REPORTED IN THE COURT OF SPECIAL APPEALS OF

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 203

September Term, 2003

___________________________________

WILLIAM C. BOND

WILLIAM H. SLAVIN, ET AL.

___________________________________

Murphy, C.J.,

Eyler, Deborah S.,

Bishop, John J., Jr.,

(Retired, specially assigned),

JJ.

____________________________________

Opinion by Murphy, C.J.

____________________________________

Filed: June 18, 2004

Appellant presents the following questions for our review:

I. SHOULD THE ORDERS OF APRIL 2, 2003 BE

VACATED AND THIS CASE REMANDED SO THAT

THE CIRCUIT COURT MAY HOLD A HEARING IN

ACCORDANCE WITH MARYLAND RULE 2-311(f)?

II. MAY A FINANCIAL INSTITUTION DISCLOSE EX

PARTE ITS CUSTOMER’S BANKING RECORDS TO

A THIRD PARTY WITHOUT PRIOR PERSONAL

NOTICE TO ALL ACCOUNT HOLDERS AND IN

ADVANCE OF A HEARING TO WHICH THE

RECORDS WERE SUBPOENAED TO OPEN

COURT?

III. DID THE CIRCUIT COURT ERR IN AWARDING

ATTORNEY’S FEES PURSUANT TO MARYLAND

RULE 1-341?

Because we answer “yes” to question I, we remand for further proceedings not

inconsistent with this opinion.

This appeal from the Circuit Court for Baltimore City

presents issues that are usually resolved by agreement of the

parties and/or counsel.

Unfortunately, for reasons that are of

no consequence to our resolution of these issues, neither the

parties nor their counsel could reach an agreement, and their

failure or refusal to do so has resulted in two appeals, the

second of which is No. 1042, September Term, 2003. For the

reasons that follow, we hold that William C. Bond (Mr. Bond),

appellant, is entitled to a hearing on the issue of whether the

circuit court should enter a protective order that would prohibit

the unauthorized disclosure of financial records produced in a

See Alyson (Slavin) Bond v. William H. Slavin, Case No. 24-D-95-249006 (Cir. Ct.

Baltimore City) (hereinafter referred to as the “child custody case”). In September of 2001, Mrs.

Bond filed a Petition for Relief from Abuse in which she requested that a Protective Order be

entered against Mr. Slavin. See Bond v. Slavin, Civil Action No. 24-D-01-003359 (Cir. Ct.

Baltimore City) (hereinafter referred to as the “domestic violence case”). Neither the appellant

nor Bank of America were parties to this case. That case concluded in Mr. Slavin’s favor on

January 3, 2002, when the Circuit Court for Baltimore City voided a Protective Order that had

been entered at an earlier point in time.

domestic relations case, and we remand for further proceedings

not inconsistent with this opinion. In No. 1042, we hold that

the award of counsel fees to William H. Slavin (Mr. Slavin) and

Bank of America (the Bank), appellees, must be vacated as

premature.

Background

Appellant is currently married to Alyson Bond (Mrs. Bond),

who was formerly married to Mr. Slavin. Mrs. Bond and Mr. Slavin

have two minor children from their previous marriage and have

been involved in support, custody, and other litigation for

several years.

The case at bar stems from Mr. Slavin’s petition

for change of custody and child support. A hearing on that

petition was scheduled to be held on February 18, 2003.

On January 24, 2003, Mr. Slavin’s attorneys issued a

subpoena duces tecum to the Bank, requiring that a custodian of

records or a corporate designee appear at the February 18th

hearing and produce certain of Mrs. Bond’s financial records -

Although the subpoena was supposed to have been issued in the child custody case, the

case number on the subpoena is 952490061/CE 201677. This number is close to the number of

the child custody case, but the format is different. This mistake was the first of many that have

resulted in the needless waste of time, energy, and judicial resources.

This certification was filed pursuant to § 1-304 of Maryland’s Financial Institutions

Article. See MD. CODE, FIN. INST. § 1-304 (2003). Mrs. Bond claims that she was not notified

by her attorney that a subpoena had been issued for her bank records.

Immediately prior to the June 23, 2003 hearing, Mrs. Bond and Mr. Slavin resolved

their custody and support dispute. During the hearing, the parties put on no evidence other than

that of the settlement agreement. The records at issue were not marked for identification or used

in any way.

According to appellant, on Saturday February 15, 2003, Mrs. Bond received a letter

from the Bank, postmarked February 13, 2003, advising her that a subpoena had been issued, and

instructing her to notify the Bank immediately if she intended to file a motion objecting to the

(continued...)

including Mr. and Mrs. Bond’s joint accounts.

A copy of the

subpoena was mailed to Mrs. Bond’s counsel. On or about January

27, 2003, Mr. Slavin’s attorneys filed a Certificate of Service

certifying that the lawyer for the account holder had been

notified that the subpoena had been issued.

Mr. Slavin’s counsel notified a representative of the Bank

that no Bank employee would have to appear at the hearing if the

records were forwarded directly to her. On February 14, 2003,

before it received any objection to disclosure of the records,

the Bank delivered the subpoenaed records directly to Mr.

Slavin’s counsel. A snowstorm caused a postponement of the

February 18, 2003 hearing, which was rescheduled to June 23,

2003.

Appellant objected to the disclosure of any joint account

records.

(...continued)

disclosure of her records. According to the Bonds, this was the first notice they received of the

existence of this subpoena. By faxes and letters dated Sunday, February 16 and Monday,

February 17, and by voice mail messages from appellant’s counsel on February 20, the Bonds

notified the Bank that they would not grant permission for disclosure, and that they intended to

file motions to prevent the disclosure of their financial records.

February 17, 2003 was President’s Day and the weekend of a severe snowstorm that

paralyzed the area. As a result, the courts were closed on February 18 and 19. Bank of America

was also closed on February 18.

On February 21, 2003, a representative of the Bank wrote to appellant’s counsel, advising

that the records had been produced within two business days prior to the scheduled hearing, and

that the Bank intended to continue production of any additional records, absent a court order.

That same day, the Bank sent Mrs. Bond a letter, advising her of the particular account

information that had been provided to Mr. Slavin’s counsel.

On February 21, 2003, appellant’s attorney requested that no further production or release

of banking records be made to Mr. Slavin’s counsel. On February 24, February 27, and March 4,

2003, appellant’s counsel wrote to Mr. Slavin’s counsel, requesting that the records be returned

either to the Bank or to appellant and/or that Mr. Slavin and his counsel agree not to make any

direct or indirect use of the records or the information contained therein.

On February 25, Mr. Slavin’s counsel wrote to the Bank, requesting that the Bank

continue its production of documents. On February 27, appellant’s counsel demanded that the

Bank obtain the return of the records. By letter dated March 3, 2003, Mr. Slavin’s counsel

declined to return the records and threatened to seek sanctions against appellant’s counsel. By

letter dated March 6, 2003, the Bank advised that it would continue to produce records to Mr.

Slavin’s counsel until it received an order quashing the subpoena.

Unfortunately, these motions were erroneously filed in the domestic violence case.

Although Mr. Slavin subpoenaed only Mrs. Bond’s bank records, appellant sought to

(continued...)

On March 11, 2003, appellant filed Motions For a Protective

Order and a Restraining Order,

requesting that (1) Mr. Slavin’s

counsel be ordered to place in the custody of the court all

original copies and other copies of appellant’s records obtained

from the Bank, and make no direct or indirect use of those

records or the information contained therein for any purpose

unrelated to the litigation;

and (2) the Bank be ordered to

(...continued)

prevent the production of the records in which he was identified as a joint account holder.

The motions also requested that the court order the Bank to pay appellant $2000 in

attorney’s fees, and order such other relief justice may require.

Appellant filed these motions in the domestic violence case, a case that had already

been concluded and to which the motions had no relevance, instead of the child custody case in

which the subpoena arguably had been issued. Appellees filed their papers in both the domestic

violence case and the child custody case out of an abundance of caution.

This Notice of Appeal, filed in the domestic violence case, resulted in the instant

appeal.

Appellant also filed - in the circuit court and in this Court - Motions to Stay the Orders

denying his motions pending appeal. Appellant erroneously filed the Motion to Stay in the

domestic violence case rather than the child custody case. On May 1, 2003, this Court denied

appellant’s Motion to Stay “without prejudice to again seek appropriate relief from this Court

upon a showing that (1) appellant requested a protective order or other appropriate relief from the

(continued...)

cease any further production of appellant’s banking records.

Appellees responded by arguing that appellant’s motions were

incorrectly filed, frivolous, and without merit.

In addition,

Mr. Slavin requested an award of counsel fees.

On April 2, 2003, after mistakenly entering an order

granting appellant’s motions and thereafter “striking” that

order, the circuit court entered orders that (1) denied

appellant’s motions and (2) provided that counsel for Mr. Slavin

“may submit a petition for expenses, including attorney’s fees

pursuant to Md. Rule 1-341.” The April 2, 2003 orders were

docketed in the domestic violence case on April 7, 2003. On

April 17, 2003, appellant filed a Notice of Appeal,

but did not

pay the required filing fee until June 16, 2003.

The circuit

(...continued)

circuit court, and (2) the circuit court erred or abused its discretion in denying appellant’s

request.”

The court file includes a photocopy of the Notice of Appeal filed on April 17, 2003,

and a cashier’s date stamp indicating that the filing fee was paid on June 16, 2003.

Those motions were filed on May 16, 2003.

court clerk did not docket the notice until June 11, 2003.

On May 5, 2003, Mr. Slavin filed a Petition for Expenses.

On June 12, 2003, the circuit court entered an order requiring

appellant’s lawyers to pay $6,024.94 in attorney’s fees to Mr.

Slavin’s counsel. On June 19, 2003, appellant filed a Motion to

Alter or Amend the sanction award and a request for a hearing on

that motion.

Appellant also filed Motions for Protective Order and for

Restraining Order (renamed Motion for Injunctive Relief) in the

child custody case.

On June 23, 2003, the circuit court denied

those motions, declaring them moot, and instructed appellees to

submit additional petitions for attorney’s fees. Through an

order entered June 26, 2003, the circuit court denied appellant’s

Motion to Alter or Amend the June 12, 2003 order.

On July 29, 2003, the circuit court entered an order that

(1) memorialized its June 23rd rulings, and (2) awarded

additional attorney’s fees to Mr. Slavin, in the amount of

$1,714.04, and to the Bank, in the amount of $956.25. On July

On June 30, 2003, appellant filed a second Notice of Appeal, apparently from the June

23rd and June 26th orders denying all three motions and authorizing Mr. Slavin and the bank to

submit fee petitions. Although docketed in the domestic violence case, there is no other record

of this appeal.

Appellant was entitled to note an appeal from the April 2, 2003 order, because that

order constituted a final and dispositive judgment that denied all of appellant’s requests for relief.

While it is true that the April 2

order included a provision that authorized counsel for Mr.

Slavin to “submit a petition . . . pursuant to Md. Rule 1-341,” if appellant had no right to appeal

until a Rule 1-341 order was actually entered, counsel for Mr. Slavin would be able to prevent

appellate review by simply not filing the petition authorized by the order at issue.

The Notice was filed in the domestic violence case.

30, 2003, appellant filed a third Notice of Appeal,

this one in

the child custody case. Appellant’s first Notice of Appeal has

resulted in the case at bar, No. 203, September Term 2003. His

third Notice of Appeal has resulted in Case No. 1042, September

Term, 2003, in which we address issues involving orders entered

subsequent to the date on which appellant filed his first

appeal.

Appellee’s Motions to Dismiss

I. The Filing Fee Issue

The Orders at issue were signed on April 2, 2003 and entered

on April 7, 2003. Appellant’s Notice of Appeal was received by

the Clerk of the Circuit Court on April 17, 2003, and was date-

stamped at 12:29 p.m. Although the Notice was filed that day,

the Clerk did not docket the Notice until June 11, 2003.

Maryland Rule 8-201 provides:

(a) By notice of appeal. Except as provided in Rule 8-204, the only

method of securing review by the Court of Special Appeals is by

the filing of a notice of appeal within the time prescribed in Rule 8-

202. The notice shall be filed with the clerk of the lower court. . . .

The clerk . . . shall enter the notice on the docket.

(b) Filing fees. At the time of filing a notice of appeal in a civil

case . . ., an appellant shall deposit the fee prescribed pursuant to

[CJ] § 7-102 with the clerk of the lower court . . . .

deposited, the clerk shall transmit the record as provided in Rules

8-412 and 8-413. The fee shall be forwarded with the record to the

Clerk of the Court of Special Appeals.

Maryland Rule 1-322(a) states that “[t]he filing of pleadings and other papers with the

court as required by these rules shall be made by filing them with the clerk of the court, except

that a judge of that court may accept the filing . . . .” This Court has stated that Rule 1-322(a)

“(1) ‘effectually makes the court always open for the filing of papers,’ and (2) provides that ‘the

filing date’ is ‘the day the judge accepts the paper.’” In re: Vy N., 131 Md. App. 479, 483 (2000)

(holding that juvenile delinquency petitions were timely filed even though deadline was January

11, 1999, clerk’s office closed at 4:30 p.m., the petitions were delivered after 4:30 p.m., and the

petitions were not “stamped in” until January 12).

C.J. § 7-201 requires that filing fees be paid prior to docketing a case for consideration

(continued...)

According to appellees, because appellant did not pay the filing

fee until June 16, 2003, Md. Rule 8-201 requires that his appeal

be dismissed.

We reject the argument that an appeal is not

actually filed until the filing fee is paid.

According to MD. CODE, CTS. & JUD. PROC. § 2-201(b) (2003), the

clerk has no duty “to record any paper filed with him [or her]”

until costs are paid.

We are persuaded that to “record” means

(...continued)

by the circuit court, allowing for a waiver of those fees in cases of indigency. However, this case

was docketed for consideration by the Court of Special Appeals, not the circuit court.

“Record (n.) - The official report of the proceedings in a case, including the filed

papers, a verbatim transcript of the trial or hearing (if any), and tangible exhibits. See

DOCKET.” BLACK’S LAW DICTIONARY 1279 (7th ed. 1999). “Docket (n.) - A formal record in

which a judge or court clerk briefly notes all the proceedings and filings in a court case.” Id. at

495. “Docket (vb.) - 1. To make a brief entry in the docket of the proceedings and filings in a

court case <to docket the filing date>.” Id.

Rule 1-323 provides:

The clerk shall not accept for filing any pleading or other paper

requiring service, other than an original pleading, unless it is

accompanied by an admission or waiver of service or a signed

(continued...)

to “docket,” rather than to “file.” If an appellant fails to pay

the filing fee, the clerk is not required to docket the Notice,

but the clerk is required to file it.

“The only authority that

a clerk has to refuse to accept and file a paper presented for

filing is that contained in Md. Rule 1-323.” Director of Fin. v.

Harris, 90 Md. App. 506, 511 (1992).

“The date that a pleading or paper is ‘filed’ is the date

that the clerk receives it . . . .” PAUL V. NIEMEYER & LINDA M.

SCHUETT, MARYLAND RULES COMMENTARY 47 ( 3d.ed. 2003). “A pleading or

paper is filed by actual delivery to the clerk . . . .” Id.

Rule 8-201 does not provide that failure to pay the filing fee

prohibits a Notice of Appeal from being “filed.” We therefore

hold that, except for notices of appeal that fail to comply with

the certificate of service requirement of Md. Rule 1-323,

the

(...continued)

certificate showing the date and manner of making service. A

certificate of service is prima facie proof of service.

This Court is expressly required to dismiss an appeal under certain circumstances. For

example, in Steiner v. Harding, 88 Md. 343, 346-47 (1898), and Horsey v. Woodward, 124 Md.

361, 368 (1914), the courts held that if the record is not transmitted within the time required by

what is now Rule 8-412(a), the appeal will be dismissed. See also Marx v. Reinecke, 142 Md.

343, 344 (1923) (“appeal must be dismissed if the record is not transmitted within the time

named . . . [and] this Court has no discretion in the matter”), appeal dismissed, 270 U.S. 664, 46

S. Ct. 204 (1926); Presstman v. Fine, 162 Md. 133, 136-37 (1932).

The late payment of this filing fee did not interfere with the timely transmission of the

record to this Court. Rule 8-412(a) states that “the clerk of the lower court shall transmit the

record to the Court of Special Appeals within sixty days after: (1) the date of an order entered

pursuant to Rule 8-206(a)(1) that the appeal proceed without a prehearing conference . . . .”

Although the Notice was filed on April 17, 2003, on May 8, 2003, the Court of Special Appeals

issued an order, pursuant to Maryland Rule 8-206(a)(1), directing that the case proceed without a

Prehearing Conference. In accordance with Rule 8-412(a), the record was transmitted to this

Court on June 30, 2003, within sixty days of the May 8, 2003 Order.

notice of appeal is filed on the date that the clerk receives the

notice, not the date on which the clerk receives the filing fee.

In the case at bar, (1) the circuit court did not strike the

Notice, and (2) appellees did not move to have it stricken.

Those actions are permitted under Rule 8-203(a)(3). Furthermore,

the clerk actually filed the Notice before receiving the fee.

There is no evidence whatsoever that (1) appellees were

prejudiced by the late payment of the fee, or that (2) the course

of the appeal was delayed in any way.

While we recognize that

it is generally within our power to dismiss an appeal if the

See Rule 8-602(a)(2).

appeal was not properly taken pursuant to Rule 8-201,

it is the

practice of this Court to decide appeals on the merits rather

than on technicalities. We hold that appellant’s Notice of

Appeal satisfied the requirements of Rule 8-201, and therefore

deny appellees’ motion to dismiss the appeal on the ground of

appellant’s tardy payment of the filing fee.

II. Jurisdiction and Mootness Issues

Mr. Slavin argues that this Court does not have jurisdiction

over the circuit court’s denial of appellant’s Motion for a

Temporary Restraining Order. We disagree. Under C.J. § 12-

303(3)(iii), a party may appeal from an order refusing to grant

an injunction. Maryland Rule 15-501(c) defines a “temporary

restraining order” as an “injunction granted without opportunity

for a full adversary hearing on the propriety of its issuance.”

(emphasis added). The circuit court’s refusal to grant

appellant’s temporary restraining order is an appealable order,

and this Court has jurisdiction to address it.

The Bank argues that the issues presented in this case are

moot because (1) the Bank has already disclosed appellant’s

financial records to Mr. Slavin’s counsel, and (2) it is too late

to provide a remedy. In Estate of Martin Luther King, Jr., Inc.

v. CBS, Inc., 184 F. Supp. 2d 1353 (N.D. Georgia 2002), the

United States District Court for the Northern District of Georgia

A question is moot if, at the time it is before the court, there is no longer any existing

controversy between the parties, so that there is no longer any effective remedy which the court

can provide. Attorney General v. A. A. Co. School Bus, 286 Md. 324, 327 (1979); State v.

Flicker, 266 Md. 500, 506-07 (1972).

held that the failure to file two depositions under seal did not

render moot a subsequently filed motion to seal the depositions,

even though (1) the unsealed depositions had been placed in the

court’s public file, and (2) the file had been transferred to a

federal public storage facility. Id. at 1365-67. We agree with

that analysis, and shall apply it in the case at bar.

Appellees also argue that, because Mr. Slavin and Mrs. Bond

have settled the custody and child support issues that prompted

the request for financial records, this case has become moot.

Appellate courts generally do not decide academic or moot

questions. There are, however, “‘rare instances,’” in which “‘the

urgency of establishing a rule of future conduct in matters of

important public concern is imperative and manifest [and

requires] a departure from the general rule and practice of not

deciding academic questions.’” Mercy Hosp. v. Jackson, 306 Md.

556, 562-63 (1986) (quoting Lloyd v. Supervisors of Elections,

206 Md. 36, 43 (1954)); see also Ins. Comm’r of the State of

Maryland, et al. v. Equitable Life Assurance Soc’y of the United

States, 339 Md. 596, 614 (1995). The circumstances under which

and procedures by which confidential financial information can be

protected from unauthorized disclosure are “issues . . . of

A case should not be dismissed as moot if the case “presents ‘unresolved issues in

matters of important public concern that, if decided, will establish a rule for future conduct,’ or

the issue presented is ‘capable of repetition, yet evading review.’” Committee for Responsible

Dev. on 25th St. v. Mayor & City Council, 137 Md. App. 60, 69 (2001) (quoting Stevenson v.

Lanham, 127 Md. App. 597, 612 (1999)).

important public concern.” So is the issue of whether a bank (or

any recipient of a subpoena that calls for the production of

financial records) can provide financial records to the

requesting party prior to the date and time specified on the

subpoena.

The Necessity for a Remand

I. Appellant’s Right to a Hearing

Appellant argues that the orders of April 2, 2003 should be

vacated and this case remanded because the circuit court was

required to hold a hearing on the motions. This argument is

based upon Rule 2-311(f), which, in pertinent part, states:

Hearing — Other motions. A party desiring a

hearing on a motion, other than a motion

filed pursuant to Rule 2-532, 2-533, or 2-

534, shall request the hearing in the motion

or response under the heading “Request for

Hearing.” Except when a rule expressly

provides for a hearing, the court shall

determine in each case whether a hearing will

be held, but the court may not render a

decision that is dispositive of a claim or

defense without a hearing if one was

requested as provided in this section.

(Emphasis added). Appellees argue that a hearing is not required

unless the court’s ruling would be “dispositive of a claim or

defense.” Md. Rule 2-311(f). In the case at bar, however, the

denial of appellant’s motions was “dispositive” of his request

for relief.

Appellees also argue that, because it was Mr. Slavin who

requested the hearing, the circuit court was not required to hold

a hearing before denying the relief sought by appellant. There

is no merit in that argument. In Adams v. Offender Aid &

Restoration of Baltimore, Inc., 114 Md. App. 512, 515-16 (1997),

this Court held that if any party requests a hearing, no other

request is necessary to obtain a hearing. Because (1) the order

denying appellant’s motions was dispositive of appellant’s claim,

and (2) Mr. Slavin requested a hearing on the motions, the

circuit court erred in denying the motions without holding a

hearing. We therefore remand for the hearing to which the

parties are entitled.

Appellees also argue that the circuit court did not abuse

its discretion in denying appellant’s motions because appellant

filed them in the “wrong case.” We do not know why the circuit

court denied these motions, but we refuse to infer that the

circuit court would impose such an extreme sanction simply

because the wrong case number appears on the motions. It is for

the circuit court to (1) hold the hearing to which the parties

are entitled, and (2) provide an explanation for its rulings so

that any aggrieved party will have an opportunity for meaningful

The grant or denial of an injunction lies within the sound discretion of the circuit court

and the court’s decision will not be disturbed on appeal absent a showing of an abuse of

discretion. Maryland Comm’n on Human Relations v. Downey Communications, Inc., 110 Md.

App. 493, 521 (1996) (citations omitted). Price v. Orrison, 261 Md. 8, 10 (1971). An abuse of

discretion is present “where no reasonable person would take the view adopted by the [trial]

court.” Metheny v. State, 359 Md. 576, 604 (2000) (quoting In re Adoption/Guardianship No.

3598, 347 Md. 295, 312 (1997)). “Thus, where a trial court’s ruling is reasonable, even if we

believe it might have gone the other way, we will not disturb it on appeal.” Id.

appellate review.

II. Appellant’s Right to Protection of His Financial Records

Appellant argues that his financial records were wrongfully

disclosed when his wife’s financial records were subpoenaed in

the custody/support case. According to appellant, because his

wife’s records included their joint accounts, his financial

records were also disclosed. Appellees argue that (1) the Bank

did not violate the Maryland Confidential Financial Records Act

when it disclosed appellant’s financial records prior to the

hearing date indicated on the subpoena, and (2) appellant, as a

non-party, lacked standing to obtain any redress for alleged

noncompliance with the subpoena. Whatever merit there might be

in those arguments, the circuit court should not have addressed

any of them without holding the hearing to which appellant is

entitled, and at which the circuit court shall be guided by the

following principles.

No party has an absolute right to examine confidential

records that have been subpoenaed to the courtroom. A bank

depositor has a right to expect that the bank will, to the extent

permitted by law, treat as confidential all information regarding

the depositor’s account and related transactions. Suburban Trust

Company v. Waller, 44 Md. App. 335, 344 (1979). The Maryland

Financial Institutions Code prohibits the disclosure of financial

records, except under certain circumstances.

Except as otherwise expressly provided in

this subtitle, a fiduciary institution, its

officers, employees, agents, and directors:

(1) May not disclose to any person any

financial record relating to a customer of

the institution unless:

(i) The customer has authorized the

disclosure to that person . . . .

Fin. Inst. § 1-302. Section 1-304(b) describes the procedure by

which a bank may disclose customer records when served with a

subpoena.

(b) Disclosure or production permitted. – A

fiduciary institution may disclose or produce

financial records or information derived from

financial records in compliance with a

subpoena served on the fiduciary institution,

if:

(1) The subpoena contains a

certification that a copy of the subpoena has

been served on the person whose records are

sought by the party seeking the disclosure or

production of the records; or

(2) Contains a certification that

service has been waived by the court for good

cause.

Absent compulsion by law, a bank may not make any disclosure

concerning a depositor’s account without express or implied

consent of the depositor. Suburban Trust, 44 Md. App. at 344; see

also Taylor v. Nationsbank, N.A., 365 Md. 166, 179-80 (2001).

When served with a subpoena, so long as the bank follows correct

procedure, it may disclose financial records of a customer. It is

up to the customer to object to such disclosure. When the

customer does not object, for whatever reason, and the records are

disclosed prior to the date on the subpoena, the customers are not

thereby stripped of a property interest in those records. Courts

could not function effectively if they lacked the power to limit

the use parties could make of sensitive information obtained

through the court’s processes. Bittaker v. Woodford, 331 F.3d

715, 726 (9th Cir. 2003).

The subpoena at issue was served on Bank of America and

commanded a custodian of records to “[p]ersonally appear and

produce documents or objects: at Circuit Court for Baltimore City,

Courthouse East, Family Division, Room 3, 1

Floor, 111 North

Calvert Street, Balt., MD 21202 on Tuesday the 18th day of

February, 2003 at 9:30 a.m.” Instead, the Bank delivered the

joint bank records of Mr. and Mrs. Bond to counsel for Mr. Slavin

at a time prior to and place other than that specified in the

subpoena. The Bank had no right to do so. When a court issues a

subpoena duces tecum requiring a custodian of financial records to

“personally appear and produce [financial records]” at a certain

place on a certain date and time, the custodian cannot - without

obtaining the permission of the person(s) whose financial records

The primary function of a civil subpoena is to compel the

attendance of witnesses and the production of documents to formal

court proceedings during the pretrial state of the civil case or

at trial. “The subpoena power allows the parties to bring before

the court all the available information for the determination of

controversies before it.” United States v. Santiago-Lugo, 904 F.Supp. 43, 46-47 (D.Puerto Rico,

1995)(citing F.R.Civ.P. 45(a)(1)-(3)).

“The power of the court to enter a protective order relating to discovery is broad.”

NIEMEYER & SCHUETT, at 282. Maryland Rule 2-403 permits the circuit court to

enter any order that justice requires to protect a party or person

from annoyance, embarrassment, oppression, or undue burden or

expense, including one or more of the following:

(1) that the discovery not be had . . ., (3) that the

discovery may be had only on specified terms and conditions . . .,

(5) that certain matters not be inquired into or that the scope

of the discovery be limited to certain matters . . .,

(8) that a trade secret or other confidential research,

development, or commercial information not be disclosed or be

disclosed only in a designated way . . . .

have been subpoenaed - produce those records at a different place

on a different date. Such a subpoena “does not . . . signify a

delivery of the papers into the hands of the party calling for

their production or of his counsel, or a submission of them to his

examination . . . .” Banks v. Connecticut Railway & Lighting Co.,

79 Conn. 116, 118-19 (1906).

The Bank was required to bring the

records into court, where (1) any person whose records had been

subpoenaed would be entitled to ask the court to resolve claims of

relevancy, privilege, or confidentiality, and (2) the court would

have the authority to issue an order protecting the records from

improper use.

Md. Rule 2-403 is based in large part on F.R.Civ.P. 26(c).

Tanis v. Crocker, 110 Md. App. 559, 574 (1996). When interpreting a

Maryland Rule that is similar to a federal rule of Civil Procedure, we may look to federal

decisions construing the corresponding federal rule for guidance. Pleasant v. Pleasant, 97 Md.

App. 711, 732 (1993).

The Maryland Rules of Procedure, like the Federal Rules of

Civil Procedure,

provide the courts with “a grant of power to

impose conditions on discovery in order to prevent injury,

harassment, or abuse of the court's processes.” Bridge C.A.T.

Scan Associates v. Technicare Corp., 710 F.2d 940, 944-45

(C.A.N.Y. 1983).

Rule Md. 2-510(e), in pertinent part, provides:

Objections to subpoena for court proceedings.

On motion of a person served with a subpoena

to attend a court proceeding . . . at or

before the time specified in the subpoena for

compliance, the court may enter any order that

justice requires to protect the person from

annoyance, embarrassment, oppression, or undue

burden or expense, including one or more of

the following:

* * *

(4) that documents or other tangible things

designated in the subpoena be delivered to the

court at or before the proceeding or before

the time whey they are to offered in evidence,

subject to further order of court to permit

inspection of them.

This rule does not prohibit appellant from requesting

appropriate relief. Under federal law, a motion to quash or

modify a subpoena duces tecum may be made by a party who was not

served with the subpoena, if that party has a personal right or

If the party against whom discovery is sought makes a timely motion for a protective

order, the court can examine the relevant documents or information in camera before determining

whether a restraining order should issue. See Kerr v. United States District Court, 426 U.S. 394,

(continued...)

privilege with respect to the material requested in the subpoena.

Smith v. Midland Brake, Inc., 162 F.R.D. 683, 685

(D.Kan.1995)(citing F.R.Civ.P. 45(c)(3)(A)); see also Transcor,

Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (D.Kan.

2003)(citing F.R.Civ.P. 45(c)(3)(A)) (as bank customer, defendant

had a personal right with respect to its bank account records at

banks which were subject of subpoenas duces tecum issued by

plaintiff, and that right gave defendant standing to move to quash

the subpoenas); Broadcort Capital Corp. v. Flagler Securities,

Inc., 149 F.R.D. 626, 628 (D.Colo. 1993) (citing F.R.Civ.P.

45))(nonparty and defendant in securities action had standing to

object to subpoena duces tecum of telephone company records based

on claims that records were privileged, despite contention that

only the served party could object).

“[A] trial court is duty-bound, where it orders production of

documents in which there are strong policy reasons against public

disclosure, to limit the availability and use of those documents

and their contents by carefully drawn protective provisions.”

Carr v. Monroe Mfg. Co., 431 F.2d 384, 390 (5th Cir. 1970) (citing

Baim & Blank, Inc. v. Bruno-New York, Inc., 17 F.R.D. 346

(S.D.N.Y. 1955)).

In Bush Development Corporation v. Harbour

(...continued)

404-06 (1976). In appropriate cases, opposing counsel should be permitted to participate in such

in camera proceedings, so that the judge will have the benefit of adversarial presentation. In re

Halkin, 598 F.2d 176, 194 (D.C.CA 1979).

The District Court ordered a state-court Clerk to comply with a summons issued by the

Internal Revenue Service (IRS) for the production of two tapes in the Clerk's custody recording

conversations between officials of petitioner Church of Scientology (Church) and their attorneys.

Although the Church filed a timely notice of appeal, its request for a stay of the summons

enforcement order was unsuccessful and copies of the tapes were delivered to the IRS while the

appeal was pending.

Place Associates, 632 F. Supp. 1359 (E.D.Va.1986), although the

court found that bank customers had no standing to quash a

subpoena filed in a civil action, the court issued the following

protective order:

Plaintiff’s counsel shall not disclose the

contents to any other person or entity other

than the agents of his client and the

information contained shall be used solely for

purposes of this law suit and the disclosure,

if any, of the documents or any part thereof

by plaintiff’s counsel and his agents and

employees or by the agents or employee of the

plaintiff corporation for any other purpose is

expressly forbidden.

Id. at 1364.

When documents that should be presented to the court on a

particular date have been presented in advance of that date to the

party who issued the subpoena, the fact that harm resulting from

the premature production may be irreversible does not render the

court powerless to fashion some form of meaningful relief. See

Church of Scientology v. United States, 506 U.S. 9, 12-13 (1992),

which holds that (1) taxpayers have a possessory interest in their

Md. Rule 2-402 sets forth the scope of discovery,

providing: Unless otherwise limited by order of the court in

accordance with these rules . . . [a] party may obtain discovery

regarding any matter, not privileged, . . . if the matter sought

is relevant to the subject matter involved in the action. . . .”

tax records, (2) “[w]hen the Government has obtained such

materials as a result of an unlawful summons, that interest is

violated and a court can effectuate relief by ordering the

Government to return the records,” (3) when the Government’s

retention of copies of the records constitutes a continuing injury

to the taxpayer’s privacy, even though it is too late to prevent

the initial invasion of privacy, “a court does have power to

effectuate a partial remedy by ordering the Government to destroy

or return any and all copies it may have in its possession,” and

(4) the availability of this potential remedy was sufficient to

prevent the case from being moot. Id. at 13.

The Bank argues that appellant lacked standing to obtain

protection of his financial documents. There is, however, ample

Maryland precedent for the proposition that non-parties have

standing to obtain judicial relief from the unauthorized

disclosure of statutorily protected records. In Ashton v. Cherne

Contracting Corporation, 102 Md. App. 87 (1994), this Court held

that, although the jointly-filed tax returns of a witness were

subject to discovery,

the witness was entitled to a protective

order redacting those portions of the returns that were

irrelevant. Id. at 98. See also Rolley v. Sandord, 126 Md. App.

Our holding that appellant is entitled to a hearing should not be interpreted as an

indication that we have come to the conclusion that appellant is entitled to some form of relief.

Nor should our decision in No. 1042 be interpreted as an indication that we have come to the

conclusion that appellees are not entitled to the sums of money that they were awarded pursuant

to Md. Rule 1-341.

At the conclusion of that hearing, an aggrieved party will have a right to appellate

review of whatever appealable order is entered by the circuit court.

124 (1999), in which this Court held that portions of joint income

tax returns could be redacted to prevent disclosure of irrelevant

financial information about the spouse of a party to the

litigation. In Warner v. Lerner, 348 Md. 733 (1998), the Court of

Appeals held that the Confidentiality of Medical Records Act, MD.

CODE, HEALTH-GEN. I § 4-301 through 4-309 (2003), permitted a

lawsuit by a plaintiff who learned that his medical records had

been used without his permission in a medical malpractice action

to which he was not a party. Id. at 740-41.

III. Proceedings on Remand

We remand this case to the circuit court for an evidentiary

hearing,

and direct that the hearing required by this opinion be

held as promptly as is reasonably practicable.

The hearing will

be held pursuant to the maxim that the (Equity) court should

consider to have been done that which should have been done. The

circuit court shall therefore (1) require that appellees’ counsel,

in their roles as officers of the court, deliver to the court each

The records marked for identification at the hearing will also be protected by the

Maryland Public Information Act, Md. Code (1984, 1999 Repl. Vol., 2003 Supp.) § 10-611, et

seq., of the State Government Article. Pursuant to S.G. 10-617(f), when an exhibit that contains

confidential financial information has been introduced into evidence (or has been “marked for

identification” and is thereby included in the court record), that exhibit is filed under seal in an

envelope furnished to the clerks by the Administrative Office of the Courts, and on which the

following information is printed:

CONFIDENTIAL

INFORMATION

THE DOCUMENTS CONTAINED IN THIS ENVELOPE ARE

NOT PUBLIC INFORMATION. THIS ENVELOPE SHALL

NOT BE OPENED, AND THE CONTENTS SHALL NOT BE

ACCESSED, BY ANY PERSONS OTHER THAN THE COURT,

EMPLOYEES OF THE COURT, THE PARTIES TO THIS

CASE, OR COUNSEL FOR THE PARTIES TO THIS CASE.

SEE ANNOTATED CODE OF MARYLAND, STATE

GOVERNMENT ARTICLE, SECTION 10-617(f).

ANY PERSON VIOLATING THE PROVISIONS OF THIS

SECTION ARE [sic] SUBJECT TO CRIMINAL PENALTIES

AS PROVIDED BY LAW.

and every item that the Bank turned over to Mr. Slavin’s counsel,

(2) identify which of those financial records involve Mr. Bond,

(3) determine whether any of the financial records involving Mr.

Bond, and/or the information derived from those records, have been

disclosed to persons or organizations who are not parties to the

case that was scheduled to be heard on February 18, 2003, and (4)

resolve the issue of whether, and/or to what extent, Mr. Bond is

entitled to an appropriate order protecting him against the

improper (direct and derivative) use of his financial records.

JUDGMENT VACATED; CASE

REMANDED FOR FURTHER

PROCEEDINGS NOT

INCONSISTENT WITH THIS

OPINION; EACH PARTY TO PAY

HIS/ITS OWN COSTS.

HEADNOTE: Bond v. Slavin, No. 203, September Term, 2003

CIVIL PROCEDURE; SUBPOENA DUCES TECUM FOR STATUTORILY PROTECTED

RECORDS; A NON-PARTY’S RIGHT TO PROTECTION AGAINST THE

UNAUTHORIZED DISCLOSURE OF FINANCIAL RECORDS: When a subpoena

duces tecum is issued for the financial records of a person who is

not a party to the case, that person has standing to request that

the court enter an appropriate protective order to safeguard the

records against unauthorized disclosure.

CIVIL PROCEDURE; TIMELINESS OF APPEAL; EFFECT OF FAILURE TO PAY

FILING FEE: Except for a notice of appeal that is not

accompanied by a certificate of service (required by Md. Rule 1-

323), the notice of appeal is filed on the date that the clerk

receives the notice, rather than on the date that the clerk

receives the filing fee.