Don’t “Game” Answering to Interrogatories – Problem Can Be Avoided Using Court Forms

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In Bland v. Emcor Facilities Services Inc., 2023 WL 6937418 (Apls. Ct. Md. Oct. 20, 2023)(unreported), the Appellate Court of Maryland rejected a litigant’s narrow interpretation of two interrogatories and affirmed the imposition of sanctions.[1]

Mr. Bland sued Emcor and LMC for negligence after a slip and fall on ice at his workplace.  At the close of all evidence, the court entered a judgment in favor of defendants based on assumption of risk.  Mr. Bland appealed.

The Appellate Court held that there was a jury question as to assumption of risk, addressed some hearsay issues, and, reversed in part.  However, it affirmed the discovery sanction.

This blog addresses only one issue, the exclusion of a witness as a discovery sanction.  It then points to how use of approved form interrogatories by defendants might have avoided the entire issue.

The trial court excluded testimony from plaintiff Bland’s co-worker, “Mr. McDonald,”  The Court wrote that the plaintiff, Mr. Bland, acknowledged that Mr. McDonald “was not disclosed as a witness in discovery, but he argues that ‘no discovery request from either defendant ever sought to identify all witnesses that may be called to testify at trial.’ [Plaintiff] asserts that, because there was no discovery violation, it was an abuse of discretion to not permit Mr. McDonald to testify.”

In other words, Mr. Bland sought to narrowly parse defendants’ interrogatories and argued that, narrowly parsed, the interrogatories did not call for disclosure of Mr. McDonald.  This gamesmanship resulted in affirmance of the discovery sanction.

One defendant, ESF, had propounded what the Court described as a “catch-all interrogatory requesting that [Mr. Bland] disclose any witnesses who might testify to facts relevant to the occurrence at trial.” ESF’s interrogatory was:

Identify all persons not elsewhere named in the answers to these Interrogatories who have personal knowledge of facts concerning the happening of the occurrence or your claimed injuries, losses and damages and specify in which category each such person has knowledge.

The other defendant, LMC, asked Mr. Bland to “identify all persons not otherwise mentioned in your answers to these interrogatories who have personal knowledge of facts material to the occurrence.”

The interrogatories of both defendants used the word “occurrence.”

The Court wrote that Mr. Bland did not identify the witness, Mr. McDonald, until the Monday evening before trial, stating that McDonald would be called on Thursday.  Mr. McDonald had not been deposed.

Mr. Bland’s attorney had two responsive arguments.

First, “Mr. Bland’s counsel stated that he spoke to Mr. McDonald for the first time on the Friday before trial, and he then disclosed Mr. McDonald to opposing counsel ‘a couple of nights’ before trial.”  There was no explanation as to why this conversation did not take place earlier.

Second, “Mr. Bland argued that he did not need to disclose Mr. McDonald as a witness because Mr. McDonald did not have any personal knowledge as to Mr. Bland’s fall, i.e., ‘the occurrence.’ Rather, Mr. McDonald would testify about ‘a meeting that took place the day before with Mr. Bland and his employer, at which the upcoming storm and issues pertaining to snow and ice removal were discussed.”

In short, Mr. Bland narrowly parsed the word “occurrence.”

The trial court held that the interrogatory was broad enough to encompass Mr. McDonald.  The Appeals Court affirmed.

It wrote:

Initially, we note that there is a two-step process to review a circuit court’s imposition of sanctions. First, the determination whether there has been a discovery violation is a question of law that we review de novo…. If a discovery violation is found, we review the circuit court’s decision to impose a sanction for an abuse of discretion….

Here, Mr. Bland challenges solely the first step; he asserts that the sanction was improper because there was no discovery violation. Because Mr. Bland limited his claim to that issue in his brief, we similarly will limit our opinion. [citations omitted].

The Appellate Court then rejected Mr. Bland’s truncated view of the interrogatories:

EFS propounded an interrogatory asking Mr. Bland to identify all persons “who have personal knowledge of facts concerning the happening of the occurrence or [Mr. Bland’s] claimed injuries, losses and damages.” Mr. Bland argues that the word “occurrence” in EFS’s interrogatory refers to the “fall itself,” and Mr. McDonald did not need to be disclosed as a witness because he had no personal knowledge of the “fall itself.” Rather, his testimony would involve “the meeting that took place the day before with Mr. Bland and his employer, at which the upcoming storm and issues pertaining to snow and ice removal were discussed.”

We disagree that Mr. Bland did not need to disclose Mr. McDonald in response to EFS’s interrogatories. According to the proffer, Mr. McDonald had knowledge of information that Mr. Bland’s counsel believed was relevant to the occurrence. The circuit court properly concluded that the failure to disclose Mr. McDonald until a couple of days prior to trial was a discovery violation. [emphasis added].

In other words, the Court rejected a narrow parsing of the word “occurrence.”

In my opinion, Mr. Bland’s argument was properly rejected, and for the right reasons.  For example:

The discovery process is governed by Chapter 400 of Title 2 of the Maryland Rules. The fundamental objective of discovery is to advance “the sound and expeditious administration of justice” by “eliminat[ing], as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that gave rise to the litigation.”

Rodriguez v. Clarke, 400 Md. 39, 57 (2007)(emphasis added).

The Rodriquez Court added that “[s]hould a party fail, at any stage in the discovery process, to cooperate in providing access to discovery information, Maryland Rule 2–433 provides that trial judges may issue any of the following sanctions….”  Id. at 60.[2]

While the Bland Court was clearly correct, the litigants might have avoided the issue.  Maryland has form general interrogatories.

Interrogatory No. 1 in Form No. 3 states: “Identify each person, other than a person intended to be called as an expert witness at trial, having discoverable information that tends to support a position that you have taken or intend to take in this action, including any claim for damages, and state the subject matter of the information possessed by that person. (Standard General Interrogatory No. 1.)”

Notably, the word Mr. Bland hung his hat on – “occurrence” – is absent from the form.

The Committee Note states: “The following forms have been prepared to facilitate the exchange of meaningful information with a minimum of controversy. They are designed to be appropriate in a large percentage of cases, and the Committee encourages their use. In the context of some cases, however, they may be overly burdensome or otherwise inappropriate. The forms are not designed to limit the parties’ right to frame their own interrogatories.”

The Committee Note to Form Interrogatory No. 1 states that the general interrogatories “are general in nature and are designed to be used in a broad range of cases.”

There is no reason why the Form Interrogatory could not have been used in Bland.

Maryland Courts often look to the forms:  “The appendix to the Maryland Rules includes form interrogatories ‘to facilitate the exchange of meaningful information with a minimum of controversy.’  Md. Rules app. form interrogatories comm. note.”, Inc. v. Gurland, 168 Md. App. 50, 93 (2006), aff’d, 397 Md. 37 (2007).

While there is no obligation on a responding party to interpret discovery requests as broadly as possible so as to volunteer information that is beyond the request, Storetrax, 168 Md. at 92, plaintiff’s effort in Bland was a bridge too far.

Defendants might have found a safer harbor in the form interrogatories.


[1] Citation of unreported opinions is governed by Rule 1-104(a)(2)(B).

[2] Sanctions “rarely come into play” when a party “puts forth good faith efforts to obtain and provide access to information needed to proceed to trial.”  Rodriguez, 400 Md. at 61.  Under Rule 2-432(b)(2), for purposes of a motion to compel, “an evasive or incomplete answer is to be treated as a failure to answer.”