Kelch v. Mass Transit Administration

• Decision Date: 26 February 1980
• Docket Number: No. 57,57
• Citation: 287 Md. 223,411 A.2d 449
• Parties: Ronald M. KELCH et ux. v. MASS TRANSIT ADMINISTRATION et al.
• Court: Maryland Court of Appeals

Page 223

287 Md. 223

411 A.2d 449

Ronald M. KELCH et ux. v. MASS TRANSIT ADMINISTRATION et al.

No. 57.

Court of Appeals of Maryland.

Feb. 26, 1980.

Harry Goldman, Jr., Baltimore (Norman Hochberg, Baltimore, on the brief), for appellants.

Patrick A. O'Doherty, Baltimore, for appellees.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH ^*, COLE and DAVIDSON, JJ.

DIGGES, Judge.

Presently before us is the question whether, in affirming the judgment entered in the Superior Court of Baltimore City in favor of the defendants in this motor vehicle negligence action, the Court of Special Appeals misapplied Maryland Rule 400 d pertaining to pretrial discovery? Rule 400 d, central to the resolution of this query, in full reads:

d. Trial Preparation Materials.

Subject to the provisions of sections e (Party's or Witness' Own Statement) and f (Information From Experts Who Are Expected to Testify at Trial) of this Rule, a party may not obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) except upon a showing that

(i) the materials are otherwise discoverable under section c of this Rule, ¹ and

(ii) the party seeking discovery has substantial need of the materials in the preparation of his case, and

(iii) he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

In ordering discovery of such materials when the required showing has been made, the court 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.

The roots of the current dispute are enmeshed in this litigation that was spawned in the wake of a bus-motorcycle collision occurring on the morning of September 18, 1974, at the intersection of Pulaski and Ramsey Streets in Baltimore City. The petitioners, cyclist Ronald M. Kelch and his wife, the plaintiffs in the trial court, sought by way of pretrial discovery procedures to obtain from the respondents-defendants, Mass Transit Administration and its bus operator, George Frank Malloy, access to several reports and documents pertaining to the accident that the Kelchs asserted were compiled by employees of the bus company. When the defendants ignored these document production demands, the plaintiffs filed in the trial court a Rule 422 "Motion for Order Compelling Discovery." This motion requested that the trial court require the defendants to produce for inspection, among other items not pertinent here, all reports made by bus driver Malloy (including any witness and passenger lists) pertaining to the accident, as well as the ME 18 and ME 15 reports allegedly prepared by the bus company's dispatcher at the accident scene which customarily records the bus driver's version of how the collision occurred. The two defendants answered this motion by asserting: "That the request for production as framed is too broad and is beyond the scope of relevant inquiry in the case and it seeks to obtain privileged information." At the ensuing hearing on this pre-trial motion no party produced any evidence; nevertheless, without more, the judge, following an extensive colloquy, partly between counsel and partly among counsel and the court, principally pertaining to the dispatcher's ME 18 report, concluded that the defendants had gathered the information contained in the requested documents in anticipation of litigation within the meaning of Rule 400 d and denied the Rule 422 compulsion motion. At the jury trial on the merits approximately two weeks later the presiding judge declined to alter the ruling made by his colleague when a similar production motion was made during the course of that trial. However, just moments following this latter ruling the defendants' attorney turned over to his adversary the ME 18 dispatcher's report and offered petitioner's counsel an opportunity to view any existing bus driver reports. In addition, with a significance which we explain later, respondent's counsel disclaimed the existence of a ME 15 report or any other report prepared by the dispatcher.

On appeal a majority of the panel, composed of Judges Morton, Melvin and Liss, in reviewing the matter for the Court of Special Appeals agreed with the pre-trial motion judge's statement that

"(t)he critical point is that the purpose of making the report, the purpose of giving this data, the purpose of collecting the data, is to supply it to the liability carrier whose only possible interest in obtaining such information is in anticipation of litigation. (Rule 400 d) very clearly says that such information, such documents prepared by a party, his attorney, his assured, his agent and so forth and so on is not discoverable unless you meet the several criteria establishing a substantial need." (Kelch v. Mass Transit Adm., 42 Md.App. 291, 303, 400 A.2d 440, 447 (1979).)

Accordingly, the intermediate appellate court, after finding no reversible error on the other issues presented to it, affirmed the trial court's judgment. On the other hand, Judge Melvin rejected the majority's analysis, since he found that the record was barren of evidence relating to the reason or reasons the demanded documents were prepared. He nonetheless concurred in the result since he further concluded the erroneous ruling by the trial court was rendered harmless by the defendants' attorney's action in turning over the dispatcher's ME 18 report to the plaintiffs' attorney during the course of the trial. Judge Melvin wrote:

I agree that If there had been evidence before the hearing judge that the documents sought by the plaintiff were "prepared in anticipation of litigation or for trial," it could not be said that the hearing judge abused his discretion in denying the plaintiffs' motion to compel discovery. The difficulty I have with agreeing that there was no error in denying the motion is that at the hearing there was No evidence presented by either side concerning the Purpose of preparing the documents sought to be discovered. Absent such evidence, I am at a loss to understand how the judge could conclude, In vacuo, (what the purpose of making the reports was). (Id. at 305-06, 400 A.2d at 449 (footnote omitted).)

We agree with the view expressed implicitly by Judge Melvin that whether a document or other tangible thing was "prepared in anticipation of litigation or for trial" within the contemplation of Rule 400 d is essentially a question of fact, which, if in dispute, is to be determined by the trial judge following an evidentiary hearing. In resolving this factual controversy, as in most inquiries of this nature, presumptions and burdens concerning production of proof usually play an important role in, and indeed are sometimes determinative of, any such quarrels that may surface. Inherent in the discovery rules pertinent here are, in our view, the following aids. When under an appropriate Maryland Rule a party demands of another discovery of a document or other tangible thing, the adversary, even though resisting the demand, should nonetheless be required to specifically answer whether it has in its possession or under its control such an item or items. Depending upon the answer to this initial inquiry, when a Rule 422 ² compulsion motion is being considered by the court, the following obligations with respect to proof exist (a) In the event the motion respondent answers that it has no knowledge as to the existence of such demanded item, or that, while it knows of the item's existence, it is neither within its possession nor control, the burden is on the demanding party to factually show to the contrary by a preponderance of the evidence;

(b) if the responding party, however, while acknowledging either possession or control of the demanded item, says it is not discoverable by virtue of Rule 400 d's exception...