notice of deposition but fails to attend and proceed with the deposition or fails to serve a subpoena upon the witness who for that reason does not attend the deposition, and the other party attends the deposition, then the court may order the party who noted the deposition to pay the attending party's reasonable expenses (including reasonable attorney's fees) incurred for attendance. Rule 2-434.
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John S. Weaver, Of Counsel
Z Family Law, LLC 51 Monroe Street, Suite 1501, Rockville, MD 20850