Discovery disputes in district court rarely make it to reported decisions at the appellate level, so attorneys and judges have little guidance from above on how to interpret the discovery rules. Judges are likely to be granted broad discretionary authority in resolving disputes, provided the rulings are based in reason and fairness. 

In a district court auto accident case, litigants are often at odds as to the scope of allowable document discovery. The rule itself is fairly simple. MRCP 3-421(a)(3) sets just three categories of documents that may be sought via district court interrogatories -  

A. Any written instrument upon which a claim or defense is founded. 

B. A statement concerning the action or its subject matter made by the party seeking discovery . . . .  

C. Any written report, whether acquired or developed in anticipation of litigation or for trial, made by an expert whom the responding party expects to call as an expert witness at trial. . . . .  

Subparts B and C leave little room for interpretation. A party may obtain a copy of his/her own statement in the possession of another party, and a party may obtain a copy of any report prepared by an expert that the opposition intends to call at trial. 

While Subpart A expressly references “instruments,” that Subpart should be read to simply mean “documents” and will typically include the Plaintiff’s claimed medical records and bills (as these are documents upon which a claim is founded), and  property damage photos and estimates, especially if there is a minimum impact defense, or if the positioning of the vehicles is relevant to the liability argument.  

Discovery fights typically ensue when Subpart A is more broadly interpreted to encompass documents upon which a defense “might be” founded. So a Defendant may seek medical records of your client from a prior auto accident or even general pre accident health records in discovery, just to satisfy their curiosity. They cannot contend that their defense is founded upon those documents, as they don’t know what’s in them. They just want to do a little fishing. This probably falls within the discretionary authority of the court, but we argue to the judge 

that a district court action involves an inherent trade-off - The Plaintiff must accept a more limited recovery than in circuit court, and the defense must accept more limited discovery than is allowed in circuit court.  

Finally, many documents that are outside the strict purview of pre-trial discovery under 3-421(a)(3) may still be obtained via district court trial subpoena under MRCP 3-510. This rule allows a party to subpoena a person to appear at the trial with documents and give testimony. So a Defendant may use this procedure to require the custodian of records from a doctor’s office to bring to court the chart from a Plaintiff’s prior auto accident. A Plaintiff may issue a trial subpoena to a claim rep to bring to court the Defendant’s recorded statement or other materials from the claim file. 

As there is no “deposition duces tecum” in district court absent special arrangements, a trial subpoena may not be used to obtain records prior to trial, as you otherwise can in circuit court. We still get calls from health care providers indicating that they have received trial subpoenas requiring them to bring records to district court along with a cover letter indicating that “if they prefer, they can mail the records to the defense counsel and avoid the trip to court.” This is a misuse of a district court subpoena, and 3-510 contemplates sanctions against any party using a subpoena outside the rules. If you learn that a health care provider has been subpoenaed, you can file a Motion for Protective Order if you feel the opposition is unduly fishing into irrelevant health records, and certainly should send a letter to the health care provider indicating that under no circumstances are they to mail health records to the other side.  


Howard Simcox
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Gaithersburg Personal Injury Attorney