Md. Bd. of Physicians v. Geier , 451 Md. 526 ( 2017 )

Maryland Board of Physicians, et al. v. Mark Geier, Personal Representative of Anne
Geier, et al., No. 11, September Term, 2016. Opinion by Hotten, J.
APPEAL AND ERROR — NATURE AND SCOPE OF DECISION
Court of Appeals held that none of the orders appealed by Petitioner constituted final
judgments as defined by the Courts and Judicial Proceedings Article § 12-101(f).
APPEAL AND ERROR — AFFECTING COLLATERAL MATTERS AND
PROCEEDINGS — COLLATERAL ORDER DOCTRINE
Court of Appeals held that the order granting Respondents sixth motion for sanctions
satisfied the collateral order doctrine; the order denying Petitioners motion for
reconsideration of default order was not properly appealable under the collateral order
doctrine because the order was not “collateral” to the underlying merits of the action; the
order denying Petitioner’s motion for a protective order was not properly appealable under
the express language in Dawkins v. Baltimore City Police Dept., 376 Md. 53, 827 A.2d 115(2003), which denies appellate consideration of interlocutory orders brought by agencies
asserting absolute quasi-judicial immunity.
APPEAL AND ERROR — PRELIMINARY OR INTERLOCUTORY ORDERS IN
GENERAL
Court of Appeals held that appealability of one interlocutory order based on the collateral
order doctrine does not give the Court the authority to hear “piggybacking” interlocutory
orders that are not independently appealable under the Court’s prior holdings and the
collateral order doctrine.
PRIVILEGED COMMUNICATIONS AND CONFIDENTIALITY — WAIVER OF
PRIVILEGE
Court of Appeals held that Petitioners claim of deliberative process (executive) privilege
was not waived in prior proceedings because the record reflects that Petitioners consistently
asserted executive privilege in response to Respondents’ document requests, and
Respondents failed to allege sufficient evidence that Petitioners purposefully withheld the
audiotapes in violation of the circuit court’s order to compel their disclosure.
PRIVILEGED COMMUNICATIONS AND CONFIDENTIALITY — EXECUTIVE
PRIVILEGE — DELIBERATIVE PROCESS PRIVILEGE
Court of Appeals held that under the Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914(1980) balancing process, Petitioners asserted a valid claim for deliberative process
(executive) privilege for the audiotapes; Respondents failed to assert any specific necessity
for the audiotapes, and the nondisclosure of the audiotapes on the basis of the deliberative
process (executive) privilege will not impact the fair administration of justice.
Circuit Court for Montgomery County
Case No. 371761V
Argued: September 9, 2016 IN THE COURT OF APPEALS
OF MARYLAND
No. 11
September Term, 2016
__________________________________
MARYLAND BOARD OF
PHYSICIANS, et al.
v.
MARK R. GEIER, PERSONAL
REPRESENTATIVE OF THE ESTATE
OF ANNE GEIER, et al.
__________________________________
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Hotten,
Getty,
Battaglia, Lynne A.
(Senior Judge, Specially Assigned)
JJ.
__________________________________
Opinion by Hotten, J.
Adkins, J., dissents.
McDonald, J., concurs and dissents.
__________________________________
Filed: January 23, 2017
We consider whether a party asserting the absolute quasi-judicial privilege and the
deliberative process (executive) privilege may properly appeal three orders from the circuit
court prior to a final judgment, and whether those privileges prevent the admissibility of
certain discovery. Respondents, Dr. Mark Geier (“Dr. Geier”), David Geier (“Mr. Geier”)
and Anne Geier (“Ms. Geier”),1 filed a complaint against Petitioners2”), in the Circuit Court
for Montgomery County, alleging that Petitioners invaded their privacy by publicizing their
private medical information in a cease and desist order that was issued during disciplinary
proceedings brought by Petitioners against Dr. Geier and Mr. Geier.
During discovery, the circuit court entered three separate orders that: (1) granted
Respondents’ sixth motion for sanctions against Petitioners regarding the disclosure of
audiotapes of Petitioners’ deliberations; (2) denied Petitioners’ motion for reconsideration
of a default order on liability for a series of discovery failures; and (3) denied Petitioners’
motion for a protective order from Respondents’ sixth motion to compel documents, which
required Petitioners to disclose their personal financial information to Respondents.
Petitioners appealed all three interlocutory orders, and this Court granted certiorari.
For the reasons that follow, we grant Respondents’ motion to dismiss as it relates to
the orders denying Petitioners’ motions for reconsideration and for a protective order; deny
1
This opinion will refer to all three individuals collectively as “Respondents” or
individually where needed.
2
References to “Petitioners” include the Maryland Board of Physicians (the
“Board”), and the individual Board members, staff, and the administrative prosecutor who
make up the twenty-five co-defendants in this case. The parties will be referenced
individually where appropriate.
Respondents’ motion to dismiss as it relates to the order granting Respondents’ sixth
motion for sanctions; reverse and vacate the order granting Respondents’ sixth motion for
sanctions; and remand the case to the circuit court for further proceedings consistent with
this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
I. Board’s Administrative Proceedings Against Respondents Mark R. Geier
and David Geier
a. Mark Geier
On October 3, 2006, the Board notified Dr. Geier that it had received a complaint
against him regarding his use of the drug Lupron3 to treat autistic children. The complaint
alleged that Dr. Geier was: (1) practicing outside of the scope of his expertise and the
prevailing standard of care for autism; (2) experimenting on children without a rational
scientific theory or the supervision of a qualified review board; and (3) failing to provide
appropriate informed consent regarding the potential side effects of Lupron and similar
drugs.
On April 27, 2011, the Board summarily suspended Dr. Geier’s right to practice
medicine, asserting that the “public health, safety or welfare imperatively required
3
Lupron is an FDA-approved drug used for the treatment of precocious puberty, a
condition where girls under the age of eight have changes in breast development or pubic
hair and boys under the age of nine have penile and scrotal changes and pubic hair. Lupron
can reduce the symptoms of puberty in children with higher than normal levels of
testosterone. The reduction of testosterone can decrease aggressive, hyperactive and
hypersexual behaviors. See Geier v. Md. State Bd. of Physicians, 223 Md. App. 404, 413
n. 3, 116 A.3d 1026, 1031 n. 3 (2015).
2
emergency action” due to certain medical practices engaged in by Dr. Geier.4 On May 16,
2011, the Board formally charged Dr. Geier with violations of the Medical Practice Act,
Md. Code (Repl. Vol. 2014), §§14-401 et seq. of the Health Occupations Article (“Health
Occ.”).
On September 15, 2011 the Board issued amended charges against Dr. Geier for
prescribing medicine to family members while his license was suspended. After amending
its complaint, the Board charged Dr. Geier with: (1) unprofessional conduct in the practice
of medicine; (2) willfully making or filing a false report or record in the practice of
medicine; (3) willfully failing to file or record any medical record as required under law;
(4) practicing medicine with an unauthorized person or aiding an unauthorized person in
the practice of medicine; (5) gross overutilization of health care services; (6) failing to meet
standards, as determined by peer review, for the delivery of quality medical care; and (7)
failing to keep adequate medical records.
4
In addition to prescribing Lupron, Dr. Geier also prescribed chelation therapy to
patients, a treatment that involves the use of certain chemicals to remove heavy metals
from the body. In medicine, chelation has been used for the treatment of metal poisoning,
among other conditions. See QUESTIONS AND ANSWERS ON UNAPPROVED CHELATION
PRODUCTS,
http://www.fda.gov/Drugs/ResourcesForYou/Consumers/BuyingUsingMedicineSafely/M
edicationHealthFraud/ucm229313.htm (last accessed November 18, 2016). Dr. Geier
prescribed two types of drugs in his chelation therapy, DMSA (dimercaptosuccinic acid),
which is approved by the FDA for removing severe levels of heavy metals from the body,
and DMPS (2, 3–dimercapto–1–propane–sulfonic acid), which is not approved by the FDA
for any purpose. See Geier, 223 Md. App. at 420, 116 A.3d at 1036.
3
On September 26, 2011, after six days of hearings,5 an Administrative Law Judge
(“ALJ”) issued a proposed decision upholding the summary suspension of Dr. Geier’s
license. On March 13, 2012, following an additional five days of hearings, the ALJ issued
a 126-page proposed decision, recommending that the charges against Dr. Geier be
upheld,6 and that his license be revoked.
Dr. Geier took exception to the ALJ’s findings, but on August 22, 2012, the Board
issued a final decision revoking his license. Dr. Geier petitioned for judicial review, and
the Circuit Court for Montgomery County affirmed the Board’s revocation on April 9,
2014. Dr. Geier moved to alter or amend the court’s ruling, but the motion was denied.
Dr. Geier then noted an appeal to the Court of Special Appeals, and that Court, in a reported
opinion, affirmed the Board’s decision. See Geier v. Md. State Bd. Of Physicians, 223
Md. App. 404, 116 A.3d 1026 (2015).
b. David Geier
On May 16, 2011, the Board also charged Dr. Geier’s son, Mr. Geier, for practicing
medicine without a license in violation of Health Occ. §14-601.7 On March 7, 2012, an
ALJ recommended that the charges against Mr. Geier be dismissed. On July 30, 2012,
however, the Board rejected the ALJ’s recommendation and many of the judge’s findings,
5
The ALJ did not consider Petitioners’ amended charges during the hearing
because the charges were amended subsequently.
6
Specifically, Health Occ. §14-404(a)(3)(ii), §14-404(a)(11), §14-404(a)(22), and
§14-404(a)(40). The ALG dismissed Health Occ. §14-404(a)(12), §14-404(a)(18), and
§14-404(a)(19).
7
The record does not reflect that Mr. Geier has ever been a physician.
4
concluding that Mr. Geier had practiced medicine without a license because he diagnosed
a patient, determined which blood tests the patient required, and ordered those tests. The
Board imposed a $10,000 fine.
Mr. Geier petitioned the Circuit Court for Montgomery County for judicial review
of the Board’s findings, and the circuit court affirmed the Board’s decision on April 25,
2014. Mr. Geier then appealed to the Court of Special Appeals, and that Court, in an
unreported opinion dated July 31, 2015, also affirmed the Board.
c. The Disclosure of the Respondents Personal Medical Information
On January 25, 2012, during the pendency of both disciplinary proceedings, the
Board issued a cease and desist order against Dr. Geier, accusing him of practicing
medicine while his license had been summarily suspended. The order, posted to the
Board’s website and viewable by the public, specifically alleged that Dr. Geier had written
prescriptions for all three Respondents. The order also detailed the Respondents’
confidential medical information, identified the specific medications that Dr. Geier
allegedly prescribed to each person, and described the medical conditions that each
medication treated.8
Petitioners promptly removed the confidential information from the cease and desist
order in response to Respondents’ protest. Petitioners also issued an amended cease and
desist order that deleted the references to the patients and the medications that Dr. Geier
8
This Court declines to reproduce the confidential medical information that was
included in the cease and desist letter. Rather, we simply note that the information was
highly personal, and not information that a reasonable person would want disseminated to
the public.
5
allegedly prescribed for them. In the interim between the initial publication and the
Petitioners’ remedial actions, other persons viewed and commented about the
Respondents’ confidential medical information, and those comments are still accessible on
the internet.
Ultimately, an ALJ rejected the charge that Dr. Geier had written any prescriptions
in violation of the summary suspension order issued by Petitioners.
II. Respondents’ Civil Action Against Petitioners
a. The Complaint
On December 12, 2012, while Dr. Geier and Mr. Geier were pursuing judicial
review of the Board’s adverse rulings, Respondents filed a three-count complaint in the
Circuit Court for Montgomery County against Petitioners. The complaint alleged that by
publicizing the January 25th cease and desist order that contained the Respondents’
confidential medical information, Petitioners deprived them of their constitutional right to
privacy; violated the Maryland Confidentiality of Medical Records Act, Md. Code (1982,
2009 Repl. Vol.), §§4-301 et seq. of the Health General Article; and invaded their privacy
by giving unreasonable publicity to private facts. The complaint also alleged that
Petitioners “acted with ill will and with the intent to injure [Respondents] by exposing Dr.
Geier’s personal medical information and that of his wife and son.” Respondents requested
compensatory damages, as well as three million dollars in punitive damages.
Petitioners moved to dismiss the complaint for failure to state a claim upon which
relief could be granted, asserting they had absolute quasi-judicial immunity from suit under
Ostrzenski v. Siegel, 177 F.3d 245 (4th Cir. 1999). Following a hearing on July 10, 2013,
6
the circuit court dismissed the Confidentiality of Medical Records Act claim, finding that
the statute did not create a private cause of action. The circuit court allowed the
constitutional and invasion of privacy claims to proceed, finding that the record was
inadequate to evaluate the applicability of any immunities at such an early stage of the
proceedings.
b. Discovery
Following the circuit court’s ruling that allowed two of Respondents’ claims to
proceed, Respondents sought extensive discovery, attempting to uncover evidence
demonstrating Petitioners acted out of animosity in publishing the cease and desist letter.
Respondents sought information regarding the specific circumstances immediately
surrounding the Petitioners’ disclosure of their confidential medical information, as well
as documents and testimony that revealed Petitioners’ decisional process in the
administrative proceedings against them. Respondents also sought communications
between Petitioners and their counsel that related to these proceedings. Following an
unsatisfactory response to discovery requests, Respondents filed multiple motions to
compel and motions for discovery sanctions against Petitioners between the months of
November 2013 and February 2016, which led to numerous hearings in the circuit court,
and concurrent interlocutory appeals by Petitioners.
Of import to the issues before this Court are the events that occurred during and
after Petitioners’ filed their first interlocutory appeal from the circuit court’s June 17, 2014
7
discovery order.9 On August 15, 2014,10 Respondents filed their fifth motion for sanctions
seeking a default judgment as to liability, alleging primarily that Petitioners failed to
produce an adequately prepared organizational representative noted as a prepared designee
for a 167-topic deposition. Respondents subsequently requested a hearing regarding the
fifth motion for sanctions. Also on August 15th, the Court of Special Appeals issued an
order staying all discovery in the circuit court pending the outcome of the first interlocutory
appeal.
In opposition to Respondents’ fifth motion for sanctions, Petitioners alleged that
most of the deposition topics covered information in Respondents’ possession or were not
discoverable because they involved issues pending on appeal. Petitioners also noted they
appealed the circuit court’s June 17th discovery order denying Petitioners assertions of
various privileges, and that Petitioners “should not be sanctioned for declining to allow
these protections and privileges to be eviscerated in other discovery proceedings” and
9
On May 1, 2014, Respondents filed their third motion to compel seeking two
classes of documents: (1) the Board’s administrative investigatory file in its disciplinary
proceedings against Dr. Geier’s partner, John L. Young, M.D., and (2) communications
between the Board’s attorneys and Petitioner Shafer, an investigator for the Board.
Respondents argued that Petitioners proceeded against Dr. Young as part of their campaign
to discredit Dr. Geier’s research. Petitioners opposed the production of the deliberations
regarding Dr. Young based on deliberative privilege, attorney-client privilege, attorney
work-product protection, and Health Occ. §14-410(a)(1), which states that generally, “[t]he
proceedings, records, or files of , the Board a disciplinary panel, or any of its other
investigatory bodies are not discoverable and are not admissible in evidence[.]” Following
a hearing on June 17, 2014, the circuit court granted Respondents motion and compelled
disclosure of the requested documents. On June 26, 2014, Petitioners noted an appeal.
10
Respondents’ fifth motion for sanctions was received by the circuit court on
August 8, 2014, but due to a clerical omission, was not filed with the court until August
15th.
8
allowing Respondents to “frustrate the appellate court’s ability to provide meaningful relief
in its resolution” of the issues before it.
Following a hearing on November 13, 2014, the circuit court granted Respondents’
fifth motion for sanctions. On December 16, 2014, the circuit court issued a memorandum
opinion that detailed Petitioners’ culpable conduct during discovery, and thereafter, entered
a default judgment of liability against Petitioners. The circuit court noted that a trial on
damages would be scheduled after Petitioners’ first interlocutory appeal had been resolved.
On December 24, 2014, Petitioners noted a second interlocutory appeal based on
the circuit court’s default judgment, which the Court of Special Appeals consolidated with
Petitioners’ initial appeal filed on June 26. See Md. Bd. Of Physicians v. Geier, 225 Md.
App. 114, 123 A.3d 601 (2015).
c. The Court of Special Appeals’ Decision
The Court of Special Appeals first held that neither order appealed by Petitioners
constituted a final judgment. The Court concluded that the collateral order doctrine applied
to the June 17th discovery order, allowing the Court to hear Petitioners’ claims regarding
that discovery order. See Geier, 225 Md. App. at 129-38; 123 A.3d at 610-16. The
collateral order doctrine did not apply to the December 16th order of default on liability,
corresponding to Respondents’ fifth motion for sanctions, because the Court concluded
that the issues that order addressed were not “collateral” to the merits of the case. Id. at
139-43, 123 A.3d at 616-19.
9
In considering the merits of Petitioners’ claims regarding the June 17th order, the
Court held that under Health Occ. §14-41011 Dr. John L. Young’s (“Dr. Young”)12
disciplinary files were not discoverable by Respondents. The Court noted that, under
Health Occ. §14-410, both the Board and Dr. Young had to expressly consent to the
discoverability of Dr. Young’s proceedings as parties to the action. Because the Board
objected to releasing Dr. Young’s proceedings, they were not discoverable by Respondents
in the present action. Id. at 144-47, 123 A.3d 619-21. The Court also concluded that the
circuit court erred in rejecting Petitioners’ claim of executive privilege, because it failed to
expressly balance Petitioners’ need for confidentiality against Respondents’ need for
disclosure, and the impact of nondisclosure on a fair administration of justice. Id. at 147-
52; 123 A.3d 621-24.
11
Health Occ. §14-410 provides, in relevant part:
(a) Except by the express stipulation and consent of all parties to a proceeding
before the Board, a disciplinary panel, or any of its other investigatory bodies,
in a civil or criminal action:
(1) The proceedings, records, or files of the Board, or a disciplinary panel, or
any of its other investigatory bodies are not discoverable and are not
admissible evidence; and
(2) Any order passed by the Board or disciplinary panel is not admissible
evidence[.]
(b) This section does not apply to a civil action brought by a party to a proceeding
before the Board or a disciplinary panel who claims to be aggrieved by the
decision of the Board or the disciplinary panel.
12
Dr. Young was a partner in Dr. Geier’s medical practice.
10
Finally, the Court considered the merits of Petitioners’ claims regarding the
allegedly privileged communications between the Board and Joshua Shafer, an investigator
for the Board. Although the Court noted that generally an appellate court does not have
jurisdiction to consider an interlocutory appeal from a discovery ruling that rejects a claim
of attorney-client privilege, the Court still considered the merits because it formed a part
of a ruling that the Court had jurisdiction to review. Id. at 153, 123 A.3d at 624 (citing
Kurstin v. Bromberg Rosenthal LLP, 420 Md. 466, 480, 24 A.3d 88, 96 (2011)). The Court
noted that the Guidelines for Administrative Adjudicatory Proceedings (“Guidelines”)
have no effect on the confidentiality of communications between Board employees, like
Shaffer, and the Board’s attorneys. Id. at 154, 123 A.3d at 625. The Court concluded that
the circuit court erred in rejecting Petitioners’ claim of privilege on the ground that the
Guidelines rendered Shafer a “stranger” to the attorney-client relationship between the
Board and its attorneys. Id. at 154, 123 A.3d at 625.
The Court remanded the case back to the Circuit Court for Montgomery County for
further proceedings consistent with its opinion.
d. The Post-Remand Proceeding in the Circuit Court
On remand, Respondents sought a hearing on their sixth motion for sanctions filed
on August 8, 2014,13 involving Petitioners’ audio recordings on internal deliberations
regarding Dr. Geier’s and Mr. Geier’s disciplinary proceedings.
13
Respondents also filed a fourth motion for sanctions on the same date.
11
On November 2, 2015, Respondents served their sixth request for production of
documents, seeking a variety of financial information from Petitioners, which prompted
Petitioners to pursue a protective order, based in substantial part, on their claim of absolute
quasi-judicial immunity from suit.
On December 28, 2015, Petitioners also filed a motion for reconsideration of the
default liability order and for summary judgment in Petitioners’ favor. Petitioners asserted
that in the order of default on liability, the circuit court found the Board, but not the
individual Petitioners, had engaged in discovery violations. Petitioners also argued that
the Court of Special Appeals narrowed the scope of what discovery should be permitted.
Respondents disagreed, and on February 10, 2016, filed a seventh motion for sanctions
alleging that Petitioners’ motion for a protective order raising the immunity defense was in
bad faith.
On March 24, 2016, the circuit court held a hearing on the parties’ respective
motions, and subsequently denied Petitioners’ motion for summary judgment, motion for
reconsideration on the default judgment of liability, and motion for a protective order from
Respondents’ sixth request for documents. The circuit court found that the General
Assembly had enacted a detailed statutory scheme addressing Petitioners’ immunity from
suit in 1976 that has not been repealed.14 The circuit court concluded that because the
statutory scheme remains in effect, Petitioners’ claim of a common law absolute quasi-
14
The circuit court noted the statutory scheme remained in full effect even after this
Court established an absolute quasi-judicial privilege in Gersh v. Ambrose, 291 Md. 188,
434 A.2d 547 (1981).
12
judicial immunity claim did not apply. On that basis, the circuit court denied Petitioners’
motion for summary judgment.
The circuit court also denied Petitioners’ motion for reconsideration because the
circuit court found that, even under the Court of Special Appeals’ mandate, Petitioners
failed to provide specific evidence that their deponent was responsive, sufficient for the
circuit court to reverse its order. The circuit court also noted that, even after adhering to
the Court of Special Appeals’ mandate, Petitioners’ conduct remained “abysmal,
abominable, [and] sanctionable.”
Finally, the circuit court granted Respondents’ sixth motion for sanctions. The
circuit court found that Petitioners did not assert any privilege in their initial responses to
Respondents’ requests for the audiotapes, and the tapes were not included on Petitioners’
privilege logs, so the assertion of privilege was waived. The circuit court also ordered that
all of Respondents’ outstanding discovery requests were due by April 22, 2016.
On April 1, 2016, Petitioners noted an interlocutory appeal to the Court of Special
Appeals, seeking review of the circuit court’s March 24th orders denying their motions for
reconsideration and request for a protective order, and granting Respondents’ sixth motion
for sanctions. This Court, sua sponte, granted certiorari, and on April 22, 2016 ordered a
stay of the proceedings pending further review.
Additional facts shall be provided, infra, to the extent they prove relevant in
addressing the issues presented.
13
STANDARD OF REVIEW
With respect to discovery rules, it is long settled that circuit court judges “are vested
with a reasonable, sound discretion in applying them, which discretion will not be disturbed
in the absence of a showing of its abuse.” Ehrlich v. Grove, 396 Md. 550, 560, 914 A 2.d
783, 790 (2007) (quoting E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md.
396, 405, 718 A.2d 1129, 1133–34 (1998)). Thus, the resolution of discovery disputes and
the imposition of discovery sanctions are within the circuit court’s sound discretion, and
reviewed by this Court only for abuse of discretion. See id.An abuse of discretion occurs “where no reasonable person would take the view
adopted by the [trial] court” or when the court acts “without reference to any guiding
principles or rules[,]” or when the ruling under consideration is “clearly against the logic
and effect of facts and inferences before the court[]” or when the ruling is “violative of fact
and logic.” Gallagher Evelius & Jones, LLP v. Joppa Drive-Thru, Inc., 195 Md. App. 583,
597, 7 A.3d 160, 168 (2010) (quoting Wilson v. John Crane, Inc., 385 Md. 185, 198–99,
867 A.2d 1077 (2005)). “Generally, the standard is that absent a showing that a court acted
in a harsh, unjust, capricious and arbitrary way, [this Court] will not find an abuse of
discretion.” Ehrlich, 396 Md. at 561, 914 A 2.d at 790 (quoting Dashiell v. Meeks, 396
Md. 149, 178, 913 A.2d 10, 26 (2006)).
DISCUSSION
I. Respondents Motion to Dismiss
In conjunction with filing their brief in this Court, Respondents’ also filed a motion
to dismiss this appeal for lack of appellate jurisdiction arguing that none of the three orders
14
before this Court are immediately appealable. We conclude that the orders denying
Petitioners’ respective motions for reconsideration and for a protective order are not
properly appealable, and therefore, grant Respondents’ motion to dismiss as it relates to
those orders. Because we conclude, however, the order granting Respondents’ sixth motion
for sanction is immediately reviewable by this Court under the collateral order doctrine,
we deny Respondents’ motion to dismiss as it relates to that order.
a. Final Judgment
None of the appealed circuit court’s orders qualify as a final judgment that would
grant this Court automatic review of the circuit court’s decisions. Section 12-101(f) of the
Courts and Judicial Proceedings Article defines a final judgment as a “judgment, decree,
sentence, order, determination, decision or other action by a court … from which an appeal,
application for leave to appeal, or petition for certiorari may be taken.” To constitute a
final judgment, a trial court’s ruling “must either decide and conclude the rights of the
parties involved or deny a party the means to prosecute or defend rights and interests in the
subject matter of the proceeding.” Harris v. State, 420 Md. 300, 312, 22 A.3d 886, 893
(2011) (quoting Schuele v. Case Handyman, 412 Md. 555, 565, 989 A.2d 210, 216 (2010)).
Additionally, for a judgment to be final, the ruling must also contain the following
three attributes: “(1) it must be intended by the court as an unqualified, final disposition of
the matter in controversy[;] (2) unless the court acts pursuant to Maryland Rule 2-602(b)
to direct the entry of a final judgment as to less than all the claims or all the parties, it must
adjudicate or complete the adjudication of all claims against all parties; [and] (3) it must
be set forth and recorded in accordance with [Maryland] Rule 2-601.” Metro Maint. Sys.
15
S., Inc. v. Milburn, 442 Md. 289, 298, 112 A.3d 429, 436 (2015) (citing Rohrbeck v.
Rohrbeck, 318 Md. 28, 41, 566 A.2d 767, 773 (1989).
The record reflects that the circuit court did not intend for any of its orders to be
considered a “final disposition of the matter in controversy[.]” See Metro Maint. Sys. S.,
Inc., 442 Md. at 298, 112 A.3d at 435. The circuit court, after denying Petitioners’ motion
for a protective order, ordered that Petitioners had until April 1, 2016 to provide an updated
privilege log, and until April 22, 2016 to respond to all of Respondents’ outstanding
discovery requests. The circuit court’s scheduling of additional discovery matters clearly
indicates that there was no “unqualified, final disposition of the matter in controversy[.]”
Id.
In the absence of a final judgment, appellate review is limited to three exceptions:
(1) appeals from interlocutory orders specifically allowed by statute; (2) immediate appeals
permitted under Maryland Rule 2-602; and (3) appeals from interlocutory rulings allowed
under the common law collateral order doctrine. See Salvagno v. Frew, 388 Md. 605, 615,
881 A.2d 660, 666 (2005). The first two exceptions are not implicated in this case.
b. Common Law Collateral Order Doctrine
The common law collateral order doctrine is a well-established but narrow
exception to the general rule that appellate review must ordinarily await the entry of a final
judgment disposing of all claims against the parties. See Dawkins v. Balt. City Police
Dep’t., 376 Md. 53, 58, 827 A.2d 115, 118 (2003). The doctrine is “based upon a judicially
created fiction, under which, certain interlocutory orders are considered to be final
judgments, even though such orders are clearly not final judgments.” Id. at 64, 827 A.2d
16at 121. For the doctrine to apply, the interlocutory order must satisfy the following four
requirements: (1) the order must conclusively determine the disputed question; (2) the
order must resolve an important issue; (3) the order must resolve an issue that is completely
separate from the merits of the action; and (4) the issue would be effectively unreviewable
if the appeal had to await the entry of a final judgment. Id. at 58, 827 A.2d at 118. These
four requirements are strictly applied, and appeals under the doctrine may be entertained
only in extraordinary circumstances. Id. at 59, 827 A.2d at 118.
In Dawkins this Court made clear that, as “a general rule, interlocutory [] orders
rejecting defenses of common law sovereign immunity, governmental immunity, public
official immunity, statutory immunity, or any other type of immunity are not appealable
under the [] collateral order doctrine.” Id. at 65, 827 A.2d at 122. Specifically, we held,
[w]hether, and under what circumstances, interlocutory orders overruling
immunity defenses asserted by the Governor, Lieutenant Governor,
Comptroller, Treasurer, Attorney General, Speaker of the House, President
of the Senate, or judges as defined in Article IV, §2, of the Maryland
Constitution, are immediately appealable under the collateral order doctrine
will have to be determined in any future cases that might arise. Interlocutory
trial court orders overruling immunity claims by other government officials,
employees, departments, agencies, entities, units, or subdivisions, or by
private persons or entities, are not appealable under this doctrine.
Id. (citations omitted). After Dawkins, this Court and the Court of Special Appeals
clarified that interlocutory orders denying absolute judicial immunity and interlocutory
orders denying executive privilege to “high level decision makers” are immediately
appealable under the collateral order doctrine. See, e.g., Ehrlich, 396 Md. at 572, 914
A.2d at 797 (concluding that an interlocutory appeal was appropriate under the
17
“extraordinary circumstances involving discovery orders directed to a high government
official.”); State v. Keller-Bee, 224 Md. App. 1, 6, 119 A.2d 80, 83 (2015), aff’d, 448 Md.
300, 138 A.3d 1253 (2016) (concluding that, under Dawkins, the trial court’s denial of
the State’s motion to dismiss was immediately appealable under the collateral order
doctrine because Article IV judges, and their clerks, are entitled to immediate appellate
review of the denial of their judicial immunity).
1. Order Granting Respondents’ Sixth Motion for Sanctions
We hold that the circuit court’s order granting Respondents’ sixth motion for
sanctions is properly appealable because it satisfies the narrow exception allowing
discovery orders denying “high level decision makers” their executive privilege to be
immediately appealable under the collateral order doctrine.
i. Order Granting Motion for Discovery Sanctions is a “Discovery Order”
An order granting discovery sanctions qualifies as a “discovery order” for the
purposes of determining the appealability of an order denying executive privilege under
the collateral order doctrine. Maryland Rule 2-433 governs a trial judge’s ability to enter
orders when there are failures of discovery by one or both of the parties. Specifically,
Maryland Rule 2-433(a)(3) authorizes a trial judge to enter “a judgment by default that
includes a determination as to liability and all relief sought by the moving party against
the failing party if the court is satisfied that it has personal jurisdiction over that party.”
Respondents argue that “courts have consistently held that orders granting
discovery sanctions against a party are not immediately appealable under the collateral
order doctrine.” Respondents rely solely on Newman v. Reilly, a case that did not address
18
sanctions within the discovery context. 314 Md. 364, 550 A.2d 959 (1988). Rather, the
Newman court considered sanctions authorized by Cts. & Jud. Proc. §3-2A-07(a) and
Maryland Rule 1-341. See id. at 376-82, 550 A.2d at 965-68.15 In Newman, this Court
held that “a sanctions order against a party to the underlying litigation is not immediately
appealable, in advance of final judgment on the merits of the underlying action, under the
collateral order doctrine.” Newman, 314 Md. at 385, 550 A.2d at 969 (citing Yamaner v.
Orkin, 310 Md. 321, 326, 529 A.2d 361, 364 (1987)). This Court determined that the third
prong for the collateral order doctrine test was not satisfied because “an application for
sanctions” is not “a claim so distinct from the underlying lawsuit that the parties would be
realigned depending on who is claiming, and who is defending against, sanctions.” Id. In
the context of discovery sanctions, the issues the circuit court determines in deciding
whether sanctions are appropriate are sufficiently separate from the merits of the
underlying action. We conclude therefore, that Newman is not controlling in this case,
and that an order for discovery sanctions is considered a “discovery order” for the purposes
of denying a “high level decision maker” his or her executive privilege.
15
Cts. & Jud. Proc. §3-2A-07(a) authorizes an arbitration panel, upon a finding that
the conduct of any party was in bad faith or without substantial justification, to require
“the offending party or the attorney advising the conduct or both of them to pay to the
adverse party the costs of the proceeding and reasonable expenses, including reasonable
attorney’s fees, incurred by the adverse party in opposing it.” Maryland Rule 1-341 states
that “if the court finds that the conduct of any party in maintaining or defending any
proceeding was in bad faith or without substantial justification the court, [on motion by
an adverse party,] may require the offending party or the attorney advising the conduct or
both of them to pay to the adverse party the costs of the proceeding and the reasonable
expenses, including reasonable attorneys’ fees, incurred by the adverse party in opposing
it.”
19
ii. Order Granting Respondents’ Sixth Motion for Sanctions is
Immediately Appealable
This Court has consistently held that discovery orders, ordinarily, are not appealable
prior to a final judgment terminating the case in the trial court. Montgomery County. v.
Stevens, 337 Md. 471, 477, 654 A.2d 877, 880 (1995) (citing Dep’t of Soc. Serv. v. Stein,
328 Md. 1, 7, 18, 612 A.2d 880, 883, 888 (1992); Pub. Serv. Comm’n v. Patuxent Valley,
300 Md. 200, 207, 477 A.2d 759, 763 (1984)). A narrow exception exists when a “high
level decision maker” appeals a discovery order that denies their assertion of executive
privilege. See Stevens, 337 Md. at 477, 654 A.2d at 880; see also Patuxent Valley, 300
Md. at 210, 477 A.2d at 764 (“[D]iscovery orders, directed at other than high level
government decision makers, are ordinarily not appealable ….”). In both Stevens and
Patuxent Valley, we determined that the discovery orders compelling a state actor to appear
for a deposition were immediately appealable. In both cases, the four-part collateral order
doctrine test was satisfied because: (1) the orders conclusively required the appellant to
take a deposition; (2) the orders resolved an important issue because they dealt with the
potentially great harm to the public by the “disruption of the governmental process” that
can be caused by discovery into the decision making processes of a high level government
official; (3) the issue as to whether the depositions were appropriate was distinct from the
merits of the action for judicial review; and (4) the issue would become effectively
unreviewable later because the harm would occur when the depositions were taken, and
there would be no effective remedy available thereafter. Stevens, 337 Md. at 479-80, 654
A.2d at 881; Patuxent Valley, 300 Md. at 206-07, 477 A.2d at 762-73.
20
Additionally, despite the narrowing language contained in Dawkins, supra, this
Court, relying on our decisions in Stevens and Patuxent Valley, continues to recognize that
discovery orders may be immediately appealed under the collateral order doctrine when
those orders seek to probe the individual thought processes of a high level government
official acting in an administrative or investigatory decisional capacity. See Hudson v.
Hous. Auth. of Balt. City, 402 Md. 18, 25, 935 A.2d 395, 399 (2007); see also Ehrlich,
396 Md. at 572, 914 A.2d at 797 (recognizing that an interlocutory appeal was appropriate
under the “extraordinary circumstances involving discovery orders directed to a high
government official.”). While the Hudson Court ultimately concluded that the collateral
order doctrine did not apply under the facts presented, we acknowledged that if the four
requirements for the collateral order doctrine are satisfied, then a discovery order that
seeks to probe a high level government official’s mental processes acting in his or her
administrative or decisional capacity, is immediately appealable. Hudson, 402 Md. at 24-
27, 935 A.2d at 398-400.
We conclude that Petitioners are considered “high level decision makers” and the
denial of their assertion of executive privilege through the circuit court’s grant of
Respondents’ sixth motion for sanctions is immediately reviewable by this Court. In
considering what constitutes a “high level decision maker” for the appealability of orders
denying executive privilege, this Court has held that executive decision making bodies
have the ability to appeal orders denying their executive privilege. See Stevens, 337 Md.
at 479-80, 654 A.2d at 881 (holding that a discovery order requiring the Chief of Police
for Montgomery County to be deposed was immediately appealable under the collateral
21
order doctrine because the Chief was a “high level government decision-maker.”);
Patuxent Valley, 300 Md. at 206-07, 477 A.2d at 762-63 (determining that a discovery
order requiring individual commissioners at the Public Service Commission to be deposed
satisfied the collateral order doctrine because the members were “high level government
decision-makers.”); Stein, 328 Md. at 23, 612 A.2d at 891 (1992) (concluding that
“[a]lthough the director of the Baltimore City Department of Social Services is not so high
an official as the President of the United States, he or she is nevertheless on a par with the
individual Public Service Commissioners” who were the Petitioners in Patuxent Valley).
Petitioners fall within this category of high level executive decision makers because
members of the Board are appointed by the Governor, with the advice of the Secretary of
the Department of Health and Mental Hygiene (“DHMH”), and the advice and consent of
the Senate, similarly to commissioners in the Public Service Commission. Cf. Health
Occ. §14-202(a)(1), with Public Utilities Article §2-102(a) (“The [Public Service]
Commission consists of five commissioners, appointed by the Governor with the advice
and consent of the Senate.”). The General Assembly has also delegated to the Board a
variety of powers that make it the functional equivalent of a high level executive body.
See, e.g., Health Occ. §14-205(a)(1) (granting the Board the power to “[e]nforce [Title 14]
and Title 15 in [the Health Occupations Article.]”); Health Occ. §14-205(a)(5) (The Board
“[o]versee[s:] (i) [t]he licensing requirements for physicians and the allied health
professionals; and (ii) [t]he issuance and renewal of licenses[.]”); and Health Occ. §14-
205(a)(8) (“[d]evelop[ing] and implement[ing] methods to: (i) [a]ssess and improve
licensee practices; and (ii) [e]nsure the ongoing competence of licensees[.]”).
22
This case is closely analogous to the facts in both Stevens and Patuxent Valley.
Respondents are seeking to obtain discovery that delves into the Board’s decision making
process. As in both Stevens and Patuxent Valley, we conclude that this case also satisfies
the requirements of the collateral order doctrine. First, the circuit court’s order
conclusively determined that Petitioners must disclose their pre-decisional deliberations by
submitting the audiotapes to Respondents by April 22, 2016. Second, like in Stevens and
Patuxent Valley, this issue is important because of the “potentially great harm to the public
by the ‘disruption of the governmental process’ that can be caused by discovery into the
decision making process[]” of a high level executive decision maker. Stevens, 337 Md. at
479, 654 A.2d at 881; Patuxent Valley, 300 Md. at 206-07, 477 A.2d at 762. Third, the
issue in this case concerning Petitioners’ deliberative process (executive) privilege is
distinct from the merits of Respondents’ action seeking damages for an alleged invasion of
their privacy. See, e.g., Ehrlich, 396 Md. at 572, 914 A.2d at 797 (concluding that “the
propriety of a potential intrusion on [executive] privilege[] has nothing to do with the
merits of [the plaintiff’s] wrongful termination claim.”). Fourth, the discovery order will
be effectively unreviewable on an appeal from a final judgment because the privilege’s
protection would be irretrievably lost once Respondents’ gain access to the individual
decisional thought processes of the Petitioners. See Patuxent Valley, 300 Md. at 207, 477
A.2d at 763. Additionally, as this Court noted in Patuxent Valley, “[r]egardless of the
outcome of the trial, the disruption to the administrative process, caused by placing the
officials under pretrial scrutiny, is incurred at the first instance. … [I]t would be impossible
to cure the harm done” to Petitioners once the audiotapes are given to Respondents. Id.23
The order granting Respondents’ sixth motion for sanctions is a discovery order
denying a high level executive decision maker their executive privilege. Accordingly, this
Court has the authority to consider the merits of Petitioners’ assertion of executive privilege
as applied to the audiotapes of their pre-decisional process.
2. Orders Denying Petitioners’ Motion for Reconsideration as to Default
Liability and Motion for Protective Order
The circuit court’s order denying Petitioners’ motions for reconsideration and for
a protective order are not immediately appealable to this Court. While we may have
jurisdiction over one interlocutory order under the collateral order doctrine, it does not
give us the authority to consider other interlocutory orders that are not independently
appealable.
Petitioners conceded before the Court of Special Appeals that a party cannot
immediately appeal from an order of default on liability. See Geier, 225 Md. App. at 140,
123 A.3d at 616. Petitioners advance the same argument to this Court– that because we
have standing to hear their appeal regarding the denial of their executive privilege, this
Court has supplementary standing to consider their claims regarding the denial of their
quasi-judicial immunity in the orders denying their motions for reconsideration and for a
protective order.
As the Court of Special Appeals noted, Maryland Rule 8-131(d) states that “[o]n
appeal from a final judgment, an interlocutory order previously entered in the action is
open to review by the Court unless an appeal has previously been taken from that order
and decided on the merits by the Court.” (emphasis added). As Judge Charles E. Moylan,
24
Jr. observed in Banashak v. Wittstadt, “[t]here is scant authority on the question of
appellate piggybacking[.]” 167 Md. App. 627, 670, 893 A.2d 1236, 1261 (2006). We
have not precisely addressed the issue of whether an order that is appealable as a final
judgment allows other orders, otherwise not appealable, to be heard by an appellate court.
As Judge Moylan noted, the Court of Special Appeals has repeatedly held that “the
appealability of each separate issue must be analyzed in a vacuum and that there are no
two-for-the-price-of-one bargains on the appellate docket.” Id. at 671, 893 A.2d at 1261;
see also Williams v. State, 17 Md. App. 110, 299 A.2d 878 (1973), overruled on other
grounds by Stewart v. State, 282 Md. 557, 386 A.2d 1206 (1978) (holding that an order
denying a challenge to an array cannot be converted into an appealable order simply
because it is joined with an appeal of an interlocutory order that is appealable).
We concluded, supra, that none of the orders appealed by Petitioners constitute a
final order as defined in Cts. & Jud. Proc. §12-101(f). Instead, we determined that the
order granting Respondents’ sixth motion for sanctions is immediately appealable because
it satisfied the four-part collateral order doctrine test. An order that satisfies the collateral
order doctrine is not a final judgment, but rather a legal fiction that, under narrow
circumstances, allows this Court to consider orders that would otherwise not be appealable
at the time they are entered. See Ehrlich, 396 Md. at 562, 914 A.2d at 791 (quoting
Dawkins, 376 Md. at 63, 827 A.2d at 121); see also Snowden v. Balt. Gas & Elec. Co.,
300 Md. 555, 560 n. 2, 479 A.2d 1329, 1331 n. 2 (1984). The collateral order doctrine
is only applicable in narrow and extraordinary circumstances. See Ehrlich, 396 Md. at
562, 914 A.2d at 791 (referring to collateral doctrine orders as a “narrow class of orders[,]”
25
and as a doctrine that is applicable only “in a very few … extraordinary situations”); see
also Dawkins, 376 Md. at 58-59, 827 A.2d at 118 (noting that the collateral order doctrine
“is a very limited exception to the principle that only final judgments terminating the case
in the trial court are appealable,” and that the requirements for the collateral order doctrine
are “strictly applied” and “entertained only in extraordinary circumstances.”) (citations
omitted); Stevens, 337 Md. at 477, 654 A.2d at 880 (recognizing that the collateral order
doctrine applies to “a narrow class of orders … which are offshoots of the principal
litigation in which they are issued and which are immediately appealable as ‘final
judgments’ without regard to the posture of the case.”) (citations omitted).
As the Court of Special Appeals explained, “in a permissible, interlocutory appeal
under the collateral order doctrine, it would make no sense to allow the parties to contest
every other order in the case as though there had been a conventional final judgment.”
Geier, 225 Md. App. at 141, 123 A.2d at 617. Further, the Court concluded that it “would
be absurd to say that, in an appeal that is permissible only if the subject matter is
‘completely separate from the merits of the action,’ the appellate court may proceed to
consider and decide every interlocutory ruling pertaining to the merits of the case.” Id.
We agree with the Court of Special Appeals’ assessment that due to the narrow purpose
of the collateral order doctrine, orders that do not independently satisfy the four-part test
may not be appealed by “piggybacking” onto another interlocutory order that does satisfy
the test. Therefore, the two additional orders are not properly before this Court.
26
i. Order denying Petitioners’ Motion for Reconsideration for Default as
to Liability is Not Immediately Appealable
It is well-established that an order of default is not an “unqualified, final disposition
of the matter” because an assessment of damages is still required. Franklin Credit Mgmt.
Corp. v. Nefflen, 436 Md. 300, 321, 81 A.3d 441, 453 (2013) see also Curry v. Hillcrest
Clinic, Inc., 337 Md. 412, 425-27, 653 A.2d 934, 940-41 (1995) (holding this Court’s
decision in Banegura v. Taylor, see infra, was dispositive in concluding that there is no
final judgment in an order for default until damages have been assessed); Banegura v.
Taylor, 312 Md. 609, 618, 541 A.2d 969, 973 (1988) (holding that an entry of an order of
default, leaving damages open for a future trial, was not a final judgment, and could not
be immediately appealed); Adams v. Mallory, 308 Md. 453, 461, 520 A.2d. 371, 375
(1987) (concluding that an order entering a judgment default of liability that did not
determine any relief was not a final judgment). Additionally, this Court in Banegura
concluded that the denial of the defendant’s motion to strike the default order was
interlocutory and not appealable because it did not dispose of the entire claim. Banegura,
312 Md. at 618, 541 A.2d at 973-74.
We conclude that the circuit court did not abuse its discretion in denying
Petitioners’ motion for reconsideration of default as to liability.
ii. Order Denying Petitioners’ Motion for Protective Order is Not
Immediately Appealable
The circuit court’s denial of Petitioners’ motion for a protective order from
Respondent’s sixth motion to compel documents is not properly appealable under the
collateral order doctrine.
27
After creating the general rule in Dawkins, see supra, we declined to determine
“[w]hether, and under what circumstances, interlocutory orders overruling immunity
defenses asserted by the Governor, Lieutenant Governor, Comptroller, Treasurer,
Attorney General, Speaker of the House, President of the Senate, or judges as defined in
Article IV §2, of the Maryland Constitution, are immediately appealable under the
collateral order doctrine….” Dawkins, 376 Md. at 65, 827 A.2d at 122 (emphasis added).
This Court purposefully left open the possibility that in cases where privilege is denied to
one of the specified positions above, an appellate court may have the authority to consider
the interlocutory order denying the privilege under the collateral order doctrine.
As Dawkins made clear “[i]nterlocutory trial orders overruling immunity claims
by… agencies … are not appealable under this doctrine.” Id. at 65, 827 A.2d at 122.
Additionally, this Court concluded that only judges defined by Article IV, §2 in the
Maryland Constitution are eligible for the exception to the rule. Article IV, §2 states:
The Judges of all of the said Courts shall be citizens of the State of Maryland,
and qualified voters under this Constitution, and shall have resided therein
not less than five years, and not less than six months next preceding their
election, or appointment, as the case may be, in the city, county, district,
judicial circuit, intermediate appellate judicial circuit or appellate circuit for
which they may be, respectively, elected or appointed. They shall be not less
than thirty years of age at the time of their election or appointment, and shall
be selected from those who have been admitted to practice Law in this State,
and who are most distinguished for integrity, wisdom and sound legal
knowledge.
Md. Const. Art. IV, §2. The Health Occupations Article states, “[t]he Board [of
Physicians] shall consist of 22 members appointed by the Governor with the advice of the
Secretary [of DHMH] and the advice and consent of the Senate.” Health Occ. §14-
28
202(a)(1). The General Assembly did not intend for Petitioners to be considered Article
IV judges, but rather as a quasi-judicial body within an administrative agency that has
powers independent of the Maryland judiciary. The language in Dawkins is dispositive as
it relates to the absolute judicial privilege, and we therefore decline to consider the four
requirements of the collateral order doctrine.16
We conclude that the circuit court did not abuse its discretion in denying
Petitioners’ motion for a protective order from Respondents sixth motion to compel
documents.
c. Waiver
Petitioners’ claim of deliberative process (executive) privilege regarding the
production of the audiotapes is not “stale,” as Respondents argue, because there is
insufficient evidence that at the time the November 25, 2013 order was entered, Petitioners
were aware of the existence of the audiotapes. Accordingly, the circuit court erred in
finding that Petitioners had waived their executive privilege in granting Respondents’ sixth
motion for sanctions.
16
Petitioners, in their response to Respondents’ motion to dismiss, rely on Gill v.
Ripley as evidence that this Court has recognized that absolute quasi-judicial privilege
applies to Executive Branch officials engaged in quasi-judicial acts “because their
judgments are ‘functional[ly] comparab[le]’ to those of judges– that is, because they, too
‘exercise a discretionary judgment’ as part of their function.” 352 Md. 754, 762, 724 A.2d
88, 92 (1999). The case that Petitioners cite pre-dated our holding in Dawkins. Because
this Court finds that Dawkins’ limitation on appealing orders denying judicial immunity
claims from agencies is controlling, we decline to consider the holding in Gill v. Ripley in
the context of this case.
29
Respondents contend that the motion for sanctions did not compel the Petitioners
to disclose the audiotapes. Instead, Respondents argue that the order that compelled the
production of the audiotapes was entered on November 25th by the circuit court judge
when the judge denied Petitioners’ assertion of executive privilege and compelled
Petitioners to comply with Respondents’ requests for documents. Petitioners did not appeal
that order. Based on the Petitioners’ failure to appeal the November 25 order, Respondents
aver that Petitioners cannot now bring an appeal for the denial of their executive privilege
because they should have brought that appeal when the November 25th order was entered.
Respondents’ argument is a distinction without a difference. Although the order before
this Court is based on an order for discovery sanctions for failing to produce the audiotapes,
the effect of the order would still require Petitioners to produce the audiotapes on the basis
of enforcing the prior order to compel from November 25th.
Additionally, in his ruling regarding the sixth motion for sanctions, the circuit court
judge determined that Petitioners had not timely objected to the disclosure of the audiotapes
in their response to Respondents’ first request for documents, and failed to include the
audiotapes in any privilege logs.17 Upon that basis, the circuit court judge concluded that
Petitioners’ request for executive privilege was waived, in granting Respondents’ sixth
17
In the circuit court hearing on March 24, Respondents asserted that they had also
made similar requests for documents encompassing the audiotapes in their third and fifth
requests for documents; however, those document requests are not included in the record,
only Petitioners’ responses to those requests, and the responses did not include the original
request. This Court, therefore, does not have a proper record that would allow us to review
this evidence for the purposes of waiver.
30
motion for sanctions. A review of the record reflects that Petitioners asserted the executive
privilege in their response to Respondents’ first request for documents, request for
Production No. 7, which stated: “Objection … the communications are also being withheld
from [Respondents] pursuant to the deliberative privilege since disclosing them would
reveal [Petitioners] deliberative, predecisional thoughts.”
Further, there is insufficient evidence in the record to indicate whether Petitioners
were aware of the existence of the audiotapes prior to July 29, 2014.18 Respondents argue
that Petitioners knew about the recordings prior to when they acknowledged their existence
in August 2014. Respondents base this contention on depositions taken in July 2014, where
several of the individual Petitioners acknowledged that their meetings are recorded and
audiotapes existed pertaining to the Board’s meetings regarding Respondents. Although
Respondents contend that Petitioners purposefully hid the existence of the audiotapes from
them until August 2014, they have provided no evidence that, prior to July 2014, the
Petitioners were aware of the existence of the audiotapes or where the audiotapes were
located. As this Court noted in Ehrlich,
[a]lthough it is preferred that responses to document requests be as accurate
as possible and are complied with as soon as possible in the discovery
process, it is unrealistic to require an entity as large as the Executive Branch
to know and to name precisely what documents are protected by [privilege]
when they are collecting and sorting tens of thousands of documents in the
early stages of litigations with such broad discovery requests of this nature.
18
On July 29, 2014, Petitioner Christine Farelly stated in her deposition testimony
that the deliberations of the Board were recorded.
31
396 Md. at 575-76, 914 A.2d at 799. Similarly, in this case, at the time that Respondents
filed their first request for documents, and subsequently, Petitioners were coordinating and
obtaining information and documents from twenty-five separate individual defendants, in
addition to the documents the Board had in its possession. Respondents even note in their
brief to this Court that on January 8, 2014, Petitioners’ counsel notified Respondents that
they were in the process of scanning and reviewing fourteen additional boxes of documents
that were potentially responsive to Respondents’ August 1, 2013 document requests.
Absent evidence that Petitioners purposefully concealed the existence of the audiotapes
from Respondents, and in light of evidence that Petitioners timely asserted their executive
privilege in response to Respondents’ document requests, this Court concludes that
Petitioners’ assertion of executive privilege was not waived.
II. Deliberative Process (Executive) Privilege
In Hamilton v. Verdow, this Court considered whether the deliberative process
(executive) privilege applied to an investigative report written by Judge Wilner for the
Governor’s Office that plaintiffs sought to obtain through discovery. 287 Md. 544, 414
A.2d 914 (1980). This Court determined:
There are two reasons for preserving the confidentiality of intragovernmental
documents reflecting advisory opinions, recommendations and deliberations
comprising parts of the process by which governmental decisions and
policies are formulated: (1) to encourage aides and colleagues to give
completely candid advice by reducing the risk that they will be subject to
public disclosure, criticism and reprisals; (2) to give the President or other
officer the freedom ‘to think out loud,’ which enables him to test ideas and
debate policy and personalities uninhibited by the danger that his tentative
but rejected thoughts will become subjects of public discussion.
32
287 Md. at 558, 414 A.2d at 922 (citing Archibald Cox, The Executive Privilege, 122
U.PA.L.REV. 1383, 1410 (1974)). We noted that the executive privilege “gives a measure
of protection to the deliberative and mental process of decision-makers[,]” id. at 561, 414
A.2d at 924, but that the privilege differs from other evidentiary privileges because “[i]t is
for the benefit of the public and not the government officials who claim the privilege ….
[It] attempts to accommodate the competing interests of a just resolution of legal disputes
with the need to protect certain confidential communications.” Id. at 565, 924-25 (citations
omitted).
Where there has been an allegation of government misconduct, we have held a
balancing process must be utilized, “weighing the need for confidentiality against the
litigant’s need for disclosure and the impact of nondisclosure upon the fair administration
of justice.” Id. at 563, 925; see also Ehrlich, 396 Md. at 568, 914 A.3d at 794 (quoting
Hamilton for the proposition that “courts have engaged in a balancing process, weighing
the need for confidentiality against the litigant’s need for disclosure and the impact of
nondisclosure upon the fair administration of justice.”); Office of Governor v. Wash. Post
Co., 360 Md. 520, 558, 759 A.2d 249, 270 (2000) (quoting the balancing process espoused
in Hamilton). Additionally, this Court has held that when a government official makes a
formal claim of executive privilege for confidential communications “of an advisory or
deliberative nature, there is a presumptive privilege, with the burden upon those seeking to
compel disclosure[]” to overcome the presumption. Hamilton, 287 Md. at 563, 414 A.2d
at 925 (citations omitted); see also Ehrlich, 396 Md. at 567-68, 914 A.3d at 794 (quoting
Hamilton); Office of Governor, 360 Md. at 558, 759 A.2d at 270 (quoting Hamilton);
33
Prince George’s County. v. The Wash. Post Co., 149 Md. App. 289, 319, 815 A.2d 859,
876 (2003) (quoting Hamilton).
In weighing Petitioners’ need for confidentiality, we conclude that preventing the
disclosure of Petitioners’ pre-decisional deliberations greatly benefits the public by
allowing Petitioners to undertake their core public protection function without the constant
threat of harassment and intimidation by aggrieved parties. As noted in Hamilton, “it is
apparent from the very nature of government that a legitimate necessity exists for the
protection from public disclosure of certain types of official information.” 287 Md. at 556,
414 A.2d at 921. The Hamilton Court concluded that “[t]he necessity for some protection
from disclosure clearly extends to confidential advisory and deliberative communications
between officials and those who assist them in formulating and deciding upon future
governmental action. A fundamental part of the decisional process is the analysis of
different options and alternatives.” Id. at 558, 414 A.2d at 922.
Petitioners were empowered by the General Assembly to, among other things:
enforce Title 14 and Title 15 in the Health Occupations Article; oversee the licensing
requirements for physicians and allied health professionals; review and preliminarily
investigate complaints; develop and implement methods to assess and improve licensee
practices and ensure the ongoing competence of licensees; and make recommendations that
benefit the health, safety, and welfare of the public. Health Occ. §14-
205(a)(1)(5)(7)(8)(13). The General Assembly also explicitly authorized Petitioners to
“issue a cease and desist order or obtain injunctive relief against an individual
34
for…[p]racticing medicine without a license ….” Health Occ. §14-206(e)(1).19 The
General Assembly clearly intended to afford Petitioners considerable discretion in carrying
out their duties under the Health Occupations Article, including the express authority to
issue cease and desist orders. We conclude that Petitioners raised a valid claim of executive
privilege that weighs against the disclosure of the audiotapes to Respondents.
Respondents, therefore, bear the burden of overcoming the presumption of executive
privilege. Respondents, however, failed to provide any substantive argument that states
their basis for seeking the disclosure of the audiotapes in litigating their claims of invasion
of privacy against Petitioners.
The last consideration the Hamilton balancing process requires is an analysis of the
impact that nondisclosure will have on the “fair administration of justice.” 287 Md. at 563,
414 A.2d at 925. Because Respondents have not articulated any specific necessity for
access to the audiotapes, the nondisclosure will not impact the fair administration of justice.
Therefore, we hold that the audiotapes are protected under the executive privilege and are
not discoverable by Respondents.
CONCLUSION
In summary, this Court does not have appellate jurisdiction over Petitioners’ appeal
regarding the interlocutory orders denying Petitioners’ motion for reconsideration and
19
COMAR 10.32.02.06 (B)(2) (as effectuated at the time Petitioners published the
cease and desist order) states, “[d]uring the course of the investigation of the complaint,
the Board may issue a nonpublic cease and desist order. At the conclusion of an evidentiary
hearing, the administrative law judge may recommend a public cease and desist order in
addition to a penalty.”
35
motion for a protective order, because neither order independently satisfies the collateral
order doctrine. However, we do have appellate jurisdiction over the order granting
Respondents’ sixth motion for sanctions because it is a discovery order that denied the
assertion of executive privilege to a “high level decision maker.”
We conclude that Petitioners’ assertion of the executive privilege was not waived
because Petitioners properly asserted the privilege throughout the discovery process, and
Respondents failed to demonstrate that prior to July 29, 2014, Petitioners were aware of
the existence of the audiotapes in dispute.
Finally, we hold that because Respondents failed to assert any basis for seeking
discovery of the audiotapes, and this Court determined that strong public policy concerns
support protecting Petitioners’ deliberative process, the circuit court abused its discretion
in granting Respondents sixth motion for sanctions.
MOTION TO DISMISS RELATIVE TO
THE DENIAL OF PETITIONERS’
MOTIONS FOR RECONSIDERATION
AND FOR PROTECTIVE ORDER
GRANTED. ORDER OF THE CIRCUIT
COURT FOR MONTGOMERY COUNTY
GRANTING RESPONDENTS’ SIXTH
MOTION FOR SANCTIONS REVERSED.
CASE REMANDED TO THAT COURT
FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
COSTS TO BE DIVIDED EQUALLY
BETWEEN PETITIONERS AND
RESPONDENTS.
36
Circuit Court for Montgomery County IN THE COURT OF APPEALS
Case No.: 371761V
Argued: September 9, 2016
OF MARYLAND
No. 11
September Term, 2016
MARYLAND BOARD OF
PHYSICIANS, et al.
v.
MARK R. GEIER, PERSONAL
REPRESENTATIVE OF THE ESTATE
OF ANNE GEIER, et al.
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Hotten,
Getty,
Battaglia, Lynne A.
(Senior Judge, Specially Assigned),
JJ.
Dissenting Opinion by Adkins, J.
Filed: January 23, 2017
Respectfully, I dissent. This appeal is a premature, interlocutory appeal from an
order imposing sanctions for the failure to produce discovery documents. The Majority is
wrong to treat this sanctions order as an appeal from the denial of a properly asserted
deliberative process privilege. An appeal from an order for sanctions is generally not an
allowable interlocutory appeal. See Newman v. Reilly, 314 Md. 364, 385 (1988); Yamaner
v. Orkin, 310 Md. 321, 326–27 (1987). In Yamaner, we denied a party’s attempted appeal
of a sanctions order because it did not meet the requirements of the collateral order doctrine.
Yamaner, 310 Md. at 326–27. This attempted appeal of the trial court’s sanctions order
should be similarly denied.
Maryland Rule 2-422(c) requires the following response to a request for discovery
of documents:
The response shall state, with respect to each item or category,
that (1) inspection and related activities will be permitted as
requested, (2) the request is refused, or (3) the request for
production in a particular form is refused. The grounds for
each refusal shall be fully stated. If the refusal relates to
part of an item or category, the part shall be specified.
(Emphasis added.) Applying an earlier version of Rule 2-422, we have explained:
When under an appropriate Maryland Rule a party demands of
another discovery of a document or other tangible thing, the
adversary, even though resisting the demand, should
nonetheless be required to specifically answer whether it
has in its possession or under its control such an item or
items.
Kelch v. Mass Transit Admin., 287 Md. 223, 228 (1980) (emphasis added).
The use of privilege logs is a customary practice in Maryland, and complies with
the Rule 2-422(c) requirement that the “grounds for each refusal shall be fully stated” and
that “[i]f the refusal relates to part of an item or category, the part shall be specified.” So,
the Board was required to identify what it claimed was privileged and what it did not. Md.
Rule 2-422. We have explained that “the application of sanctions under the discovery rules
is within the sound discretion of the trial judge.” Broadwater v. Arch, 267 Md. 329, 336
(1972) (citation omitted); see Ehrlich v. Grove, 396 Md. 550, 560 (2007) (discovery
matters are within the discretion of the trial court). Thus, the trial court was well within its
rights to find a waiver of the privilege, order the production of the audio recordings, and
impose a sanction on the Board.
The Majority resurrects the deliberative process privilege waived by Petitioners,
both ignoring the abuse of discretion standard of review for discovery decisions and
creating a new rule that merges orders for production with orders for sanctions after a
failure to produce. The Majority holds, with no cited authority, that “[a]n order granting
discovery sanctions qualifies as a ‘discovery order’ for the purposes of determining the
appealability of an order denying executive privilege under the collateral order doctrine.”
Maj. Slip Op. at 18. In so holding, the Majority disregards—and tells government
litigants to disregard—the Rule 2-422 requirements for identifying specifically which
parts of a discovery request are sheltered from discovery and for what reason.
We have recognized that when a government is a party to litigation, “a question of
unfair litigation advantage may arise.” Hamilton v. Verdow, 287 Md. 544, 564 n.8 (1980).
Here, rather than protecting against such unfair advantage, the Majority leans the opposite
way, sending the message that a governmental party may, with impunity, ignore discovery
requests for months at a time and wait until the eleventh hour to identify what items fall
2
within its claimed privilege. The Board did exactly that, and the Majority enables its
behavior by permitting this interlocutory appeal, and then overturning the trial court’s
discretionary determination that Petitioners had waived the privilege.
The Board’s conduct at issue on this appeal is merely one example of their discovery
abuses. In December 2014, the trial court described the Board’s foot-dragging thus far,
saying: “The deadlines in this case have been moved repeatedly because of discovery
problems, due to the conduct of the Board and its inability, or in some cases outright
refusal, to produce documents or accurate privilege logs in a timely fashion.”
(Emphasis added.) It concluded that the Board delayed document production for seven
months after an order that it do so:
To say that discovery in this case has not proceeded
smoothly would be an understatement. [Respondents’] first
motion for sanctions, which the court granted, was the result of
the Board’s production of fourteen boxes of documents many
months after the court ordered their production on November
25, 2013. Although the original request for production was
issued on August 1, 2013, the Board did not make its final
production of responsive documents until June 2, 2014.
It also found that the Board’s designated representative “fail[ed] to appear for a properly
noticed organizational deposition,” and that, on a rescheduled date, she was present but
entirely unprepared.
What is at stake here is more than a meaningless discovery slug-fest. The audio
recordings in question are highly relevant to Respondents’ claim for invasion of privacy.
In order to prevail, they must show malice to defeat the immunity given to the Board
members and their agents by statute. Md. Code (1990, 2013 Repl. Vol.), § 5-715(b) of the
3
Courts and Judicial Proceedings Article. The internet publication of highly sensitive
medical information about a physician and his family is sufficiently unusual and
unnecessary that one might wonder why a professional oversight agency did not know
better. What went on behind the scenes of the decision to publish is exactly what
Respondents need to know. If they are denied this information they are severely hampered
in pursuit of their claim. If the audio recordings are protected by a valid deliberative
process privilege, then Petitioners should have identified them specifically, and claimed
the privilege on a timely basis. It is not up to this Court to protect the Board and its
members from their discovery abuses.
4
Circuit Court for Montgomery County
Case No. 371761V
Argued: September 9, 2016 IN THE COURT OF APPEALS
OF MARYLAND
No. 11
September Term, 2016
__________________________________
MARYLAND BOARD OF
PHYSICIANS, et al.
v.
MARK R. GEIER, PERSONAL
REPRESENTATIVE OF THE ESTATE
OF ANNE GEIER, et al.
__________________________________
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Hotten,
Getty,
Battaglia, Lynne A.
(Senior Judge, Specially Assigned)
JJ.
__________________________________
Concurring and Dissenting Opinion
by McDonald, J.
__________________________________
Filed: January 23, 2017
I agree with the Majority opinion to the extent that it addresses the merits of this
appeal. I would, however, go farther and address the question of immunity. This Court
has adopted from federal practice the collateral order doctrine – a doctrine that provides
for consideration of certain interlocutory appeals. Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 545-47 (1949); Peat, Marwick, Mitchell & Co. v. Los Angeles Rams Football
Co., 284 Md. 86, 91-92 (1978); State v. Hogg, 311 Md. 446, 455-57 (1988). However, this
Court later deviated from the federal version of that doctrine when it overruled Hogg and
declined to consider an appeal of an order denying official immunity, except in certain
instances (which the Court did not well define). Compare Dawkins v. Baltimore City
Police Dep’t., 376 Md. 53 (2003) with Mitchell v. Forsyth, 472 U.S. 511 (1985) and
Behrens v. Pelletier, 516 U.S. 299 (1996). The Court of Special Appeals has applied an
exception to allow an appeal of an adverse ruling on immunity relating to the alleged
actions of a court clerk – an official with less decision-making authority than the Board
members in this case. See State v. Keller-Bee, 224 Md. App. 1, 5-7 (2015), aff’d, 448 Md.
300 (2016). In my view, Dawkins should be reconsidered.