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MARYLANDJames W. Bartlett, IIIEric M. LeppoSEMMES, BOWEN & SEMMES25 South Charles Street, Suite 1400Baltimore, Maryland 21201Phone: (410) 576-4833jbartlett@semmes.comwww.semmes.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Maryland’s version of the work product doctrine is found at MD. RULE 2-402(d) and canbe used to shield pre-suit investigation materials from discovery by the opposing partyas long as they were “prepared in anticipation of litigation.” As is true underFED.R.CIV.P. 26(b)(3)(A)(ii), such materials are only discoverable when “the partyseeking discovery has substantial need for the materials . . . and is unable withoutundue hardship to obtain the substantial equivalent of the materials by other means.”Whether a document was prepared in the anticipation of litigation is a question for thetrial court to determine, however, and the party who opposes the production ofdocuments bears the burden of demonstrating that the materials were prepared inanticipation of litigation, as opposed to being prepared in the ordinary course ofbusiness. Kelch v. Mass Transit Admin., 287 Md. 223, 229, 411 A.2d 449, 453 (1980).Moreover, written reports prepared by a party after an accident will be assumed by thecourt to be prepared in the ordinary course of business. See Maged v. Yellow Cab Co.,237 Md. 340, 345, 206 A.2d 257, 260 (1965). Therefore, involving an attorney at theoutset to coordinate any catastrophic loss investigation may assist in establishing thatthe documents were prepared in anticipation of litigation.2. What is Maryland’s rule with regard to the discoverability of written orrecorded statement taken during investigation of an incident?A written or recorded statement from a loss investigation will fall within the work productdoctrine as long as it is deemed to have been obtained in anticipation of litigation asnoted above. There are, however, important caveats in the Maryland law. First, anopposing party is always entitled to obtain a statement they previously provided to aparty or its insurer. MD. RULE 2-402(f). Additionally, the work product doctrine is not acomplete bar to production; disclosure of such statements may be required if obtainingthe information would cause undue hardship to the opposing party, or the information isno longer available. E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396,408, 718 A.2d 1129 (1998).3. Does your state recognize a self-critical analysis privilege?