MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1991-51

Use of custodial deposition process in a way that affords only one party the opportunity to obtain copies of documents

You have asked our Committee’s view of whether it is “ethical under professional rules” for a party in litigation to issue a subpoena tecum seeking records from a custodian, and then not to proceed further with the depositions if copies of the requested documents are provided prior to the date of the scheduled deposition.  A result is that the party which issued the subpoena receives the documents, and other parties do not.  You indicate your view that, since other parties do not or may not have access to the same documents, the “deposition process is subverted” and that the technique amounts to an “abuse of the discovery process.”
In the view of our Committee, your inquiry poses a question of law or of litigation tactics, not an ethics issue on which our Committee should comment.  While almost any act by an attorney, particularly in the litigation context, may be viewed as having an “ethics” aspect, your inquiry poses almost exclusively issues respecting the application of discovery rules, litigation tactics, and similar concerns which are properly addressed to a court or to the rule-making process.
We are not unmindful of the imperatives of Maryland Rules of Professional Conduct 3.2 (requiring attorneys to make reasonable efforts to expedite litigation) or Rule 3.4.  Rule 3.4 condemns unlawful obstruction, the falsification of evidence, the secret and knowing disobedience of obligations, and similar conduct which tends to subvert the evidentiary process.  The circumstances you describe do not fall into that realm of quasi-criminal conduct.  Stated simply:  through an apparently lawful process, your litigation opponent has procured documents.  You want them.  Presumably, there are processes at law for procuring that which you are entitled.  If the conduct described does amount to an abuse or subversion of the discovery process, the appropriate remedy would appear to be a motion under Federal Rule Civ. Proc. 37 or under Maryland Rules of Civil Procedure 2-432 or 2-433.  The ethics rules are not intended as a substitution for the adjudicative process.
Our Committee normally declines to render advice on issues which may come before an appropriate tribunal for adjudication.  Our Committee also declines to render opinions on what are essentially matters of law, as distinct from applications of the Rules of Professional Conduct.