In Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported),¹ the Appellate Court of Maryland held that disclosure of text messages the day before a criminal trial did not prejudice the defendant. One important fact was that the defendant had participated in the text messaging and therefore was not surprised by the late disclosure.

Defendant Pointer was charged with assaulting and shooting a former acquittance, Ms. Ebony Forrest, after he demanded repayment of an alleged debt. In pertinent part, the Court wrote:

Mr. Pointer was arrested and “charged with attempted murder, [first-degree] assault, reckless endangerment, armed robbery, robbery, theft, and handgun related offenses.” On July 20, 2022, the day before trial, Ms. Forrest met with the State to discuss the case. During the meeting, Ms. Forrest revealed text messages between herself and Mr. Pointer that discussed a dispute over money. The State sent the text messages to defense counsel that afternoon. On July 21, 2022, Mr. Pointer filed a motion in limine to exclude the text messages. He argued that in light of how late the text messages were disclosed, the texts should be excluded “based on a violation of discovery and fairness.” The court disagreed and concluded that “[p]ursuant to the discovery rules . . . there [wasn’t] a violation.” [emphasis added].

Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).

After conviction, one issue on appeal was defendant’s objection to admissibility of the text messages.² 

The Appellate Court held that there was no error in admitting the text messages, writing:

To determine whether Mr. Pointer’s text messages were admitted properly, we first must evaluate whether the admittedly last-minute disclosure of the text messages violated the rules of discovery. And this turns in some measure on whether the source of the text messages, Ms. Forrest, falls within those rules.

Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).

Under Maryland Rule 4263(c)(2), in a criminal case:

[t]he obligations of the State’s Attorney . . . extend to the material and information that must be disclosed under this Rule and that are in the possession or control of the attorney, members of the attorney’s staff, or any other person who either reports regularly to the attorney’s office or has reported to the attorney’s office in regard to the particular case. [emphasis in Court’s opinion]

Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).

This Rule is quite different from the “possession, custody, and control” aspect of civil discovery. The disclosure obligations under this Rule of criminal procedure are significantly narrower than the discovery obligations imposed on litigants in civil cases. Fed.R.Civ.P. 34(b)(1) permits a civil litigant to request documents “in the responding party’s possession, custody, or control….” The scope of Maryland Rule 2-422(a)(1) is the same.

Under that narrower rule, the Pointer Court rejected both of Mr. Pointer’s challenges to the late disclosure of the texts.

First, it rejected the argument that the victim’s multiple pre-trial meetings with the State equated to “reporting” under the Rule.

This argument fails in several ways. For one, the prosecution gave Mr. Pointer the text messages as soon as it could. More importantly, Rule 4-263 didn’t even oblige the State to produce the text messages under these circumstances. Mandatory disclosure is required only in narrow circumstances.

Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).

In short, the victim meeting with the prosecution to prepare her testimony did not trigger the Rule. In a civil case, a jurisdiction following the “practical” control standard might have reached a different result. See The “Practical Ability” Standard for “Control” in Maryland.

Second, the Court rejected defendant’s argument of prejudice, in large part because he was a party to the text messages.

Mr. Pointer claims that the late disclosure “seriously prejudiced [his] defense.” He states that he “planned his defense strategy based on the facts and information supplied to date; and that this late-provided text exchange was a surprise . . . made on the eve of trial leaving the defense unable to procure the phone or messages that might put this exchange into context.” But even if there had been a discovery violation, he wasn’t prejudiced. The late-breaking disclosure revealed twenty-seven text messages and Mr. Pointer was a party to all of them. These were not text messages that Mr. Pointer could not have known existed. [emphasis added].

Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).

Among other reasons for rejecting the prejudice argument, the Court wrote that “the texts did not make or break” Mr. Pointer’s case, the defendant knew the State’s theory, and “[f]inally, and perhaps most importantly, Mr. Pointer did not request a continuance when he received the text messages late in the process. This suggests that the text messages were not so incriminating or remarkable that Mr. Pointer truly needed extra time to prepare his defense.”³ 

While Pointer was decided under the rules of procedure governing criminal cases, it is interesting that the Court found no prejudice by alleged late disclosure where a defendant was a party to the text messages and therefore there was no unfair surprise.

In civil litigation, Fed.R.Civ.P. 37(e) does not authorize sanctions where missing information can be restored or replaced through additional discovery. Sanctions under Rule 37(e)(1) require a finding of prejudice. Rule 37(e)(2) permits a presumption that “lost information” was unfavorable to the party that lost it.

Similarly, Maryland Rule 2-433(b) does not authorize sanctions where the missing information can be restored or replaced. The Maryland Rule mandates a finding of prejudice for sanctions, stating: “If electronically stored information that should have been preserved in the reasonable anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it and the information cannot be restored or replaced through additional discovery, the court, upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.”⁴ 

It remains to be seen, but in an analogous civil case, where a party is a participant to communications, that factor could present a high hurdle to a request to sanction an opponent that failed to preserve the communications.

Thanks to Rachel Konieczny for Texts revealed day before trial did not violate discovery, MD court finds (thedailyrecord.com)(Jan. 9, 2024), for reporting on Pointer.

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^[1] Unreported opinions may be cited only in accordance with Rule 1-104(a)(2)(B).

^[2] Other issues, such as refusal to give a self-defense instruction, were presented and resolved.

^[3] The only remedy requested at trial was exclusion of evidence. That is justified only in an extreme case. The Court determined that this was not such a case.

^[4] For more information on the Maryland rule, see Maryland Rules Order Amends Sanctions Rule, Maryland Supreme Court Rejects Proposed Sanctions Rule Paralleling Fed.R.Civ.P. 37(e), and Secondary Evidence of Missing Video Permitted.