Coe v. Bass

GILBERT, Chief Judge. This case is a “spin-off” from the Maryland savings and loan debacle of 1985. Its roots began with the investigation authorized by then Governor Harry R. Hughes and the subsequent appointment of the statutorily created “Special Counsel.” The purpose of the Special Counsel was to conduct an inquiry into the collapse of some of the savings and loan associations insured by the Maryland Savings Share Insurance Corporation (MSSIC). A number of law suits have resulted from that investigation including the instant matter of Maryland Deposit Insurance Fund (MDIF) against the former officers and directors of MSSIC. 1 MDIF’s suit, filed in the Circuit Court for Anne Arundel County, claimed $450,000,000 in damages.

The MSSIC defendants caused subpoenas to be issued to John Y. Church, Ward B. Coe, and Carl Gold, attorneys who had worked for the Special Counsel during the latter’s investigation. Maryland State Police Trooper R. Lee Caple, who served as an investigator for the Special Counsel, was also subpoenaed. The subpoenas commanded the four non-party witnesses to appear at fixed times and places for the purpose of being deposed. Events occurring at the discovery proceedings led to the four nonparties’ becoming the appellants.

When the subpoenas were issued by the clerk of the Circuit Court of Anne Arundel County, the notice of deposition attached to the subpoenas scheduled one day each of deposition for Caple, Church, and Gold and three days of deposition for Coe. The notice contained the legend, “All depositions will continue from day to day until completed.” Caple, Church, and Gold each appeared and submitted themselves to a deposition for one day; Coe did so for three days. After the subpoenas were served but before the actual taking of the depositions, MSSIC’s attorney wrote a letter ³⁴⁹ dated September 9, 1987, to Caple’s attorney with a copy to the attorney for Church, Coe, and Gold. The letter stated: “I understand from our telephone discussion yesterday and your letter of September 1st that we both agreed to proceed with Mr. Church’s deposition at 9:30 a.m. on September 23rd in my office and with Mr. Gold’s deposition at 9:30 a.m. on September 24th at his office____ Finally, we agree to proceed with Mr. Coe’s deposition on September 30, and ask that you have him and his counsel set aside at least two, and preferably three, days so as to complete the deposition in its entirety.” It was on the basis of the above-quoted letter that Caple, Church, Coe, and Gold refused to be deposed beyond the time frame stated therein.

Aggrieved by the declination of Messrs Caple, Church, Coe, and Gold to continue with the depositions “until completed,” MSSIC filed a request for the issuance of writs of body attachment, Md. Rule l-202(c); alternatively, a petition for contempt, Md. Rule 2-433(b); and a request for attorneys’ fees and costs, Md. Rule 2-433(c). The next day the Circuit Court for Anne Arundel County issued an order directing Caple, Church, Coe, and Gold to appear and show cause why they should not be held in contempt of court for failing to obey the subpoenas. Following a hearing on the show cause order, the circuit court adjudged the appellants to be in contempt of court for their failure to obey the subpoenas. Each appellant was sentenced to the Anne Arundel County Detention Center until, by completing his deposition, he purged himself of contempt.

Actual confinement was postponed for ninety days, and it was provided that, if the appellants completed their depositions within that time period, the contempt sentence would be vacated. Understandably disconcerted by the contempt conviction, the alleged contemners have carried their cause to this Court. The sole question put to us is whether the circuit court erred in holding the nonparty witnesses in contempt be ³⁵⁰ cause of their failure to complete the depositions. Although our ultimate disposition of this matter is the same as to all four of the appellants, we must travel two different routes to our destination: one for Trooper Caple and a different course for Messrs.

Church, Coe, and Gold. Caple appeared pursuant to the subpoena; therefore, as to him, Md. Rule 2-510(a) is applicable. That rule provides: “A subpoena is required to compel a nonparty ... to attend, give testimony, and produce designated documents or other tangible