The Maryland Court of Special Appeals recently decided Johnson v. Franklin, a lead paint case with an unique discovery issue.
The Underlying Case
I’m glad you kept reading, you law scholar you! Anyway, these are the facts. A lead paint case is filed in Baltimore City Circuit Court pertaining to a property where the Plaintiff used to live. The property had long since been rehabbed and sold. Therefore, Plaintiff could not just walk in the door to do the lead-paint testing that he claimed he needed for his lawsuit. As a result, Plaintiff sends a letter to the current owner, asking if he can stop by for some “non-invasive environmental testing” of the property. The owner does not respond, which prompts the plaintiff to file a complaint to perpetuate the evidence. Specifically, he seeks an “equitable bill of discovery,” which would grant him a right of access to the property. The current owner does not respond to the motion but appears at a hearing pro se. The court denies the motion because the current owner’s privacy interests outweigh the Plaintiff’s need to conduct testing.
This makes little sense to me. How burdensome is it to have your property tested? I can’t figure out why the property owner would fight it either. Plaintiff agrees and appeals to the Maryland Court of Special Appeals, alleging that the trial court abused its discretion by denying the complaint/request/petition.
Equitable Bill of Discovery
The Court spent a decent amount of time talking about what a bill of discovery was in the first place. Unlike the Federal Rules and most State Rules of Civil Procedure, the Maryland rules do not have a specific mechanism that parties can use to gain entry upon the land of another to inspect potential evidence. Without such a mechanism, parties can effectively be denied the right of access to the courts.
An equitable bill of discovery is (you guessed it) an equitable remedy that has been used for hundreds of years. The problem is that the Plaintiff was not seeking the bill of discovery against the defendant in his lead paint case; he was seeking it against a third party. All the Maryland authority that he cited provided a means to gain a right of access to the opposing party, not a third party. This scuppered a lot of what he had in his brief. Still, the court recognized that he intended to seek a pure “equitable bill of discovery,” which is traditionally used against non-parties.
The court then asked whether summary judgment is appropriate in a “bill of discovery” proceeding, considering that is not started by a garden variety complaint. The Plaintiff was harping on summary judgment because the current owner never responded to the discovery requests from the plaintiff. There was no “dispute” as to any of the facts, let alone the material ones.
But looking at the nature of the relief requested here, summary judgment is not appropriate. The Court of Special Appeals found that what we’re really dealing with here is the granting or denial of a petition, so summary judgment is a bit unnecessary. All that is needed to dispose of such a complaint/petition/request (let’s just go with request from here on out) is an evidentiary hearing.
Once there, the court has to consider: 1) the necessity of what the party seeks to discover; 2) other means of obtaining the material; 3) the privacy rights of the other party; 4) whether there would be an unreasonable hardship for the occupants of the property. The Court of Special Appeals said that the appellate standard of review here is “abuse of discretion.” This means that, when dealing with equitable bills of discovery, an appellate court can only overturn a trial court when they ignore the law or do something just flat out wrong. This is a tough burden. But the court thinks this is an abuse of discretion. The Court pointed to the importance of each of the four factors in the above-mentioned test and how the trial court did not address 75% of them in the instant case. Thus, the trial court abused its discretion in denying the plaintiff’s request, causing remand.
Take-Home Message
The language here is very productive for discovery. Our intermediate appellate court said that these bills are “favored” and “should be granted” unless there is a legitimate objection. So if a non-party does not want to play ball with a request, this is a great way to hold their feet to the fire.
By addressing the “equitable bill of discovery,” the Court of Special Appeals breathed some life into a tool that is not often used. In lead paint cases, or really any case where someone who refuses to provide information relevant to your case, this is a great tool to get the information you need. It will not come up much, but one more weapon is always a good thing.