Ehrlich v. Grove
Annotate this Case
Download PDF
Robert L. Ehrlich, Jr., et al. v. Robin D. Grove, No. 54, September Term, 2006 Headnote: An interlocutory appeal is appropriate under the extraordinary circumstance of a discovery order being directed to a Governor of Maryland when the collateral order doctrine s four-part test is met. We also hold that the Circuit Court for Baltimore City abused its discretion when it ordered expanded in camera review of documents protected by attorney-client privilege or the work product doctrine and that it abused its discretion when it actively solicited the consent of third parties to the release of documents that it had held were irrelevant and not reasonably calculated to lead to admissible evidence. Circuit Co urt for Baltim ore City Case # 24-C-03-006508 IN THE COURT OF APPEALS OF MARYLAND No. 54 September Term, 2006 Robert L . Ehrlich, Jr., et al. v. Robin D. Grove Bell, C. J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Cathell, J. Filed: January 11, 2007 This interlocutory appeal arises from a wrongful termination action brought by Robin Grove, appellee, ag ainst Gov ernor Ro bert L. Ehr lich, Jr., appellan t.1 Since the suit s September 10, 2003, inception,2 the parties have been mired in a discovery dispute. The subject of this dispute, as it relates to this interlocutory appeal, is whether Grove is to be granted access to information that the Governor claims is protected by executive privilege, attorney-client privilege, and/or the work product doctrine. On appeal w e are directly presented with two questions: I. Did the Circuit Court abuse its discretion when it ordered expanded in camera review[3] of documents protected by attorney-client privilege? 1 Grove a lso brough t suit against then-Maryland Department of the Environment Acting Secretary Kendl P. Philbrick. We will refer to the defendants collectively as the Gov ernor. 2 On January 15, 2003, Robin Grove s termination was discussed in a Washington Post article, Lori M ontgom ery, Ehrlich Reverses Dismissal Letter; Highly Touted Motor Vehicles Administrator Retains Job She Lost Day Before, Washington Post, January 15, 2003, at B1, on the gubern atorial transition ta king place in Anna polis and the effect it wa s having o n State employees who were replaced by the incoming Ehrlich Administration. Grove was quoted in that article as saying: It s a wonderful part of the democratic process that allows for wholesa le change, and I respec t that, and I just wish they d given me more than a day and a half [notice]. Grove filed suit approximately eight mon ths later. 3 The concept of in camera review is familiar to most in the legal profession, but expanded in camera review is slightly m ore obs cure. Black s Law Dictionary defines in camera as: 1. In the judge s private chambers. 2. In the courtroom with all spectators excluded. 3. (Of a judicial action) taken when court is not in session. Also termed . . . in chambers. Black s Law Dictionary 775 (8th ed. 2004 ). In camera inspection is defined as: A trial judge s private consideration of evidence. Id. Maryland s cases generally use in camera review and in camera inspec tion int erchan geably. For simplicity, we will use in camera review herein. It seems that the concept of expanded in camera review m ade its first appearan ce in our case law in the criminal case of Zaal v. State , 326 Md. 54 , 602 A.2d 124 7 (1992), where a defendant was attempting to obtain the confidential education records of a child when (continued...) 3 (...continued) accused of sex ual abu se of th at child. Zaal was a relatively rare case involving the applicability of a fede ral statute and State regulations a dopted in a n attempt to c omply with a federal statute: The Family Education Rights and Privacy Act (FERPA), 20 U.S.C.A. §§ 1221 et seq. It involved a conflict between the privacy provisions of the federal statute and the State regulations with a criminal de fendant s right to confron t witnesses against him. In the case, the defendant only asserted that access to some of the records were nec essary for him to effectively cross-examine, i.e., confront, the victim/witness against him. There, in that context, we addressed the issue of whether a defendant charged with child sexual abuse may inspect the school records of the child he has allegedly abused. After concluding that we did not need to m ake a con stitutional determ ination as to the validity of expanded in camera review in that particular context, we introduced and explained the operation of the concept of expanded in camera review albeit in a criminal case: When, in striking a balance between a victim s [the position of a victim in a criminal case is sometimes similar to that of a complainant or plaintiff in a civil case] privac y interest and a d efendan t s right to a fair tria l, there is an acceptable alternative to the defendant s nonrestricted access to the victim s records, it is not necess ary to require the trial court to perform that function which is so foreign to its usual office. An expanded in camera proceeding, one in which counsel for the defense and the State participate or permitting the review of the records by counse l in their capacity as officers of the court are acceptable alternatives. In such p roceeding s, counsel fo r the parties co uld be given acc ess to the records, in the presence of the trial court, or alone, either as officers of the court, or under a court order prohibiting disclosure to anyone, including the defenda nt, of anything in the records unless expressly permitted by the court. A well-prepared def ense cou nsel one who ha s spoken e xtensively with his client, developed a strategy for the trial and is familiar, thoroughly, with the State s case would then be able to bring the advocate s eye to the review of the records, thu s, protecting th e interest of the defendant in ensuring that relevant, usable exculpatory or impeachment evidence is discovered. On the other hand, both by virtue of the court order restricting disse mination of th e information contained in the records and by proceedings to determine admissibility of information defense counsel deems relevant and usable, the victim s right to privac y would be protected. M oreover, by ha ving the be nefit of counsel s input on the critical questions of relevance and admissibility, the court is enabled to rule more re sponsibly. Fina lly, such procee dings cou ld potentia lly avoid u nintenti onal, bu t harmf ul, disclo sures. (continued...) -2- II. Did the Circuit Court abuse its discretion when it imprope rly applied the procedure set forth in Blades v. Woods[4] to solicit the consent of third parties to the release of documents it had ruled irrelevant and not reasonably calculated to lead to admissible evidence? The Governor also raised executive privilege below and in both of his briefs to this Cou rt discussed issues relating to executive privilege. We answer both specific questions above in the affirmative and additionally hold that an interlocutory appeal is appropriate under the extraordinary circumstance of a discovery order being directed to a Governor of Maryland when the collateral order doctrine s four-part test is met. We also hold tha t the Circuit Court for Baltimore City abused its discretion when it ordered expanded in camera review of docume nts protected by attorney-client privilege or the work product doctrine 5 and that it abused its discretion w hen it actively solicited the consent of third parties to the release of documents that it had held w ere irrelevan t and not rea sonably calcu lated to lead to 3 (...continued) Zaal, 326 M d. at 86- 87, 602 A.2d a t 1263 ( some e mpha sis adde d). Zaal, thus, primarily concerned issues related to privacy and even then the issue was related to a criminal defendant s right to confront, i.e., effective cross-examination of an alleged victim/complaining witness/ plaintiff. The parties did not bring to our attention any case which discussed expanded in camera review in the context of the Governor of Maryland asserting executive privilege or an assertion by the Governor of attorney-client privilege and/or the work product doctrine. Nor has ou r own researc h revea led suc h a case in this Sta te. As w e discu ss below , in camera review and, ne cessarily, expanded in camera review m ay have add itional constitutional implications when these assertions are made by the head of the Executive Branc h of this State. 4 Blades v. Woods, 107 Md. App. 178, 667 A.2d 917 (1995). 5 As noted, infra, the trial court was complying with the directions of the Court of Special Appeals. -3- admissible evidence. I. Facts Immedia tely following the G overnor s inauguration in January of 2003, Grove, an atwill employee or official, was removed as Director of the Maryla nd Department of the Environmen t s Technical and Regulatory Administration. As mentioned above, Grove filed suit against the Governor in September of that same year alleging wrongful termination. At the time he filed su it, Grov e also se rved th e Gov ernor w ith docu ment re quests. In addition to information relating to Grove s employment and termination, those requests sought access to personnel records of State employees who are not parties to Grove s suit and do cuments created and used by Govern or Ehrlich s guberna torial transition tea m. The re cord reflec ts that the total number of documents that might have initially been involved, was as high as 80,000 documents. The Go vernor de clined to pro duce som e of the do cuments sought on the grounds of executive privilege, attorney-client privilege, and/or the work product doctrine. After several attempts by the parties to resolve the issue, Grove filed a motion to compel production of documents o n Augu st 12, 2004 . On No vember 9 , 2004, the C ircuit Court for Baltim ore City issued an order re quiring, am ong other things, that the Governor produce a privilege log within 21 days or, alternatively, within 30 days ma ke the doc uments that would be listed in such a privilege log available to Grove for inspection and copying. On Novemb er 24, 2004, the Governor filed a motion asking the Circuit Court to clarify or reconsider its November 9, 2004, order. Before the Circuit Court for Baltimore City ruled -4- on the Governor s motio n and based on the Circuit Court s November 9, 2004, order, the Governor noted his first interlocutory appeal to th e Court of Special A ppeals on December 10, 2004. On July 20, 2005, in an unreported opinion, the Court of Special Appeals dismissed that interlocutory appeal because the motion for clarification or reconsideration of the Circuit Court s November 9, 2004, order was still pending. The timing of the filing and the fact that the trial court ha d not ruled o n the motio n, accordin g to the interm ediate appellate court, had the effe ct of depriving it of jurisdiction over the matter. On July 28, 2005 , the Gove rnor sent a lette r to the Circu it Court for B altimore C ity seeking clarification of and a hearing on that court s Nove mber 9, 2004, orde r. On February 2, 2006, the Circuit Court for Baltimore City denied the Governor s motion for clarification or reconsideration and reinstated its November 9, 2004, order. On February 10, 2006, the Governor noted its second interlocutory appeal to the Court of Special Appeals and sought to have all discovery stayed pending the outcome of the appeal. On February 17, 2006, the Court of Special Appeals issued an order staying the Circuit Court s February 2 order. Later, on April 1 0, 2006, the Court of Special A ppeals issue d an orde r that read in re levant part: ORDERED that, while this appeal is pending, the Circuit Court for Baltimore City shall resolve appellants p retrial discove ry objections in conformity with the procedures set forth in this Order; and it is further ORDERED that appellants counsel forthwith pro vide the circuit court with two copies of (1) every document sought by appellee s counsel that appellants contend is privileged and/or confidential, regardless of why appellants counsel claim s the docume nt sh ould not b e pro duced in discovery, and (2) a concise written argument in support of whatever privilege and/or confidentiality requirement is alleged to be applicable; and it is further ORDERED that, after making an in camera inspection of the -5- docume nts produce d and the w ritten argum ents presen ted, the circuit c ourt shall determine whe ther a particular document (1) should not be disclosed to appellee s counsel of record, or (2) should be disclosed to appellee s counsel of record, in their roles as officers of the court, at an expanded in camera hearing . . . . [6] On May 2, 2006, the Circuit Court convened an on-the-record conferen ce with counsel for each party to d etermine the manner in which the trial court wo uld comp ly with the Court of Special Appeals s order. At the hearing, the Governor asserted that 341 individuals fell within the category of individuals about which Grove was seeking information and offered to provide the trial court with 30 of tho se files for in camera review to demonstrate, by way of example, why the information contained therein was confidential and/or privileged. On May 8, 2006, the Circuit Court issued an opinion and order which summarized the actions it w as directing to be taken based on its review of the sample files. The opin ion and or der read in re levant part: Based on its in-camera inspection of the thirty (30) sample personnel files, this Court believes that because these files represent individuals who were terminated during the relevant time period, all documents representing notice of termination by certified and regular mail, and all communications generated by each employee pertaining to said termination, should be disclosed to Appellee s counsel of record, in th eir roles as of ficers of the Court. Th is Court further belie ves that all other documents contained within these thirty (30) individual personnel file s, when considered in light of Md. Rule 2-402 and the sparse M aryland c ase law , should not be disclosed as they are not relevant or likely to lead to admissible evidence. This Court finds that 6 This is a direct appeal from the circuit court s actions on remand, accordingly, we are not d irect ly presented w ith th e issu e of t he propr iety of the Court of Special A ppeals ordering the trial court to eff ectuate expanded in camera review. Our holding, however, on this issue resulting from the direct appeal is applicable to the issue. -6- disclosure of these documents would unnecessarily reveal confidential information of each individual. . . . [T]his Co urt believ es that the remaind er of the th ree h undred f orty one (341) individual files requested for production by Appellee Grove should be disclose d utilizin g the sa me, pre cise me thodol ogy. . . . The Court assu mes that co unsel for A ppellee G rove may w ish to contact all of these three hundred and forty one (341) individuals. Counsel for both parties shall meet on or before May 31, 2006 and draft a joint letter which will thereafter be submitted to the Court for approval. Counsel for Appellee Grove may then utilize the approve d letter in initially contacting the identified, terminated individuals to determine whether those individ uals wou ld object to further discussion o f their personal situations with counsel for Appellee Grove and/or whether they would be willing to waive a ny claims for c onfidentia lity of their personnel file which would allow cou nsel further o pportunity to review other aspects of the files not released herein. . . . (Emphasis added.) (Footn otes om itted.) On May 24, 2006, the Circuit Court for Baltimore City issued a second order and opinion. In it, the court discussed the parties failure to agree on a letter to be sent to the 341 individuals in question. The court then directed the parties to mail a letter drafted by the court to those individuals. The Circ uit Court also ordered the Govern or to make certain State Agency documents and gubernatorial transition team documen ts available to Grove. On June 8, 2006, the Governor filed a motion for reconsideration or clarification of the May 24, 2006, order and aske d the Circu it Court to amend its order to exclude expanded in camera review of attorney-client and work prod uct materials. The Go vernor claimed that six of the requested documents related specifically to the Attorney General s efforts to defend the Governor in Grove s suit and an other 29 docum ents related to other matters wh ich were allegedly privileged. The Governor also produced a more deta iled privilege lo g relating to these 35 documents and produced, for expanded in camera review, do cuments to which it -7- had been prev iously claiming executive privilege.7 Grove s June 16, 2006, opposition to the Governor s motion for reconsideration or clarification contain ed a waiv er by Grove of his request to view certain doc uments in the Governor s possession specifically relating to the instant litigation. On June 23, 2006, the Circuit Court for B altimore City, based on Grov e s waiver, issued an order to the effect that four of the six documents relating to this litigation did not need to be disclosed. But, as to the other documents, the court denied the remainder of the Governor s motion for reconsideration or clarification effectively ordering the Governor to make them available for expanded in camera review. On June 28, 2006, the Court of Special Appeals stayed the communication and disclosure provisions of the Circuit Court s May 24, 2006, ord er. Mean while the C ircuit Court for Baltimore City continued to catalogue and file responses received from the 341 individuals who received letters from counsel at the direction of the Circ uit Court. The last such entry in the record was dated August 28, 200 6. On Aug ust 29, 2006, prior to the cou rt of Special A ppeals hea ring argum ents, this Court, on its own motion, issued a writ of certiorari to addr ess the a bove s tated issu es. Ehrlich v. Grove, 394 Md. 307, 905 A.2d 842 (2006). 7 Although claiming executive privilege, the Governor produced some of these docume nts while notin g an objec tion. Others h e produc ed after w ithdrawing a previous ly noted objection. -8- II. Standard of Review Maryland s discovery rules were deliberately designed to be broad and compreh ensive in scope. Baltimor e Transit C o. v. Mezza notti, 227 Md. 8, 13, 174 A.2d 76 8, 771 (1961). The purpose of the rules is to expe dite the d ispositio n of ca ses, Home Indem. Co. v. Basiliko, 245 Md. 4 12, 415 -16, 22 6 A.2d 258, 259 (19 67), by eliminating, as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that gave rise to litigation. Kelch v. Mass Transit Admin., 287 Md. 223, 229, 411 A.2d 449, 453 (1980) (quoting Klein v. Weiss, 284 Md. 36, 55, 395 A.2d 126, 137 (1978)). They are not designed or intended to stimulate the ingenuity of lawyers and judges to make th e pursuit of discovery an obstacle race. Barnes v. Lednum, 197 Md. 398, 406-07, 79 A.2d 520, 524 (1951). Consistent with the principles just expressed, Maryland s discovery rules are to be libe rally cons trued. Kelch, 287 Md. at 229, 411 A.2d at 453; Klein, 284 Md. at 55, 395 Md. at 137. There are, however, limitations on the general proposition that discovery rules are to be liberally construed. With respect to discovery matters, it is long settled that the trial 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. E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 405, 718 A.2d 1129, 1133-34 (1998) (quoting Kelch, 287 Md. at 229, 411 A.2d at 453 (quoting Mezzan otti, 227 Md. at 13-14, 174 A.2d at 771)). Thus, we will review the discovery dispute presently before us under an abu se of discretion standard. In Dashiell -9- v. Meeks, this Court recently stated: We have [] said that judicial discretion is defined as the power of a court to determine a question upon fair judicial co nsideration w ith regard to w hat is right and equitable under the law and directed by reason and conscience to a just result. Schneider v. Hawkins, 179 Md. 21, 25, 16 A.2d 861, 865 (1940) (citing Langnes v. Green, 282 U.S. 531, 541, 51 S. Ct. 243, 247, 75 L.Ed 520 (1931). . . . Generally, the sta ndard is tha t absent a sh owing th at a court acted in a harsh, unjust, capricious and arbitrary way, we will not find an abuse of discretio n. Dashiell v. Meeks, ___ Md. ___ (2006) (No. 27, September Term, 2006) (filed December 14, 2006). III. Discussion A. Interlocutory Appeal Prior to addressin g the issues b efore us o n appeal, we must first consider whether the Governor is entitled to app eal from the Circuit Co urt s discovery order. Gen erall y, the interlocutory nature of discovery orders requires that a potential appellant must await the final judgment terminating the case in the trial court before noting his appeal. Montgomery County v. Stevens, 337 Md. 471 , 477, 654 A.2d 8 77, 880 (1995) (citing Dep t of S ocial Servic es v. Stein, 328 Md. 1, 7, 18, 612 A.2d 880, 883, 888 (1992 ); Public Service Comm n v. Patuxent Valley, 300 Md. 200, 207, 477 A.2d 759, 763 (1984)). This general rule is found in the Maryland Code, where it is said that a pa rty may only appeal from a final judgment entered in a civil or criminal case by a circuit court. Md. Code (1973, 2006 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article. The limited statutory excep tions to this gen eral rule are fo und in § 12-303 of the Courts and -10- Judicial Proceed ings Article, b ut nothing in that section sp ecifically perm its the Gov ernor to note an interlocutory appeal in the present case. We have long recognized, however, a narrow class of orders, referred to as collateral orders, which are offshoots of the principle litigation in which they are issued and which are immedia tely appealable as final judgments without regard to the p osture of the case. Stevens, 337 Md. at 477, 654 A.2d at 880 (quoting Harris v. H arris, 310 Md. 310, 315, 529 A.2d 356, 358 (1987 )). See also Mandel v. O Hara, 320 Md. 103, 134, 576 A.2d 766, 781 (1990) (holding that Governor Mand el, who w as asserting a bsolute immunity, was entitled to an interlocutory app eal under th e collateral ord er doctrine b ecause ab solute imm unity permits the defen dant to avo id trial altogether and a review after trial would not protect that right for a de fendant); Patuxent Valley, 300 Md. at 210, 477 A.2d at 764 (holding that an order in an action for judicial review of an administrative decision, requiring administrative decision makers [who may be immune from suit] to stand for depositions, may be immedia tely appealed by the agency itself or, if a party, by the government of which the agency is a part.[] ). This narrow class of orders falls under the umbrella of the collateral order doctrine. The collateral order doctrine is based upon a judicially created fiction, under which certain interlocutory orders are considered to b e final judgments, even though such ord ers clearly are not final judgments. Dawk ins v. Baltim ore City P olice Dep t., 376 Md. 53, 64, 827 A.2d 115, 121 (2003). The creation of the collateral order doctrine was based on the -11- perceived necessity, in a very few . . . extraord inary situations, fo r immedia te appellate review . Id. at 64, 82 7 A.2d at 121 ( citation o mitted) ( quotatio n omitte d). An extraordinary situation may arise when a discovery order is directed at high level government decision makers. Stevens, 337 M d. at 480, 65 4 A.2d a t 881; Patuxent Valley, 300 Md. at 210, 477 A.2d at 764. With respect to the operation of the collateral order doctrine, we have said: The collateral order doctrine trea ts as final and appealab le a limited class of orders w hich do no t terminate th e litigation in the trial court. Bunting v. State, 312 Md. 472, 476, 540 A.2d 805, 807 (1988), quoting Public Service Comm n v. Patuxent Vall ey, 300 Md. 200, 206, 477 A.2d 759, 762 (1984). The doctrine is a very limited exception to the principle that only final judgmen ts terminating the case in the trial court are appealable, and it has four requirements. As summarized by Judge Wilner for the Court in Pittsburgh Corning v. James, 353 M d. 657, 6 60-66 1, 728 A .2d 210 , 211-2 12 (19 99), [w]e have made clear, time and again, as has the United States Supreme Court, that the collateral order doctrine is a very narrow exception to the general rule that appellate review ordinarily must await the entry of a final judgment disposing of all claims against all parties. It is applicable to a small class of cases in which the interlocutory order sought to be reviewed (1) conclusive ly determines the disputed question, (2) resolves an important issue, (3) resolves an issue tha t is complete ly separate from the me rits of the action, and (4) would be effectively unreview able if the appeal had to await the entry of a final judgmen t. See Peat & Co. v. Los Angeles Rams, 284 Md. 86, 92, 394 A.2 d 801, 80 4 (1978); Clark v. Elza, 286 Md. 208, 213, 406 A.2d 92 2, 925 (19 79); Shoem aker v. Sm ith, 353 Md. 143, 725 A.2d 54 9 (1999). Dawkins, 376 Md. at 58-59, 827 A.2d at 118 (quoting In re Foley, 373 Md. 627, 633-34, 820 A.2d 587, 591 (2003)). The four elements of the test are conjunctive in nature and in order for a prejudgement order to be appealable an d to fall within this exception to the o rdinary -12- operation of the final judgment requirement, each of the four elements must be met. In Re Franklin P., 366 Md. 306, 327, 783 A.2d 673, 686 (2001). [I]n Maryland, the four requireme nts of the collateral order doctrine are v ery strictly applied, and appeals under the doctrine may be entertained only in extraordinary circumstances. In Re Foley, 373 Md. 627, 634, 820 A.2d 587, 591 (2003) (citing Pittsburgh Corning v. James, 353 Md. 657, 660-661, 728 A.2d 210, 211-212 (1999); Shoemaker v. Smith, 353 Md. 143, 169, 725 A.2d 549, 563 (1999); Bunting v . State, 312 Md. 472, 476, 540 A.2d 805, 807 (1988)). Thus, the collateral order doctrine is a lim ited exceptio n to the princ iple that only fina l judgmen ts are appea lable and it may only be invoked in extraord inary circumstances whe n the conjunctive fou r-part test is met. The Govern or urges this C ourt to find th at the collateral order d octrine doe s apply because the contested order authorizes discovery into the decision-making processes of senior level government decision makers, and consequently poses a threat to the public s interest in efficient and unimpeded government deliberations. Moreover, the Governor asserts that if he were forced to delay his appeal until final judgment is entered, the excessive probing of the executive s decisional thought processes would already have taken place and could not be undone. The consequence of which would be to harm the public s interest in unimpeded deliberations by the executive branch. Appellees argue that the collateral order doctrine does not apply in the present case because the disputes over discove ry orders currently before the Circuit Cou rt for Baltimore -13- City-the existence of attorney-client privilege and the scope of expanded in camera reviewdo not conclusively resolve the remaining discovery disputes. There are no important issues, to be decided on appeal because, according to Grove, the Governor has waived executive privilege and the issues addressed are not separate from the merits of the action because they are essential to the action. M oreover, ev en though docume nts have been made available to Grove through expanded in camera review, there is no risk of pu blic harm because of a confidentiality agreement made between the parties. We disagree. The Governor of the State of Maryland has asserted executive privilege with respect to certain documents sought by Grove in discovery and continues to do so in this Court. As such, separation of pow ers principles are implicated and we must address the application of Maryland s discovery rules when executive privilege is asserted as well as when a Governor asserts attorney-c lient priv ilege an d/or the work produ ct doctri ne. Th us, this is a different context than that of Zaal8 and its progeny where expanded in camera review was applied without these additional factors. The additional factors of separation of powers, executive privilege, attorney-client privilege and the work product doctrine exist in the present case. B. Executive Privilege With these principles in mind, we turn to the seminal case in Maryland addressing executive privilege and discovery, Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980). In that case, the United States District Court for the District of Maryland certified questions 8 See note 3, supra and part D, below. -14- of law to this C ourt. 9 One of the certified questions was whether the doctrine of executive privilege prevents the discovery and the in camera inspection by the court of a confidential report prepared for and at the order of the Governor of Maryland. Id. at 546, 414 A.2d at 916. Judge Eldridge, writing for this Court, thoroughly expressed the legal and historical foundations of executive privilege: Our cases h ave rec ognize d, however, that the Governor bears the same relation to this State as does the President to the United States, and that generally the Governor is entitled to the same privileges and exemptions in the discharge of his duties as is the P residen t. Magruder v. Swann, Governor, 25 Md. 173, 212 (186 6); Miles v. Bradford, Governor of Maryland, 22 Md. 170, 184-185 (1864 ). In addition, we have observed, in various circumstances, that the principles behind the constitutional separation of powers, Art. 8 of the Maryland Declaration of Rights, place limits on a court s power to review or interfere with the conclusions, acts, or decisions of a coordinate branch of government made within its own sphere of auth ority. See, e.g., De p t of Nat. Res. v. Linchester, 274 M d. 211, 218 , 223-225 , 334 A.2d 514 (197 5); Heaps v. Cobb, 185 Md. 3 72, 45 A .2d 73 (19 45); Magruder v. Swann, Governor, supra; Miles v. Bradford, Governor of Maryland, supra; Green v . Purnell, Comptroller of the Treasury, 12 Md . 329 (185 8); Watkins v. Watkins, 2 Md. 341 (1852). Moreove r, it is apparent f rom the ve ry nature of go vernmen t that a legitimate necessity exists for the protection from a public disclo sure of cer tain types of official information. Thus, at least as early as 1807, in the treason trial of Aaron Burr, Ch ief Justice M arshall, sitting on the circuit cou rt, recognized the potential existence of an executive privilege from discovery for official governmental information and confidential communications to the executive. United States v. Burr, 25 Fed. Cas. 187, 191-192 (C.C. Va. 1807) (Fed. Cas. No. 14, 694). The Chief Justice acknowledged that, as a matter of public interest, President Jefferson might be a ble to prevent the disclosure by a potential prosecution witness of a letter to th e Presiden t which alle gedly contained state diplomatic secrets. Chief Justice Marshall observed (id. at 9 See Maryland Code (1974, 2006 Repl. Vol.), § 12-603 of the Courts and Judicial Proceedings Article which provides a statutory framework for certified questions. -15- 191-192): That the president of the United States may be subpoenaed, and examined as a witness, and requ ired to prod uce any pap er in his possession, is not controv erted. I cann ot, howev er, on this poin t, go the whole length for which counsel have contended. The president, although subject to the gen eral rules w hich apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its prod uction. I do not think precisely with the gentlemen on e ither side. I can readily conceive that the president might receive a letter which it would be improper to exhibit in public, because of the manifest inconvenience of its exposure. The occasion for demand ing it ought, in such a case, to be very strong , and to be f ully shown to the court before its production could be insisted on. I admit, that in such a case, much reliance must be placed on the declaration of the president; and I do think tha t a privilege d oes exist to w ithhold private letters of c ertain d escriptio n. The reaso n is this: Letters to the presiden t in his private cha racter, are ofte n written to h im in consequence of his public character, an d may relate to p ublic concerns. Such a letter, though it be a private one, seems to partake of the character of an official paper, and to be such as ought not on l ight gro und to b e force d into p ublic vie w. (Emp hasis su pplied.) See also United States v. Burr, 25 Fed. Cas. 30, 37-38 (C.C. Va. 1807) (Fed. Cas. No. 14, 692 d). The necessity for some protection from disc losure clearly extends to confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon fu ture governmental action. A fundamental part of the decisional process is the analysis of different options and alternatives. Advisory communications, from a subordinate to a governmental officer, w hich examin e and analyze these choices, are often essential to this pr ocess. The making of candid communications by the subordina te may well be hampered if their contents are expected to become public k nowle dge. . . . Hamilton, 287 Md. at 556-58, 414 A.2d at 921-22 (footnotes omitted). Th us, the nece ssity and validity of executive privilege has been recognized for almost 20 0 years by the cou rts -16- of this nation and although the recognition of the expansion of the concept to the decisional process of the executive s advisors acting in their advisory capacity has not been as long, it is equally necessary and valid. Both concepts are alive and well in Maryland. With the exc eption o f diplom atic or se curity ma tters, the privilege is not absolute, rather, it attempts to: [A]cco mmod ate the competing interests of a just resolution of legal disputes with the need to protect certain confiden tial governm ent communications. Neverth eless, when a formal claim of executive privilege is made for confidential communications of the chief executive, or confidential communications of other government officials of an advisory or deliberative nature, there is a presumptive privilege, with the burden upon tho se seeking to compel disclosure. A nd such c ommu nications are presum ptively privileg ed, even from the limited intrusion represented by an in camera examina tion of the co nversation s by a cou rt. [10] The treatment ac corded a c laim of executive privilege has varied somewhat depending on the circumstances. In many situations the 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. This has been done where the privilege is asserted for potential evidence at a criminal trial, or where there is an allegation of government misconduct, or where the government itself is a party in the underl ying litigatio n. 10 Judge Raker, discussing the origins and purpose of executive privilege, cited to the same Hamilton language in her dissent in Governor v. Washington Post Co., 360 Md 520, 759 A.2d 249 (2000) (Raker, J. dissenting) when she stated: . . . [T]here is a presumptive privilege, with the burden upon those seeking to compel disclosure. 360 Md. at 594, 759 A.2d at 289 (quoting Hamilton, 287 Md. at 563, 414 A.2d at 925). We went on to hold [in Hamilton] that this presumptiv e privilege extended even to the limited intrusion represented by an in camera examination of the c onversations by a court. 360 Md. at 594, 759 A.2d at 289 (quoting Hamilton, 287 Md. at 563, 414 A.2d at 925 (quoting Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F .2d 725 , 730 (D.C. Cir. 1974))). -17- Hamilton, 287 Md. at 563-64, 414 A.2d at 924 (citations omitted) (footnotes omitted) (some emphasis added ). When, as is the situation in the present case, the government is a party to the litigation: [A] question of unfair litigation advantage may arise. In other words, the government may be in a position of asserting or defending a claim while at the same time depriving its opponent of information needed to overcome the government s position. In these circumstances, courts have weighed the government s need for confidentiality against its opponent s need for information. See, e.g., [Stiftung v.] Zeiss, [] 40 F.R.D. [] [318,] 329, [(D.D.C. 1966)] and cases there collecte d; Olsen v. Camp, 328 F.Supp. 728, 731 (E.D. Mich. 19 70); Kaiser Aluminum[] [v. U.S.] [], 157 F.S upp. [] [93 9], 945 [(C l. Ct.1958)]. Cf. Machin v. Zuckert, 316 F .2d 336 , 339 (D .C. Cir. 1 963), cert. denied, 375 U.S. 896, 84 S. Ct. 172 , 11 L. Ed. 2d 124 (196 3). Of cou rse, in this situation, a determination by a court that the government s need for confiden tiality is outweighed by its oppon ent s need for disclosure, does not absolutely prevent the gov ernme nt from mainta ining co nfiden tiality. The government is then left with the choice of either producing the information or having the issue to whic h the info rmatio n relate s resolv ed aga inst it. See, e.g., United States v. Reynolds, [] 345 U.S. [1,] [] 5 [; 73 S. Ct 52 8, 530-31 (1953)]; Smith v. Schlesinger, 513 F .2d 462 , 468 (D .C. Cir. 1 975). . . . Hamilton, 287 Md. at 564 n.8, 414 A.2d at 925 n.8 (em phasis added). In short, if the cou rt deems that the governmen t s opponent s need for th e confide ntial inform ation is greater than the governm ent s need to protect the inf ormation, th e govern ment ma y still keep the information confidential at the risk of having those issues to which th e matters relate decided against it. The Hamilton Court further explained in camera review as it relates to situations in which executive privilege is invoked: It has repeatedly been stated that in camera inspection by the trial judge does not autom atically fol low w henev er a claim of exe cutive p rivilege is made . . . . -18- [T]he in camera inspec tion itself is an intru sion up on the p rivilege . Thus, when a formal claim of executive privilege is made, with an affidavit stating that the dema nded ma terials are of a type that fall within the scope of the privilege, they are presumptively privileged even from in camera inspection. The burden is on the party seeking production to make a preliminary showing that the communications or documents may not be privilege d or, in those cases where a weighing approach is appropriate, that there is some necessity for production. . . . Conseq uently, absent su ch a prelim inary showin g by the party demanding disclosure, the claim of executive privilege should be honored without requiring an in camera inspec tion. 287 Md. at 56 6-67, 414 A.2d at 926-27 (citations omitted) (em phasis added). It does not appear from the record, with respect to the documents the Governor claimed to be subject to executive privilege, that the Circuit Court for Ba ltimore City, in its November 9, 2004, opinion and order, or the Court o f Special A ppeals, in its April 10, 2006, order, ever made an explicit determination under Hamilton that Grov e had me t his burden of making a preliminary showing that the communications or documents may not be privileged or, in those cases where a weighing approach is appropriate, that there is some necessity for production. 287 Md. at 566, 414 A.2d at 926 (emphasis added). Under Hamilton, if Grove did not meet this burden then executive privilege should [have] be[en] honored without requiring an in camera inspection. 287 Md. at 567, 414 A.2d at 927. It is conceivable that Grov e met his burden un der Hamilton for e very d ocumen t to which the Governor was asserting privilege and that the Court of Special Appeals s order was consistent with the next step therein, an in camera inspection. We simply do not know on this record, whether the trial court determined that Grove had met his burden under Hamilton as to every document that was ordered to be viewed in camera. Even if w e did -19- know, there is no way for this Court to now undo the possible infringement on executive privilege that may have occurred when an in camera inspection took place in a situation in which Grove m ay not have m ade the appropriate showing for eac h documen t the court viewed. We went on to note in Hamilton that: [W]here a sufficien t showing is made to overcome the presumption, the cou rt should order an in camera inspection. Depending upon the issues and circumstances, the in camera inspection m ay be utilized to determine whether the material is priv ileged, to sever privileged from no n-privileged material if severability is feasible, an d to weigh the government s need for confiden tiality agains t the litiga nt s nee d for p roduct ion. 287 Md. at 567, 414 A.2d at 927. The above emphasized language encapsulates the basis for granting the present in terlocutory app eal. Simply pu t, the need to avoid a confrontation with constitutional implications between the Executive Branch and Judicial Branch over the production of material to which th e Execu tive is claiming privilege m ay, in certain circumstances, necessitate that the Executive n ote an interlocutory appeal. If, as we are instructed it is above, an in camera inspection is an intrusion on executive privilege, attorney-client privileg e and th e work produ ct doctri ne, then , clearl y, expanded in camera review is a more serious intrusion on those privileges because opposing counsel is being made privy to allegedly privileged information.11 Thus, in situations such as the instant case 11 There is an intrusion on executive privilege, if it exists, even w hen there is a court order and/or a confidentiality agreement between the parties requirin g opposin g counse l, in this case Grove s attorney, to keep the information confidential even from his client. The (continued...) -20- in which executive privilege and the other privileges are asserted and the trial court ord ers an expanded in camera review o f the materia ls to which privilege is asserted, on a cas e-bycase basis, the Executive may be able to note an interlocutory appeal so as to avoid a constitutional collision between the Executive Branch and the Judicial Branch. Returning to the four-p art test for the p ermissibility of interlo cutory appea ls laid out above and applying it to the instant appeal, the Governor easily meets the standard. First, the trial court s o rder conclusively determined that the Governor was ordered to disclose information which he was claiming was subject to privilege including executive privilege. Second, a potential intrusion on executive privilege and the other privileges, especially when asserted by a high governmental official, is an important issue. Third, the propriety of a potential intrusion on such privileg es has noth ing to do w ith the merits of Grove s wrongful termination claim. Fourth, disallowing the Governor s interlocutory appeal would be inapprop riate under the circumstances because of the potential disruption to the deliberative 11 (...continued) requirement that an attorney keep from his client documents he has received in the process of representing his client, raises additional issues relating to an attorney s duty to zealously represent his client. The issue of the appropriateness of the imposition of limitations by trial courts on th e rela tionship betw een a ttorn eys an d clie nts is bein g, with so me f requ ency, discussed. See Mon roe H. F reedm an, In Praise o f Overzea lous Repr esentation Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct, 34 Hofstra L. Re v. 771 (2006); Stephen Gillers, Monro e Freedm an s Solutio n to the Criminal Defense Lawyer s Trilemma is Wrong as a Matter of Policy and Constitutional Law, 34 Hofstra L. Rev. 821 (20 06); Jeffrie G. M urphy, Well Excuse Me! Remorse, Apology, and Criminal Sentencing, 38 Ariz. St. L.J. 371 (20 06); see also Sympo sium, The Worcester Co unty Bar A ssociation E ighth Annual Autumn Afternoon of Continuing Legal Education Presenting Sentencing in the State Courts (2006 ) (P.A. W imbrow , III, Mo derator ). -21- process of the Executive Branch, a harm which, once exec utive privileg e and the a ttorn eyclient privilege is broken, cannot be undone. Thus, the collateral order doctrine s four-part test is met and an interlocutory appeal is appropriate under these extraordinary circumstances involving d iscovery orde rs directed to a high gov ernment o fficial. C. Expanded In Camera Review and Attorney-Client Privilege 12 Maryland Rule 2-402(a) states in relevant part: A party may obtain discovery regarding any matte r, not privileged . . . . (Em phasis a dded). The type of privilege that is relevant in this portion of our discussion is that which exists between an attorney and his or her client. 13 Practically speaking, [o]nce the attorney-client privilege is invoked, the trial 12 This portion of our disc ussion treats th e attorney-client privilege and the work product doctrine as being interchangeable for the purposes of clarity. With that said, we are, of course, aware of the differences between attorney-client privilege and the work product doctrine as laid out in E.I. Dupont v. de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 718 A.2d 11 29 (1998). Although the Governor does not specifically assert the protection of the work product doctrine in his brief before this Court, he did assert it in pleading s related to the dispute giving rise to this mo st recent interlo cutory appea l. In an effo rt to prevent confusion on remand, the Governor is free to re-assert the protection of the work produc t doctrine, as it relates to docum ents which are subject to the May 8 and May 24, 2006, orders, in order for the trial court to make a determination of its applicability consistent with this opinion and other re levant c ase law . See, e.g., E.I. Dupont, supra. 13 In Newman v. State, 384 Md. 285, 863 A.2d 321 (2004), Judge Battaglia thoroughly explained the purpose and scope of the attorney-client privilege: The Supreme Court has recognized the attorney client privilege as the oldest of the privileges for confidential communications known to the common law. Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2 d 584, 5 91 (19 81). ... (continued...) -22- 13 (...continued) We have stated that the privilege is an accommodation of the competing public interests of the need to promote candor in communications between attor neys and their clients and the general testimonial compulsion to divulge relevant evidence in the pursuit of truth and justice. See Harrison [v. State], 276 Md. [ 122,] [] 133, 345 A.2d [830,] [] 837 [(1975)]. It is so basic to the relationship of trust between an attorney and client that, although it is not given express constitutional protection, it is essential to a defendant s exercise of the constitutio nal guaran tees of cou nsel and freedom from selfincrimin ation. Id. The privilege is understood to be a rule of evidence that prevents the disclosure of a confidential communication made by a client to his attorney for the purpo se of o btaining legal ad vice. See E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 M d. 396, 414, 718 A.2d 1129, 1138 (1998), citing Levitsky v. Prince Georg e s County , 50 Md. App. 484, 491, 439 A.2d 600, 604 (1982). In Harrison v. State, supra, we adopted Professor W igmore s definition of the attorney-client privilege: [ ](1) Where legal advice of [any] kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by his legal adviser, (8) except the protection [may] be w aived.[ ] 276 Md. at 135, 345 A.2d at 838, quoting 8 JOHN H. W IGMORE ON E VIDENCE § 2292, at 554 (McNaughton rev. ed.1961) (footnote omitted). The common law privilege is co dified in Section 9-108 of the Courts and Judicial Proceedings Article of the Maryland Cod e, which states, A person may not be compelled to tes tify in violation of the attorney-client privilege. Md. Code (1974, 2002 Repl. Vol.), § 9-108 of the Courts and Judicial Proceedings Article. The privilege, although essential to an effective attorney-client relationship, is not ab solute. In re Criminal Investigation No. 1/242Q, 326 Md. 1, 11, 602 A.2d 1 220, 12 25 (19 92). We have observed that [o]nly those attorney-client communications pertaining to legal assistance and made w ith the intention of confiden tiality are within the ambit of the privilege. E.I. du Pont de Nemours, 351 Md. at 416, 718 A.2d at 1138. This Court in Lanasa v. State, 109 Md. 602, 71 A. 1058 (1909), observed, [T]o make the communications privileged, they . . . must relate to p rofessiona l advice and to (continued...) -23- court decides as a matter of law whether the requisite privilege relationship exists, and if it does, whether or not any such communication is privileged. E.I. DuPont, 351 Md. at 415, 718 A.2d at 1138 (quoting Harrison v. State, 276 Md. 122 , 136, 345 A.2d 8 30, 838 (1975)). If that two-part test is met, then any comm unications which are subject to the privilege are not discoverable. In the unusual circumstances of the present case, the Circ uit C ourt for B altim ore C ity, in its May 24, 2006, order, acting pursuant to the Court of Special Appeals s April 10, 2006, order, effectively directed that certain documents w hich the Govern or claimed were subject to attorney-client privilege be made available to Grove s counsel through expanded in camera review. A fter the Go vernor file d a motion for clarification or reconsideration, asserting the attorney-client privilege specifically to certain documents, and Grove filed a response, the Circuit Court, based on Grove s waiver of his request, found that four docume nts relating to Grove s litigation were privileged and denied the remainder of the Governor s motion. The consequence of which was to make some of the documents the Governor was claiming were privileged available to Grove s counsel for expanded in camera 13 (...continued) the subject-ma tter about w hich the ad vice is sought. Id. at 617, 71 A. at 1064. See also Mo rris v. State, 4 Md. App. 2 52, 255, 242 A.2d 5 59, 561 (1968), quoting Colton v. United States, 306 F .2d 633 , 637, cert. denied 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 4 99 (1963 ) ( [T]he p rivilege exten ds essentially on ly to the substance of matters communicated to an attorney in professional confid ence. ). Newman, 384 Md. at 300-03, 863 A.2d at 330-31. -24- review. The Governor argues that documents which are protected by the attorney-client privilege should not be subjected to expanded in camera review. H e is correct . If they are protected by the privilege they are not subject to such expanded review. Grove counters by arguing that the Governor should not be allowed to assert the attorney-client privilege because, according to Grove, the Governor had never before asserted the attorney-client privilege with re spect to the doc umen ts whic h are the subjec t of this a ppeal. Grove also argues that the Governor is asserting the privilege too broadly and that he has waived it by producing similar documents.14 14 We reject Grov e s argument asserting that the Governor waived attorney-client privilege by producing documents similar to the ones for which he is asserting the privilege (without m aking a jud gment as to whether the Gov ernor did produce docume nts similar to the ones he is c laiming are p rivileged) as b eing not on point. Gro ve argues that attorneyclient privilege asse rtions must be consistent. According to Grove, a privileged party cannot fairly be permitted to disclose as much as he pleases and then to withho ld the rema inder to the detriment of the [opposing party]. This language originated in Greater Newburyport Clamsh ell Alliance v. P ublic Serv. Co. of New Hampshire , 838 F.2d 13, 20 (1st Cir. 1988), and came into Maryland when it was quoted in Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 693, 756 A.2d 526, 538 (2000). Both the First Circuit and this Court, in the two cases, used defendant where Grove disingenuously inserted [opposing party] in his brief. The cases were specifically direc ted at limitations on civil plaintiffs, not defendants, and correctly used the original language to refer to the express and implied waiver principle, which has its basis in fairness and consistency, that a plaintiff may not use the attorney-client privilege as both a sword (using such privileged information to assert his claim) an d a shield (while at the same time denying discovery to a defendant as to the balance of the privileged information) against a defendant. The present case is readily distinguishable from Greater Newburyport and Parler & Wobber because the Governor is not a plaintiff and is not asserting a claim against Grove based upon the use of privileged information. The above principle of fairness and cons istency does n ot, in this particula r context, ap ply to this (continued...) -25- On or abou t April 5 , 2004, in the Governor s amended response to Grove s request for documents, the Governor clearly made a blanket statement protecting documents subject to the attorney-clien t privilege. It is only natural, as the discovery process unfolds, that the scope of the Governor s blanket statements covering privileged material narrowed from many documents to fewer documents. Although it is preferred th at response s 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 d ocumen ts are protecte d by attorn ey-cli ent p rivile ge w hen they a re collecting and sorting tens of thousands of docum ents in the ea rly stages of a litigatio n with such broad discovery requests of this nature. The discovery process is designed , in part, to narrow the scope of information necessary to conduct a trial. In the early stages of that process lawyers may make blanket assertions to protect their clients and preserve the protection until the discovery process narrows the scope of inquiry to relevant documents. 14 (...continued) defenda nt. The princ iple of Parler & Wobber, to the extent p reviously applied in this State, relates to civil plaintiffs in professional malpractice cases. We said in Parler & Wobber: Maryland recogniz es that the attorney-client privilege[s] . . . are waived in any proceeding w here the client challenges its hired prof essional s activity or a dvice. These waiver rules are based, in part, on the premise that the client cannot use the advice of a professional as swo rd to pro ve the c lient s ca se . . . while at the same time asserting the privilege as a shield to prevent disclosing harmf ul infor mation . 359 Md. at 692-93 , 756 A.2d at 537 -38 (citations omitted). Parler & Wobber simply has no applicability in the context of the present case. -26- Once that point is rea ched, the p rotection is tailored to specific communications. The initial action of the Go vernor in broadly asserting the attorney client privilege was no different than the initial over-b road re ach of Grov e s disco very requ ests. It is unclear fro m the cou rt s June 23 , 2006, orde r whethe r the Circuit Court actu ally determined that the documents w ere not subject to attorney-client privilege or wh ether, irrespective of the applicability of the privilege, the Circuit C ourt felt bound to subject them to expanded in camera review as a result of the Court of Special Appeals s April 10, 2006, order. In either eventuality, documents which are subject to the attorney-client privilege, generall y, are not to be subjected to expanded in camera review because of the havoc such a practice would play with one of the cornerstones of our judicial system-the protected communication between an attorney and his or her client. Simply because the Govern or is a government official does not make the protection of his communications with his attorney any less important o r less viable. W e conclud e that the trial co urt acted imp roperly if it ordered that documents subject to attorney-client privilege be made available for expanded in camera review.15 If it did so, it abused its discretion. Therefore, on remand any document determined by the trial court to fall within the coverage of attorney-client privilege or the work product doctrine shall not be made available to Grove or his attorney in any manner, 15 Documents covered by the attorney-client privilege may, and often do, individu ally relate to matters of trial strategy. Not only do such covered documents reflect their own content but a consideration of nu mbers of them ma y, in addition, disclo se the actua l, privileged, stra tegy of coun sel. -27- including through expanded in camera review. D. Third Party Letters The trial judge granted Grove s request to view some of the information in the personnel files of 341 individuals and determined that the remaining information in those files was irrelevant. Then, the trial judge caused a letter to be sent to the 341 individuals, whose information was in the files, asking them for permission to release the remaining information (the content of which the trial judge had already determined was irrelev ant) to Grove s coun sel. This was improp er. The court below relied on the balancing test laid out by the C ourt of Sp ecial App eals in Blades v. Woods, 107 Md. App. 178, 667 A.2d 917 (1995), to determine whether Gro ve s attorney should have acce ss to information in the pe rsonnel files of 341 f ormer Sta te employees. The Blades balancing test was originally expressed in Zaal, supra, a criminal case, but since Zaal it has been applied in factually or pro cedurally uniq ue civil cases by this Court. The relevant elements of the Zaal test have appeared in three civil appellate opinions of this State: Porter Hayden Co. v. Bullinger, 350 Md. 4 52, 713 A.2d 9 62 (19 98), Dep t. of Social Services v. S tein, 328 Md. 1, 612 A.2d 880 (1992), and of course Blades which relied on Stein and Zaal in formulating its test. These cases a re readily distinguishable from the present case because they do not directly involve the Governor of Maryland and his assertion of executive privilege, or the assertion by the G overnor , or in fact an as sertion by any party, of attorney-client privilege and/or the work product doctrine. -28- In Porter Hayd en Co ., we add ressed the p ropriety of a trial court s decision to rely on confidential settlement agreements reached in a prior federal court litigation, in which not all of the Porter Hayd en Co . parties were involved, without d isclosing tho se agreem ents to such parties in a subsequent litigation before a court of this State. We held that the settlement agreements were to be disclosed, in a manner consistent with the procedures laid out in Zaal, because it w as inappro priate for the trial court to rely on the agreements as evidence and then to deny a pa rty affecte d by its dec ision ac cess to th at evide nce. Porter Hayden Co., 350 M d. at 468-69 , 713 A.2d at 970. At n o point w as any form of privilege , to include exec utive privileg e, attorne y-client privilege or the work product doctrine, raised. There fore, Porter Hayden Co. is not applicable in the present case. In Stein, the p aren ts of Step hen Ray, in their own righ t and on his behalf, bro ught suit against James Ste in for physical, m ental, and em otional injury alleg edly caused by lead paint poisoning suffered by Stephen while he was living in a home owned and managed by Stein. Stein, seeking information regarding Stephen s social environment that could offer alternative reasons for his alleged injuries, served the Baltimo re City Department of Social Services (the B CDS S ), a non-pa rty, with a notice to take a deposition duces tecum requiring the BCDS S s director to produce the ag ency s entire file on Stephen s family. The BCDSS, relying in part on Maryland Code (1957, 1991 Repl. Vol.) Article 88A, § 6, resisted the subpoena on the grounds that the records were (1) confidential and could only be released pursuant to a court order, (2) that the records were protected by executive or governmental -29- imm unity, (3) that executive or governmental privilege exempts the records from disclosure, and (4) that the social worker, a nd/or psycho logist/psychiatrist-pa tient, privilege p otentially applied to the req uested portion s of the record . Stein, 328 Md. at 4-5, 612 A.2d at 881-82. Stein filed a motion to compel and the trial court granted Stein s motion giving him access to any of BCDSS s files on Stephen s family. The BCDSS noted an appeal based on the collateral order doctrine. We resolved the matter on the basis of the confidentiality provision found in Art. 88A § 6 and did not reach the other claims of privilege. The Stein Court found that the collateral o rder doctrine did not app ly to the facts before it because th e BCD SS was not a party to the suit, 328 Md. at 12, 612 A.2d at 885, but allowed a n appeal a nyway holding that: [A] discovery order directed to a governmental agency, a non-party to the underlying action, requiring the disclosure of files which contain information which, by statute, is confidential except when disclosed by the agency or by court order, is immediately appealable by the agenc y. The harm which w ill occur to the agency and the public the pote ntial inability of the a gency to acquire information essential to its mission were we to hold otherwise is much greater than it w ould be for priv ate indiv iduals a nd entiti es. Id. at 20-21, 612 A.2d at 889. In so holding, the Stein Court fo und the circ umstance s presented to it were simila r to the reasoning that the collater al order doc trine has perm itted appeals in situations involving government official immunity. The Stein Court pointed out that if the BCDSS were forced to wait to appeal until after the records were disclosed the purpose of Art. 88A § 6's confiden tiality protections w ould be fru strated just as the purpose of government official -30- immunity would be frustrated if that official were not able to take an interlocutory appeal after a determination was made at the trial level regard ing his o r her im munity sta tus. 328 Md. at 19, 61 2 A.2d at 889. In making this analogy, the Stein Court s purpose was to show the necessity of allowing the interlocutory appeal. Its purpose was not to imply that governm ent official im munity applied to the facts b efore it. Turning to the merits of the case, the Court noted that because of the nature of Stephen s family s (the plaintiffs in the underlying case) claim, the complete environment in which Stephen was raised had been put at issue by them and , therefore, sh ould be av ailable to the opposing parties. 328 Md. at 30, 612 A.2d at 894. Thus, the Court, relying on Zaal, determined that Stein, bas ed on the re asonable possibility that reviewing the records would lead to discoverable evidence, was entitled to examine the records without having disclosed to him more of the documents than necessary, consistent with the confidentiality protections in Art. 88 A, § 6. Stein, 328 M d. at 30, 6 12 A.2 d at 894 . The Stein Court, how ever, did ho ld that the trial court erred in ordering BCDSS to release all of its records pe rtaining to Stephen s family and remanded the matter to the trial court to proceed consistent with the balancing test in Zaal. Stein, 328 Md. at 30, 612 A.2d at 895. The Stein case, albeit a c ivil case, was very similar to the Zaal case. It involv ed an und erlying defen dant attemp ting to counte r the alleg ations p roffer ed by a pl aintiff. In the Stein case, although the BC DSS asserted im munity and certain privileges, including exec utive privileg e, the Cou rt decide d the confide ntial ity issues presen ted to it -31- solely on the basis of the statutory requirements of Art. 88A, § 6 and never reached the applicability of immunity or any type o f privilege to inc lude execu tive privilege, a ttorneyclient privilege or the work product doctrine. Thus, Stein is additionally disting uishable from the present case and does not apply here. The Blades case, supra, involved the termination of a police officer who alleged he was terminated for racial reasons. It was determined in Blades that the police officer there involved did not have absolute immunity. That court was also not dealing with any claims of executive privilege, attorney-client privilege, o r the work product d octrine. The only issues discussed in that case concerned allegations that requests for interrogatories were overbroad in scope and whether confidential information was discoverable based on privacy concerns. Separation of powers issues and other privilege issues were not extant in that case. While we do not expres sly adopt, or overrule, the application of the Zaal/Stein/Blades balancing test in the context of a case involving executive privilege, attorney-client privilege and/or the work product doctrine, even if it were to apply it was misapplied here. In its May 8, 2006, order, the Circuit Court determined that certain records and communications pertaining to the termination of the 341 former State employees were relevant to Grove s claim and should be subjected to expanded in camera review: Based on its in-camera inspection of the thirty (30) sample personnel files, this Court believes that because these f iles represent individuals who were terminated during the r elevant time period, all documents representing notice of termination by certified and regular mail, and all communications generated by each employee p ertainin g to said termina tion, should be disclosed to Appellee s counsel o f record, in th eir roles as of ficers of the Court. -32- Then, in the same order, the trial court plainly stated that any additional information in those 341 individual s personnel files was irrelevant to Grove s claim: This Court further believes that all other documents contained within these thirty (30) individual personnel files, when considered in light of M d. Rule 2402 and the sparse Maryland case law [] [See Blades v. Woods, 107 Md. App. at 183, 667 A .2d at 91 9-20], should not be disclosed as they are not relevant or likely to lead to admis sible evi dence . This Court finds that disclosure of these documents would unnecessarily reveal confidential information of each individual. . . .[T]his Court believes that the rem ainder of the three hun dred forty one (341) individual files requested for production by Appellee Grove should be disclose d utilizin g the sa me, pre cise me thodol ogy. . . . (Em phasis a dded.) Despite this determination, the trial court then exceeded even the bounds of the Court of Special Appeals s finding in Blades by improperly assisting Grove in contacting the 341 individuals so that Grove might discuss their individual situations or obtain the release of information, including information the trial court had already determined was irrelevant or would lea d to inadm issable evide nce. The M ay 8, 2006, ord er continue d, in relevan t part: The Court assu mes that co unsel for A ppellee G rove may w ish to contact all of these three hundred and forty one (341) individuals. Counsel for both parties shall meet on or before May 13, 2006 and draft a joint letter which will thereafter be submitted to the Court for approval. Counsel for Appellee Grove may then utilize the approv ed letter in initially contacting the identified, terminated individuals to determine whether those individuals would object to further discussion of their personal situations with counsel for Appellee Grove and/or whether they would be willing to waive any claims for confid entiality of their person nel file wh ich wou ld allow co unsel further oppo rtunity to review other aspects of the files not release d herein . . . . (Foo tnote om itted.) Apparently, the parties advised the trial court that they were unable to agree on the language of the letter to the 341 individ uals. Co nsequ ently, the court drafted a letter to the -33- 341 individuals and in its May 24, 2006, order, directed the parties to send it to the individuals in question. T he letter read, in relevant pa rt: We are writing to you to m ake yo u aware of a Court Order in the above-captioned litigation which may hav e implic ations f or you. Pursuan t to an Order entered by the Court, which is enclosed, the State has been ordered to make available to Mr. G rove s counsel any notices of termination generated by the State of Maryla nd or one of its agencies, which were served by certified and regular mail and all communications generated by said employees (recipients of said n otices) p ertainin g to said termin ation. As is clear from the Court Order, these documents will not be released to anyone other than counsel in this matter an d will contin ue to be he ld confide ntial unless you consent otherwise. Counsel for Mr. G rove has re quested th e right to contact you and discuss further aspects of this matter with you. You have the right to agree to discuss these ma tters with the a ttorn eys or object and refuse to do so. You also have the right to determine whether you would object to the release of any information to anyone. In the event you have questions regarding th e contents of this letter, you may contact the undersigned at the telephone numbers listed below. Every effort has been made to protect all aspects of your confiden tiality with regard to this ma tter. Addition ally, it is hoped that th is matter will be of no inconvenience to you. We request that you indicate below whether you consent or wish to withhold consent to being contacted by counsel. We respectfully request that you sign and return this letter in the enclosed self-addressed envelope which will go directly to the judge overseeing the litigation. A second copy of this letter is enclosed for your file. (E mpha sis adde d.) In short, the trial cou rt ordered the parties to send a letter it drafted to the 341 individuals in order to obtain information, including the type of information it had already determine d, in its May 8, 2006, order, was not relevant to Grove s claim. Pursuant to the May 8, 2006, order, Grove s attorney already had access, and for the procedure to gain access, to the information potentially relevant to Grove s claim the documents and communications -34- pertaining to the termination of those 341 former employees. This further action by the trial court far exceeded the actions prescribed even in Blades. The trial court made itself an active participant in aiding Grove. We are troubled by the trial court s actions in two respects. First, the trial court s May 8, 2006, ord er is inconsiste nt. The trial co urt made a determina tion that only certa in information in the personnel files of the 341 indiv iduals wa s relevant to Grove s claim and subject to expanded in camera review. Then, in the same order the court determined that Grove should be allowed to contact the 341 former state employees in order to discuss the ir personal situations and their willingness to waive co nfidentiality with respect to their entire personnel files-includin g the very info rmation tha t the trial court de termined w as not relevant to Grove s claim. The end result is that the trial court encouraged Grove to contact the former employees about information it had already d etermined was irrelev ant to Grove s claim and the order enabled Grove s attorney to go on a fishing expedition for additional claims against the Governor. Second, and perhaps most troubling, the nature of the trial court s order and its authorship of the letter, put the trial court in a position where its orders pro-actively assisted Grove in building his case to the detriment of the opposing party, i.e. the Governor of Maryland. We can perce ive no pro per reason why the trial co urt exceeded even the bounds of -35- Blades in this manner. 16 Doing so was clearly an abuse of discretion. We recognize, however, that the letters to the 341 ind ividuals cann ot be un-mailed and that t he at torneys for Grov e, to the e xtent tha t they hav e had c ontact w ith any of the 341 individ uals, cannot un-con tact them. Regardless, the information so gathered, consistent with the trial court s original determination that the information was irrelevant, is not to be put before the finder of fact in any case. Moreover, any inform ation received by the Circuit Co urt for Baltimore City in response to the letters mailed to the 341 former employees, is to be placed under seal and is not to be shared with Grove, his counsel, or any other entities. IV. Conclusion For the foregoing reasons, we hold that an interlocutory ap peal is appro priate under the extraordinary circumstance of a discovery order being directed to a high government official when the collateral order doctrine s four-part test is met. We also hold that the Circuit Court fo r Baltimore City abused its discretion when it ordered expanded in camera review of documents protected by the attorney-client privilege or the work product doctrine. The trial court also a bused its disc retion wh en it solicited the consent of third parties to the release of documents it held were irrelevant and not reaso nably calculate d to lead to admissible evidence in Grove s case. 16 We note again that w e have ne ither previou sly adopted nor rejected the application of the Zaal/Stein/Blades test in this context the Governor of Maryland asserting executive privilege or in the context of the Governor of Maryland, or any other person, asserting attorney-client privileg e and/o r the wo rk prod uct doc trine. We do not do so now . We me rely point out that the trial court erred in applying that test, even if it were applicable. -36- ORDERS OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED AND CASE REMANDED FOR PROCEED INGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT TO BE PAID BY THE APPELLEE. -37-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
