More often than ever before, our lawyers are having difficultly getting timely answers to discovery from defense lawyers. I do not think this is some nefarious plot. Rather, I think defense lawyers are used to answering discovery whenever they feel like it because no one holds their feet to the fire.
As a matter of practice, attorneys should send out a letter as soon as the discovery is late. Not to be difficult for the sake of being difficult but to make sure that the lawyer has complied with Maryland Rule 2-431, which does not allow discovery motions to be filed until an attempt to resolve it has already been made (and a certificate under the rule accompanies the motion). What I see happening is that lawyers let discovery failures go and when they finally realize there is a problem, they have not complied with the letter or spirit of Maryland Rule 2-431.
I think judges are becoming more serious about the spirit of Maryland Rule 2-431 in trying to resolve discovery disputes. I attached one letter that requested discovery in a motion to compel in a Prince George’s County wrongful death/survival action case and the motions judge’s law clerk called me to ask if this was the only letter I had written. Fortunately, I had written a number of letters. But the point is lawyers in Maryland really need to try to make a concerted effort to push the opposing lawyer for discovery as opposed to simply writing a single form letter and then filing a motion.
When a party fails to provide timely answers to discovery, there are two options: (1) file a motion for a court order that compels the discovery under section 2-432(b) or (2) file a motion for immediate sanctions under Maryland Rule 2-433. But if a lawyer is seeking sanctions, then the lawyer is almost invariably arguing prejudice. I do not think Maryland courts are going to be particularly receptive to parties who sit on their rights of further discovery and then later claim prejudice. The argument is underscored by the Maryland Court of Appeals ruling in the Food Lion v. McNeill last month, where the court found that parties should not be permitted to wait to raise the discovery deficiency late in the game in the absence of a timely challenge to that discovery. Food Lion addressed lawyers who waited to raise discovery issues until trial. But the same logic will likely apply to those who do not timely press other parties to meet their discovery obligations and later seek sanctions.