## Facts

- Betty Sue Aude sued James L. Mullaney for tort claims alleging he transmitted genital herpes.
- A jury found Mullaney negligent but also found Aude contributorily negligent; judgment was entered for Mullaney.
- During Aude’s deposition, Mullaney’s counsel, Allan E. Harris, made gender-based remarks to opposing counsel, including calling her “babe” and stating, “At least I didn’t call you a bimbo.”
- Evidence indicated the “babe” reference continued during the litigation.
- Aude sought a protective order, also alleging harassing or intimidating conduct toward her expert witness, Dr. Laure Aurelian.
- The Circuit Court for Harford County granted a protective order and, in post-trial proceedings, awarded Aude $1,500 in attorneys’ fees as a discovery sanction under Maryland Rule 2-433.
- Mullaney and Harris appealed the fee award.

## Issues

1. Whether the circuit court had jurisdiction to impose Rule 2-433 attorneys’ fees after final judgment in the underlying tort action.
2. Whether Harris’s discovery conduct, including gender-biased remarks, justified a protective order and sanctions under Rule 2-433.
3. Whether the evidentiary record supported the reasonableness of the $1,500 fee award.
4. Whether any irregularity in the protective-order proceedings required vacating the later fee award.

## Decision

- The appellate court held the circuit court retained jurisdiction to decide discovery sanctions after final judgment because sanctions are collateral to the merits.
- The court affirmed that the deposition conduct reflected gender-biased incivility that could “encumber discovery” and supported a protective order and sanctions.
- The court concluded the record could support a fee award for the work required to obtain protection from the misconduct.
- The court remanded for clarification and possible recalculation of the $1,500 amount because the trial court may have relied on inadmissible hearsay related to alleged harassment of the expert.
- The court rejected the argument that any procedural defect in the protective-order proceedings required vacating sanctions in full, though it could bear on the remand inquiry.

## Legal Principles

- Trial courts may resolve sanctions and fee-shifting issues after entry of final judgment when the matter is collateral to the merits.
- Maryland Rule 2-433 permits protective orders and attorneys’ fees as sanctions for discovery abuse; the sanction may compensate the moving party and deter misconduct.
- Gender-biased, derogatory statements by counsel during discovery can justify remedial orders and monetary sanctions when they interfere with discovery and require judicial intervention.
- A fee sanction must rest on an adequate evidentiary basis; reliance on inadmissible hearsay may require remand to determine whether, and to what extent, the award was affected.

## Conclusion

The appellate court upheld the trial court’s post-judgment authority to sanction discovery misconduct and agreed that gender-biased deposition behavior warranted a protective order and fee-shifting, but remanded for the trial court to ensure the $1,500 amount was not influenced by inadmissible hearsay and to adjust the award if necessary.


Mullaney v. Aude, 126 Md. App. 639, 730 A.2d 759 (Ct. Spec. App. 1999)