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Rule 2-422.1 – Inspection of Property-of Nonparty or by Foreign Party-Without Deposition

May 13, 2021 | Civil Prodcedure, Maryland

(a) Applicability; Use of Subpoena. This Rule applies to the issuance of a subpoena to obtain entry upon and inspection of designated land or property owned by or in the possession or control of (1) a nonparty to an action pending in this State or (2) a person to whom a foreign subpoena is directed pursuant to Code, Courts Article, Title 9, Subtitle 4. A subpoena issued under this Rule may be used only for that purpose. This Rule does not apply to the issuance of a subpoena in conjunction with a deposition.

Committee note: Under subsection (a)(2), a person to whom a foreign subpoena is directed could be a party or a nonparty to the foreign action. A party to an action pending in this State who seeks entry upon land of another party must proceed in accordance with Rule 2-422.

Cross reference: For a subpoena issued in conjunction with a deposition, see Rules 2-510 and 2-510.1.

(b) Definitions.

(1)Statutory Definitions. The definitions stated in Code, Courts Article, § 9-401 apply in this Rule to the extent relevant.
(2)Additional Definitions. In this Rule, the following additional definitions apply:

(A) Domestic Subpoena. “Domestic subpoena means a subpoena issued by a circuit court of this State in an action pending in this State.
(B) Inspection. “Inspection includes inspecting, measuring, surveying, photographing, testing, and sampling within the scope of Rule 2-402(a).
(C) Nonparty. “Nonparty means any person, other than a party, who is in possession or control of land or other property and, if different, the record owner of the land or other property.
(D) Foreign Party. “Foreign party means the party on whose behalf a foreign subpoena is issued.
(E) Foreign Attorney. “Foreign attorney means an attorney licensed to practice law in a foreign jurisdiction, but not in the State of Maryland.
(c) Issuance.

(1)Domestic Subpoena. Upon the request of a person entitled to the issuance of a subpoena under this Rule for discovery in an action pending in this State, the clerk shall issue a completed subpoena, or provide a blank form of subpoena which shall be filled in and returned to the clerk to be signed and sealed before service. On the request of an attorney or other officer of the court entitled to the issuance of a subpoena under this Rule, the clerk shall issue a subpoena signed and sealed but otherwise in blank, which shall be filled in before service.
(2)Foreign Subpoena.

(A) Request for Issuance. A party to an action pending in a foreign jurisdiction may request issuance of a subpoena by a court of this State based on a foreign subpoena issued in that action by submitting a request to the clerk of the circuit court for the county in which discovery is sought to be conducted. The request shall be accompanied by the foreign subpoena and a written undertaking in a form approved by the State Court Administrator, signed by the foreign party and the party’s foreign attorney, if any, by which the party and the party’s foreign attorney submit to the jurisdiction of the circuit court for the purpose of adjudicating discovery disputes, motions to quash, enforcement of the subpoena, and discovery sanctions. A foreign party and the party’s foreign attorney, if any, who files a request or undertaking pursuant to this section does not, by so doing, submit to the jurisdiction of a court of this State for any other purpose.

Committee note: This section does not affect the jurisdiction of a court over a party or attorney who is otherwise subject to the court’s jurisdiction.

(B) Issuance. The clerk promptly shall issue a subpoena for service upon the person to whom the foreign subpoena is directed. The subpoena shall:

(i) incorporate the terms used in the foreign subpoena;
(ii) comply with the requirements of section (d) of this Rule; and
(iii) contain or be accompanied by the names, addresses, and telephone numbers of all attorneys of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
(d) Form

(1) Except as otherwise provided by the court for good cause, every subpoena shall be on a uniform form approved by the State Court Administrator and shall:

(A) contain the caption of the action, including the civil action number for the Maryland court issuing the subpoena;
(B) contain the name and address of the person to whom it is directed;
(C) contain the name of the person at whose request it is issued;
(D) describe with reasonable particularity the land or property to be entered and any actions to be performed;
(E) state the nature of the controversy and the relevancy of the entrance and proposed acts;
(F) specify a reasonable time and manner of entering and performing the proposed acts;
(G) contain or be accompanied by a description of the good faith attempts made by the party to reach agreement and with the person to whom the subpoena is directed concerning the entry and proposed acts;
(H) contain the date of issuance; and
(I) contain a statement that the subpoena may be served within 60 days after its issuance and may not be served thereafter.
(2) A subpoena issued pursuant to this Rule shall be accompanied by the following, in a form approved by the State Court Administrator:

(A) a written undertaking that the requesting party will pay for all damages arising out of the entry and performance of the proposed acts; and
(B) a notice informing the person to whom the subpoena is directed that:

(i) the person has the right to object to the entry and proposed acts by filing an objection with the court and serving a copy of it on the requesting party;
(ii) any objection must be filed and served within 30 days after the person is served with the subpoena; and
(iii) the objection must include or be accompanied by a certificate of service, stating the date on which the person mailed a copy of the objection to the requesting party.

Cross reference: See Rules 1-321 and 1-323.

(e) Service. A subpoena shall be served by delivering a copy to the person named or to an agent authorized by appointment or by law to receive service for the person named or as permitted by Rule 2-121(a)(3). Service of a subpoena upon a party represented by an attorney may be made by service upon the attorney under Rule 1-321(a). A subpoena may be served by a sheriff of any county or by any person who is not a party and who is not less than 18 years of age. If a subpoena is to permit entry upon leased land or property, the subpoena shall be served on any record owner of the land or property and any occupant or person in possession or control of the land or property. Before the subpoena is served, the party on whose behalf the subpoena is issued shall serve a copy of it on each other party in the manner provided by Rule 1-321 and file with the court a certificate of service attesting to the fact of service on the other parties. A person may not serve or attempt to serve a subpoena more than 60 days after its issuance. A subpoena shall be served at least 45 days before the date of a requested entry.

Cross reference: See Code, Courts Article, § 6-410, concerning service upon certain persons other than the custodian of public records named in the subpoena if the custodian is not known and cannot be ascertained after a reasonable effort. As to additional requirements for certain subpoenas, see Code, Health-General Article, § 4-306(b)(6) and Code, Financial Institutions Article, § 1-304.

(f) Objection to Subpoena to Permit Entry Upon Designated Land or Property; Procedure to Compel Entry.

(1)Objection. A person served with a subpoena to permit entry upon designated land or property, or any other person who claims an interest in the land or property, may object to the entry by filing an objection within 30 days after service of the subpoena and serving the objection on the requesting party. After an objection is filed, entry upon the designated land or property is not permitted unless the court grants a motion to compel entry filed in accordance with subsection (f)(2) of this Rule.
(2)Procedure to Compel Entry.

(A) Motion to Compel. If the requested discovery is refused or within 15 days after an objection is served, the requesting party may file a motion to compel entry. The requesting party shall (i) attach to the motion a copy of the subpoena and any objection, (ii) serve a copy of the motion in the manner provided by Rule 1-321 on all other parties and the person who filed the objection, and (iii) if the requesting party is seeking entry upon leased land or property, serve a copy of the motion on any record owner of the land or property and any occupant or person in possession or control of the land or property. A hearing may be requested by including the heading “Request for Hearing in the motion.
(B) Response. A response may be filed within 15 days after service. A hearing may be requested by including the heading “Request for Hearing in the response.
(C) Hearing. If a hearing is not timely requested, the court may rule on the motion without a hearing. If a nonparty requests a hearing, the court shall hold a hearing. If a party requests a hearing, the court may determine whether a hearing will be held.
(D) Order. An order granting the motion shall specify the time, place, and manner of entry upon the land or property and the acts that may be performed. The order also may include any other provision that the court deems appropriate, including provisions relating to the privacy of the person who filed the objection, protection of the interests of the parties and any nonparty, and the filing of a bond to secure the obligation of the moving party to pay for damages arising out of the entry and acts performed.

Cross reference: See Maryland Uniform Interstate Depositions and Discovery Act, Code, Courts Article, §§ 9-401 et seq.

Md. R. Civ. P. Cir. Ct. 2-422.1

This Rule is new.

Adopted Dec. 13, 2016, eff. Apr. 1, 2017. Amended April 9, 2018, eff. July 1, 2018.

HISTORICAL NOTES

2018 Orders

The April 9, 2018 order, amended the rule to require that the written undertaking and notice accompanying a subpoena issued to a nonparty under subsection (d)(2) be in a form approved by the State Court Administrator.