Gallagher Evelius & Jones, LLP v. Joppa Drive-Thru, Inc.

⁵⁸⁷ RAYMOND G. THIEME, JR., J. (Retired, Specially Assigned). In a currently pending declaratory judgment action filed by Joppa Perring, LLC (“Joppa Perring”) against appellee, Joppa Drive-Thru, Inc., d/b/a Checkers (“Checkers”), the Circuit Court for Baltimore County granted Checkers’ motion for an order to compel production of documents directed at Joppa Perring and appellant Gallagher Evelius & Jones (“GEJ”), a Baltimore law firm. 1 GEJ, a non-party to the underlying declaratory judgment action, filed a timely notice of appeal following the circuit court’s April 7, 2009 order requiring GEJ to disclose the documents to Checkers. 2 GEJ raises two questions for our consideration, which we have consolidated and rephrased: Did the circuit court err in granting Checkers’ motion for an order to compel production of documents, which GEJ alleged were subject to attorney-client and/or work product privilege? 3 For the reasons that follow, we find no error on the part of the circuit court and affirm the order to compel. ⁵⁸⁸ FACTS and PROCEEDINGS In 1998, Checkers entered into a lease with Joppa Perring Limited Partnership (“JPLP”), which enabled Checkers to operate a fast food restaurant at the Joppa Heights Shopping Center in Baltimore County. The initial lease term began on February 25, 1998, but the lease provided Checkers the right to extend for seven consecutive five year periods if it provided written notice of its intent to extend the lease to JPLP at least 365 days prior to the expiration of the current term. 4 In 2008, Joppa Perring sought to purchase the Joppa Heights Shopping Center from JPLP, and GEJ represented Joppa Perring in the purchase.

On June 9, 2008, GEJ, on behalf of Joppa Perring, contacted Philip Dorsey, III, Checkers’ president, to ask that Mr. Dorsey execute a tenant estoppel certificate, a standard document detailing the status of the lease, which is routinely executed by a commercial tenant upon a new party’s assumption of a landlord’s interest in a lease. 5 Mr. Dorsey completed and signed the estoppel certificate and returned it to GEJ. Therein, Mr. Dorsey affirmed that Checkers’ then-current lease term expired on June 30, 2009. Therefore, in Joppa Perring’s estimation, to extend its lease, Checkers would have been required to deliver to Joppa Per-ring, the new landlord, written notice of its election to renew no later than July 1, 2008. Notwithstanding its affirmation in ⁵⁸⁹ the estoppel certificate, however, Checkers alleged that the initial lease term did not terminate until September 1, 2009.

Joppa Perring closed on the sale of the shopping center on June 16, 2008. According to Joppa Perring, while Checkers did provide written notice of its intent to extend the lease term, it did not do so until July 23, 2008. As a result of the alleged late notice, Joppa Perring informed Checkers that its lease would not be renewed and would expire on June 30, 2009. Checkers disputed the claim that the lease had not been timely renewed, maintaining that it had given oral notice of its intent and that the previous landlord’s waiver of the 365 day notice requirement was binding upon Joppa Perring as the new landlord.

In October 2008, Joppa Perring filed a complaint for declaratory judgment against Checkers, 6 seeking a declaration that Checkers had failed to exercise its option to renew its lease in a timely and proper manner and that Joppa Perring was thus entitled to take possession of the leased property on July 1, 2009. Checkers answered the complaint, disputing Joppa Perring’s claim that the lease had not been timely renewed, as it had exercised its option to renew the lease “by other means enforceable under Maryland law, including oral notice binding on the landlord.” In December 2008, Checkers served a subpoena and notice of deposition duces tecum upon GEJ, which sought to have GEJ produce documents and electronically stored information (the “disputed documents”) pertaining to communications between GEJ and Joppa Perring regarding the acquisition of the shopping center and Checkers’ execution of the estoppel certificate. GEJ filed an objection to the subpoena and notice of deposition, alleging, among other things, that the requested discovery sought the production of documents protected by attor ⁵⁹⁰ ney-client privilege. Joppa Perring also filed an objection to the request for the disputed documents, adopting GEJ’s arguments in support of its opposition.

GEJ produced the non-privileged documents and furnished Checkers with a 40 page privilege log, which listed each document withheld from production and the basis for the withholding. On February 18, 2009, Checkers filed a motion for an order to compel production of the disputed documents by GEJ and Joppa Perring. Therein, Checkers argued that GEJ had represented both Joppa Perring and Checkers in the completion of the estoppel certificate. Therefore, the argument continued, pursuant to the Maryland Lawyers’ Rules of Professional Conduct, which states that the attorney-client privilege does not attach between commonly represented clients, the disputed documents should be produced because the privilege asserted by Joppa Perring and GEJ did not apply.

Checkers alternatively contended that an implicit attorney-client relationship existed between it and GEJ because Mr. Dorsey, Checkers’ president, assumed that GEJ would “act in [his] best interests,” given GEJ’s prior representation of entities in which he maintained a partnership interest, as well as the long-standing relationship between him and the law firm. GEJ filed an opposition to Checkers’ motion for an order to compel on March 4, 2009, averring that no attorney-client relationship existed between it and Checkers. Joppa Perring filed its opposition on March 5, 2009. On March 17, 2009, the circuit court granted Checkers’ motion on the apparently mistaken belief that neither GEJ nor Joppa Perring had filed an opposition to the motion.

In response to GEJ’s and Joppa Perring’s joint motion for reconsideration of the order granting Checkers’ motion for an order to compel, the circuit court vacated its order on March 27, 2009. On April 7, 2009, however, the circuit court again entered an order granting Checkers’ motion for an order to compel, directing GEJ and Joppa Perring to produce the disputed documents to Checkers within 20 days. In its order, the circuit court did not address the issue of whether Checkers ⁵⁹¹ was entitled to access to the disputed documents based on GEJ’s alleged dual representation of Checkers and Joppa Perring; instead, the court ruled that GEJ’s opposition to the motion for an order to compel was not presented in the proper “set-up format” and thus could not be ruled upon by the court: The whole idea behind the set-up format prescribed by the Court of Appeals for answering discovery and thereafter for filing a motion to compel to contest the sufficiency of an answer or response (stating the request, the response, and the reason it should be compelled) is for judicial ease and proper focus through a face plate view of what the controversy is all about. Respectfully, what both Gallagher, et. al. and Joppa Perring have done here in response to the Motion to Compel is to generalize about privileges and to state a background involving the attorney client privilege without giving me any ability to view what has been specifically requested followed by a factual statement as to why the court should limit discovery of this or that particular document because something is privileged, work product, etc. The format requirement of the rule as it now exists is so that judges do not have to flip-flop back and forth to make a decision and so they can focus on the specifics of the request and what is said about it.

Then, the judge has the best chance to see if sufficient facts support the right claimed that discovery should be protected. (Footnote omitted). GEJ noted its timely appeal of the April 7, 2009 order to compel, and on April 28, 2009, the court entered an order whereby GEJ, Joppa Perring, and Checkers agreed to stay enforcement of the order to compel as to all parties, pending the outcome of this appeal. On June 29, 2009, the circuit court ruled that any open motions were to be marked as moot, as “[ejverything here is set to go to the Court of Special Appeals.” Upon its own initiative, however, the circuit court reconsidered its June 29, 2009 order to provide an explanation.

The court noted that [t]he issue before the court is one of procedure, not of substantive law. I have no idea whether or not the informa ⁵⁹² tion claimed to be protected by the Plaintiff [Joppa Perring] and the Gallagher Firm can in fact and law be protected on the basis of attorney-client privilege or work-product. This exercise will allow me to have my say as to how I feel the process was meant to work and has not yet worked in this case. It is my interpretation of the Maryland Rules of Procedure that when protection (privilege, work-product, confidential, etc.) is claimed against a discovery request that there is a cookbook methodology of presenting that issue to the circuit court and that the judge ruling on that motion has only to look to the motion to compel and the response to make a determination as to whether to grant or deny the motion or whether to send it to a hearing for testimony to be presented.

Specifically, I see it this way: • Protection through a claim or [sic] attorney-client privilege and work-product must be made in answer to interrogatories and/or a response to the request for production by specifically stating whether that you have the item or issue requested and the required facts to support a claim for protection. [Rule 2-402; Discovery Guideline No. 6 and Kelch v. Mass Transit, 287 Md. 223, 229 , 411 A.2d 449 (1980) ] • If the other party wants to challenge the factual support offered for protection, that party then has to file a motion to compel listing the interrogatory/answer or the request/response and the reasons why. [Rule 2-432(b)(2) ] An affidavit is required for facts stated outside the record. Rule 2-311(d). • If the party wanting [sic] to contest the motion to compel, a response is then filed in accord with Rule 2-311 with the requirement that facts stated outside the record must be presented under affidavit. [Rule 2-311(d) ] So the judge considering the motion has only two papers to review and everything is focused on the ⁵⁹³ factual support for the claim of protection. All the context is there. • The judge makes a decision on the papers filed unless a hearing is required to resolve factual disputes. In my opinion the proper set up has not yet occurred in this case and until privilege or work product is properly claimed so the focus can be on the answer/response it is my responsibility to rule that the motion to compel should be granted.

(Internal footnote omitted). Additional relevant facts will be set forth as necessary. DISCUSSION GEJ alleges, first, that the circuit court erred in granting Checkers’ motion for an order to compel because the court’s order granting the motion, based on GEJ’s alleged failure to conform to a certain format in its response, “misreads applicable provisions of the Maryland Rules to cast aside the important principles of attorney-client privilege and work product privilege.” GEJ contends that it complied with its obligations under the Maryland Rules by furnishing a detailed privilege log in its opposition to Checkers’ motion for an order to compel and that its opposition thus should have been considered by the circuit court. Furthermore, GEJ continues, even if a particular format is required for a motion to compel, the Maryland Rules do not require a particular format for a response to a motion to compel.

Therefore, GEJ concludes, the circuit court should not have required it to adhere to a particular format in its response to Checkers’ motion for an order to compel, and the motion should not have been granted on the basis of GEJ’s alleged non-compliance with that particular format. Second, GEJ contends that, had the circuit court properly considered its opposition to Checkers’ motion, it would have found that Checkers’ sole basis for seeking disclosure of ⁵⁹⁴ privileged documents — its claim that GEJ represented both it and Joppa Perring in the estoppel certificate matter — -was unsupported by anything in the record. As GEJ did not represent both Checkers and Joppa Perring, the generally understood