Md. Code Regs. 21.10.06.14

Current through Register Vol. 51, No. 24, December 2, 2024

Section 21.10.06.14 - Depositions and Discovery

A. Scope of Discovery. In general, unless otherwise ordered by the Appeals Board, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the appeal:

(1) Whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of the other party;

(2) Including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things;

(3) Including any information of the witness or party, however obtained, as to the identity and location of persons having knowledge of any discoverable matter;

(4) Whether or not any of these matters is already known to or otherwise obtainable by the party seeking discovery; and

(5) Whether or not the information will be inadmissible at the hearing, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

B. Hearing Preparation - Materials.

(1) Subject to the provisions of §C of this regulation, a party may not obtain discovery of documents and tangible things prepared in anticipation of litigation or for hearing by or for another party or by or for that other party's representative (including the party's attorney, consultant, or surety) except upon a showing that:

(a) The materials are otherwise discoverable under §A of this regulation;

(b) The party seeking discovery has substantial need of the materials in the preparation of its appeal; and

(c) The party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

(2) In ordering discovery of the materials when the required showing has been made, the Appeals Board shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

C. Hearing Preparation - Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provision of §A of this regulation and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(1) Through interrogatories, a party may require the other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Upon motion, the Appeals Board may order further discovery by other means, subject to restrictions as to scope and, pursuant to §C(3) of this regulation, provisions concerning fees and expenses, that the Board deems appropriate.

(2) A party may not discover facts known or opinions held by an expert who has been retained or specially employed by the other party in anticipation of litigation or preparation for hearing and who is not expected to be called as a witness at the hearing, except upon a showing of circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(3) Unless manifest injustice would result, the Appeals Board shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under §C(1) and (2) of this regulation. With respect to discovery obtained under §C(1), the Appeals Board may require, and with respect to discovery obtained under §C(2), the Appeals Board shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

D. When Depositions Permitted. After an appeal has been docketed and a complaint filed, the parties may mutually agree to, or the Appeals Board may, in response to a motion to compel, order the taking of testimony of any person by deposition upon oral examination or written interrogatories before an officer authorized to administer oaths at the place of examination, for the purpose of discovery, or for use as evidence in the appeal, or for both purposes.

E. Designation of Person to Testify. A party, by written notice to opposing counsel, may name as the deponent a public or private corporation, a partnership, an association, an LLC, or other entity or government agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify.

F. Orders on Depositions. The time, place, and manner of taking depositions shall be as mutually agreed by the parties, or failing agreement, governed by order of the Appeals Board.

G. Expenses. Except as provided for in §C(3) of this regulation, each party shall bear its own expenses associated with the taking of any deposition.

H. Protective Orders. The Appeals Board may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Those orders may include limitations on the scope, method, time, and place for discovery, and provisions for protecting the secrecy of confidential information or documents.

I. Deposition - Use; General.

(1) When May be Used. At the evidentiary hearing or in support of a motion, any part or all of a deposition, so far as admissible under the rules of evidence, applied as though the witness was present and testifying may be used in accordance with any one of the following provisions:

(a) Contradiction and Impeachment. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(b) By Adverse Party. The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, managing agent, or a person designated under §E of this chapter, to testify on behalf of a public or private corporation, partnership, association, LLC, or other entity or government agency which is a party may be used by an adverse party for any purpose.

(c) Witness Not Available-Exceptional Circumstances. The deposition of a witness, whether or not a party, may be used by any party for any purpose against the other party provided the latter party was present or represented at the taking of the deposition or had due notice thereof, if the Appeals Board finds:

(i) That the witness is dead;

(ii) That the witness is out of the State, unless it appears that the absence of the witness was procured by the party offering the deposition;

(iii) That the witness is unable to testify because of age, mental incapacity, sickness, infirmity, or imprisonment; or

(iv) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

(d) Use of Part of Deposition. If only part of a deposition is offered in evidence by a party, the other party may require him to introduce any other part which ought in fairness to be considered with the part introduced.

(e) Deposition Taken in Previous Action-Substitution of Party. Substitution of a party does not affect the right to use depositions previously taken. When an action in any court of this State has been dismissed and another action involving the same subject matter is afterward brought to the Appeals Board by the same parties, or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor.

(2) Effect of Deposition. A party is not deemed to make a person the party's own witness for any purpose by taking the person's deposition. The introduction in evidence of the deposition or any part of it for any purpose other than as permitted in §I(1)(a) and (b) of this regulation makes the deponent the witness of the party introducing the deposition. At the hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by that party or the other party.

Md. Code Regs. 21.10.06.14

Regulations .14 amended effective 45:9 Md. R. 463, eff. 5/7/2018; amended effective 48:21 Md. R. 883, eff. 9/9/2021; amended effective 49:3 Md. R.137, eff. 9/9/2021; amended effective 49:4 Md. R. 302, eff. 2/21/2022; amended effective 49:8 Md. R.500, eff. 4/18/2022