Ehrlich v. Grove

Opinion by CATHELL, J. This interlocutory appeal arises from a wrongful termination action brought by Robin Grove, appellee, against Governor Robert L. Ehrlich, Jr., appellant. 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 we 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? ⁵⁵⁵ “II. Did the Circuit Court abuse its discretion when it improperly 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 Court 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 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 5 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. I. Facts Immediately following the Governor’s inauguration in January of 2003, Grove, an at will employee or official, was removed as Director of the Maryland Department of the Environment’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 suit, Grove also served the Governor with document requests. In addition to information relating to ⁵⁵⁶ Grove’s employment and termination, those requests sought access to personnel records of State employees who are not parties to Grove’s suit and documents created and used by Governor Ehrlich’s gubernatorial transition team. The record reflects that the total number of documents that might have initially been involved, was as high as 80,000 documents. The Governor declined to produce some of the documents 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 on August 12, 2004. On November 9, 2004, the Circuit Court for Baltimore City issued an order requiring, among other things, that the Governor produce a privilege log within 21 days or, alternatively, within 30 days make the documents that would be listed in such a privilege log available to Grove for inspection and copying. On November 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 on the Governor’s motion and based on the Circuit Court’s November 9, 2004, order, the Governor noted his first interlocutory appeal to the Court of Special Appeals 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 had not ruled on the motion, according to the intermediate appellate court, had the effect of depriving it of jurisdiction over the matter. On July 28, 2005, the Governor sent a letter to the Circuit Court for Baltimore City seeking clarification of and a hearing on that court’s November 9, 2004, order. 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 ⁵⁵⁷ 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 10, 2006, the Court of Special Appeals issued an order that read in relevant part: “ORDERED that, while this appeal is pending, the Circuit Court for Baltimore City shall resolve appellants’ pretrial discovery objections in conformity with the procedures set forth in this Order; and it is further “ORDERED that appellants’ counsel forthwith provide 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 claims the document should not be produced 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 documents produced and the written arguments presented, the circuit court shall determine whether 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 conference with counsel for each party to determine the manner in which the trial court would comply 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 those files for in camera review to demonstrate, by way of example, why the ⁵⁵⁸ 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 was directing to be taken based on its review of the sample files. The opinion and order read in relevant 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 their roles as officers of the Court. This Court further believes that all other documents contained within these thirty (30) individual personnel files, when considered in light of Md. Rule 2^402 and the ‘sparse’ Maryland case law, should not be disclosed as they are not relevant or likely to lead to admissible evidence. This Court finds that disclosure of these documents would unnecessarily reveal confidential information of each individual. “... [T]his Court believes that the remainder of the three hundred forty one (341) individual files requested for production by Appellee Grove should be disclosed utilizing the same, precise methodology.... “The Court assumes that counsel for Appellee Grove may wish 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 approved letter in initially contacting the identified, terminated individuals to determine whether those individuals would object to further discussion o f their personal situations with counsel for Appellee Grove and/or whether they would be willing to waive any claims for confidentiality of their personnel file which would allow counsel further opportunity to review other aspects of the files not released herein.... ” (Emphasis added.) (Footnotes omitted.) ⁵⁵⁹ 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 Circuit Court also ordered the Governor to make certain State Agency documents and gubernatorial transition team documents available to Grove. On June 8, 2006, the Governor filed a motion for reconsideration or clarification of the May 24, 2006, order and asked the Circuit Court to amend its order to exclude expanded in camera review of attorney-client and work product materials. The Governor claimed that six of the requested documents related specifically to the Attorney General’s efforts to defend the Governor in Grove’s suit and another 29 documents related to other matters which were allegedly privileged. The Governor also produced a more detailed privilege log relating to these 35 documents and produced, for expanded in camera review, documents to which it had been previously claiming executive privilege. 7 Grove’s June 16, 2006, opposition to the Governor’s motion for reconsideration or clarification contained a waiver by Grove of his request to view certain documents in the Governor’s possession specifically relating to the instant litigation.

On June 23, 2006, the Circuit Court for Baltimore City, based on Grove’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, order. Meanwhile the Circuit Court for Baltimore City continued to catalogue and file responses re ⁵⁶⁰ ceived from the 341 individuals who received letters from counsel at the direction of the Circuit Court.

The last such entry in the record was dated August 28, 2006. On August 29, 2006, prior to the court of Special Appeals hearing arguments, this Court, on its own motion, issued a writ of certiorari to address the above stated issues. Ehrlich v. Grove, 394 Md. 307 , 905 A.2d 842 (2006).

II

Standard of Review Maryland’s discovery rules were deliberately designed to be broad and comprehensive in scope. Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 13 , 174 A.2d 768, 771 (1961). The purpose of the rules is to expedite the disposition of cases, Home Indem. Co. v. Basiliko, 245 Md. 412, 415-16 , 226 A.2d 258, 259 (1967), 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 the 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 liberally construed. Kelch, 287 Md. at 229 , 411 A.2d at 453 ; Klein, 284 Md. at 55 , 395 A.2d 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 Mezzanotti, 227 Md. at 13-14 , 174 A.2d at 771 )). Thus, we will review the discovery dispute presently before us under an abuse of discretion standard. In Dashiell v. Meeks, this Court recently stated: ⁵⁶¹ “We have [ ] said that judicial discretion ‘is defined as the power of a court to determine a question upon fair judicial consideration with regard to what 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 standard is that absent a showing that a court acted in a harsh, unjust, capricious and arbitrary way, we will not find an abuse of discretion.” Dashiell v. Meeks, 396 Md. 149 , 913 A.2d 10 (2006) (No. 27, September Term, 2006) (filed December 14, 2006).

III

Discussion A. Interlocutory Appeal Prior to addressing the issues before us on appeal, we must first consider whether the Governor is entitled to appeal from the Circuit Court’s discovery order. Generally, 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 877, 880 (1995) (citing Baltimore City Dep’t of Social Services 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 party 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 exceptions to this general rule are found in § 12-303 of the Courts and Judicial Proceedings Article, but nothing in that section specifically permits the Governor 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 ⁵⁶² immediately appealable as “final judgments” without regard to the posture of the case.’ ” Stevens, 337 Md. at 477 , 654 A.2d at 880 (quoting Harris v. David S. Harris, P.A., 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 Mandel, who was asserting absolute immunity, was entitled to an interlocutory appeal under the collateral order doctrine because absolute immunity permits the defendant to avoid trial altogether and a review after trial would not protect that right for a defendant); 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 immediately 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 be final judgments, even though such orders clearly are not final judgments.” Dawkins v. Baltimore City Police Dept., 376 Md. 53, 64 , 827 A.2d 115, 121 (2003).

The creation of the collateral order doctrine was based on the “perceived necessity, in a very few ... extraordinary situations, for immediate appellate review.” Id. at 64 , 827 A.2d at 121 (citation omitted) (quotation omitted). An extraordinary situation may arise when a discovery order is directed at “high level government decision makers.” Stevens, 337 Md. at 480 , 654 A.2d at 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 ‘treats as final and appealable a limited class of orders which do not terminate the 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 Valley, 300 Md. 200, 206 , 477 A.2d 759 , ⁵⁶³ 762 (1984). The doctrine is a very limited exception to the principle that only final judgments 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 Md. 657, 660-661 , 728 A.2d 210, 211-212 (1999), “[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) conclusively determines the disputed question, (2) resolves an important issue, (3) resolves an issue that is completely separate from the merits of the action, and (4) would be effectively unreviewable if the appeal had to await the entry of a final judgment. See Peat, Marwick, Mitchell & Co. v. Los Angeles Rams Football Co., 284 Md. 86, 92 , 394 A.2d 801, 804 (1978); Clark v. Elza, 286 Md. 208, 213 , 406 A.2d 922, 925 (1979); Shoemaker v. Smith, 353 Md. 143 , 725 A.2d 549 (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 prejudgment order to be appealable and to fall within this exception to the ordinary 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 requirements of the collateral order doctrine are very 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 limited exception to the principle that only ⁵⁶⁴ final judgments are appealable and it may only be invoked in extraordinary circumstances when the conjunctive four-part test is met.

The Governor urges this Court to find that the collateral order doctrine does 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 discovery orders currently before the Circuit Court for Baltimore City-the existence of attorney-client privilege and the scope of expanded in camera review-do 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.

Moreover, even though documents have been made available to Grove through expanded in camera review, there is no risk of public 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 powers 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-client privilege and/or the work product doctrine.

Thus, this is a different context than that of Zaal 8 ⁵⁶⁵ 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 of law to this Court. 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 have recognized, 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 President. Magruder v. Swann, 25 Md. 173, 212 (1866); Miles v. Bradford, 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 authority. See, e.g., Dep’t of Nat.

Res. v. Linchester Sand & Gravel Corp., 274 Md. 211, 218, 223-225 , 334 A.2d 514 (1975); Heaps v. Cobb, 185 Md. 372 , 45 A.2d 73 (1945); ⁵⁶⁶ Magruder v. Swann, supra; Miles v. Bradford, supra; Green v. Purnell, 12 Md. 329 (1858); Watkins v. Watkins, 2 Md. 341 (1852). “Moreover, it is apparent from the very nature of government that a legitimate necessity exists for the protection from a public disclosure of certain types of official information. Thus, at least as early as 1807, in the treason trial of Aaron Burr, Chief Justice Marshall, sitting on the circuit court, 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.D.Va. 1807) (Fed.Cas. No. 14, 694).

The Chief Justice acknowledged that, as a matter of public interest, President Jefferson might be able to prevent the disclosure by a potential prosecution witness of a letter to the President which allegedly contained state diplomatic secrets. Chief Justice Marshall observed (id. at 191-192): “That the president of the United States may be subpoenaed, and examined as a witness, and required to produce any paper in his possession, is not controverted. I cannot, however, on this point, go the whole length for which counsel have contended. The president, although subject to the general rules which 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 production.

I do not think precisely with the gentlemen on either 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 demanding it ought, in such a case, to be very strong, and to be fully 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 that a privilege does exist to withhold private letters of certain description.

The reason is this: Letters to the president in his private charac ⁵⁶⁷ ter, are often written to him in consequence of his public character, and may relate to public 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 light ground to be forced into public view.” (Emphasis supplied.) See also United States v. Burr, 25 Fed. Cas. 30, 37-38 (C.C.D.Va.1807) (Fed. Cas. No. 14, 692 d). “The necessity for some protection from disclosure clearly extends to confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future 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, which examine and analyze these choices, are often essential to this process. The making of candid communications by the subordinate may well be hampered if their contents are expected to become public knowledge.... ” Hamilton, 287 Md. at 556-58 , 414 A.2d at 921-22 (footnotes omitted). Thus, the necessity and validity of executive privilege has been recognized for almost 200 years by the courts 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 exception of diplomatic or security matters, the privilege is not absolute, rather, it attempts to: “[A]ccommodate the competing interests of a just resolution of legal disputes with the need to protect certain confidential government communications. Nevertheless, 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 those seeking to compel disclosure. And ⁵⁶⁸ such communications ‘are “presumptively privileged,” even from the limited intrusion represented by an in camera examination of the conversations by a court.’[ 10 ] “The treatment accorded a claim 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 underlying litigation.” 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 collected; Olsen v. Camp, 328 F.Supp. 728, 731 (E.D.Mich.1969); Kaiser Aluminum[ ] [v. U.S.] [], 141 Ct.Cl. 38 , 157 F.Supp. 939, 945 [(01.0.1958)]. Cf. Machin v. Zuckert, 316 ⁵⁶⁹ F.2d 336, 339 (D.C.Cir.1963), cert. denied, 375 U.S. 896 , 84 S.Ct. 172 , 11 L.Ed.2d 124 (1963). Of course, in this situation, a determination by a court that the government’s need for confidentiality is outweighed by its opponent’s need for disclosure, does not absolutely prevent the government from maintaining confidentiality.

The government is then left with the choice of either producing the information or having the issue to which the information relates resolved against it. See, e.g., United States v. Reynolds, [ ] 345 U.S. [1,][ ] 5 [; 73 S.Ct. 528, 530-31 (1953)]; Smith v. Schlesinger, 513 F.2d 462, 468 (D.C.Cir.1975)....” Hamilton, 287 Md. at 564 n. 8, 414 A.2d at 925 n. 8 (emphasis added). In short, if the court deems that the government’s opponent’s need for the confidential information is greater than the government’s need to protect the information, the government may still keep the information confidential at the risk of having those issues to which the 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 automatically follow whenever a claim of executive privilege is made.... [T]he in camera inspection itself is an intrusion upon the privilege.

Thus, when a formal claim of executive privilege is made, with an affidavit stating that the demanded materials 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 privileged or, in those cases where a weighing approach is appropriate, that there is some necessity for production.... Consequently, absent such a preliminary showing by the party demanding disclosure, the claim of executive privilege should be honored without requiring an in camera inspection.” 287 Md. at 566-67, 414 A.2d at 926-27 (citations omitted) (emphasis added). ⁵⁷⁰ 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 Baltimore City, in its November 9, 2004, opinion and order, or the Court o f Special Appeals, in its April 10, 2006, order, ever made an explicit determination under Hamilton that Grove had met 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 Grove met his burden under Hamilton for every document 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 we did 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 may not have made the appropriate showing for each document the court viewed. We went on to note in Hamilton that: “[Wjhere a sufficient showing is made to overcome the presumption, the court should order an in camera inspection.

Depending upon the issues and circumstances, the in camera inspection may be utilized to determine whether the material is privileged, to sever privileged from non-privileged material if severability is feasible, and to weigh the government’s need for confidentiality against the litigant’s need for production.” 287 Md. at 567, 414 A.2d at 927 . The above emphasized language encapsulates the basis for granting the present ⁵⁷¹ interlocutory appeal. Simply put, the need to avoid a confrontation with constitutional implications between the Executive Branch and Judicial Branch over the production of material to which the Executive is claiming privilege may, in certain circumstances, necessitate that the Executive note an interlocutory appeal. If, as we are instructed it is above, an in camera inspection is an intrusion on executive privilege, attorney-client privilege and the work product doctrine, then, clearly, 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 in which executive privilege and the other privileges are asserted and the trial court orders an expanded in camera review of the materials to which privilege is asserted, on a case-by-case 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-part test for the permissibility of interlocutory appeals laid out above and applying it to the instant appeal, the Governor easily meets the standard. First, the trial court’s order conclusively determined that the Governor was ordered to disclose information which he was claiming ⁵⁷² 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 privileges has nothing to do with the merits of Grove’s wrongful termination claim.

Fourth, disallowing the Governor’s interlocutory appeal would be inappropriate under the circumstances because of the potential disruption to the deliberative process of the Executive Branch, a harm which, once executive privilege and the attorney-client 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 discovery orders directed to a high government official. 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 matter, not privi leged----” (Emphasis added). 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 ⁵⁷⁴ speaking, “[o]nce the attorney-client privilege is invoked, the trial 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. du Pont, 351 Md. at 415 , 718 A.2d at 1138 (quoting Harrison v. State, 276 Md. 122, 136 , 345 A.2d 830, 838 (1975)).

If that two-part test is met, then any communications which are subject to the privilege are not discoverable. In the unusual circumstances of the present case, the Circuit Court for Baltimore City, in its May 24, 2006, order, acting pursuant to the Court of Special Appeals’s April 10, 2006, order, effectively directed that certain documents which the Governor claimed were subject to attorney-client privilege be made available to Grove’s counsel through expanded in camera review. After the Governor filed 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 documents relating to Grove’s litigation were