Klupt v. Krongard

THIEME, Judge. On November 18, 1997, the Circuit Court for Baltimore County (Turnbull, J.) entered a final judgment dismissing the seven-count counterclaim of Carle Klupt and his company, Sharbar, Inc. (The appellants), against a group of named counter-defendants (the appellees), for breach of contract, fraud, negligent misrepresentations, breach of fiduciary duty, and legal malpractice, in association with the licensing and production of the appellants’ invention of a disposable videocassette. The court acted after finding that Klupt had willfully and contumaciously acted with the specific intent to avert discovery and thwart justice by the destruction of discoverable evidence. We affirm that judgment, as well as the court’s disqualification of one of the appellants’ substitute counsel.

Questions Presented The appellants appeal from that Order and present the following questions, which we have reformulated: 1. Did the trial court err in dismissing the appellants’ claims for alleged spoliation of evidence? 2. Was dismissal of the appellants’ claims for discovery abuse an inappropriate sanction outside the discretion of the court? 3. Did the court err in disqualifying an attorney who, prior to accepting employment, had been informed that he would be required to be a witness against his prospective client? .

To all of these questions, we answer no. Facts and Statement of the Case This case arises from the ill-fated attempts to license and produce a disposable cardboard videocassette designed by Carle Klupt. Klupt assigned the rights to his invention to his ¹⁸⁴ corporation, Sharbar, Inc. (Sharbar), in October 1989. That same month Sharbar licensed to Philmax, Inc. (Philmax), the exclusive rights to produce the invention.

Klupt eventually became convinced that Philmax had breached its licensing agreement with Sharbar, and began to seek other potential licensees. On July 24, 1990, Klupt signed a Memorandum of Understanding with Stewart Greenebaum, president of G & R Video, Inc. (G & R), spelling out a new licensing agreement contingent upon an opinion from G & R’s counsel from the law firm of Williams & Connolly concerning Sharbar’s rights to license the invention. On July 18, 1990, counsel for Philmax, Gerson Mehlman, sent a letter to Klupt and Saul Leitner, Klupt’s patent attorney, denying any breach of the licensing agreement and affirming Philmax’s intention to enforce the agreement. Based in part on this letter, counsel for G & R gave a negative opinion with regard to Sharbar’s liberty to enter into an agreement with G & R. On August 15, 1990, Philmax sued Klupt and Sharbar for a declaratory judgment concerning its rights as Sharbar’s exclusive licensee.

Philmax’s counsel in this suit was Mehlman’s law firm. On April 26,1991, Klupt and Sharbar signed another licensing agreement, this time with Alvin B. Krongard, acting as agent for an entity to be formed. This licensing agreement was also a contingent one, dependent on the successful resolution of the Philmax litigation. A waivable deadline for settling the litigation was set at June 30, 1991.

Some payments, totaling $115,000, were made to Klupt and Sharbar, and negotiations to realize the deal continued into 1992. A. The Present Case On April 19, 1994, however, suit was filed in the Circuit Court for Baltimore County by Krongard, along with Herbert D. Fried and Hanan Y. Sibel, two of Krongard’s partners in this venture, against Klupt, Sharbar, and Leitner. 1 The plain ¹⁸⁵ tiffs alleged that they were defrauded into making investments in a venture for the manufacture and distribution of Klupt’s disposable videocassette invention. On April 20, 1994, the day after they were served with the Baltimore County complaint, Klupt and Sharbar filed an action in the Circuit Court for Baltimore City alleging that, from 1990 to 1992, Krongard, Fried, and Sibel, the plaintiffs in the Baltimore County suit, along with other named defendants, 2 had conspired to deprive Klupt and Sharbar of the value of Klupt’s disposable videocassette invention. That action was subsequently transferred to Baltimore County where it was consolidated with the previous action and designated a counterclaim.

(The original plaintiffs/counter-defendants will hereafter be referred to as the appellees, and the original defendants/counter-plaintiffs will be referred to as the appellants.) B. Discovery On April 21, 1994, the day after they filed suit in Baltimore City, the appellees served Charles Piven, who was then representing Klupt and Sharbar in the counterclaim, with Document Requests addressed separately to Klupt and Sharbar. The Requests called upon Klupt and Sharbar to produce “all documents relating to all oral and written communications” between Klupt, on the one hand, and any of the appellees or their lawyers, on the other. These Requests defined “documents” as including “all writings of any kind,” including “all drafts, alterations [and] modifications” thereto, and all “aural records ... of any kind, including ... electronic ... records or representation of any kind, including but not limited to tapes, cassettes, discs and records.” Unbeknownst to anyone else at that time, Klupt apparently had a longstanding habit of tape-recording his telephone conversations. Between 1990 and 1992, Klupt tape-recorded telephone conversations with counter-defendants Krongard and ¹⁸⁶ Janet and with their business lawyers, John Woloszyn and Ned Himmelrich.

These conversations related to Klupt’s videocassette invention. In his November 23, 1997, affidavit Klupt stated he was under the mistaken belief that so long as one of the two parties to the conversation consented to the taping it was legal to do so without the other party’s consent; he stated that this was not done to gather evidence for a lawsuit. Some time in 1991, Klupt began to prepare a set of typewritten memoranda from these surreptitiously recorded conversations. Each memorandum was signed and dated, and each carried the heading “Memorandum in the Course of Business.” Although some of Klupt’s memoranda were not made up until months after the conversations, he dated the memoranda to make them appear to have been prepared more or less contemporaneously with the conversations to which they related.

In October 1991, Klupt hired George Liebmann to represent him and Sharbar in connection with claims arising from the videocassette invention. Klupt gave Liebmann copies of some of his memoranda. In January 1992, Klupt discharged Lieb-mann and replaced him with Stuart Rombro. Rombro was in turn replaced by Piven in late 1993.

While Klupt informed his lawyers about his conversations with the appellees, he did not disclose to his lawyers his taping practices or the existence of the tapes. For example, when questioned in his deposition about Piven’s inquiry to him concerning his methods in gathering the information in these memoranda, Klupt replied only that he got “off the phone and type[d] it, scribble[d] it down, dictate[d] it into a recorder or electronic, I believe I said ma[d]e electronic memorandums.” After the appellees experienced scheduling difficulties with the deposition of Klupt, the court, upon motion by the appel-lees, on November 10, 1994, ordered Klupt to appear for his scheduled deposition. Klupt promptly filed a Motion for Reconsideration, wherein counsel for Klupt stated that he had a previously scheduled deposition in another case. This led to the filing by the appellees of Applications for Orders to Show Cause for Contempt, wherein it was alleged that no such prior ¹⁸⁷ deposition was scheduled as alleged in Klupt’s Motion for Reconsideration.

On November 23, 1994, the court denied Klupt’s Motion for Reconsideration, and ordered counsel for Klupt to show why counsel should not be held in contempt for falsely claiming to the court that he was unavailable for the scheduled deposition. When the deposition finally began on November 29, 1994, Piven, counsel for Klupt, produced a “Privilege Log.” No mention of Klupt’s memoranda was made. When questioned about the request for production of documents, Klupt acknowledged that he had received a copy of the request shortly after it was served. He testified that he had endeavored to produce all documents.

When questioned about the existence of documents relating to his conversations with the appellees, Klupt revealed that he had made typewritten memoranda of those conversations. No reference was made to his taping. Klupt stated that he prepared about twenty such memoranda from both memory and handwritten notes. He claimed to have thrown away the notes.

When questioned about his failure to produce these memoranda, Klupt testified that he had given the memoranda for the first time to his counsel the day before the deposition began. Klupt’s counsel interjected that he had “not had a chance to go through everything that was given to me yesterday,” and that, as a result, he had removed the memoranda from the group of papers that he had produced at the start of the day’s deposition. At the conclusion of the first day, counsel for the appellees called upon Klupt to produce the typed memoranda. Klupt’s counsel indicated he would comply- That evening, Klupt’s counsel communicated to counsel for the appellees that Klupt would continue to withhold most of the memoranda, and would assert his Fifth Amendment privilege against self-incrimination as his reason for not producing them.

Upon the resumption of the deposition the next morning, and after his counsel produced copies of four memoranda, Klupt stated that he intended to take, and was taking, the ¹⁸⁸ Fifth Amendment as to the rest of the memoranda. Counsel for the appellees asked that Klupt and his counsel immediately prepare a privilege log listing the documents that Klupt was refusing to produce. Klupt and his counsel left the deposition site to compile the list. When Klupt and his counsel returned to the deposition without the list, his counsel announced that “a conflict has arisen” between himself and Klupt and that Klupt intended to “consult with other counsel” about terminating Piven. .Klupt refused to go on with the deposition, notwithstanding the court’s November 10 Order.

On December 29, 1994, Gerson Mehlman entered his appearance for the appellants, replacing Piven. His appearance was immediately challenged by the appellees, and he was disqualified by the court on February 1, 1996. (His disqualification is discussed at length below.) On February 19, 1996, substitute counsel Gilbert H. Robi-nette entered his appearance for Klupt and Sharbar. By a letter dated March 29, 1996, Robinette produced copies of the memoranda that Klupt had earlier claimed to have given Piven during his 1994 deposition session.

During the second day of the 1994 session, Klupt was asked about the missing documents: Q. Are there more than twenty typewritten memoranda of conversations with the parties to this case? A. I really don’t recall. I would think. Q. What’s that?

A. I would think it’s about twenty. Instead of twenty memoranda, there were more than fifty, half of which were rewritten versions. Klupt’s lawyer claimed that these rewritten versions were merely “condensed” memoranda from which Klupt had “factor[ed] out what some people might consider extraneous matters.” Neither Klupt nor his lawyer volunteered at that time — or at any other time — that Klupt had recorded his conversations with the appellees, and had destroyed the recordings after they had been sought in discovery. ¹⁸⁹ The resumption of Klupt’s deposition was set for October 4, 1996. On October 3, 1996, Klupt’s counsel announced that he had just learned that Klupt had at his home “thousands and thousands” of documents relating to the case.

Klupt’s deposition was postponed until the newly revealed documents could be reviewed by Klupt’s counsel and produced. At the deposition, which was eventually reconvened on June 17, 1997, Klupt was forced to admit that he had tape-recorded his conversations with the appellees. When Klupt was questioned again about his prior testimony from the second day of the prior deposition session, and the fact that he had given Piven the memoranda the day before his deposition was scheduled, Klupt now stated he gave these initial memoranda which he made from the tapes to Piven prior to the filing of suit and that Piven had used these documents over several months prior to and during the suit. Klupt also acknowledged that he generated his memoranda from those recordings.

When Klupt was asked about the destruction of these tapes he first testified: Q. Now when was it that you destroyed the tapes of your conversations with other parties to this case relating to this case? A. I just don’t remember the time. Q. Well, was it before or after your deposition in November 1994 that you destroyed the tapes? A. It was definitely before the deposition.

Q. Did you destroy the tapes closer to September of 1993 or closer to December of 1994? A. Mr. Weiner, I think I have already told you. I don’t remember. Prior to his deposition, Piven had asked Klupt if he had tape-recorded any of the conversations for which he had a memorandum.

When questioned about this conversation during which he was informed of the illegality of the taping, which occurred approximately one month before his deposition, ¹⁹⁰ Klupt eventually conceded: “I destroyed the tapes when they told me that possession of them was against the law.” At that time, the case had been pending for six months, and Klupt had been served with the appellees’ Request for Production. ' With regard to the second set of memoranda, Klupt stated that in October 1994 he rewrote his memoranda at Piven’s request to remove meaningless material. The first set of memoranda contained long quotations attributed to the participants. Klupt removed the quotations; he claimed that he did so because he could not “be absolutely certain as to what’s in quotations being a direct quotation.” The rewritten and backdated memoranda bore the identical legend “Memorandum in the Course of Businéss.” Klupt testified he prepared his memoranda from the tape recordings but that he could not recall whether, and to what extent, any single memorandum was derived from a tape recording. Klupt asserted, for example, that he could not tell whether a memorandum of an April 2, 1992, conversation, containing four and one-half pages of single-spaced dialogue replete with incomplete sentences, was derived from a recording.

Klupt claimed that “under the proper circumstances” he was capable of committing such lengthy conversations to memory and of accurately recreating those conversations in memoranda. On September 4, 1997, the appellees filed a Renewed Motion of Counter-Defendants to Dismiss Counterclaim for Discovery Abuse and Contempt of Court, requesting the court to dismiss the counterclaims of Klupt and Sharbar. The motion alleged: Klupt made surreptitious recordings of telephone conversations from which he made memoranda; he intentionally destroyed the tape recordings; he created dummy versions from the original memoranda; he withheld both the original and dummy memoranda; he falsely affirmed in his deposition that he had produced all documents. A hearing on the motion was held on November 4, 1997.

The court by written Opinion and Order filed November 14,1997, dismissed the appellants’ claims for reasons of discovery abuse. Upon ¹⁹¹ motion by the appellees under Rule 2-602(b), the court made its Order a final judgment on November 18, 1997. The appellants filed motions to alter or amend the November orders, both of which were denied on December 22,1997. The court’s order also stayed all proceedings in the original claim, pending any appeals of its order of dismissal.

C. Disqualiñcation of Counsel The appellants filed their original complaint on April 20, 1994, followed by amended complaints on April 25, 1994, and August 1, 1994. In these complaints, the appellants alleged that the appellees conspired to defraud the appellants of the value of their disposable videocassette invention by working in conjunction with Philmax to keep alive litigation between Philmax and the appellants in order to depress the value of the invention. These allegations were premised in part on the facts noted above, namely, the termination of the Klupt/Shar-bar-G & R agreement because G & R’s counsel refused to give a favorable opinion concerning Sharbar’s rights with regard to the Philmax license, which opinion was based in part on a letter from Gerson Mehlman, counsel for Philmax. The Klupt/Sharbar-Philmax litigation was eventually settled.

Attorney Mehlman, whose firm represented Philmax in the litigation, was also involved in the settlement. Within days of being served with the appellants’ original complaint, counsel for appellee G & R called Mehlman to discuss the allegations and to advise Mehlman that he was viewed as a critical witness in this case. Those conversations were held on April 21 and 26,1994. On December 29, 1994, Mehlman entered his appearance as counsel for the appellants, substituting for the withdrawing Piven.

The appellees promptly moved to disqualify Mehlman on January 13, 1995. On February 21, 1995, Mehlman, acting for the appellants, filed a Third Amended Complaint (TAC). The TAC deleted several causes of action relating to the termination of the agreement entered into between G & R and Klupt on July 24, 1990. Notwithstanding Klupt’s contrary allegations in three separate complaints, he filed a supplemen ¹⁹² tal affidavit stating that G & R “was within its legal rights to terminate the July 24,1990 Agreement.” Retired Judge Leonard Jacobson, acting as a special master appointed by the Court, held hearings on the disqualification issue, and in a Report dated May 16,1995, recommended that Mehlman be disqualified.

The appellants filed exceptions with Judge Turnbull. On February 1, 1996, the court heard argument concerning the appellants’ exceptions to the special master’s recommendation. At the February 1, 1996, hearing, Mehlman admitted that, based on the allegations in the original three complaints, he should not have entered an appearance as Klupt’s attorney because he was a necessary witness. He claimed, however, that because he filed a new complaint eliminating certain causes of action the conflict disappeared.

The court disagreed. At the February 1, 1996, hearing, the court ruled that Mehlman would likely be called as a witness against the appellants and that, under the circumstances, Mehlman was disqualified from representing Klupt. Mehlman’s only participation in this litigation was to file the TAC and to contest the motion to disqualify him. The appellants promptly obtained substitute counsel, Gilbert Robinette.

There is no allegation that Robinette did not subsequently provide adequate representation to the appellants. The appellants have made no argument that the disqualification of Mr. Mehlman prejudiced them in any manner. Further relevant facts are included in the following discussion. Discussion I. Discovery Abuse Standard of Review When reviewing the circuit court’s imposition of sanctions for discovery abuse, we are bound to the court’s factual findings unless we find them to be “clearly erroneous.” Md. Rule 8 — 131(c); cf. North River Ins.

Co. v. Mayor & City ¹⁹³ Council of Baltimore, 343 Md. 34, 56-57 , 680 A.2d 480 (1996). Thus, our scope of review is narrow and our function is not to substitute our judgment for that of the fact finder, even if we might have reached a different result. Instead, we must “decide only whether there was sufficient evidence to support the trial court’s findings. In making this decision, we must assume the truth of all the evidence, and of all the favorable inferences fairly deducible therefrom, tending to support the factual conclusions of the lower court.” Nicholson Air Servs. v. Board of County Comm’rs of Allegany County, 120 Md.App. 47, 67 , 706 A.2d 124 (1998) (quoting Mercedes-Benz of N. Am., Inc. v. Garten, 94 Md.App. 547, 556 , 618 A.2d 233 (1993)).

When considering the actual imposition of discovery sanctions by the trial court, our review is narrower still. This narrow review is mandated by the wide discretion of the trial court to manage the discovery phase of cases before it. “Maryland law is well settled that a trial court has broad discretion to fashion a remedy based on a party’s failure to abide by the rules of discovery.” Indeed, in order to impose sanctions, a court need not find ‘“wilful or contumacious behavior.’ ” Rather, in imposing sanctions, a trial court has “considerable latitude.” Our review of the trial court’s resolution of a discovery dispute is quite narrow; appellate courts are reluctant to second-guess the decision of a trial judge to impose sanctions for a failure of discovery. Accordingly, we may not reverse unless we find an abuse of discretion. In Mason v. Wolfing, 265 Md. 234, 236 , 288 A.2d 880 (1972), the Court said: “Even when the ultimate penalty of dismissing the case or entering a default judgment is invoked, it cannot be disturbed on appeal without a clear showing that [the trial judge’s] discretion was abused.” Warehime v. Dell, 124 Md.App. 31, 43-44 , 720 A.2d 1196 (1998) (alteration in original) (citations omitted). ¹⁹⁴ Sanctions for Discovery Abuse Under the Rules The Maryland Rules provide for a wide variety of sanctions, including the most severe penalties, for failures of discovery. “[T]he court, if it finds a failure of discovery, may enter such orders in regard to the failure as are just, including ... [a]n order ... dismissing the action....” Md. Rule 2-433(a)(3).

Such an order may be made “[u]pon a motion filed under Rule 2-432(a).” Md. Rule 2-433(a). Maryland Rule 2-432(a) specifies a number of conditions under which “[a] discovering party may move for sanctions under Rule 2-433(a), without first obtaining an order compelling discovery under section (b) of this Rule,” including the case when “a party fails to serve a response ... to a request for production or inspection under Rule 2-422, after proper service.” Md. Rule 2-432(a). Likewise, under Rule 2-433(b), the court may impose the sanction of dismissal for the failure to comply with an order compelling discovery, including an order compelling a response to a request for production, of the type noted above, and an order compelling a party “to comply with a request for production or inspection under Rule 2-422.” Md. Rule 2-432(b)(1)(E). The Rules do not deal explicitly with the destruction of discoverable evidence.

But they do clearly allow for the dismissal of a party’s claims for failure to respond to a request for production and for failure to obey an order compelling such a response or the actual production itself. Destruction of evidence such as was found in this case would render hollow any response to a request for production, even if timely filed, just as it would render an order to compel moot. If dismissal is permissible in those cases, it would seem to be a fortiori permissible in a case of destruction of discoverable evidence. Cf.

White v. Office of the Public Defender for the State of Md., 170 F.R.D. 138 , 148 n. 8 (D.Md.1997) (“A party who has removed any possibility of warnings by destroying evidence before a court order can be issued cannot in fairness thereby immunize herself from the ultimate sanction of dismissal.”); Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68 , 72 ¹⁹⁵ (S.D.N.Y.1991) (citing In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 90 F.R.D. 613, 620-21 (N.D.Ill.1981)) (“Even though a party may have destroyed evidence prior to issuance of the discovery order and thus be unable to obey, sanctions are still appropriate under [Federal Rules of Civil Procedure] Rule 37(b) because this inability was self-inflicted.”). It seems to us that that is likewise an appropriate conclusion under the Maryland Rules. In Womble v. Miller, 25 Md.App. 656 , 336 A.2d 138 (1975), the appellant made an interlocutory challenge of a monetary discovery sanction imposed on him. The underlying dispute involved an assault for which the appellant brought suit.

The appellant’s deposition was scheduled, and he appeared for his deposition, but refused to proceed in a normal fashion. The deposition was halted before any questions were put to the appellant. When the appellant was sanctioned by the court for his refusal to be deposed, he appealed, claiming that the rule regarding failures of discovery, the present Maryland Rule 2-432, did not cover the case. The rule allows for court orders or sanctions for a failure to appear or to answer questions.

But the appellant neither failed to appear nor failed to answer questions since none were put to him. This Court concluded, however, that the case did come under the rule, reasoning: The Court of Appeals in adopting [the predecessor rule to Maryland Rules 2-432 and 2-433] did not seek to provide therein against every conceivable contingency that could arise, but rather applied a broad rule vesting the trial court with discretion as to the rule’s enforceability. “A large measure of discretion is entrusted to trial judges in Mary- ■ land in applying sanctions for failure to comply with the rules relating to discovery.” Id. at 666-67 , 336 A.2d 138 (quoting Tydings v. Allied Painting & Decorating Co., 13 Md.App. 433, 436 , 283 A.2d 635 (1971)). Likewise, we conclude that such an expansive reading of the discovery rules gives trial courts the discretion to ¹⁹⁶ impose Rule sanctions for the destruction of evidence, a discovery abuse not directly covered by the Rules. Given the importance and novelty in Maryland of the issue of sanctions for destruction of discoverable evidence, we will not, however, rest our decision solely on this basis.

Rather, we will also consider the inherent authority of the court to regulate the discovery process. When, as here, there is little Maryland precedent, we look to eases interpreting analogous federal rules. See Pleasant v. Pleasant, 97 Md. App. 711, 732 , 632 A.2d 202 (1993) (citing Bartell v. Bartell, 278 Md. 12, 18 , 357 A.2d 343 (1976) (quoting Snowhite v. State ex rel. Tennant, 243 Md. 291, 308-09 , 221 A.2d 342 (1966))).

Inherent Authority to Regulate Discovery The United States Supreme Court has been constant in asserting the inherent authority of courts of law properly to regulate proceedings that come before them. “The inherent powers of federal courts are those which ‘are necessary to the exercise of all others.’ ” Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 , 100 S.Ct. 2455 , 65 L.Ed.2d 488 (1980) (quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 , 3 L.Ed. 259 (1812)). Those powers are “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 , 82 S.Ct. 1386 , 8 L.Ed.2d 734 (1962). Proceeding from this understanding of inherent authority and powers, the federal courts have frequently dealt with cases of discovery misconduct that do not fall directly under the federal rules but in which sanctions of the type allowed under Rule 37 would nevertheless be appropriate. The consensus is that, whether or not the discovery sanctions rule applies, the court retains and “relies on its inherent power to regulate litigation, preserve and protect the integrity of proceedings before it, and sanction parties for abusive practices.” Capellupo v. FMC Corp., 126 F.R.D. 545, 551 (D.Minn.1989); see also White, 170 F.R.D. at 148-49 ; Turner , 142 F.R.D. at ¹⁹⁷ 72; National Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 556 (N.D.Cal.1987).

We thus conclude that our courts “have the power to sanction the destruction of evidence, whether that authority is derived from [the discovery sanctions rule] or from their inherent powers.” Turner, 142 F.R.D. at 72 . Evidentiary Inference vs. Discovery Sanction The appellants rest the bulk of their argument against the imposition of the sanction of dismissal for destruction of evidence upon their claim that “[n]o case decided by the Maryland appellate courts ruled that dismissal of the case was the proper remedy” for such destruction. Rather, they assert, numerous cases have held that spoliation of evidence should lead the trier of fact to draw a negative evidentiary inference or presumption against the spoliator. See Larsen v. Romeo, 254 Md. 220, 228 , 255 A.2d 387 (1969); Maszczenski v. Myers, 212 Md. 346, 355 , 129 A.2d 109 (1957); Anderson v. Litzenberg, 115 Md.App. 549, 561-62 , 694 A.2d 150 (1997); DiLeo v. Nugent, 88 Md.App. 59, 71 , 592 A.2d 1126 , cert. granted, 325 Md. 18 , 599 A.2d 90 (1991); 3 Miller v. Montgomery County, 64 Md.App. 202, 214-15 , 494 A.2d 761 , cert. denied, 304 Md. 299 , 498 A.2d 1185 (1985); Burkowske v. Church Hosp.

Corp., 50 Md.App. 515, 523-24 , 439 A.2d 40 (1982). In making that argument, the appellants have neglected two crucial principles. First, we remind them that litigation proceeds by stages and that the different stages are governed by different rules and standards. See Md. Rules 2-101 to 2-652.

Discovery is one such stage and it clearly has its own unique rules. Md. Rules 2-401 to 2-434. As noted above, the penalties for abusive conduct during discovery, including dismissal with prejudice, can be harsh. But it is the court alone,