Maryland Rule 2-432: Motion Upon Failure to Provide Discovery

Normally, this is no big deal.  But at some point, you are sitting on your rights to object to discovery deficiencies.  Moreover, when you don’t have discovery responses, it can have a domino effect on your ability to get your case ready for trial.

Maryland Rule 2-432, printed in full below, is the appropriate motion to use in filing a motion to compel that the opposing party to comply with its discovery obligations. (Below that are sample motions to compel under this rule.)

Maryland Rule 2-432 Motions upon failure to provide discovery 

1. Immediate Sanctions for Certain Failures of Discovery A discovering party may move for sanctions under Rule 2-433 (a), without first obtaining an order compelling discovery under section (b) of this Rule, if a party or any officer, director, or managing agent of a party or a person designated under Rule 2-412 (d) to testify on behalf of a party, fails to appear before the officer who is to take that person’s deposition, after proper notice, or if a party fails to serve a response to interrogatories under Rule 2-421 or to a request for production or inspection under Rule 2-422, after proper service. Any such failure may not be excused on the ground that the discovery sought is objectionable unless a protective order has been obtained under Rule 2-403.
   1. For Order Compelling Discovery
      1. When Available. — A discovering party, upon reasonable notice to other parties and all persons affected, may move for an order compelling discovery if
         1. there is a failure of discovery as described in section (a) of this Rule;
         2. a deponent fails to answer a question asked in an oral or written deposition;
         3. a corporation or other entity fails to make a designation under Rule 2-412 (d);
         4. a party fails to answer an interrogatory submitted under Rule 2-421;
         5. a party fails to comply with a request for production or inspection under Rule 2-422;
         6. a party fails to supplement a response under Rule 2-401 (e); or
         7. a nonparty deponent fails to produce tangible evidence without having filed written objection under Rule 2-510 (f).
      2. Contents of Motion

   A motion for an order compelling discovery shall set forth: the question, interrogatory, or request; and the answer or objection; and the reasons why discovery should be compelled. Instead of setting forth the questions and the answers or objections from a deposition, the relevant part of the transcript may be attached to the motion. The motion need not set forth the set of interrogatories or requests when no response has been served. If the court denies the motion in whole or in part, it may enter any protective order it could have entered on a motion pursuant to Rule 2-403. For purposes of this section, evasive or incomplete answers are treated as a failure to answer.

2. By Nonparty to Compel Production of Statement If a party fails to comply with a request of a nonparty made pursuant to Rule 2-402 (d) for production of a statement, the nonparty may move for an order compelling its production.
3. Time for Filing A motion for an order compelling discovery or for sanctions shall be filed with reasonable promptness.
4. Appropriate Court A motion for an order compelling discovery or for sanctions shall be filed with the court in which the action is pending, except that on matters relating to a deposition, the motion may be filed either with the court in which the action is pending or with the court in the county in which the deposition is being taken.

Sample motions citing Maryland Rule 2-432

• Sample motion to compel discovery under Rule 2-432 for failure to provide discovery.  One suggestion: a motion for sanctions is fine but asking for economic sanctions for discovery failures is a waste of time.
• Opposition to motion to compel medical releases under Rule 2-432
• Opposition to post-trial motion seeking to overturn jury verdict because of discovery responses defendant claims were not provided to her

Cases involving Maryland Rule 2-432

• Md. Bd. of Physicians v. Geier, 241 Md. App. 429, 211 A.3d 543 (2019). The court found that it is an abuse of discretion to sanction defendants because of the discovery failings of a co-defendant.
• Colvin v. Eaton Corp. This is a unreported but instructive opinion.  An asbestos case in Baltimore City was dismissed for Rule 2-432 discovery failures that went unremedied.  The appellate court ruled that the trial court overstepped its boundaries in dismissing the case.  The case was probably unreported because it is such a mess factually. But the analysis of the law governing Rule 2-432 is solid.
• Makowski v. Mayor of Baltimore, 439 Md. 169 (2014): Property owner’s argument in an eminent domain case in East Baltimore filed because the property owner did not file a motion to compel discovery pursuant to Maryland Rule 2-432.  This is a waiver of the right to challenge on appeal the adequacy of the responses that were allegedly “superficial evasive and incomplete”discovery responses
• Bord v. Balt. County, 220 Md. App. 529 (2014): A trial court cannot impose sanctions on its own without a party first moving for an order to compel for sanctions under Rule 2-432.  This is a crazy case involving a gun dealer trying to get back guns seized by the police and the ATF.  After a directed verdict at trial, the gun dealer appealed arguing that the police’s failure to provide photographs during discovery prejudiced that would have established the police’s unlawful conduct.
• Rodriguez v. Clarke, 400 Md. 39, 926 A.2d 736 (2007): Failure to respond to a motion to compel answers to expert interrogatories can lead to the sanction of not being able to put on experts at trial (which is almost invariably fatal to plaintiff’s case).  This case underscores the wide discretion
  judges are afforded in applying sanctions for discovery failures.