Motion to Compel Depositions in Maine

“The scope of discovery is any matter that is relevant to the pending action.” (See M.R. Civ. P. 26(b)(1); Mahoney v. York Hosp., 2014 Me. Super. LEXIS 37, *2 (Me. Super. Ct. Feb. 18, 2014); Harris Mgmt., Inc. v. Paul Coulombe, PGC1, LLC, Docket No.: BCD-CV-14-60, at *9 (Me. Super. July 1, 2015).)

“Discovery has the dual purpose of assisting in identifying admissible evidence and in identifying further areas for inquiry that may lead to development of admissible evidence.” (See Mitchell v. Kieliszek (2006) 900 A.2d 719, 726.)

“Thus, M.R. Civ. P. 26(b)(1), regarding the proper scope of discovery states: (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” (See id.)

“It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” (See id.)

“The Maine Rules of Civil Procedure are intended to secure the just, speedy and inexpensive determination of every action. To that end, liberal discovery is encouraged as a means to eliminate the sporting theory of justice and to enforce full disclosure between the parties." (See Pinkham v. Dep't of Transp. (2016) Me. 74, 9; M.R. Civ. P. 1; St. Paul Ins. Co. v. Hayes (2001) ME 71, ¶ 8, 770 A.2d 611.)

“At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof…” (See Gierie v. Mercy Hosp (2009) 969 A.2d 944, 949-50.)

Rules for Filing a Motion to Compel Depositions

Rule 27 of the Maine Rules of Civil Procedure governs discovery before an action or pending appeal.

“A person who desires to perpetuate testimony or to obtain discovery under Rule 34 or 35 regarding any matter that may be cognizable in any court of the state may file a verified petition in the Superior Court in the county, or in the District Court in the division, of the residence of any expected adverse party; and if there be more than one expected adverse party, some of whom may live in different counties or divisions, then the petition may be filed in any county or division in which an expected adverse party may reside.” (See Me. R. Civ. P. 27(a)(1).)

“The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of hearing the notice shall be served either within or without the state in the manner provided in Rule 4(d), (e), or (j) for service of summons…” (See Me. R. Civ. P. 27(a)(2).)

“If the court is satisfied that the perpetuation of the testimony or other discovery may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35.” (See Me. R. Civ. P. 27(3).)

“Discovery may then be had in accordance with these rules. For the purpose of applying these rules to discovery before action, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such discovery was filed.” (See id.)

Discretion of the Court in Deciding a Motion to Compel Depositions

“The scope of discovery is always within the discretion of the court.” (See Picher v. Roman Cath. Bishop of Portland (2013) ME 99, ¶ 6, 82 A.3d 101; In re Estate of Kerwin (2020) 239 A.3d 623, 628.)

"Discovery orders are generally reviewed for abuse of discretion." (See Selby v. Cumberland County (2002) ME 80, ¶ 12 n.11, 796 A.2d 678; In re Estate of Kerwin (2020) 239 A.3d 623, 628.)

"A party aggrieved by a discovery order must show both that the trial judge committed error in the discovery ruling despite the considerable discretion vested in the judge and that the discovery order affected the outcome of the action to his prejudice." (See also Jacques v. Pioneer Plastics, Inc. (1996) 676 A.2d 504, 509; In re Estate of Kerwin (2020) 239 A.3d 623, 628.)

“A court abuses its discretion if it exceed[s] the bounds of the reasonable choices available to it." (See Capelety v. Estes (2023) Me. 50, 12; Sager v. Town of Bowdoinham (2004) ME 40, ¶ 11, 845 A.2d 567.)

“We note that a determination of an abuse of discretion does not equate to a finding of bad faith, intentional wrongdoing, or misconduct by the judge. Trial judges are called upon to make multiple, swift decisions-in 'real' time- during the course of trials and hearings." (See id; State v. Hussein (2019) ME 74, ¶ 17, 208 A.3d 752.)

“Nonetheless, [a] trial court ruling, even if in error, will not result in vacating the judgment if the error was 'harmless'-that is, if the error did not result in substantial injustice or affect substantial rights." (See Capelety v. Estes (2023) Me. 50, 12; Guardianship of David P. (2018) ME 151, ¶ 12, 196 A.3d 896.)

Legal Precedents and Case Law on a Motion to Compel Depositions

“It is well established that discovery is not a limitless mechanism to obtain information. Privileged information, although often relevant, is neither discoverable nor admissible at trial. Rules of privilege are designed to keep out some portion of the truth in order to foster relationships that as a matter of social policy are deemed to deserve protection." (See Estate of Kennelly v. Mid Coast Hosp. (2020) 239 A.3d 604, 612; Pinkham v. Dep't of Transp. (2016) Me. 74; Field & Murray, Maine Evidence § 501.1 at 206 (6th ed. 2007); M.R. Civ. P. 26(b)(1).)

It is also well settled that “the trial court has broad discretion to sanction a party for failing to comply with discovery orders, including an order made pursuant to Rule 26(g). The factors that the court must consider: include, but are not limited to, the purpose of the specific rule at issue, the party's conduct throughout the proceedings, the party's bona fides in its failure to comply, prejudice to other parties, and the need for the orderly administration of justice. The court must also consider the purposes to be served by imposing sanctions, including penalizing the noncompliant party, remedying the effects of the noncompliance, and deterring similar conduct by the offending party, as well as by others.” (See Roberts v. MECAP, LLC, No. CV-20-091, at *1 (Me. Super. June 24, 2021); Harris v. Soley (2000) 756 A.2d 499, 504.)