A recent, but unreported, case explores the boundaries of that exception. [Regardless of its lack of precedential value, the case is worth looking at because it discusses a heretofore unexplored area of Maryland law.]

The issue in Bekessy v. Floyd, 2015 W.L. 5885162 (July 2015), was whether the use of a deposition transcript by the opposing party in a motion for summary judgment constituted a waiver of the Dead Man’s Statute.

Discovery, of course, is meant to be broad and it invariably includes “evidence” that is not admissible. Depositions may contain testimony that would be excluded from trial by the Dead Man’s Statute.

No Maryland case directly addresses this issue. The Court of Special Appeals based its decision on various other jurisdictions for the proposition that the use of the otherwise excludible testimony for summary judgment purposes constitutes a waiver at least to the extent that the testimony was used to support the opponent’s argument (as opposed to permitting the entire deposition to come in once a part is used).

If part of a deposition is submitted to the court in support of a summary judgment motion, the parties submitting that material are asking the court to treat this information as evidence. Once the protected party has opened the door, the Court of Special Appeals held that the interested party is entitled to testify by way of rebuttal. The logic of the cases supporting this conclusion would seem to be self-evident. Unfortunately, the Court of Special Appeals rendered its decision as an unreported case so we continue, in effect, to have no declaration of the Maryland rule.