The opinion is reported at Guthrie v. Vincenti, bypass cert. denied, 490 Md. 138 (2025), subsequent opinion, 269 Md. App. 680 (2026), cert. denied, __ Md. __ (Aug. 21, 2026). The successful outcome is described in Supreme Court of Maryland Denies Cert Petition in Guthrie v. Vincenti – Rifkin Weiner Livingston LLC (Aug. 21, 2026).

For coverage in today’s Baltimore Sun, see Racquel Bazos, Maryland Supreme Court won’t hear Guthrie’s case to restore council seat.  After reporting the statement by Mr. Guthrie’s attorney, the article states:

Vincenti’s representatives disputed that claim, saying the law is clear.

“Unfortunately, Mr. Gansler continues to perpetuate an interpretation of the law that is baseless. Every judge from the trial court to the Appellate Court to the Maryland Supreme Court twice has reached the same conclusion, and that conclusion is directly contrary to Mr. Gansler‘s statement,” said Michael Berman, one of Vincenti’s attorneys, on behalf of the firm Rifkin Weiner Livingston.

“The applicable Maryland constitutional provision, which we call the clean government clause, is unambiguous and was properly applied by the courts at every level,” he said.

For prior blogs discussing my oral argument and earlier rulings, please see

• Oral Argument in the Appellate Court of Maryland in Guthrie v. Vincenti (Feb. 1, 2026);
• Appellate Court of Maryland Decision in Guthrie v. Vincenti (May 6, 2026).

In Mason v. Domino’s Pizza, LLC, 2021 WL 4820520, at *5 (D. Md. Oct. 15, 2021)(Boardman, J.), the Court addressed authentication of ESI on a summary judgment motion.  Here, defense counsel dotted all of the “I’s,” crossed all of the “T’s,” and prevailed despite plaintiff’s contradictory sworn evidence.

Mr. Mason filed suit against his employer.  He alleged employment discrimination that led to termination.  Domino’s, the employer, sought to compel arbitration.  The Court wrote:

“Domino’s argues the parties entered into a valid arbitration agreement that covers the scope of Mr. Mason’s claims. In response, Mr. Mason disputes that he ever entered into the arbitration agreement. Both parties have submitted evidence in support of their respective positions.” [emphasis added].

The Court held that the parties entered into a valid arbitration agreement and granted the motion.

Given the factual dispute, it is instructive to examine how Domino’s prevailed.

Domino’s offered evidence that new hires were required to sign an arbitration agreement.  Using a methodology that is typical of many industries: “New hires followed a multi-step, online process to sign the arbitration agreement and other onboarding documents.”  The Court explained each step of that process.  Id. at *2.  Domino’s asserted that Mr. Mason followed this process and affixed digital signatures to the documents presented during the process.

However, Mr. Mason offered “documentary and testimonial evidence to support his position….  He states he did not agree to arbitration, did not sign a document labeled ‘Arbitration Agreement,’ and while he signed other documents as part of the onboarding process, none of those documents, including the 2015 Policy Manual, mentioned arbitration. … He insists Domino’s never provided him with a cover letter explaining the arbitration program, a flyer about arbitration, or the arbitration agreement.”  Id. at *3.  Additionally, Mr. Mason “swears in his affidavit that none of the documents he reviewed online during the onboarding process referred to arbitration.”  Id. at *4.

On the other hand, the Court wrote that “Domino’s offers considerable evidence that Mr. Mason digitally signed, agreed to, and is bound by the arbitration agreement after having the opportunity to review it.”

Considering the motion as a Rule 56 summary judgment motion, the Court wrote: “The crux of the parties’ dispute is whether Mr. Mason agreed to and is bound by the arbitration agreement.  Certainly there must be an agreement between the parties to arbitrate before arbitration can be compelled.”  Id. at *4.

This would appear to present a genuine dispute of material fact that precludes summary judgment.  However, the Court ruled to the contrary and ordered arbitration.

In order to understand why, it is important to review how Domino’s authenticated its exhibits.  Initially, Domino’s filed an affidavit describing its onboarding process in detail.  Id. at *4.  It also “submitted evidence that Mr. Mason in particular followed the new-hire procedures and digitally signed the arbitration agreement.”  Id. at *5.  The Court wrote:

Mr. Mason argues Domino’s has not properly authenticated his e-signature on the arbitration agreement. The Court is not persuaded.

Under Federal Rules of Evidence 901, a party may authenticate electronically stored information such as e-signatures by “produc[ing] evidence sufficient to support a finding that the item is what the proponent claims it is,” such as “[t]estimony that an item is what it is claimed to be” or “[e]vidence describing a process or system and showing that it produces an accurate result.” Fed. R. Evid. 901(a), (b)(1), (9); see Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 542 (D. Md. 2007) (noting “[a] party seeking to admit an exhibit need only make a prima facie showing that it is what he or she claims it to be,” which “is not a particularly high barrier to overcome”).

Domino’s has met the requirements of Rule 901. It submitted an affidavit of Michael Chodzko, a Specialist in Domino’s Corporate Operations Support in its Human Resources Department who has personal knowledge of “Domino’s routine business practices pertaining to the maintenance and security of Domino’s computer system and employee access to the TMSC website, a self-service Website maintained by Domino’s for internal use.” …. Mr. Chodzko details the online onboarding process required for Mr. Mason and all new Domino’s employees, including the e-signature process. Mr. Chodzko describes how all new employees must review and sign the arbitration agreement. … He explains that Domino’s maintains electronic records of the e-signatures of its employees and did so in Mr. Mason’s case. He attaches to his affidavit several documents reflecting Mr. Mason’s e-signatures, including his digital signature of the Arbitration Agreement, which he swears were maintained by Domino’s in the usual course of business.

With that foundation, the Court had no trouble resolving the key issue.  It wrote:

After considering the affidavits and the documents submitted by Mr. Mason and Domino’s, the Court finds there is no genuine dispute of material fact that Mr. Mason reviewed, signed, and agreed to bound by the arbitration agreement. Although he claims in his affidavit he never signed the agreement and never read a document referring to the agreement during his online onboarding process, Domino’s has submitted overwhelming evidence to the contrary. The record evidence shows that Mr. Mason agreed to review online onboarding documents, such as arbitration agreements, and to e-sign and be bound by them as if he were signing them by hand. His authenticated digital signature is on the arbitration agreement. As part of his review of the arbitration agreement, he reviewed the cover letter and flyer explaining Domino’s mandatory arbitration program. Even if Mr. Mason is correct that the 2015 Policy Manual, which he agrees he reviewed and e-signed, does not refer to arbitration, the 2015 Team Member Handbook that he also e-signed does.

Id. at *5.  The Court added that: “No rational trier of fact could believe Mr. Mason did not sign and agree to the terms of the arbitration agreement.”  Id. at *5 (emphasis added).[2]

The Court cited precedent that where a litigant’s factual account is “blatantly contradicted” by the record, it need not be credited.  Id.  The Court explained that “Domino’s already established how its onboarding process operates and identified the safeguards in place to ensure signatures are authentic.”  Id. at *6.  It compelled arbitration and dismissed the case.

Hats off to my colleague and friend, Lee B. Rauch, Esq., who represented Domino’s.

Fed.R.Evid. 901(10) permits any method of authentication authorized by Rule.  The December 2017 amendments to Fed.R.Evid. 902 (13, 14) permit authentication  of records generated by an accurate electronic system and authentication using hash values,[3] when properly certified by a qualified person.   The Advisory Committee wrote: “A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial.”

____

[1] I have several posts on authentication.  For example, Authentication of a Disputed Email and Attachment.  To view others, please click on the “tag” for “Evidence Authentication.”

[2] The Court wrote that “if a party fails to establish the existence of an element essential to that party’s case or the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, then summary judgment is proper.”  Id. at *3 (cleaned up)(emphasis added).

[3] The Advisory Committee wrote: “A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates.”

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 state appeal court ruled Wednesday.

Vanessa Williams Powell wasn’t able to depose the defendants in her suit, which included the city’s mayor, personnel director, chief municipal court, and council president, the New Jersey Appellate Division said.

Patrick Dorrian, Deprived of Depositions, Judge Wins Wrongful Firing Suit Revival (bloomberglaw.com)(Mar. 22, 2023).

The court wrote:

“Here, plaintiff twice served notices to depose defendants…. Defendants took the position that plaintiff should be deposed first.  While that may be common practice, defendants have no right to postpone their depositions because they wish to depose plaintiff first.”

Powell v. City of Newark, 2023 WL 2590400  (N.J.Sup. Ct. App. Div. Mar. 22, 2023)(unreported).

The New Jersey Rules stated: “Unless the court upon motion … orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not, of itself, operate to delay any other party’s discovery.”

Maryland’s Rule 2-401(b), governing the sequence and timing of discovery, is similar: “Unless the court orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery. The court may at any time order that discovery be completed by a specified date or time, which shall be a reasonable time after the action is at issue.”

Fed.R.Civ.P. 26(d)(3) provides: “Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery.”

The New Jersey court remanded for completion of discovery, while affirming dismissal of certain counts.

Park involved a torturous procedural history that will not be recounted here.  At bottom, the Axelson firm claimed an unpaid fee for legal services and Ms. Park responded with claims of inadequate representation.  Summary judgment for the law firm was affirmed.

The law firm served requests for admission.  Ms. Park asked for a 60-day extension. The firm offered 21-days.  Ms. Park said she doubted that she could comply due to other commitments and “health conditions.”  She then failed to comply.

The Appellate Court held that deemed admissions under Rule 2-424(b) are not discovery sanctions.  Instead, they arise by operation of law.  When Ms. Park failed to timely respond, the requests were conclusively admitted.

However, Ms. Park had moved to withdraw the admissions.  Denial of that motion was also affirmed.

The Court distinguished a motion permitting withdrawal from one denying withdrawal.  The former has a two-prong test: withdrawal is proper if it would facilitate adjudication on the merits and there is prejudice.[1]

However, in reviewing a denial motion, the Court also considers culpability and the egregiousness of the conduct.  Suffice it to say, the Court found plenty of that – “a pattern of belated conduct and failure to comply with discovery.”[2]

_____

[1] The Court wrote:  “Implicit in Rule 2-424(d)[permitting withdrawal] is the requirement that, to be entitled to withdraw an admission, there must exist a substantial dispute concerning the admitted fact.’”

[2] The Court also held that the pro se litigant’s “information and belief” affidavit could not defeat 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 that its policy did not cover the incident, and Markel Insurance also moved for summary judgment prior to discovery.

One driver did not timely respond and provided no justification for the delay. The Court struck the untimely response, writing in a footnote that the stricken response failed to raise a genuine dispute of material fact.

The other driver asserted that he had not received the motion. The Court rejected that position, stating that service is complete on mailing and non-receipt does not affect the validity of service.

That driver also asserted that he had a right to discovery before summary judgment could be entered against him.  The Court rejected that request under several well-settled principles.  It wrote:

• “Generally speaking, ‘summary judgment [must] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.’”
• However, “[t]he Court is not prohibited from granting a motion for summary judgment before the commencement of discovery. See Fed. R. Civ. P. 56(a) (stating that the court ‘shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact’ without distinguishing pre- or post-discovery).”
• “[T]he party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery.’”
• “To adequately raise the issue that discovery is needed, the non-movant typically must file an affidavit or declaration pursuant to Rule 56(d) … explaining why, ‘for specified reasons, it cannot present facts essential to justify its opposition,’ without needed discovery.”
• “[F]ailure to file an affidavit may be excused ‘if the nonmoving party has adequately informed the district court that the motion is premature and that more discovery is necessary’ and the ‘nonmoving party’s objections before the district court served as the functional equivalent of an affidavit.’”
• “As this Court has explained, a ‘non-moving party’s Rule 56(d) request for additional discovery is properly denied ‘where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.’”
• “The Court is mindful that it should grant a Rule 56(d) request for discovery if ‘the information requested is in the sole possession of the moving party, and where the district court would be otherwise unable to conduct a proper summary judgment assessment without the requested evidence.’”
• “[A] non-movant may not ‘demand[ ] ‘discovery for the sake of discovery.’”
• “‘Vague assertions’ that more discovery is needed are insufficient.”
• “A material fact is one that ‘might affect the outcome of the suit under the governing law.’”

The Markel Insurance Court was faced with an insurance coverage dispute.  That is an issue of contract interpretation.  On the facts presented, the driver’s requested discovery would not present a genuine dispute of material fact.

Markel Insurance does not break new ground in enunciating the principles governing discovery to oppose summary judgment, but it presents a cautionary road map for non-moving litigants that are seeking discovery.

On this point, Maryland Rule 2-501 is similar to Fed.R.Civ.P. 56(d).  See Maryland v. Federal Summary Judgment Rule.

UPDATE: October 8, 2022

The excellent Gibbons Law Alert has posted Charles H. Chevalier and Christine A. Gaddis, DNJ Court Denies Request for Early Summary Judgment Finding Motion Made Mid-Fact Discovery Premature – Gibbons Law Alert (Sep. 29, 2022), in which – – on the facts presented – – the court reached the opposite result.

Clearly, these decisions are fact sensitive, and context is everything.

Although cases abound regarding the discoverability of electronic records, research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence. Because there is a need for guidance to the bar regarding this subject, this opinion undertakes a broader and more detailed analysis of these issues than would be required simply to resolve the specific issues presented in this case. It is my hope that it will provide a helpful starting place for understanding the challenges associated with the admissibility of electronic evidence.

Id. at 537.

The Hon. Paul W. Grimm denied cross-motions for summary judgment and wrote that: “It is difficult for the Court to provide the appropriate background to the underlying arbitration in this case because, as will be discussed in greater detail below, neither party has proffered any admissible evidence to support the facts set forth in their respective motions.”

The Court explained:

Very little has been written… about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice. Fed.R.Civ.P. 56(e). This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary “flavors,” including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.

241 F.R.D. at 537-38 (emphasis added).

The decision went on to carefully analyze “a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of evidence.”  Id. at 538.  It proceeds to explain the trial court’s gatekeeper role and the various issues presented by each “flavor.”

Lorraine was the first, and has been described as “the most[,] comprehensive single opinion regarding the admissibility of ESI….”  Hon. Paul W. Grimm, et. al., “Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information,” 42 Akron L. Rev. 357, 360 (2009).

It has also been called the “godfather of all cases,”  Linda Greene, “Mining Metadata: The Gold Standard for Authenticating Social Media Evidence in Illinois,” 68 DePaul L. Rev. 103, 112 (2018), and a “landmark case,”  Abraham Oxner, “A New Age of Authentication,” 23 J. Tech. L. & Pol’y 229, 234 (2019).

The ground-breaking decision remains a textbook resource today. For example:

This case is seen as an exhaustive guide to the admissibility of social media evidence in trials, and the case features a lengthy section on authenticating such evidence during the course of trial. The opinion was written by Judge Paul Grimm, who is considered to be the leading jurist on the admissibility of social media evidence. In it, Judge Grimm identified several useful tools for authenticating such evidence, including using the distinctive characteristics of specific posting habits to show that a user has a habit of posting in a certain way. This specific characteristics approach has since been used in a number of other federal cases where social media content made up a significant portion of the available evidence.

Maximilian Bungert, “Do It for the Snap: Different Methods of Authenticating Snapchat Evidence for Criminal Prosecutions,” U. Ill. J.L. Tech. & Pol’y, Spring 2021, at 121, 132–33.

History is important.

______

[1] 2006 WL 2836885.

[2] 2006 WL 5229809; 241 F.R.D. at 534.

There are a number of other important differences, one of which is the summary judgment rule. A side-by-side comparison follows.  There are notable similarities and differences.  The Maryland Rules do not cite to Fed.R.Civ.P. 56 as a “source” of Maryland Rule 2-501.[1] 

The 1937 Advisory Committee Notes to Fed.R.Civ.P. 56 state: “Summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. It has been extensively used in England for more than 50 years….” The 1963 Notes state that: “The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.”  The 2010 Amendment was designed “to improve the procedures for presenting and deciding summary-judgment motions and to make the procedures more consistent with those already used in many courts.”

_____

[1] This history of Md. Rule 2-501 is: Adopted April 6, 1984, eff. July 1, 1984. Amended eff. April 8, 1985; April 7, 1986, eff. July 1, 1986; March 22, 1991, eff. July 1, 1991; Dec. 8, 2003, eff. July 1, 2004; June 16, 2009, eff. June 17, 2009; March 2, 2015, eff. July 1, 2015.

[2] The Advisory Committee Note states: “Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.”

[3] The Advisory Committee Note states: “Subdivision (a) also adds a new direction that the court should state on the record the reasons for granting or denying the motion. Most courts recognize this practice. Among other advantages, a statement of reasons can facilitate an appeal or subsequent trial-court proceedings. It is particularly important to state the reasons for granting summary judgment. The form and detail of the statement of reasons are left to the court’s discretion.”

[4] The Advisory Committee Note to Fed.R.Civ.P. 56 states that “summary judgment cannot be granted by default even if there is a complete failure to respond to the motion….”  However, the Note also states that: “Subdivision (e)(2) authorizes the court to consider a fact as undisputed for purposes of the motion when response or reply requirements are not satisfied. This approach reflects the ‘deemed admitted’ provisions in many local rules. ”

Fed.R.Civ.P. 12(d) states: “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” [Emphasis added].

In Vorleamesi, the Court explained the Rule 12(d) reasonable opportunity requirement.  There are two elements: notice of intent to convert the motion; and, a reasonable opportunity for discovery if requested.

In Vorleamesi, the Court wrote that the rules do not prescribe that any particular notice be given before conversion.  Id. at *2.  “Thus, this requirement can be satisfied when a party is aware that material outside the pleadings is before the court.”  Id. (internal quotations and citation omitted).  In sum, the Court wrote that it “does not have an obligation to notify parties of the obvious.”  Id. (internal quotations and citation omitted)(Emphasis added).

It then wrote:

Here, the title of the motion itself, “Motion to Dismiss or, in the Alternative, Motion for Summary Judgment,” makes it obvious that the Court might construe the defendant’s motion as seeking summary judgment, rather than dismissal, and thereby provides sufficient notice to the Plaintiff.

Id. at *2.

Under Vorleamesi, when it is obvious that a motion to dismiss also presents summary judgment issues, the party opposing that motion is on notice that the Court may treat the motion as one under Rule 56 without further notice to the opponent.

Vorleamesi also addresses the right of the party opposing summary judgment to adequate discovery before the Court may rule on the summary judgment motion.  The failure of a party to expressly request and demonstrate the need for discovery waives that right.  The Court wrote:

As the Fourth Circuit has also instructed, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.’” [citation omitted]….  Here, Ms. Vorleamesi has not filed an affidavit or declaration identifying any discovery that she needs in order to fully respond to a summary judgment motion. Rather, she has responded to the Secretary’s alternative theories for dismissing her complaint. Because Ms. Vorleamesi has not identified any material that she requires to adequately respond to the motion, I find that the most appropriate approach is to address the Secretary’s motion as one for summary judgment and I will consider the exhibits provided.

The Court granted defendant’s summary judgment motion.

When a party is faced with a motion to dismiss or, in the alternative, for summary judgment, the opponent is on notice that the motion may be treated as either and should respond accordingly.  If the opponent needs discovery to oppose a summary judgment motion, Vorleamesi sets out the procedure that should be followed.  While Vorleamesi is not an ESI case, ESI is frequently submitted in connection with summary judgment motions.

****

Sept. 3, 2021, update:

Accord Brother Convenience Store, Inc. v. U.S. Dept. of Agriculture, 2021 WL 3911594, at *8 (D. Md. Sept. 1, 2021)(Russell, J.)(stating same rule; reviewing Rule 56(d) affidavit; holding that the requested discovery materials would not create a genuine dispute of material fact).