Elimination of Judicial Disappearing Ink in Maryland

Court Holds That Federal Spoliation Rules Are Both Independent and Interrelated in Cell Phone Sanctions Case
April 26, 2023
ESI 101:  Don’t Spoliate Evidence That’s Been Photographed
May 7, 2023

The Supreme Court of Maryland has approved a proposal to eliminate judicial disappearing ink. However, Maryland has not followed the approach of the Federal Rules of Appellate Procedure.  Those differences may present an unresolved issue if an unreported federal decision is cited to a Maryland State court.

Until now, Maryland Rule 1-104 prohibited the citation of unreported appellate decisions, with a few very limited exceptions.  Under that Rule, unreported decisions were essentially judicial disappearing ink.  They could not be cited as precedent or as persuasive authority.

Some unreported decisions decided novel issues.  For a recent e-discovery example, see Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones.  In that case, St. Frances Acad. v. Gilman Sch., Inc.,  2022 WL 833371, at *1 (App. Ct. Md. Mar. 21, 2022), the Court described a cell phone discovery issue as “a case of first impression….”  Nevertheless, its decision was unreported and cannot be cited, even as persuasive.  It is not precedential either.[1]


Fortunately, Maryland Rule 1-104 has reached its endpoint.  By Rules Order dated April 21, 2023, an amended rule governing citation of unreported appellate decisions has been promulgated.

As before, those opinions may not be cited as precedent.  However, the new rule makes substantial changes regarding citation of unreported decisions as persuasive. Under the new Rule, unreported Maryland decisions may be treated differently than unreported out-of-state or federal decisions.

Unreported Maryland appellate decisions may be cited as “persuasive authority” under specific, limited conditions.  Those limits are significant.  First, per curiam opinions, and opinions issued before July 1, 2023, may not be cited at all.  Second, post-July 1, 2023, unreported opinions may be cited as persuasive “only if no reported authority adequately addresses an issue before the court.”

Unreported opinions issued by other jurisdictions “may be cited as persuasive authority if the jurisdiction in which the opinion was issued would permit it to be cited as persuasive authority or as precedent. The citation shall indicate whether the opinion is precedent in the issuing jurisdiction.”


While, in my view, new Maryland Rule 1-104 is not perfect and reflects some compromises, it is a substantial improvement; however, the federal approach is dissimilar from the amended Maryland Rule.

Fed.R.App.P. 32.1 provides that courts may not restrict citation of unpublished opinions issued after January 1, 2007.  That, of course, is much broader than the new Maryland Rule.

However, while citation is permitted, Fed.R.App.P. 32.1 does not state what impact, if any, those opinions may have.  See Proposal to Eliminate Judicial Disappearing Ink; accord, W. Richman, “Much Ado About the Tip of an Iceberg,” 62 Wash. & Lee L. Rev. 1723, 1724 (2005).

That may present an unresolved issue under the Maryland Rule, because, if an unreported federal decision is cited in a Maryland court, treatment under the Maryland Rule is dependent on the federal treatment, which is unspecified.


Unreported opinions serve a valuable role by assisting courts in addressing dispute resolution appeals that do not break new ground.  They help courts manage their staggering appellate workload.

However, they are of relatively recent vintage.  On the federal level, they saw substantial usage beginning in the early 1970’s.  W. Reynolds and W. Richman, “Limited Publication in the Fourth and Sixth Circuits,” 1979 Duke L. J. 807, 808 (1979).

Unpublished opinions have long been controversial.  A 2016 article reported that 92 percent of the Minnesota intermediate appellate court’s opinions were unpublished.  D. Lillehaug, et al., “A Fresh Look at the Problem of Unpublished Opinions,” Bench and Bar of Minn. (2016), 1.  Judge Lillehaug wrote that 51% of the Minnesota Supreme Court’s grants of petitions for review were from unpublished decisions and 35% were reversed in 2013-14.

Unreported decisions have been subject to criticism. For example, there are assertions that indigent litigants are diverted to a second-tier process.  M. McAlister, “’Downright Indifference’: Examining Unpublished Decisions in the Federal Courts of Appeals,” 118 Mich. L. Rev. 533 (2020).

Profs. Reynolds and Richman point to the distinction between “law making” and “dispute-settling” decisions.  The latter “apply uncontroversial rules of law to ordinary cases and have no value to the public.”  1979 Duke L. J. at 808.  They are well-suited to non-publication.  Generally, they apply settled law to undisputed facts.

However, the professors note that “significant numbers of ‘law making’ opinions go unpublished.” Id. at 809.  They describe them as “suppressed precedent.”  Id. at 841.  St. Frances Acad. v. Gilman School, discussed above, is an example.

Further, Profs. Reynolds and Richman also point to inconsistencies among published and unpublished opinions.  Id. at 809 n. 13. They argue that those inconsistencies diminish judicial responsibility and accountability.

The professors conclude that “neither the case for nor the case against limited publication is conclusive.”  Id. at 809.  Thus, they suggest that unreported decisions balance the need for judicial efficiency with the risk of judicial error, irresponsibility, and lack of accountability.  Id. at 810. [2]


By all indications, the appellate workload is daunting.

There were 167 authorized federal appellate judgeships in FY 2022. During that year 41,839 cases were filed, 44,902 were terminated, and 35,512 were pending. There were 5,588 oral hearings and 79% of the cases were terminated on the merits after submission on briefs.

In FY 2021, the most recent year posted, Maryland had 22 appellate justices and judges on the two appellate courts.  The State Supreme Court had 686 filings and 671 terminated cases.  The Appellate Court of Maryland had 1,226 filings and 1,907 terminations.

Unreported decisions are here to stay and, given the workload of the courts, that seems reasonable and, indeed, important to the functioning of the system.  Dispute resolution cases do not necessarily need a thorough, comprehensive, and polished decision.  It is enough if they fairly – and reasonably promptly – call the balls and strikes.

That said, unreported opinions cannot be ignored when they support a litigant’s position.  It remains to be seen whether the federal or Maryland approach is preferable.[3]

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.


[1] Maryland Rule 8-605.1 governs reporting of intermediate appellate opinions.  The Court “shall designate for reporting only those opinions that are of substantial interest as precedents.”

[2] There is a vast body of scholarly articles on the subject of unreported decisions.  This blog makes no effort to be exhaustive.

[3] The unpublished opinion rule was originally designed to make the decisions inaccessible to the public.  D. Adams-Strickland, “Don’t Quote Me: The Law of Judicial Communications in Federal Appellate Practice and the Constitutionality of Proposed Rule 32.1,” 14 Comm. L. Conspectus 133 (2005). Since May 1, 2015, unreported opinions have been posted on the Maryland Judiciary website.  They are also available on commercial services such as Westlaw, Lexis, and others.