REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 335
September Term, 2001
___________________________________
ELKTON CARE CENTER ASSOCIATES
LIMITED PARTNERSHIP T/A MEDPOINTE
v.
QUALITY CARE MANAGEMENT, INC.
___________________________________
Murphy, C.J.,
Eyler, James R.,
Moylan, Charles E., Jr.,
(Ret’d, specially assigned),
JJ.
____________________________________
Opinion by Murphy, C.J.
____________________________________
Filed: August 29, 2002
In the Circuit Court for Cecil County, a jury (the Honorable
Dexter M. Thompson, Jr., presiding) found that Elkton Care Center
Associates Limited Partnership t/a Medpointe (Medpointe),
appellant, breached its contract with Quality Care Management,
Inc. (QCM), appellee.
Appellant argues that it is entitled to a
new trial and, in support of that argument, presents two
questions for our review:
1.
Whether the inadvertent disclosure
during discovery of a memorandum
containing communications protected by
the attorney-client privilege and the
work product doctrine constituted a
waiver of Medpointe’s right to claim
said protections at trial?
2.
Whether the trial court’s decision, over
Medpointe’s objections, to permit the
jury to hear evidence of communications
protected by the attorney-client
privilege and the work product doctrine
was harmless error?
For the reasons that follow, we shall affirm the judgment of
the circuit court.
Factual Background
Appellant constructed a nursing home in Elkton, Maryland and
on June 27, 1994, entered into a Nursing Center Management
Agreement with appellee.
The agreement, which provided that
appellee would manage the nursing home for an initial term of
three years, included the following “termination” clause:
11. Termination. The Owner shall have the
right to terminate this Agreement and the
1
employment of the Manager, and except as to
liabilities or claims which shall have
accrued or arisen prior to such termination,
all obligations hereunder shall cease upon
the happenings of any of the following
events:
(1) If the Manager files ... bankruptcy....
(2) By the taking of the entire or a
substantial portion of the Facility, or its
services, through lawful condemnation
proceedings by any governmental authority.
(3) The loss by the Owner ... due to its
default on any mortgage or other obligation,
or by operation of law.
(4) .... substantial damage or destruction of
the Facility by fire or other casualty ...
(5) The giving of written notice by either
party or the other if a party has been
grossly negligent in the performance of its
obligations under this Agreement (including,
without limitation, failure to obtain the
initial operation license for the Facility or
causing the Facility to be in danger of
losing its operating license, although State
and/or Federal deficiencies including, but
not limited to, fast track impositions, are
not in and of themselves uncommon nor
decisive indication of negligence on the part
of Q.C.M., or qualification as a health care
provider for Medicare or Medicaid
reimbursement purposes) and such notice sets
forth the details of such alleged breach, and
the defaulting party shall not, within thirty
(30) days after the mailing of such notice,
have cured such breach, or if such breach is
of a nature that it cannot be cured within
such (30) day period have commenced and at
all times thereafter have diligently
proceeded with all acts required to cause
such breach. Any such termination shall be
without prejudice, however, to any and all
rights and remedies of the non-defaulting
party.
2
(6) Failure to maintain 85% occupancy after
twenty-four (24) months of operation if
directly and unequivocally due to gross
negligence on the part of Q.C.M. ...
(7) At the completion of the first twentyfour month period of operation Owner shall
review the past twenty-four (24) months
performance of the Manager. If the
operational and economical goals as agreed
between parties at the inception of this
Agreement have not been met Owner has the
unequivocal right to terminate or amend this
Agreement.
(a) Operational Goals. The Facility
shall have a trained staff capable of
providing services that meet all local, state
and federal requirements.
(b) Economical Goals. Net income before
taxes at the end of the first twenty four
(24) months operational period shall be
within the parameters of the Budgets of the
Facility as determined by the public
accounting firm specializing in long term
care reimbursement and as agreed upon by both
Owner and Q.C.M.
If budgeted goals are not met due to
unforeseen events which were not directly the
fault of Q.C.M., Q.C.M. shall not be
considered negligent, such as but not limited
to a reduction in Medicare/Medicaid
reimbursement, etc.
Q.C.M. makes no guarantees that
operational and economic goals will be
obtained although the intent of Q.C.M. is to
attain and/or exceed Budget and Owner
expectations.
(8) The sale of the property by the Owner....
- During the third year the Manager will be
paid his fee through the date of termination.
3
In November of 1996, appellant terminated its agreement with
appellee pursuant to Paragraph 11(7) of the Nursing Center
Management Agreement.
In April of 1998, appellee sued appellant
for “wrongful termination” of the agreement.
Procedural History
During the discovery phase of this case, pursuant to a
request for document production, a lawyer in the firm that was
then representing appellant produced a box that contained a
number of documents.
It was agreed that (1) appellee’s counsel
would examine the documents in the box and identify which
documents they wanted copied, and (2) appellant’s counsel would
make, and deliver to appellee’s counsel, a copy of each document
that had been “tabbed” by appellee’s counsel.
Included among
these documents was a memorandum from a lawyer to Mr. Willits,
the president of Medpointe, who had retained that lawyer’s firm
to determine what defenses would be available to appellant if
appellee filed a wrongful termination action.
This memorandum
was expressly designated as “ATTORNEY/CLIENT PRIVILEGE ATTORNEY
WORK PRODUCT PREPARED IN ANTICIPATION OF LITIGATION.”
The
memorandum was tabbed by appellee’s counsel, and a copy was later
forwarded to appellee’s counsel along with copies of other tabbed
documents.
At trial, appellant’s trial counsel called Mr. Willits, who
testified as follows during his direct examination:
4
Q. And what I’d like to do is to cut right
to the chaff [sic], if I could. I’d like you
to point the ladies and gentleman of the jury
to the section of the contract that Medpointe
relies upon in terminating its management
contract with OCM.
A.
It’s on Page 10.
Q.
We are on Joint Exhibit Number 1?
A.
Right.
A.
Subsection - - or Section 7.
Q. What portions of that section of the
contract does Medpointe rely upon in saying
that it had the unequivocal right to
terminate the agreement?
A. The portion re[sic]lied upon - - two,
first one A and B. QCM did not meet their
operational goals, nor did they meet their
economic goals.
Q. How is it that they did not meet their
operational goals?
A. They didn’t have a trained staff that
maintained a quality of health care
consistent with state and federal
regulations. Additionally, they didn’t have
a trained staff that maximized the
reimbursement rates for Medicare; and their
trained staff was not capable, according to
the state, of providing in-house education
for the employees of Medpointe.
Q. Can you tell the ladies and gentleman of
the jury how is it they failed to meet their
economic goals?
A. The economic goals were established by
the budget projections of May of ‘94, which
the did not come close to meeting.
Q. Now you say their budget projections,
what are you referring to?
5
A. The projections that were prepared by
Wolpoff & Company in May of ‘94, they are an
exhibit, because I’ve seen them before in
these proceedings.
* * *
Q. In that October-November 1996 time frame
when the management contract is terminated,
can you give the ladies and gentleman of the
jury a sense of what the economic or
financial condition of the facility was?
A. The facility had a loss of approximately
$800,000, and - THE COURT: What period are we talking about?
[APPELLANT’S COUNSEL]: October-November 1996
time period that - - the contract termination
time period.
A. The facility had a loss of some $800,000,
and we were maximized on our - - maximized on
our line of credit to something in excess of
a million dollars.
The following transpired during Mr. Willits’ crossexamination:
[APPELLEE’S COUNSEL]: Isn’t it true that it
wasn’t until after March of 1997 when [the]
lawyer [retained by MedPointe’s principal
owner] told you that you had breached the
contract by improperly terminating it, that
you first came up with the excuse that you
testified to today?
[APPELLANT’S COUNSEL]: Your Honor, I object
to that.
THE COURT: Approach the bench.
* * *
THE COURT: ....Have you all discussed this
yet? Has– everybody knew this was coming?
6
[APPELLANT’S COUNSEL]: No, no, judge.
THE COURT: Where did it come from?
[APPELLEE’S COUNSEL]: They produced it in
their documents. We tabbed it. They copied
it. They sent it to us. I intend to use it.
[APPELLANT’S COUNSEL]: I have no idea. I am
not calling him a liar. I just have no idea.
THE COURT: You better get together and
discuss this ... you might have a waiver.
A luncheon recess occurred at this point.
The following
transpired when the proceedings resumed:
THE COURT: ... How did you get this, by
requesting documents?
[APPELLEE’S COUNSEL]: We filed a request for
production of documents, that was responded
to; we went over, we inspected the documents.
It was among them. We said we want a copy, I
think, of everything– or did you just tab it?
[APPELLEE’S CO-COUNSEL]: Your Honor, there
was a – we got about a half full box, bankers
box of documents that the other side
produced.
THE COURT: From whom?
[APPELLEE’S CO-COUNSEL]: From the law firm
representing the [appellant], and I tabbed
the documents. I did not tab every document.
I tabbed the documents I wanted. This was
among them. We received documents in a –
just a manila envelope from the – with a
white first class sticker on it. I showed
them to [appellee’s counsel] when I got them,
and that’s what she wrote.
The following transpired after Judge Thompson decided that
appellee’s counsel could use the memorandum during Mr. Willits’
7
cross-examination:
[APPELLEE’S COUNSEL]: Mr. Willits[,][sic] in
March of 1997[,][sic] four months after you
terminated [the operator’s] contract or his
company’s contract[,][sic] you sought advise
from a law firm in Carroll County or
Baltimore... [I]s that correct?
[APPELLANT’S COUNSEL]: Objection[,][sic] your
Honor.
MR. WILLITS: That’s correct.
[APPELLEE’S COUNSEL]: And you requested that
law firm to give you an analysis of the
situation involving the termination of
Quality Care[,][sic] and strategy suggestions
to prepare for a defense of a possible
lawsuit. [I]sn’t that true[sic] sir?
[APPELLANT’S COUNSEL]: Objection[,][sic] Your
Honor.
THE COURT: Overruled.
MR. WILLITS: We asked the law firm for their
opinion of what the contract said.
* * *
[APPELLEE’S COUNSEL]: Did they not advise you
- - subject to your lawyer’s
objection[,][sic] did they not advise
you[,][sic] “Under the plain language of the
terms and conditions of the Agreement
governing its termination[,][sic] Medpointe
has not yet properly terminated the
agreement”?
MR. WILLITS: That was their reading of the
contract. [C]orrect.
THE COURT: Now ladies and gentleman.
[U]nderstand that this is an opinion rendered
by a law firm that didn’t come in evidence
that you can say, well the law firm said
this[,][sic] therefore[,][sic] they didn’t
8
meet it. This is just solely given to you as
to why Mr. Willits or the company may have
done what they did afterwards. So that
opinion may be a right opinion or wrong
opinion. You are going to decide the issues
of the case[,][sic] not a law firm.
Go ahead.
[APPELLEE’S COUNSEL]: And it was after this
opinion[,][sic] Mr. Willits[,][sic] that you
decided to latch onto Paragraph 7. [I]sn’t
that right[,][sic] sir?
MR. WILLITS: Wrong.
[APPELLANT’S COUNSEL]: Objection[,][sic] your
Honor.
THE COURT: Overruled.
MR. WILLITS: Wrong.
THE COURT: He said wrong.
*
*
*
[APPELLEE’S COUNSEL]: Strike that. Before I
get back to that. Didn’t you also ask the
law firm to give you a strategy to prepare
for a defense of a possible lawsuit against
it by - - against you by OCM?
[APPELLANT’S COUNSEL]: Objection.
MR. WILLITS: I don’t remember.
THE COURT: Overruled.
[APPELLEE’S COUNSEL]: Let me show you a
document which has been marked as Exhibit - Plaintiff’s Exhibit 15. Can you identify
this document[,][sic] sir?
MR. WILLITS: That’s the memorandum from [the
lawyer retained in March of 1997].
[APPELLEE’S COUNSEL]: Okay. And would you
read to the jury the last sentence in the
9
introductory? Why don’t you just read the
whole first introductory paragraph.
[APPELLANT’S COUNSEL]: Your Honor, my
understanding of why this is being presented
to the witness is not - - for purposes of
refreshing his recollection. This is not a
document that has been - - at least at this
point in time is not in evidence.
THE COURT: Well[,][sic] I’m going to overrule
that. I will allow that.
[APPELLEE’S COUNSEL]: Read the introduction,
sir.
THE COURT: For reasons previously stated, you
have got a continuing objection.
MR. WILLITS: The first paragraph?
[APPELLEE’S COUNSEL]: Yes[sic] sir.
your instructions[.]”[sic]
“Per
MR. WILLITS: “Per your instructions we have
undertaken an analysis of the Nursing Center
Management Agreement entered on June
27[,][sic] 1994 by and between Elkton Care
Center Associates Limited Partnership[,][sic]
owner[,][sic] and Quality Care Management
Company[,][sic] Inc.[,][sic] QCM[,][sic]
pursuant to which QCM was engaged to mange
and operated Medpointe. The purpose of this
analysis was to determine what should be the
owner’s strategy in preparing for defense of
a possible lawsuit against it by QCM on
account of the early termination of the
agreement by the owner.”
[APPELLEE’S COUNSEL]: So does this refresh
your recollection that preparing a strategy
for defense was part of the engagement of the
law firm as well as giving you the opinion on
termination?
MR. WILLITS: That’s what that said.
[APPELLANT’S COUNSEL]: Objection.
10
THE COURT: Overruled.
As stated above, the jury concluded that appellant had
breached the contract.
The Consequences of Inadvertent Disclosure
Appellant argues that the attorney-client privilege1 and/or
work product privilege was not waived by the inadvertent
disclosure that occurred during document production in the case
at bar. The attorney-client privilege and the work product
doctrine are separate and distinct.
E.I. du Pont de Nemours &
Co. v. Forma-Pack, Inc., 351 Md. 396, 406 (1998).
For purposes
of this appeal, however, whether inadvertent disclosure
constituted a waiver does not depend upon which privilege is
asserted.
“When the disclosure is made to the adverse party, ...
the distinction between waiver of attorney client privilege and
of work product immunity disappears.”
1
Hartford Fire Insurance v.
The attorney-client privilege is “‘the oldest of the privileges for
confidential communications known to the common law.’” E.I. du Pont de Nemours
& Co. v. Forma-Pack, Inc., 351 Md. 396, 414 (1998)(citing Upjohn Co. v. United
States, 449 U.S. 383, 389 (1981)). See also Harrison v. State, 276 Md. 122,
131 (1975)(explaining that the privilege extends at least as far back as the
reign of Elizabeth I (1558-1603)). Generally, the attorney-client privilege
bars compelled disclosure, without the client’s consent, of attorney-client
communications made in confidence between the attorney and client. See In re
Criminal Investigation No. 1/242 Q, 326 Md. 1, 5 (1992); State v. Pratt, 284
Md. 516, 519 (1979); Harrison, 276 Md. at 133-34. It is codified in Maryland
Code (1974, 1998 Repl. Vol.), Courts and Judicial Proceeding Article § 9-108,
which provides that “[a] person may not be compelled to testify in violation
of the attorney-client privilege.” The privilege is grounded in the public
policy of encouraging a client to consult freely with and seek legal advice
from an attorney without fear of the attorney being forced to testify or
produce evidence as to the confidences in various judicial or other
proceedings. See In re Criminal Investigation No. 1/242 Q, 326 Md. at 5;
Pratt, 284 Md. at 520; Harrison, 276 Md. at 134.
11
Garvey, 109 F.R.D. 323, 328 (N.D. Cal. 1985).
Neither the Court of Appeals nor this Court has decided the
issue of whether the attorney-client privilege is waived by the
inadvertent disclosure of a document protected by that
privilege.2
Dean Wigmore took the position that any disclosure
causes a loss of protection.
See 8 Wigmore, Evidence §2325 at
633 (McNaughton rev. 1961).
Following Wigmore, some courts have
adopted the “strict test” or “waiver” test, under which an
inadvertent disclosure constitutes a waiver of the privilege.3
Some courts have adopted the “lenient” or “no waiver” test, under
which the attorney’s negligence cannot waive the privilege
because the client, and not the attorney, is the holder of the
privilege.4
Professors Mueller and Kirkpatrick have criticized
these inflexible positions:
Courts are divided on whether the
attorney-client privilege is lost by
accidental or inadvertent disclosure.
Usually inadvertent or accidental disclosure
happens when a privileged document is
released during discovery, and in this
setting there are three primary views on the
question whether privilege protection
2
For an extensive discussion of inadvertent disclosure and the attorneyclient privilege, see Roberta Harding, Waiver: A Comprehensive Analysis of a
Consequence of Inadvertently Producing Documents Protected by the AttorneyClient Privilege, 42 Cath. U.L. Rev. 465 (1993).
3
Carter v. Gibbs, 909 F.2d 1452, 1458 (Fed. Cir.), cert denied, 498 U.S.
811, 112 L.Ed2d 22, 111 S.Ct. 46 (1990); In re Sealed Case, 877 F.2d 976, 980
(D.C. Cir. 1989).
4
Georgetown Manor v. Ethan Allen, Inc., 753 F. Supp. 936, 938 (S.D. Fla.
1991); Mendenhall v. Barber-Greene Co., 531 F. Supp. 951, 954 (D.C. Ill.
1982).
12
continues. Modern courts generally reject
Wigmore’s wooden and mechanical view that any
unprivileged disclosure waives the privilege,
but some modern courts take a pretty strict
position on this point. They hold that the
privilege is waived by any unprivileged
disclosure that is voluntary, even though
made inadvertently and without intent to
waive. A second view is very nearly at the
opposite end of the spectrum, and it holds
that the privilege is waived only where the
disclosing party actually intended to waive
it.
A third intermediate view sensibly holds
that the question whether disclosure during
discovery results in loss of privilege
protection depends very much on the
circumstances, and the issue should be
resolved by looking mostly to three factors:
First is the degree of care apparently
exercised by the claimant. Second is the
presence of extenuating circumstances, the
most obvious being the press of massive
discovery going forward under the pressure of
deadlines, where even caution in producing
documents is likely to generate occasional
mistakes. Third is the behavior of the
privilege claimant in taking remedial steps
after disclosing material.
Christopher B. Mueller & Laird C. Kirkpatrick, Evidence, §5.29 at
450-52 (4th ed. 1995) (footnotes omitted).
We agree with Professors Mueller and Kirkpatrick, and with
those courts that have adopted an “intermediate” (or “middle”)
test, under which the court makes a fact specific case-by-case
analysis to determine whether the privilege has been waived.5
The courts that use this approach examine the following factors:
5
See Ciba-Geigy Corp. v. Sandoz,Ltd., 916 F.Supp. 404, 410-11 (D.N.J.
1995); Alldread v. City of Grenada, 988 F.2d 1425, 1433-34 (5 th Cir. 1993);
Amgen v. Hoechst Marion Russel, 190 F.R.D. 287, 292 (D. Mass. 2000); Edwards
v. Whitaker, 868 F. Supp. 226, 229 (M.D. Tenn. 1994).
13
“(1) the reasonableness of the precautions taken to prevent
inadvertent disclosure in view of the extent of the document
production; (2) the number of inadvertent disclosures; (3) the
extent of the disclosure; (4) any delay and measures taken to
rectify the disclosure; and (5) whether the overriding interests
of justice would or would not be served by relieving a party of
its error.”
See Sampson Fire Sales v. Oaks, 201 F.R.D., 351, 360
(M.D. Pa. 2001).
We are persuaded that neither the lenient test nor the
strict test is as fair as the intermediate test,6 and that the
intermediate test is consistent with Court of Appeals’ precedent.
The attorney-client privilege is not absolute
and “is not an inviolable seal upon the
attorney’s lips.” Pitney-Bowes, Inc. v.
Mestre, 86 F.R.D. 444, 446 (S.D. Fl.
1980)(citing Laughner v. U.S., 373 F.2d 326,
327 (5th Cir. 1967)). Invocation of the
privilege can create evidentiary inequities
between parties during discovery and the
absence of fact and truth at trial. “Because
the application of the attorney-client
privilege withholds relevant information from
the fact finder, the privilege contains some
limitations and should be narrowly
construed.” E.I. du Pont de Nemours & Co.,
351 Md. at 415. Only the client has the
power to waive the attorney-client privilege.
See City of College Park v. Cotter, 309 Md.
573, 591 (1987). Nonetheless, express and
implied waivers of the privilege are
universally recognized limitations on client
power to hold the privilege. See Harrison,
6
The lenient test does not provide any incentive for attorneys to take
adequate steps to protect privileged documents. The strict test does not
allow for appropriate pre-trial remedies that would preserve the privilege
without causing any unfair prejudice.
14
276 Md. at 137-38.
Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 690-92
(2000)(parallel citations omitted).
Applying the intermediate
test to the facts of this case, in which the inadvertent
disclosure occurred during pre-trial discovery, but was not
brought to Judge Thompson’s attention until (in the words of
appellant’s brief) “the penultimate day of trial,” we conclude
that the inadvertent disclosure constituted a waiver.
In most inadvertent disclosure cases, at least one factor is
closely related to another factor.
exception.
The case at bar is no
Factors one, two and three -- the reasonableness of
precautions taken to prevent inadvertent disclosure, the number
of inadvertent disclosures, and the extent of the disclosure -all strongly favor waiver.
Here, the privileged document was
inadvertently included in a half-full box of documents produced
by a lawyer who was then representing appellant.
Appellee’s
counsel tabbed that document, along with others, and returned all
of the tabbed documents to the lawyer then representing
appellant, who arranged to have the tabbed documents copied and
delivered to appellee’s counsel.
Thus, on two occasions during
the pretrial discovery phase of this case, counsel then
representing appellant had the opportunity to assert the
attorney-client privilege with respect to the memorandum at
15
issue.7
This is not a case in which hundreds of boxes and/or
thousands of documents were produced.
Factor four, any delay and measures taken to rectify the
disclosure, also strongly favors waiver.
Had this issue been
brought to Judge Thompson’s attention prior to trial, (1) Judge
Thompson could have entered an in limine order that would have
prohibited appellee’s counsel from making any use of the
memorandum unless and until appellant introduced evidence that
“opened the door” to its use,8 and (2) appellant’s defense would
have focused on its right to terminate the contract rather than
on its reasons for doing so.9
In light of Mr. Willits’ direct
examination, factor five, whether the overriding interests of
justice would or would not be served by relieving the party of
its error, also strongly favors waiver. The inadvertent
7
Although the words “ATTORNEY/CLIENT PRIVILEGE ATTORNEY WORK PRODUCT
PREPARED IN ANTICIPATION OF LITIGATION” are prominently displayed on the
memorandum, appellant concedes that appellee’s counsel did nothing improper or
unethical in “tabbing” the memorandum.
8
In White v. State, 56 Md. App. 265 (1983), this Court recognized “a
principle of admissibility under which evidence that is irrelevant or
otherwise incomplete may be allowed to be answered to correct a prejudicially
misleading impression left by the introduction of misleading evidence. ...
[O]ne who induces a trial court to let down the bars to a field of inquiry
that is not competent or relevant to the issues cannot complain if his
adversary is allowed to avail himself of the opening.” Id. at 273.
9
Because the question of whether Medpointe was entitled to terminate the
contract is an objective one, Mr. Willits’ “personal feelings are irrelevant
to the issue of [Medpointe’s right to terminate].” Goodwich v. Sinai
Hospital, 103 Md. App. 341, 352 (1995), affd, 343 Md. 185 (1996). When a
contract provides that termination is a remedy for a party’s breach, the party
who has breached does not have the right to defend against termination on the
ground that “the terminating party had a subjective motivation of animosity or
reprisal towards the breaching party.” Shaklee U.S. Inc. v. Giddens, 934 F.2d
324, 1991 U.S. App. Lexis 17061, n.1.
16
disclosure in the case at bar constitutes a waiver of the
attorney-client and attorney work product privileges.10
Introduction of the Memorandum
as a Waiver of Appellant’s objection
Appellee argues that appellant waived its objection by
introducing the entire memorandum into evidence.
We disagree.
In Mayor and City Council of Baltimore v. Smulyan, 41 Md. App.
202 (1979), this Court rejected the contention that responding to
evidence admitted over objection constitutes a waiver of the
objection.
We do not, and, of course, may not, depart
from the oft-stated rule that an objection to
evidence may be deemed waived if the same
evidence is permitted to come in subsequently
without objection. See, for example, State
Roads Comm. v. Bare, 220 Md. 91 (1959).
However, there are some practical limits to
what counsel must do, or refrain from doing,
in order to preserve the objection. When a
party makes a clear objection to specific
evidence and that objection is plainly
overruled, he is not required to play the
ostrich and simply ignore the evidence, or
its potential effect upon his case, for fear
of losing his ground for appeal. He may
cross-examine (or, in this instance, redirectly examine) the witness about the
evidence, Peisner v. State, 236 Md. 137, 144
10
Since we have concluded that appellant’s inadvertent disclosure
constituted a waiver, the “harmless error” issue is moot, as is appellee’s
argument that appellant has failed to make a foundational showing that the
disclosure was inadvertent. While it is true that appellant’s trial counsel
should have supplied Judge Thompson with an on-the-record explanation of
precisely how the memorandum was inadvertently disclosed, Judge Thompson was
not clearly erroneous in finding that this case involved the inadvertent
disclosure of an otherwise privileged document.
17
(1964), and make other reasonable efforts to
show that the evidence, admitted over his
objection, should nevertheless be discounted
or disregarded by the trier of fact.
Id. at 219.
In the case at bar, appellant’s counsel objected on
nine separate occasions and was granted a continuing objection.
After appellee’s counsel cross-examined Mr. Willits about the
negative portions of the memorandum, appellant’s counsel elected
to introduce the entire memorandum into evidence.
Under these
circumstances, in which it is clear that appellant’s trial
counsel introduced the memorandum in an attempt to counter the
impact caused by appellee’s use of the memorandum, appellant did
not waive its objection to appellee’s use of the memorandum
during the cross-examination of Mr. Willits.
JUDGMENT AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
18
