Baltimore City Dept. of Social Services v. Stein

Citation612 A.2d 880,328 Md. 1
Decision Date01 September 1991
Docket NumberNo. 109,109
CourtCourt of Appeals of Maryland

Evelyn O. Cannon, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Shelly E. Mintz, Asst. Atty. Gen., on brief), Baltimore, for appellant.

Paul J. Weber (Rollins, Smalkin, Richards & Mackie, on brief), Baltimore, for appellees.



There are two issues presented in this case: (1) the appealability of an order of the Circuit Court for Baltimore City requiring the Baltimore City Department of Social Services (BCDSS), the appellant, to disclose to James Stein, one of the defendants below 1 and the appellee herein, any records it may have on Stephen Ray, the minor plaintiff below, and Annette Hunter and Mickey Ray, his parents, hereinafter, collectively "the plaintiffs," and (2) the correctness of that ruling. The circuit court's order prompted the appellant to appeal to the Court of Special Appeals. We issued the writ of certiorari prior to argument in that court to consider the important issues raised. We shall reverse and remand for further proceedings.


Annette Hunter and Mickey Ray, for themselves, and on behalf of Stephen Ray, their child, sued the appellee, and others, for physical, mental, and emotional injury allegedly caused by lead paint poisoning Stephen suffered, as a result of the appellee's negligence, while residing in a home owned and managed by the appellee Stein. The plaintiffs did not name the appellant as a defendant, nor did appellee join it as a party.

Having filed answers to the plaintiffs' amended complaint 2, the appellee engaged in discovery. He filed and served a Notice To Take Deposition duces tecum on the appellant. That notice set a date for taking the deposition of the appellant's custodian of records, in this case, its Director, who was requested to produce "[t]he entire file regarding Annette Hunter ... Mickey Ray ... and their child, Steven Ray ... to include all payments made by Social Services to them on their behalf or on behalf of all their dependents (welfare payments, medical assistance payments, W/C payments, etc.) and all records of the Department of Social Services, the Department of Protective Services and/or Division of Daycare."

Resisting the subpoena issued pursuant to the notice, the appellant filed a Motion For Protective Order. 3 It offered several reasons for objection: (1) relying on Maryland Code (1957, 1991 Repl.Vol.) Article 88A, § 6, 4 that the records are confidential and may be released only pursuant to court order; (2) that the records are protected by executive or governmental immunity; (3) that executive or governmental privilege exempts the records from disclosure; and (4) that the social worker, and/or psychologist/psychiatrist-patient, privilege "may apply to all or portions of the requested records."

The appellee moved to compel. In his motion, he acknowledged that "the Department is not unjustified in interposing the present objection, and in requiring a court order to produce the requested materials." He argued, however, that what he sought

may be and most likely, will be directly pertinent and vital to the completion of meaningful discovery in this case. Quite clearly, should these records reveal instances of child abuse or neglect, or matters of psychological or psychiatric problems, all of the information would be directly relevant. Defendants must be permitted to have access to this information in order to have full opportunity for an adequate defense. This is all the more obvious since Plaintiff and/or her family or counsel would have access to much or all of the information contained in these records.

Also, the appellee did not entirely reject in camera inspection as an option; rather, he took the position that, while in camera inspection is not absolutely necessary, he would not object if the court were to find it appropriate. In addition, the appellee did not challenge the need to maintain confidentiality, by redacting identity information with respect to child abuse or neglect informants. Finally, the appellee rejected the appellant's argument that records relating to Social Services' intervention, other than through Child Protective Services, are irrelevant. He asserted, on the contrary that because it relates to the social environment, "information as to where the infant Plaintiff resides, who is charged with the responsibility of supervising the infant Plaintiff and commentary as to the adequacy and propriety of the care given to the infant Plaintiff", is crucial. The appellee concluded:

Thus, an investigation into the social environment of the infant Plaintiff is crucial. The nature of the caregiving environment is clearly a relevant inquiry into the source and factors contributing to the alleged lead intoxication of the minor Plaintiff. Further, the records sought by the Defendants may clearly show evidence of causes contributing to the claimed injuries of the minor Plaintiff. The Plaintiff has put her mental, emotional and social status at issue by filing a lawsuit. The defense of this lawsuit would be severely hampered if the clearly relevant information contained in the records of the Department is categorically denied to the Defendants.

In neither the Notice For Deposition duces tecum nor the Motion To Compel did the appellee proffer precisely what evidence regarding the minor plaintiff and the cause of action it believed the appellant's files would reveal. He simply asserted that evidence that shows the social circumstances under which the minor plaintiff was raised was relevant.

Notwithstanding that both the appellant and the appellee requested a hearing, 5 the trial court decided the issue without one. It denied the appellant's motion for protective order and granted the appellee's motion to compel.


Anticipating an avenue of attack by the appellee, the appellant argues that the circuit court's discovery order requiring disclosure of any files it might have on the plaintiffs is appealable. Conceding that the order is not a "final judgment" within the meaning of Maryland Code (1974, 1989 Repl.Vol., 1991 Cumm.Supp.) § 12-301 of the Courts and Judicial Proc. Article, the appellant maintains that it is appealable under the "collateral order doctrine," a recognized exception to the "final judgment" rule.

While acknowledging that the order from which it has appealed is a discovery order, which normally is interlocutory and, consequently, nonappealable, see Public Service Comm'n v. Patuxent Valley, 300 Md. 200, 207, 477 A.2d 759, 763 (1984); Sigma Repro. Health Center v. State, 297 Md. 660, 675, 467 A.2d 483, 490 (1983), the appellant asserts that the requirements of the collateral order doctrine are all met in this case. Hence, it argues, the order is appealable. The court's order conclusively determined, i.e., foreclosed its further challenge to the ruling, that the appellant must disclose to the appellee any records it may have on the plaintiffs. 6 The issue decided, i.e., the propriety of disclosing Social Services' records in a civil case on the basis simply of a subpoena duces tecum, and without the necessity of a proffer, is an important one. While impacting on them, the issue presented is not dispositive of the merits of the underlying action and, indeed, is distinct from them. As to the final factor, whether the order will be reviewable on appeal from the final judgment resolving the merits, the appellant points out that, once disclosure is made pursuant to the court's order, the harm is done; the confidentiality of the information is lost immediately and forever; it cannot be recaptured, whatever the ruling on appeal may be.

The appellee agrees that the correct analysis is under the collateral order doctrine. Unlike the appellant, however, he denies that all of the doctrine's prerequisites have been met in this case. Specifically, relying on Sigma Repro. Health Cen., supra, 297 Md. at 670-71, 467 A.2d at 488, he argues that the records sought may contain facts material to the defense of the personal injury action and, thus, the collateral issue is intertwined with the merits of the case. The appellee also questions whether the order has the requisite finality since the appellant has not been held in contempt. Moreover, the appellee asserts that, in this case, the federal issue, i.e., whether he had been accorded due process, has not yet been decided; hence, there has been no finality as was the case in Pennsylvania v. Ritchie, 480 U.S. 39, 47, 107 S.Ct. 989, 996, 94 L.Ed.2d 40, 51 (1987).


Maryland Code (1974, 1989 Repl.Vol.) § 12-301 of the Courts & Judicial Proceedings Article provides that "[A] party may appeal from a final judgment entered in a civil ... case", whether entered in the exercise of original, special, limited, or statutory authority, unless "expressly denied by law." Its purpose is to discourage the piecemeal appeal of issues generated at various stages of the litigation. Cant v. Bartlett, 292 Md. 611, 614, 440 A.2d 388, 389 (1982), Stewart v. State, 282 Md. 557, 561, 386 A.2d 1206, 1208 (1978); Jolley v. State, 282 Md. 353, 356, 384 A.2d 91, 93 (1978). See also Maryland Rule 2-602 which provides:

(a) Generally.--Except as provided in Section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counter-claim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action:

(1) is not a final judgment;

(2) does not terminate the action as to any of the claims or any of the parties; and

(3) is subject to revision at any time before the entry of a...

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