Rules For Depositions in Maryland Circuit Court Cases

Maryland Rule 2-402 Scope of Discovery

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(a) Generally.

A party may obtain discovery regarding any matter that is not privileged, including the existence, description, nature, custody, condition, and location of any documents, electronically stored information, and tangible things and the identity and location of persons having knowledge of any discoverable matter, if the matter sought is relevant¹ to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.

It is not ground for objection that the information sought is already known to or otherwise obtainable by the party seeking discovery or that the information will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

An interrogatory or deposition question otherwise proper is not objectionable merely because the response involves an opinion or contention that relates to fact or the application of law to fact.

Maryland Rule 2-415 (g) states:

g) Objections...An objection to the competency of a witness or to the competency, relevancy, or materiality of testimony is not waived by failure to make it before or during a deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time². The grounds of an objection need not be stated unless requested by a party. If the ground of an objection is stated, it shall be stated specifically, concisely, and in a non-argumentative and non-suggestive manner. If a party desires to make an objection for the record during the taking of a deposition that reasonably could have the effect of coaching or suggesting to the deponent how to answer, then the deponent, at the request of any party, shall be excused from the deposition during the making of the objection. (Emphasis added.)

Regarding this rule, the Committee noted:

During the taking of a deposition, it is presumptively improper for an attorney to make objections that are not consistent with Rule 2-415 (g). Objections should be stated as simply, concisely, and non-argumentatively as possible to avoid coaching or making suggestions to the deponent and to minimize interruptions in the questioning of the deponent. Examples include "objection, leading;" "objection, asked and answered;" and "objection, compound question."

Under Maryland Rule 2-415 (h), “[w]hen a deponent refuses to answer a question, the proponent of the question shall complete the examination to the extent practicable before filing a motion for an order compelling discovery.” So…complete the deposition!

When asking about opinions or contentions, note: “An interrogatory or deposition question otherwise proper is not objectionable merely because the response involves an opinion or contention that relates to fact or the application of law to fact.” Maryland Rule 2-402(a).

Authority exists in Maryland for the proposition that you can ask a malpractice Defendant standard of care questions. In State v. Branin, 224 Md. 156, 167 A.2d. 117 (1961), the Court of Appeals allowed plaintiffs in a medical malpractice suit to question the defendant doctor in his capacity as a medical expert and regarding his specific role in the case.

Another useful source of guidance for depositions is The Discovery Guidelines of the Maryland State Bar Association. Although not officially part of the Maryland Rules or adopted or approved by the Court of Appeals, the preamble states that the Guidelines may be of significant value “in interpreting and applying Title 2, Chapter 400 of the Maryland Rules and are designed to eliminate unnecessary discovery disputes.”³ The pertinent Guidelines are set forth below:

Guideline 6: Assertions of Privilege at Depositions

Where a claim of privilege is asserted during a deposition and information is not provided on the basis of such assertion:

(a) The attorney asserting the privilege shall identify during the deposition the nature of the privilege (including work product) which is being claimed; and

(b) The following information shall be provided during the deposition at the time the privilege is asserted, if sought, unless divulgence of such information would cause disclosure of the allegedly privileged information:

(1) For oral communications:

(i) the name of the person making the communication and the names of the persons present while the communication was made and, where not apparent, the relationship of the persons present to the person making the communication;

(ii) the date and place of the communication; and

(iii) the general subject matter of the communication.

(2) For documents, to the extent the information is readily obtainable from the witness being deposed or otherwise:

(i) the type of document, e.g., letter or memorandum;

(ii) the general subject matter of the document;

(iii) the date of the document; and

(iv) such other information as is sufficient to identify the document for a subpoena duces tecum, including, where appropriate, the author, addressee, and any other recipient of the document, and where not apparent, the relationship of the author, addressee, and any other recipient to each other;

(3) Objection on the ground of privilege asserted during a deposition may be amplified by the objector subsequent to the deposition.

(c) After a claim of privilege has been asserted, the attorney seeking disclosure should have reasonable latitude during the deposition to question the witness to establish other relevant information concerning the assertion of privilege, including (i) the applicability of the particular privilege being asserted, (ii) circumstances which may constitute an exception to the assertion of the privilege, (iii) circumstances which may result in the privilege having been waived, and (iv) circumstances which may overcome a claim of qualified privilege.

Guideline 8: Deposition Questioning and Objections

(a) An attorney should not intentionally ask a witness a question that misstates or mischaracterizes the witness' previous answer.

(b) An attorney should not intentionally ask a witness more than one question at a time. To insist upon an answer to a multiple-part question after objection is presumptively improper.

(c) Objections in the presence of the witness which are used to suggest an answer to the witness are presumptively improper.

(d) An attorney should not question a deponent in such a manner as he knows or should know would serve merely to harass or annoy the deponent.

(e) An attorney for a deponent should not initiate a private conference with a deponent during the actual taking of a deposition, except for the purpose of determining whether a privilege should be asserted. To do so, otherwise, is presumptively improper.

(f) It is presumptively improper for an attorney to instruct a client not to answer a question at deposition unless:

(1) There is a specific assertion of privilege in accordance with these guidelines,

(2) There is abusive conduct in the questioning of which this question is a part with a specific identification of why the instructing attorney believes this to be so, or

(3) The question is completely irrelevant or intended to embarrass the witness.

(g) If the attorney lodging an objection or instructing a witness not to answer believes that his objection or his instruction requires the assertion of facts or an explanation of the formal defect, which would in any way be instructive to the witness, then the witness should be excused while the objection or instruction is made.

Guideline 9: Objections at Depositions

Attorneys objecting to the form of the question at deposition are encouraged, if requested, to state the reason for the objection.

¹ Compare with Maryland Rule of Evidence 5-401: “’Relevant Evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Of course, this definition is necessarily more restrictive since it presupposes that the “evidence” has already been discovered.

² For example, a failure to object to the admission of photograph at a deposition did not constitute a waiver of the objection since the ground of the objection could not have been removed. Nocar v. Greenberg, 210 Md. 506, 124 A.2d 757 (1956). A second example comes from Davis v. Goodman, 117 Md. App. 378, 700 A.2d 798, (1997). In Davis, Plaintiff’s counsel had objected at a de bene esse deposition to defense counsel’s questions of an expert witness because the questions were not phrased using reasonable degree of certainty (or probability) language. In so doing, defense counsel merely stated “objection.” Noting that other courts have called this an “objection to form,” (Id. at 397, 807) the Court found that these objections were waived because they were not made with specificity. The Court reasoned that the drafters of the Maryland Rules did not want litigants to be prejudiced by easily curable errors. Id. at 400, 808.

³ An earlier version of the Discovery Guidelines was approved by the Conference of Circuit Court Judges.