On December 6, 2018, in an unreported decision, Maryland’s Court of Special Appeals permitted plaintiffs in product liability litigation in Baltimore City Circuit Court to obtain broad discovery into joint defense agreements, communications between a defendant and its consulting expert, and documents in a sealed insurance litigation.  The Court of Special Appeals permitted such discovery because it found the appeal of the defendant, Union Carbide Corporation (“UCC”), to involve issues not ripe for decision under Maryland’s collateral order doctrine. According to the Court, evidentiary privileges can be violated during discovery and such violations can be addressed on appeal after trial (and only after trial), even when that discovery will be shared widely and likely used in other cases not pending in Maryland.  The case is captioned Union Carbide Corp. v. Valentine, No. 1455, Sept. Term 2017 (Dec. 6, 2018).

In the underlying litigation, the plaintiffs alleged that the decedent, Ronald Valentine, had developed mesothelioma after breathing in dust from asbestos-containing joint compound formulated with UCC’s Calidira chrysotile asbestos. Among other things, the plaintiffs sought the discovery described above and, after motions practice, Judge Shannon Avery granted plaintiffs the relief they requested in its entirety, without explanation or limitation.

UCC filed an appeal, and the plaintiffs moved to dismiss, arguing that Maryland’s collateral order doctrine would not permit an appeal. After full briefing on the merits, the Court of Special Appeals agreed with plaintiffs.  

The four elements of the collateral order doctrine are: (1) the judgment must conclusively determine the disputed question; (2) it must resolve an important issue; (3) it must be completely separate from the merits of the action; and (4) it must be effectively unreviewable on appeal from a final judgment.  

Regarding the third requirement of the doctrine, the Court found that joint defense agreements, communications between UCC and its consulting expert, and sealed insurance litigation are all related to the ongoing development of defenses to be relied upon in this case. UCC argued that disclosure of these materials was, at most, marginally relevant, and that disclosure would prejudice UCC in the thousands of other asbestos-related lawsuits it is litigating throughout the United States. The Court of Special Appeals rejected that argument, reasoning that disclosure of these materials could not both be completely separate from the merits and yet prejudicial to UCC’s defense in the ongoing national mass tort litigation.  

The Court of Special Appeals also analyzed the final factor, whether an eventual appeal would be ineffective, and found that an appeal from a final judgment would be an effective remedy in this case. The Court of Special Appeals reasoned that trial courts would eventually make evidentiary rulings on the admissibility of this disputed material during trial and it would be those rulings that would be the subject of an appeal after trial, not the underlying discovery rulings.  

This case is a reminder that Maryland appellate courts are reluctant to interject themselves into discovery disputes between parties at the trial level and, as the Court of Special Appeals noted at oral argument in Valentine, make themselves into “super Circuit courts.” See, e.g., Kurstin v. Bromberg Rosenthal, LLP, 420 Md. 466 (2011); St. Joseph Medical Center, Inc. v. Cardiac Surgery Associates, P.A., 392 Md. 75, 87 (2006); In re Foley, 373 Md. 627, 634 (2003). Rather, litigants have to play the hand they are dealt, and live to fight another day—after final judgment. 

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