Baron Financial Corp. v. Natanzon (Maryland U.S.D.C.)

Decided December 13, 2006 – Opinion of Judge Susan K. Gauvey

Plaintiff had sued the named Defendant in the above caption above and multiple other defendants and filed a Second Amended Complaint in that case ("the 2004 case"), one of defendants (an attorney, "Rombro") had obtained a dismissal of all counts against him. Plaintiff subsequently filed a new complaint against Rombro ("the 2006 case"), for which Rombro intended to seek a dismissal or summary judgment due to collateral estoppel or res judicata. The general subject matter of both suits was Plaintiff's claims of tortuous and contractual harm arising out of Plaintiff's claims of security interests in certain merchant accounts of one of the Defendants.

After Rombro's dismissal from the 2004 case but before service of process on Rombro of the 2006 case Complaint, Plaintiff sought to depose Rombro as a non-party witness regarding the 2004 case, and Rombro sought a protective order against such deposition, on the grounds that it was inter alia, a mere "fishing expedition" and an attempt to "sidestep" the terms of his dismissal as a defendant from the 2004 case.

After a teleconference with counsel, the Court held that Rombro had not met the burden of "good cause" to merit a general protective order against a non-party witness deposition under Rule 26(c) of the Federal Rules of Civil Procedure ("FRCP"), noting that the burden was a high burden, that protective orders were to be granted sparingly and cautiously and that Rombro was likely to have considerable information relevant to the 2004 case. The Court passed an order allowing the deposition to proceed but set conditions and limits as to its promptness and duration.

The full opinion and order are available in PDF.

Ehrlich v. Grove (Ct. of Appeals)

Decided January 11, 2007 -- Opinion by Judge Dale Cathell.

In a case involving a suit by a senior official of the Maryland Department of the Environment for wrongful termination by Governor Robert Ehrlich upon the beginning of his term as Governor in January 2002, the Court of Appeals held that an interlocutory appeal is appropriate under the extraordinary circumstance of a discovery order being directed to a Governor of Maryland when the collateral order doctrine’s four-part test is met, namely, when:

the interlocutory order sought to be reviewed:

(1) conclusively determines the disputed question,

(2) resolves an important issue,

(3) resolves an issue that is completely separate from the merits of the action, and

(4) would be effectively unreviewable if the appeal had to await the entry of a final judgment.

The Court of Appeals further held that the Circuit Court for Baltimore City had abused its discretion when, in the course of resolving a complex and extended discovery dispute between the parties, it ordered expanded in camera review with the active participation of the attorney for the Plaintiff of documents protected by attorney-client privilege or the work product doctrine and when it actively solicited by its draft of a solicitation letter the consent of 341 former executive-branch employees of the State of Maryland to the release of employment and other documents that the Circuit Court itself had held to be irrelevant and not reasonably calculated to lead to admissible evidence in this case.

The full opinion is available here in PDF.

Johnson v. State (Ct. of Special Appeals)

Decided December 26, 2006 -- Opinion by Judge Paul E. Alpert, Concurring Opinion by Chief Judge Joseph F. Murphy, Jr.

Appellant sought to exclude evidence obtained pursuant to a search warrant and supporting documentation authorizing a search of the residence, car and person of both Appellant and an unidentified third party, on the grounds that the State did not provide Appellant an opportunity to inspect that warrant with respect to the third party. The trial court refused to exclude such evidence and the Court of Special Appeals upheld the trial court, noting that:

1) Appellant had no standing to challenge on constitutional or other ground the validity of warrant against the third party;

2) The State had an interest in maintaining the confidentiality of confidential informants, an interest conceded by the Appellant;

3) Appellant had not requested an in camera review of redacted version of the warrant materials for the purpose of obtaining of possible exculpatory evidence;

4) Appellant had not preserved the issue in prior proceedings of whether the application for the warrant for the unidentified person may have tainted the warrant application for the search of Appellant's person and property; and

5) The State did not call or intend to call the unidentified person as a witness against the Defendant, and therefore the material was not discoverable under Rule 4-263(c)(2).

Chief Judge Murphy noted in a brief concurring opinion that the case at bar did not present the issues of the use of the warrant material for the unidentified person for cross-examination purposes or for proving a tainted warrant application by the strategic misinformation or omissions by an affiant to produce the illusion of probable cause.

The full opinions are available in WPD and PDF.