What is Discovery?
"Discovery" is a process you can use to find out information from another party to support your lawsuit. The purpose of discovery is to find out the information you need to prove your case or defend against the claims being made against you. You must figure out who you believe knows information that may be important to your case.
There are several ways to ask the other party questions about the facts of the case and the opinions of any experts. You may learn about the identity of fact witnesses and expert witnesses and their knowledge through interrogatories to the opposing party. You will also want to locate documents or tangible items that are important to your lawsuit. You can obtain the information through requests for production of documents to your opposing party. If you believe that there are facts about which both you and your opponent agree, you can serve your opponent with request for admissions. You may decide that you would like to find out in detail what the opposing party and his witnesses know and what the opinions the opposing party’s experts hold. You may explore their opinions and knowledge through depositions. During discovery, your opponent will also ask you questions, which you will have to answer.
These articles will describe the discovery devices and explain how you can use them. In addition, you will learn about your obligations during discovery.
The Circuit Court Discovery Rules
There are detailed rules about discovery practice and procedure in Circuit Court. You can find them in Chapter 400 of Title 2 of the Maryland Rules. You can find the rules in paper format at a law library or electronically here. This article will touch on the rules. However, you should still read those rules carefully and take a copy with you so you can refer to it when you have questions.
Maryland Discovery Guidelines
You should read the Maryland Discovery Guidelines. They are prepared by the Maryland State Bar Association. They are not the law, but they contain the best practices for conducting discovery and for resolving common problems that occur during discovery. You should follow the Guidelines.
Some courts will issue a scheduling order with the deadlines. In other jurisdictions, the court will ask the parties to agree to deadlines for "designating" expert witnesses, for completing the depositions of witnesses, and for concluding discovery. You may have noticed that the discovery rules include details about dates and deadlines. You should communicate with your opponent to resolve any problems meeting deadlines. If you need more time to answer discovery, you may ask the opposing party for an "extension." Be sure to get opposing party’s agreement to extensions in writing. The Maryland Rules encourage the parties to work together to schedule and complete discovery. Read the Rule: Maryland Rule 2-401(c)
What Information is "Discoverable"?
It is important to understand what information is "discoverable." If information is "discoverable," your opponent must share it with you if you ask for it in the proper way. Similarly, if information is "discoverable" and your opponent asks you for it, you must disclose the information. The Maryland Rules encourage broad discovery. Generally, information that is "not privileged" and "relevant to the subject matter involved in the action" is discoverable. Read the Rule: Maryland Rule 2-402(a)
Information may be "privileged" – and not discoverable – under some circumstances. Volumes of books have been written about the many types of privileges. The most commonly-asserted ones are the attorney-client privilege and the work-product doctrine. The attorney-client privilege protects communications between a party and her attorney. The work-product doctrine, which is discussed below, protects the mental impressions of counsel and work prepared in anticipation of litigation. If you would like to invoke these privileges, make sure you have a solid basis for doing so because the party asserting the privilege bears the burden of proving the existence of the privilege. Most information will not be privileged. Information is "relevant" if it will help you prove your case or if it will help you defend against the lawsuit against you. Almost all information will be relevant.
All types of information may be discoverable, including documents (e.g., contracts, deeds, photographs), electronically-stored information (e.g., emails, word processing documents, spreadsheets, accounting books), tangible items (e.g., shoes and clothes worn in a slip-and-fall case, the automobile involved in a car accident), and knowledgeable persons (e.g., witnesses to accidents). Read the Rule: Maryland Rule 2-402(a)
Discovery "Devices" (or Types of Discovery)
Discovery "devices" are the different tools you can use to get information. The most common devices are oral depositions, written interrogatories, and requests for production of documents. Other less frequently used devices are written depositions, requests to enter land or property, requests for mental or physical examinations, and requests for admissions. Read the Rule: Maryland Rule 2-401(a)
Many cases will require the help of experts. For example, in a slip-and-fall case, a plaintiff may claim that she suffered permanent physical injuries for which she needs future medical care. In such a case, the plaintiff will likely support her case with a physician’s testimony. The defendant may use his own physician expert.
There are special discovery rules that apply to experts, which are set forth in Maryland Rule 2-402(g). There are also evidentiary rules that apply to an expert’s qualifications, opinions, and bases. Those will not be discussed in this article, but you should familiarize yourself with the rules, which can be found in Chapter 700 of Title 5 of the Maryland Rules of Civil Procedure.
There are two types of experts: "consulting" experts who are not expected to be called at trial and experts whom you intend to call as witnesses at trial. If you hired an expert as a consulting expert and do not intend to ask the expert to testify at trial, it is unlikely that you will have to disclose the expert’s identity and her opinions. Read the Rule: Maryland Rule 2-402(g)(2)
Under rare circumstances, you may have to disclose the expert’s identity and opinions in discovery, such as when the opponent shows that he has "substantial need" for the information and "is unable without undue hardship to obtain the substantial equivalent of the materials by other means." That is a high bar to meet. Read the Rule: Maryland Rule 2-402(d)
The identity and opinions of experts expected to be called at trial is discoverable. In interrogatories, you may ask your opponent to identify his expert witnesses, to state the subject matter on which the expert is expected to testify, to state the expert’s findings, opinions, and the grounds for each opinion, and to produce a written report, if one was authored. Read the Rule: Maryland Rule 2-402(g)(1)(A)
You may also ask in interrogatories that the opposing party summarize the qualifications of the expert witness, produce the list of publications written by the expert, and state the expert’s fee schedule. Read the Rule: Maryland Rule 2-402(g)(1)(B)
You may depose the experts. Read the Rule: Maryland Rule 2-402(g)(1)(A)
If you wish to depose an opposing party’s experts, keep in mind that customary practice requires you to pay the expert for the time she spends attending the deposition and for travelling to and from the deposition, unless the opposing party agrees otherwise. Read the Rule:Maryland Rule 2-402(g)(3)
A list of form interrogatories can be found here: Circuit Court Form Interrogatories
Do not ignore discovery requests! The Rules require that you respond. Remember to be timely in your response. If you cannot meet the deadlines for responding, request a reasonable extension. Do not forget to supplement your discovery responses if "material" information changes. Do not try to hold back information so that you can "surprise" the opposing party later. If there are witnesses you would like to call at trial, be sure to disclose their identity. Courts do not like it when parties spring surprises on each other.
Linda M. Schuett & Paul V. Niemeyer, Maryland Rules Commentary (4th ed. 2014)
Paul W. Grimm, Charles S. Fax, & Paul Mark Sandler, Maryland Discovery Problems & Solutions (MICPEL 2008)