MD Rules v. Federal Rules of Civil Procedure

The Maryland and Federal Rules Differ in Significant Ways

November 28, 2023

Maryland Rules Order Amends Sanctions Rule

On November 28, 2023, the Supreme Court of Maryland entered a Rules Order. In part, it amended Maryland’s sanctions rule, Rule 2-433(b).  The order “shall take effect and apply to all actions commenced on or after January 1, 2024 and, insofar as practicable, to all actions then pending….” New Rule 2-433(b) states: […]
November 15, 2023

Maryland’s Proposed Rule 5-702

Maryland’s Standing Committee on Rules of Practice and Procedure (“Rules Committee”) has published an agenda that includes consideration of amendments to Maryland Rule 5-702 (testimony by experts). Two recent developments are the genesis of the proposal.  “First, the Federal Rules Committee has recently made changes to Rule 702, the federal equivalent to […]
November 3, 2023

Maryland Supreme Court Rejects Proposed Sanctions Rule Paralleling Fed.R.Civ.P. 37(e)

The Supreme Court of Maryland adopted an amendment to Maryland Rule 2-433, which governs sanctions in Maryland state courts.  Amended Maryland Rule 2-433(b) abandons the shallow “safe harbor” rule. The proposed rule, posted in the 219th Report of the Standing Committee on Rules of Practice and Procedure would have tracked the federal […]
August 14, 2023

Proposed Amendments to the Federal Rules of Civil Procedure

On May 11, 2023,the federal Advisory Committee on Civil Rules (the “Advisory Committee”)   sent its Report to the Committee on Rules of Practice and Procedure (the “Rules Committee”). The Advisory Committee recommended a “small” amendment to Fed.R.Civ.P. 12(a), “small amendments” to Rules 16(b)(3) and 26(f)(3), a new rule on MDL proceedings, and […]
June 6, 2023

Pending Amendments to the Federal Rules

The federal Committee on Rules of Practice and Procedure (the “Standing Committee”) has posted pending amendments to the federal appellate rules, bankruptcy rules, civil rules, criminal rules, and evidence rules. The Standing Committee explained that: “An amendment to a federal rule generally takes about three years.”  Rules are promulgated under the Rules […]
May 24, 2023

The Maryland Rules Committee Has Recommended Several Discovery Amendments

The Maryland Standing Committee on Rules of Practice & Procedure (“Rules Committee”) met on May 19, 2023, and recommended a number of changes to the Maryland Rules.  This blog is limited to proposed changes related to formal and informal discovery. MARYLAND IS ONE-STEP CLOSER TO ABANDONING THE “SAFE HARBOR” Maryland is one […]
May 13, 2023

Maryland Moves Closer to Replacing the Obsolete “Safe Harbor” Rule

My proposal to replace Maryland’s “safe harbor” rule with a rule that more closely parallels Fed.R.Civ.P. 37(e) has moved forward. See Madeline O’Neill, Judiciary panel weighs replacing ‘safe harbor’ rule for electronic discovery | Maryland Daily Record (thedailyrecord.com)(May 12, 2023), and Maryland Rules Committee agenda.pdf (state.md.us). The newspaper reported that: The [“safe […]
May 6, 2023

Elimination of Judicial Disappearing Ink in Maryland

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 […]
April 9, 2023

Negligent Loss of Video Supports “Missing Evidence” Instruction in Criminal Case

A conviction for a sex offense was reversed in Mondragon v. State, 2023 WL 2806288 (Apls. Ct. Md. Apr. 6, 2023)(unreported), because the trial court erroneously denied a “missing evidence” instruction.  This blog addresses the holding that negligent loss of important evidence was sufficient to sustain a sanction. The history of, and […]
April 7, 2023

District of Maryland’s Proposed Amendment to “Good Faith” Conference Rule

Like most courts, the District of Maryland requires that attorneys confer regarding a discovery dispute to resolve their differences.  Local Rule 104.7 provides that the Court “will not consider” any discovery motion that does not contain a certificate of compliance. Two amendments have been proposed. First, instead of a requirement that counsel […]
March 23, 2023

Defendant Can’t Insist on an “I Go First” Deposition

A order granting summary judgment was reversed because the plaintiff was unable to take depositions of relevant witnesses: Several claims by a former Newark, N.J., municipal court judge’s alleging disability bias and other abuses fueled her discharge were wrongly dismissed because she didn’t get a chance to collect potentially helpful evidence, a […]
March 18, 2023

“Here’s what to expect with [proposed] changes to the federal expert witness rule”

Paul Mark Sandler has written an excellent summary, Here’s what to expect with changes to the federal expert witness rule | Maryland Daily Record (thedailyrecord.com)(Mar. 13, 2023). Paul’s article explains the “two important amendments” to  Fed.R.Evid. 702 that are “expected to take effect” in December 2023. He wrote: The pending[1] amended rule […]
February 4, 2023

Proposal to Eliminate Judicial Disappearing Ink

The January 30, 2023, 214th Report of the Standing Committee on Rules and Practice proposes an important update of Rule 1-104 regarding unreported opinions. It deletes the provision that, with very limited exceptions, prohibits their citation as precedential or persuasive in any court. If the proposal is approved by the Supreme Court […]
December 23, 2022

Does Maryland Have an Analog to Fed.R.Civ.P. 26(g)?

Fed.R.Civ.P. 26(g) has been called the “stop and think” rule.  The Rule is “designed to curb discovery abuse” and to “impose an ‘affirmative duty’ on counsel to behave responsibly during discovery….”  The Hon. Paul W. Grimm, et al., “New Paradigm for Discovery Practice: Cooperation” 43 Md. Bar J. 26, 29-30 (Nov./Dec.2010), quoting […]
December 15, 2022

Md. State Bar Association Social Media Program

It was a pleasure to participate yesterday in an MSBA program on “Social Media as Evidence” for the Young Lawyers Section.  After an introduction by T.J. Keilty, I provided an overview of what constitutes social media.  The Hon. J. Mark Coulson discussed discovery issues, including His Honor’s decisions in Allen v. PPE Casino […]
November 8, 2022

It’s Time to Replace Maryland’s “Safe Harbor” Rule

UPDATED Nov. 11, 2022 The Maryland State Bar Association published a white paper, Michael D. Berman, “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule” (Oct. 2022). A download link is provided below. In the paper, I argue that Maryland’s 2008 “safe harbor” rule, Rule 2-433(b), is obsolete. It was patterned on […]
August 4, 2022

Proposed Changes to the Maryland Rules Regarding Discovery of Experts

The Maryland Standing Committee on Rules of Practice and Procedure has issued its 211th Report and proposed rules changes. One of the most significant proposals is to modify Rule 2-402 to follow the 2010 amendments to Fed.R.Civ.P. 26 regarding expert discovery.  The Committee explained: In 2010, the Federal Rule was amended to […]
July 16, 2022

Denial of Discovery to Oppose Motion for Summary Judgment

In Markel Ins. Co. v. Sumpter, 2022 WL 2703832 (D. Md. July 11, 2022)(Hazel, J.), the Court denied a request for discovery to oppose a motion for summary judgment. Markel Insurance defended an alleged auto tort under a reservation of rights.  It then filed this action against both drivers for a declaration […]
April 29, 2022

Deposition Errata Pages in Maryland

An excellent article by Brian A. Zemel, All Things Errata (americanbar.org)(ABA Apr. 19, 2022), addresses the scope of changes a deponent may make to an errata sheet. He explains: If the deponent’s submission is procedurally valid, counsel should then determine whether the witness’s changes were substantive and whether the jurisdiction permits such changes. […]
April 3, 2022

Maryland v. Federal Rules on the Scope of Discovery and Proportionality

In several recent blogs, I have highlighted many of the differences between the Federal Rules of Civil Procedure and the Maryland Rules.  Those blogs are listed in Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties. The Maryland Rules regarding the scope of discovery and proportionality limits contain significant differences […]
April 2, 2022

Maryland v. Federal Clawback and Privilege Non-Waiver Rules

I have written about several differences between the Maryland Rules and the Federal Rules of Civil Procedure.  See  Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties, Maryland v. Federal Summary Judgment Rule, and  M. Berman & A. Shelton,  “Commentary: With ESI, difference between federal, state rules,” The Daily Record (June […]
March 31, 2022

40th State Adopts a Duty of Technological Competence – Is It a Good Idea?

Although the ABA’s “technological competence” standard is a good “first step,” it could be improved.  Simply telling attorneys “be competent” – – with no further guidance or implementation – – does little to advance the ball.  Several articles make this point and suggest the need for additional specificity, education, and greater emphasis […]
March 28, 2022

Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties

Unlike the Federal Rules of Civil Procedure, the Maryland Rules do not generally mandate a conference of the parties.  However, Rule 2-504.1(a)(4) provides a mechanism for a party to request that a State court order a “meet and confer.” The federal rule has a convoluted history.  Rule 26(f) – – the conference […]
March 24, 2022

Maryland v. Federal Summary Judgment Rule

After the December 2015 amendments to the Federal Rules of Civil Procedure, I co-authored two publications noting some of the differences between the new Federal Rules and the Maryland Rules. M. Berman & A. Shelton,  “Commentary: With ESI, difference between federal, state rules,” The Daily Record (June 17, 2016); M. Berman, et al., […]
February 6, 2022

Court of Appeals Follows My Proposal on Voluntary Dismissal Rule

The Maryland Court of Appeals recently considered a proposed amendment of the voluntary dismissal rule. In rejecting the proposal, the State’s highest Court quoted my opposition to it and also quoted my suggested language for any needed clarification.  The Court’s discussion begins at 1:55:29 of the video recording. Rule 2-506(a) currently permits […]
March 14, 2021

Maryland’s Confusing Spoliation Doctrine

In Giant of Maryland LLC v. Webb, __ A.3d__, 2021 WL 733828 (Md. Ct. Spl. Apls. Feb. 25, 2021), Maryland’s intermediate appellate court defined spoliation to require intent and recognized that negligence may suffice.  The Court’s holding was that, because the moving party failed to provide an adequate factual foundation, no sanction […]
January 11, 2021

Maryland’s Spoliation Standard

Maryland courts have addressed spoliation since Love v. Dilley, 64 Md. 238 (1885). In a recent published decision addressing spoliation, Maryland’s intermediate appellate court wrote: Spoliation is a doctrine grounded in fairness and symmetry. The doctrine is premised upon the principle that a party should not be allowed to support its claims […]
May 12, 2020

Publication of M. Berman, et al., eds., ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020)

I am pleased to announce the publication by the Maryland State Bar Association of M. Berman, et al., eds.,  ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020). This book is intended as a practitioner’s handbook addressing primarily – but not exclusively – how ESI is addressed in Maryland State courts, comparing and […]
May 24, 2011

Metadata May Not Be a Public Record in Maryland

As of October 1, 2011, Maryland will permit custodians of public records to scrub unprivileged metadata from those records, apparently at the requestor’s cost, before producing those records under the State analog to the Freedom of Information Act.  The statute, SB 74, Chapter 536 of the 2011 Laws of Maryland, amends the […]