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Allen v. Allen6/8/1995
sident ordinarily must be met only in order to compel a person to submit to the authority of a court, such as by subjecting that person to a judgment in personam. See Sleph v. Radtke, 76 Md. App. 418, 427, 545 A.2d 111, cert. denied, 314 Md. 193, 550 A.2d 381 (1988); see also Jason Pharmaceuticals v. Jianas Bros., 94 Md. App. 425, 434, 617 A.2d 1125 (1993). In the case sub judice, appellee notified appellant, in accordance with the requirements of Rule 2-404(a), of his intent to depose a representative of Dean Witter with authority over appellant's stock accounts. There is no dispute that the court could exercise personal jurisdiction over the Dean Witter
representative. Personal jurisdiction over Ms. Allen was not required where her stockbroker, not she herself, was the deponent from whom testimony and documentary evidence was sought. Moreover, no suit had been filed, and she was exposed neither to the subpoena power of the court nor to the imposition of a judgment against her. Accordingly, the circuit court did not err in declining to dismiss appellee's notice of deposition for lack of personal jurisdiction over appellant.
II.
Appellant also complains that the circuit court should have granted her motion for a protective order because appellee failed to demonstrate that he was not then in a position to commence an action and, furthermore, because there was no indication that the stock account records sought would become unavailable in the future. In an issue of first impression, we must determine what threshold showing, if any, is required of a party seeking to perpetuate evidence under Maryland Rule 2-404. Rule 2-404(a) provides, in pertinent part, as follows:
(1) Right to Take. -- A person who may have an interest in an action that the person expects to be brought may perpetuate testimony or other evidence relevant to any claim or defense that may be asserted in the expected action in accordance with these rules. In applying these rules, a person who files or is served with a notice, request, or motion shall be deemed a "party" and references to the "court in which the action is pending" shall be deemed to refer to the court in which the notice, request, or motion is filed.
(2) Notice, Request, Motion. -- The notice of deposition required by Rule 2-412, the request for production of documents required by Rule 2-422, and the motion for mental or physical examination required by Rule 2-423 shall include a description of the subject matter of the expected action, a description of the person's interest in the expected action, the facts that the person desires to establish through the evidence to be perpetuated, the person's reasons for desiring to perpetuate the evidence, and, in the case of a deposition,
the substance of the testimony that the person expects to elicit and a statement that any person served has the right to be present. The notice, request or motion shall include a statement that the information sought may be used in a later action.
The rule facially does not require a party to make any particular showing of need in order to perpetuate testimony or other evidence in anticipation of an action. Although 2-404(a)(2) indicates that a notice of deposition must contain certain specified information, only a general statement of the person's reasons for desiring to perpetuate the evidence is mandated by the text of the rule itself. In determining whether any specific averment must be made to permit a person
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