Question 1

My Maryland certificate recites one phone call covering a two-month exchange. Is that enough under Rule 2-431?

Accepted Answer

Probably not, because Rule 2-431 asks for the contents per attempt rather than per dispute. The sentence to read is the second one: the certificate shall include the date, time, and circumstances of each discussion or attempted discussion. Each one. A two-month exchange of letters, voicemails and one substantive call is several discussions and at least one attempted discussion, and a certificate that collapses all of it into a single entry does not match what the rule enumerates. Circumstances is also doing work. It is not satisfied by the word discussed; it asks what the contact was and what happened in it, which is why the practical approach is to keep the record as the dispute unfolds rather than reconstruct it the night before. The first sentence of Rule 2-431 adds a requirement people drop even when their dates are complete: the certificate must describe the attempts to discuss resolution of the dispute with the opposing attorney AND certify that the attorneys are unable to reach agreement on the disputed issues. Describing what you tried is not certifying impasse, and a certificate with one and not the other is incomplete on the face of the rule. The consequence is phrased permissively, that a dispute pertaining to discovery need not be considered by the court, rather than as an outright bar. But Maryland courts do act on it: in a reported instance a circuit court denied a first motion to compel and for sanctions for failure to comply with Rule 2-431, and the movant had to go back and refile. Attorney review is available as an option if you want the certificate read before it goes in.

Question 2

Can I ask a Maryland court for sanctions without first getting an order compelling discovery?

Accepted Answer

Sometimes, and Maryland is unusual in saying so in terms. Rule 2-432(a), captioned Immediate Sanctions for Certain Failures of Discovery, provides that 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. But it is confined to three enumerated situations, all of them total failures: where a party, or an 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; where a party fails to serve a response to interrogatories under Rule 2-421 after proper service; or where a party fails to serve a response to a request for production or inspection under Rule 2-422 after proper service. Three things follow. A response that arrived and is thin does not unlock this route, because these are total failures. You still need the Rule 2-431 certificate, since that rule reaches a dispute pertaining to discovery rather than one particular motion. And the relief is different in kind: under Rule 2-433(a) the court, if it finds a failure of discovery, may enter such orders in regard to the failure as are just, including striking out pleadings or parts thereof, staying further proceeding until the discovery is provided, dismissing the action or any part thereof, or entering a judgment by default that includes a determination as to liability and all relief sought against the failing party. To enable that judgment the court may take an account, determine damages, establish the truth of any averment by evidence, rely on affidavits or order references, and if requested shall preserve to the plaintiff the right of trial by jury. Section (a) also closes off an argument, because 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.

Question 3

A Maryland response was complete when it was served but is out of date now. Is it still compellable?

Accepted Answer

Yes, and this is a ground most states do not give you. Rule 2-432(b)(1)(F) allows a motion for an order compelling discovery where a party fails to supplement a response under Rule 2-401(e). So in Maryland the question is not only whether the answer was adequate when it was signed, but whether it has been kept current, and a response that was perfectly good on the day it was served can become the subject of this motion months later without anyone having objected to anything. That changes how you frame the motion. You are not arguing that an answer was evasive; you are identifying what has changed, pointing at the earlier response, and asking for the supplement the rule requires. It also changes what you should be watching: a deposition that contradicts an interrogatory answer, a document produced by a third party that the other side plainly held, or a damages figure that has moved, are each the kind of development a supplementation motion is built on. Two cautions. The timing standard still applies, and Rule 2-432(d) asks for reasonable promptness, so a supplementation failure you have known about for a long time is a weaker motion than a fresh one. And ground (F) is one of seven, lettered (A) to (G), so name it: a motion that recites the rule generally rather than the lettered ground makes the court work out what you are actually complaining about.

Question 4

Rule 2-432(d) gives no number of days, so how late is too late for a Maryland motion to compel?

Accepted Answer

Maryland does not answer that with a number, and you should not look for one. The whole of its timing provision is Rule 2-432(d): a motion for an order compelling discovery or for sanctions shall be filed with reasonable promptness. There is no day count, no trigger event, no outside date and no waiver clause anywhere in the rule, so nothing in the text says the right to compel is forfeited by delay, and it must not be treated as jurisdictional. What it is instead is a live and contestable ground the other side can raise against a motion that sat, and how contestable it is can be seen from Maryland judges disagreeing about it within one case: the majority found promptness satisfied where the movant had continued working toward resolution of the dispute before filing, while the dissent reached the opposite conclusion on a gap of roughly nine months. Two things follow for drafting. The material that answers a promptness objection is the same material that goes into the Rule 2-431 certificate, with a date, a time and the circumstances for each discussion or attempted discussion, so building that record as you go does double duty. And promptness binds both of Maryland's routes, because Rule 2-432(d) names the motion for sanctions alongside the motion for an order compelling discovery, so going straight to Rule 2-432(a) does not escape it. In practice the harder deadline is usually the discovery cutoff in the scheduling order for your own case, which is set case by case rather than by the Rules.

Question 5

I am a nonparty and a Maryland party will not produce my own statement. Can I move to compel it?

Accepted Answer

Yes. Maryland puts a motion in the hands of somebody who is not a party at all, which is why its rule is captioned in the plural, MOTIONS UPON FAILURE TO PROVIDE DISCOVERY. Rule 2-432(c), captioned By Nonparty to Compel Production of Statement, provides that if a party fails to comply with a request of a nonparty made pursuant to Rule 2-402(f) for production of a statement, the nonparty may move for an order compelling its production. So the sequence is a Rule 2-402(f) request first, from you to the party holding the statement, and the motion only if that request is not complied with. The thing being compelled is narrow and specific: production of the statement, not general access to the file. There is a second nonparty provision pointing the other way, and it is worth knowing which one you are in. Rule 2-432(b)(1)(G) lets a discovering PARTY move where a nonparty deponent fails to produce tangible evidence without having filed written objection under Rule 2-510(f). Read that condition carefully if you are the nonparty on the receiving end, because the ground is available only where no written objection was filed. One practical point on the money. Rule 2-433(d) attaches its mandatory costs award to a granted motion filed under Rule 2-403, 2-432 or 2-434, and Rule 2-432 is the rule your motion is filed under.

Question 6

Maryland's fee rule is triggered by a granted protective order too. So who ends up paying on my motion to compel?

Accepted Answer

Start with the trigger list, because it is where Maryland differs. Rule 2-433(d) attaches its award to a granted motion filed under Rule 2-403, 2-432, or 2-434, and Rule 2-403 is the protective order, so the responding party has a mirror-image mandatory claim if it wins its own motion rather than merely defeating yours. The verb is shall in both directions, and in Maryland it sits in a different rule from the motion. Rule 2-433(d), captioned Award of Costs and Expenses, Including Attorneys' Fees, provides that if a motion filed under Rule 2-403, 2-432, or 2-434 is granted, the court, after opportunity for hearing, shall require (1) the party or deponent whose conduct necessitated the motion, (2) the party or the attorney advising the conduct, or (3) both of them to pay to the moving party the reasonable costs and expenses incurred in obtaining the order, including attorneys' fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied the same shall runs against the moving party, the attorney advising the motion, or both, on a parallel pair of escapes, and on a split result the court may apportion in a just manner. One further Maryland point: the award on the immediate-sanctions route has its own wording, because the final paragraph of Rule 2-433(a) reaches the failing party or the attorney advising the failure to act or both of them, for the costs and expenses caused by the failure rather than those incurred in obtaining an order.

Question 7

My Maryland fee request is under $500. Can I leave items out of the verified statement?

Accepted Answer

Two of them, yes, and Maryland is one of the few places that writes the concession into the rule. The starting point is that the fee request is not an optional extra here, because Rule 2-433(d) makes the award mandatory on a granted motion, and Rule 2-433(e) attaches a prescribed document to it: where a motion or a response to a motion contains a request for an award of costs and expenses, including attorneys' fees, the request shall (1) include, or (2) be separately supported by, a verified statement in conformance with Rule 1-341(b). Rule 1-341(b)(3)(A) then enumerates six items the statement shall set forth, running from a detailed description of the work performed, broken down by hours or fractions thereof expended on each task, through to any additional relevant factors the requesting party wishes to bring to the court's attention. The concession is Rule 1-341(b)(3)(B): unless otherwise ordered by the court, a statement supporting a request for attorneys' fees not exceeding $500 need not contain the information set forth in subsection (b)(3)(A)(iv) and (v), which are the two community-rate items, the fee prevailing in the attorney's legal community and the fee customarily charged in the county where the action is pending. So a small request drops those two and keeps the other four. Two further mechanics. With the approval of the court the supporting statement may be deferred until 15 days after entitlement is determined, so entitlement and quantum can be briefed separately. And because Rule 2-433(e) applies to a motion or a response to a motion, a responding party seeking its own fees owes the same statement. Keep it separate in your mind from any verification of the discovery responses themselves, which is a different document.

Question 8

I am in the Maryland District Court. Does Rule 2-432 apply to my case?

Accepted Answer

No, and this is the sharpest wrong-rule trap in Maryland, because the numbers differ only in the leading digit. Everything on this page sits in Title 2 of the Maryland Rules of Procedure, which is Civil Procedure for the Circuit Court, Chapter 400, Discovery. Maryland's parallel rules for the District Court are Title 3, so the District Court analogue of Rule 2-432 is Rule 3-432, and a document citing 2-432 in a District Court matter is citing the wrong title. The circuit court is Maryland's trial court of general jurisdiction and is where an ordinary civil money case above the District Court's exclusive limit is heard. A second which-text-am-I-reading point applies even in the circuit court. The Supreme Court of Maryland replaced Rule 2-433(b) by rules order dated 28 November 2023. The former subsection was an electronically stored information safe harbour providing that absent exceptional circumstances a court may not impose sanctions for failing to provide information lost as a result of the routine, good-faith operations of an electronic information system, and the subsection adopted in its place is captioned Failure to Preserve Electronically Stored Information and runs the other way, allowing the court, on finding prejudice to another party from loss of the information, to order measures no greater than necessary to cure the prejudice. Anyone still citing the Maryland safe harbour is citing deleted text. Because Maryland's Rules are published through a commercial service rather than in full on the Judiciary's own website, confirming the current text of the rule you are citing before you file is worth the few minutes, and attorney review is available as an option.

Maryland Motion to Compel

Find out where you stand in Maryland

Introduction

Key Things to Know

Key decisions before you file

Customize your Motion to Compel Template with DocDraft

Maryland Requirements for Motion to Compel

The Rule 2-431 Certificate, With a Date, a Time and the Circumstances for Every Attempt

Which of Maryland's Two Routes You Are On, Because One Skips the Order

The Ground, Lettered (A) Through (G) Out of Rule 2-432(b)(1)

An Account of the Gap, Because the Timing Test Is Promptness and Not a Date

Proof That the Response Period Had Run, Which for a Production Request Has Two Branches

The Costs and Expenses Request Under Rule 2-433(d), and Your Own Exposure Under It

The Verified Statement Behind the Fee Figure, With Its Six Enumerated Items

A Check That You Are in Title 2 and Not Title 3

Frequently Asked Questions