in the united states district court for the district of ... · case no. 13-cv-3233 three-judge...

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

O. John Benisek, et al.,

Plaintiffs,

vs.

Linda H. Lamone, et al.,

Defendants.

Case No. 13-cv-3233

Three-Judge Court

PLAINTIFFS’ MOTION TO COMPEL NON-PARTIES JEANNE D.

HITCHCOCK, THOMAS V. “MIKE” MILLER JR., MICHAEL E. BUSCH, AND RICHARD STEWART TO TESTIFY AT DEPOSITION, AND TO

COMPEL NON-PARTIES THOMAS V. “MIKE” MILLER JR., MICHAEL E. BUSCH, AND RICHARD S. MADALENO JR. TO PRODUCE DOCUMENTS

Plaintiffs O. John Benisek, Jeremiah DeWolf, Sharon Strine, Charles W. Eyler,

Alonnie L. Ropp, Edmund Cueman, and Kat O’Connor, pursuant to Rule 45(g) of the

Federal Rules of Civil Procedure and Local Rules 104.7 and 104.8, hereby move this

Court for an order compelling non-parties Jeanne D. Hitchcock, Thomas V. Miller Jr.,

Michael E. Busch, and Richard Stewart to attend their depositions and testify without

resting on any assertion of legislative privilege. Plaintiffs move further for an order

compelling Mr. Miller, Mr. Busch, and Richard S. Madaleno Jr. to produce documents

in response to Plaintiffs’ subpoenas without resting on any assertion of legislative

privilege.

Plaintiffs submit the attached memorandum in support of this motion.

Case 1:13-cv-03233-JKB Document 111 Filed 01/04/17 of 3

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Dated: January 3, 2017 Respectfully submitted,

/s/ Michael B. Kimberly

Michael B. Kimberly, Bar No. 19086 [email protected]

Paul W. Hughes, Bar No. 28967 Stephen M. Medlock, pro hac vice E. Brantley Webb, pro hac vice Mayer Brown LLP 1999 K Street NW Washington, D.C. 20006 (202) 263-3127 (office) (202) 263-3300 (facsimile)


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CERTIFICATE OF SERVICE

I hereby certify that on this 3rd day of January 2017, a copy of the foregoing

Motion to Compel and the attached Memorandum of Law were filed in the United

States District Court for the District of Maryland, electronically served upon all

counsel of record through the Court’s CM/ECF system, and served via electronic mail

and first class mail upon counsel for non-parties Jeanne D. Hitchcock, Thomas V.

Miller Jr., Michael E. Busch, Richard Stewart, and Richard S. Madaleno Jr.

/s/ Stephen M. Medlock






Plaintiffs,

vs.


Defendants.

Case No. 13-cv-3233

Three-Judge Court

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL NON-PARTIES JEANNE D. HITCHCOCK,

THOMAS V. “MIKE” MILLER JR., MICHAEL E. BUSCH, AND RICHARD STEWART TO TESTIFY AT DEPOSITION, AND

TO COMPEL NON-PARTIES THOMAS V. “MIKE” MILLER JR., MICHAEL E. BUSCH, AND RICHARD S. MADALENO JR.

TO PRODUCE DOCUMENTS

Michael B. Kimberly, Bar No. 19086 Paul W. Hughes, Bar No. 28967 Stephen M. Medlock, pro hac vice E. Brantley Webb, pro hac vice Mayer Brown LLP 1999 K Street NW Washington, D.C. 20006 (202) 263-3127 (office) (202) 263-3300 (facsimile)

Case 1:13-cv-03233-JKB Document 111-1 Filed 01/04/17 Page 1 of 33

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TABLE OF CONTENTS

Introduction ................................................................................................................... 1

Background .................................................................................................................... 3

A. The key roles in drawing the lines of the Sixth District .............................. 3

B. Senator Madaleno’s speech concerning legislative intent ........................... 5

C. Plaintiffs’ document and deposition subpoenas and the GRAC members’ responses ....................................................................................... 6

Argument ..................................................................................................................... 10

I. The state legislative privilege provides no basis for refusing to sit for depositions or produce documents in this case ................................................... 10

A. State legislative privilege cannot be invoked on a blanket basis in cases like this one ........................................................................................ 12

B. The five-factor balancing test clearly favors disclosure ............................. 16

II. Even if the privilege were available here, the assertion of privilege is wholly unsupported by facts or evidence ............................................................ 23

III. Senator Madaleno has waived the privilege, to the extent he can assert it at all .................................................................................................................. 26

Conclusion .................................................................................................................... 27

Certificate of Conference ............................................................................................. 28


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TABLE OF AUTHORITIES

Page(s)

Cases

A Helping Hand, LLC v. Baltimore Cnty., Md., 295 F. Supp. 2d 585 (D. Md. 2003) ............................................................................... 25

Baldus v. Members of the Wis. Gov’t Accountability Bd., 2011 WL 6122542 (E.D. Wis. 2011) .................................................................. 15, 17, 22

Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7 (D.D.C. 2004) ............................................................................................ 24

Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323 (E.D. Va. 2015) ..................................................................... passim

Carver v. Foerster, 102 F.3d 96 (3d Cir. 1996) ............................................................................................. 22

Chase v. Peay, 286 F. Supp. 2d 523 (D. Md. 2003) ............................................................................... 15

Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *8 (N.D. Ill. 2011) ................................................................ 17, 21

EEOC v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174 (4th Cir. 2011) ......................................................................................... 17

EEOC v. Wash. Suburban Sanitary Comm’n, 666 F. Supp. 2d 526 (D. Md. 2009), aff’d 631 F.3d 174 (4th Cir. 2011) ...................... 14

Elrod v. Burns, 427 U.S. 347 (1976) ....................................................................................................... 20

Favors v. Cuomo, 285 F.R.D. 187 (E.D.N.Y. 2012) ............................................................................. passim

Harris v. Arizona Indep. Redistricting Comm’n, 993 F. Supp. 2d 1042 (D. Ariz. 2014), aff’d 136 S. Ct. 1301 (2016) ............................ 18

Herbalife Int’l, Inc. v. St. Paul Fire & Marine Ins. Co., 2006 WL 2715164 (N.D.W. Va. 2006) ........................................................................... 24

Kelly v. United States, 281 F.R.D. 270 (E.D.N.C. 2012) .................................................................................... 24


Cases—continued

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Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292 (D. Md. 1992)................................................................................. passim

Mezu v. Morgan State U., 269 F.R.D. 565 (D. Md. 2010).................................................................................. 24, 26

Mitchell v. Glendenning, No. WMN-02-602 (D. Md. June 4, 2002) ...................................................................... 15

Nashville Student Organizing Comm. v. Hargett, 123 F. Supp. 3d 967 (M.D. Tenn. 2015) ........................................................................ 15

NLRB v. Interbake Foods, LLC, 637 F.3d 492 (4th Cir. 2011) ................................................................................... 16, 24

Owen v. City of Independence, 445 U.S. 622 (1980) ................................................................................................. 14, 21

Page v. Va. State Bd. of Elections, 15 F. Supp. 3d 657 (E.D. Va. 2014) ....................................................................... passim

Perez v. Perry, 2014 WL 106927 (W.D. Tex. 2014) ............................................................. 13, 15, 24, 26

Reynolds v. Sims, 377 U.S. 533 (1964) ................................................................................................... 1, 19

RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741 (E.D. Va. 2007) ............................................................................ 23

Rodriguez v. Pataki, 280 F. Supp. 2d 89 (S.D.N.Y. 2003) .............................................................................. 15

Ruran v. Beth El Temple of W. Hartford, Inc., 226 F.R.D. 165 (D. Conn. 2005) .............................................................................. 24, 26

S.C. Educ. Ass’n v. Campbell, 883 F.2d 1251 (4th Cir.1989) ........................................................................................ 11

Shapiro v. McManus, ---F. Supp. 3d---, 2016 WL 4445320 (D. Md. 2016) ............................................... passim

Smith v. Town of Clarkton, N.C., 682 F.2d 1055 (4th Cir. 1982) ....................................................................................... 18

Trammel v. United States, 445 U.S. 40 (1980) ......................................................................................................... 13


Cases—continued

iv

Trombetta v. Bd. of Educ., Proviso Twp. High Sch. Dist. 209, 2004 WL 868265 (N.D. Ill. 2004) ............................................................................ 26, 27

United States v. Gillock, 445 U.S. 360 (1980) ........................................................................................... 13, 14, 22

United States v. Irvin, 127 F.R.D. 169 (C.D. Cal. 1989) .................................................................................... 22

United States v. O’Brien, 391 U.S. 367 (1968) ....................................................................................................... 11

Veasey v. Perry, 2014 WL 1340077 (S.D. Tex. 2014), aff’d in part and rev’d in part, 796 F.3d 487 (5th Cir. 2015) .......................................................................................... 15, 19

Vieth v. Jubelirer, 541 U.S. 267 (2004) ....................................................................................................... 17

Other Authorities

Fed. R. Civ. P. 45(d)(2)(B)(i) ............................................................................................... 10

Fed. R. Civ. P. 45(e)(2)(A) ............................................................................................. 23, 26

Fed. R. Civ. P. 45(g) ............................................................................................................ 10

Legislative Privilege, 26A Fed. Prac. & Proc. Evid. § 5675 (1st ed.) ................................ 23

Md. Rule of Prof. Conduct 4.2(c) ........................................................................................... 8


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INTRODUCTION

Plaintiffs allege that the State of Maryland—through the Democrat-controlled

Governor’s Redistricting Advisory Committee (GRAC), the Democrat-controlled

General Assembly, and the then-Democrat-controlled governor’s office—retaliated

against Republicans living in the former Sixth Congressional District by reason of their

political associations and voting histories. These state agencies and officials gerry-

mandered the Sixth District by moving into the district tens of thousands of Demo-

cratic voters and out of the district tens of thousands of Republican voters, all with the

specific intent and purpose of changing the outcome of future congressional elections in

the Sixth District under the 2011 redistricting plan (the Plan).

In its opinion denying the State’s motion to dismiss, the Court described what

Plaintiffs must prove to establish their claim. They must:

prove that the State used “data reflecting citizen’s voting history . . . for the purpose of making it harder for a particular group of voters to achieve electoral success because of the views they had previously expressed”;

“produce objective evidence, either direct or circumstantial, that the legislature specifically intended to burden the representational rights of certain citizens because of how they had voted in the past and the political party with which they had affiliated”; and

show that “the vote dilution brought about by the redistricting legislation was sufficiently serious to produce a demonstrable and concrete adverse effect on a group of voters’ right to have ‘an equally effective voice in the election’ of a representative.”

Shapiro v. McManus, ---F. Supp. 3d---, 2016 WL 4445320, at *10-11 (D. Md. 2016)

(quoting Reynolds v. Sims, 377 U.S. 533, 565 (1964)). To that end, we served four

members of the GRAC—Jeanne Hitchcok, Maryland State Senator Thomas Miller,

Maryland House of Delegates Speaker Michael Busch, and Mr. Richard Stewart—with


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deposition subpoenas; and the same individuals and Senator Richard Madaleno, Jr.,

with document subpoenas.

In response to these subpoenas, the Maryland Office of Attorney General (OAG)

has asserted that no past or present lawmaker may be required to appear for

deposition, much less to answer any of our questions on the merits. Indeed, in the

OAG’s view, no current or former state official involved in the drafting of the Plan can

be compelled in this federal civil rights lawsuit to answer any question or produce any

document concerning legislative intent or the legislative process at all.

These assertions of legislative privilege lack all merit.

First, the case law is clear that state officials cannot duck their federal constitu-

tional obligations by hiding behind claims of state legislative privilege. That conclusion

is especially apparent in federal lawsuits of broad public importance like this one,

particularly given that the subpoena targets are not themselves named as defendants

and therefore face no threat of personal liability. Courts frequently face claims of

privilege in circumstances like these, and relying on a settled balancing test, nearly

always reject them. The Court should do so here.

Second, even supposing that the privilege were available to the former members

of the GRAC and Senator Madaleno in this lawsuit, these individuals have asserted the

privilege conclusorily, without offering a single statement of fact or article of evidence

to support their objections. Yet they carry the burden of proving that the privilege

applies. That have failed entirely to meet that burden.

Third, the legislative privilege is unavailable to the extent that it has been

waived. As relevant here, Senator Madaleno openly waived any legislative privilege he

might have had with respect to legislative intent when he gave a public speech on


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exactly that topic. He accordingly cannot withhold responsive documents concerning

legislative intent on that basis.

For these reasons and all of those laid out more fully below, the Court should

enter an order compelling Ms. Hitchcock, Senator Miller, Speaker Busch, and Mr.

Stewart to testify at a deposition and answer questions concerning legislative intent

without regard for assertion of legislative privilege; and compelling Senator Miller,

Speaker Busch, and Senator Madaleno to produce responsive documents, again without

regard for any assertion of legislative privilege.

BACKGROUND

A. The key roles in drawing the lines of the Sixth District

The GRAC members played a key role in drafting and enacting the Plan. The

committee comprised two sitting legislators (Speaker Busch and Senator Miller) and

three individuals appointed by Governor O’Malley. See ECF No. 104 ¶¶ 18-21. One of

the appointees, Jeanne Hitchcock, was a close advisor to Governor O’Malley. See id. ¶

19. At the time that she was appointed, Hitchcock served as Governor O’Malley’s

Appointments Secretary. Id. She had previously served as Deputy Mayor of Baltimore

when Governor O’Malley was the Mayor of Baltimore. Id. Hitchcock served as the chair

of the GRAC. ECF No. 96 ¶ 43.

The GRAC members received a steady stream of information from Maryland

state agencies, high-level staffers, and members of the General Assembly. The GRAC

also relied for its work on staffers from the governor’s office, Department of Legislative

Services (DLS), Department of Planning (DOP), and the General Assembly. The

following staffers assisted the GRAC and had access to the proposed 2011

congressional map before it was released to the public:


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Patrick Murray, a legislative aide to Senator Miller;

Yaakov Weissman, a legislative aide to Senator Miller;

Jeremy Baker, a legislative aide to Speaker Busch;

Joseph Bryce, an aide to Governor O’Malley;

John McDonough, the Maryland Secretary of State;

Michelle Davis, a DLS Senior Policy Analyst; and

Karl Aro, the former DLS Executive Director.

Ex. A at Interrog. Resp. 1.

DOP, the governor’s office, the GRAC, and staffers working for Speaker Busch

and Senator Miller worked closely with one another on the drafting of the Plan. On

July 5, 2011, a day after the GRAC was formed by Governor O’Malley, Hitchcock

emailed meeting materials to GRAC members, an aide to Governor O’Malley, and

Richard Hall, the Secretary of DOP. Ex. B at 2. The same day, Hitchcock mailed a

GRAC meeting agenda to GRAC members, an aide to Governor O’Malley, and

Secretary Hall. Id. at 3. Similarly, on July 7, 2011, John Bryce, an aide to Governor

O’Malley sent a proposed schedule for public meetings regarding the 2011 congres-

sional map to members of the GRAC. The recipients of this email included:

John Favazza, a Chief of Staff to Speaker Busch;

Kristin Jones, a Chief of Staff to Speaker Busch;

Victoria Gruber, a staffer to Senator Miller;

Patrick Murray, a legislative aide to Senator Miller;

Alexandra Hughes, a staffer to Speaker Busch;

Jeremy Baker, a senior advisor to Speaker Busch;


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Nancy Earnest, an assistant to Speaker Busch;

Joy Walker, an assistant to Senator Miller; and

John McDonough, Governor O’Malley’s Secretary of State.

Id. at 4. A week later, Bryce sent an updated schedule to members of the GRAC, the

same staffers to Speaker Busch and Senator Miller, and the following individuals:

Richard Hall, the DOP Secretary;

Raquel Guillory, the Director of Communications for Governor O’Malley;

Karl Aro, the DOP Executive Director;

Matt Gallagher, the governor’s chief of staff;

Rick Abbruzzese, the governor’s Director of Public Affairs; and

John McDonough, the Maryland Secretary of State.

Id. at 5. The map generated through this process of staff and information exchange is

the very map that Plaintiffs now seek to enjoin Defendants from enforcing.

B. Senator Madaleno’s speech concerning legislative intent

Shortly before the Plan was enacted, Senator Madaleno gave a recorded speech

in which he addressed the specific intent behind that Plan’s drafting. See Joint Stips.

(ECF No. 104) ¶¶ 40, 63-65 & Exs. 7-9 (available online at

http://www.marylandjuice.com/2011/09/2012-redistricting-sen-rich-madaleno.html). He

said, specifically:

“What you see going on elsewhere is clearly in other states that are Republican controlled they are drawing maps to try to take out Democrats, so I think there is pressure on saying look, if they are playing that game elsewhere, then in states like Maryland where democrats control we’ve got to do the opposite.” Joint Stips. (ECF No. 104) ¶¶ 40(a).

“This is a conflict between, what you could say, the heart and the mind of the Democratic party. The heart is ‘Frank Kratovil had that seat [the 1st District] before, Frank Kratovil won before, he made hard votes on behalf of Barack


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Obama, we should find a way to reward our friend Frank Kratovil.’ The head is telling you, ‘Look, western Maryland, a new district focused toward western Maryland is one that you could actually pick up easier…’ Do you reach out and help your good old friend Frank Kratovil, or do you go for where, in fact, you probably have a better chance at a pick up.” Id. ¶ 40(b).

“If you go with a competitive western Maryland district, the way that works is clearly that district comes further into Montgomery county, substantially into Montgomery county.” Id. ¶ 40(c).

“I think trying to achieve both makes it a little more difficult for everyone trying to draw the maps. But you’re dealing with—one of the things that’s interesting is—you’re dealing with people like a Mike Miller or some of the staff of the legislature who have done this several cycles, so it’s not like they are a bunch of people experimenting for the first time on how to do this.” Id. ¶ 40(d).

The parties have stipulated to the authenticity of the videos depicting Senator

Madaleno’s speech. See Joint Stips. (ECF No. 104), at 1 & ¶¶ 63-65.

C. Plaintiffs’ document and deposition subpoenas and the GRAC members’ responses

As the Court has explained, a plaintiff bringing a political gerrymandering claim

under the First Amendment must “allege that those responsible for the map redrew the

lines of his district with the specific intent to impose a burden on him and similarly

situated citizens because of how they voted or the political party with which they were

affiliated.” Shapiro, 2016 WL 4445320, at *10 (emphasis omitted). Demonstrating the

required intent requires a plaintiff to “rely on objective evidence to prove that, in

redrawing a district’s boundaries, the legislature and its mapmakers were motivated

by a specific intent to burden the supporters of a particular political party.” Id. at *11.

Plaintiffs here must show, in other words, that “the legislature specifically intended to

burden the representational rights” of Republican voters in the former Sixth District

“because of how they had voted in the past and the political party with which they had

affiliated.” Id.


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To meet this burden, Plaintiffs served deposition subpoenas on the four

Democrat-appointed members of the GRAC: Ms. Hitchcock, Senator Miller, Speaker

Busch, and Mr. Stewart. See Exs. G-J. We also served document subpoenas on the

same four individuals as well as Senator Richard Madaleno, Jr. See Exs. C-F.

1. With respect to the deposition subpoenas, Plaintiffs intend to question these

four members of the GRAC regarding (among other things) their intent and

motivations for drawing the lines of the Sixth Congressional District as they did, the

data that they used and how they used it, and the vote dilution that resulted from the

Plan as enacted.

In an email dated December 16, 2016, counsel for Defendants (the same counsel

in the Office of the Attorney General who represent Defendants in this case) stated

that their intent was to “move to quash subpoenas served on members of the GRAC”

because “the individuals you seek to depose cannot be compelled to testify in this

matter” on the basis of state legislative privilege. Ex. L at 1.

On December 20 and 21, Plaintiffs met and conferred with counsel for the

proposed deponents (and Defendants) to discuss, among other things, the deposition

subpoenas served on the GRAC members. During that conference, and in subsequent

correspondence, counsel for the proposed deponents again asserted that the members of

the GRAC will refuse to sit for depositions on the basis of a blanket assertion of state

legislative privilege, and that the their counsel intended “to seek protective orders

quashing those subpoenas on the grounds of legislative privilege.” Ex. M at 1.

At the same time, the OAG has obstructed our efforts to speak informally with

any current legislators, asserting that all sitting legislators are represented by the

OAG in connection with this matter and that they therefore cannot be contacted


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despite Plaintiffs’ First Amendment right to petition their lawmakers for redress of

their grievances. See Md. Rule of Prof. Conduct 4.2(c). Most recently, counsel for

Defendants have stated that they will seek a protective order from this Court if we

make any attempt to contact sitting legislators on an ex parte basis and informed us

that they will not consent to our interview of such legislators unless several lawyers

from the OAG are present and the OAG lawyers are permitted to invoke the legislative

privilege on absent parties’ behalves. In addition, the OAG has refused to agree to

allow these interviews go forward unless Plaintiffs are limited to five interviews and

the interviews are not transcribed. See Ex. R at 1-2.

2. As for the document requests, we served third-party document subpoenas

seeking (among other things):

“All external communications relating to the planning or drafting of Maryland’s 2011 congressional redistricting plan with . . . (a) the Governor; (b) Maryland House Redistricting Committee; (c) Maryland Senate Redistricting Committee; (d) Any current or former member of the Maryland General Assembly, including their staff or agents; (e) Any current or former member of the United States Congress, including their staff or agents; (f) Any current or former officer, member of leadership, or staff member of the Democratic National Committee, including their staff or agents; (g) Any current or former officer, member of leadership, or staff member of the Democratic Congressional Campaign Committee, including their staff or agents; or (h) Any current or former officer, member of leadership, or staff member of the Maryland Democratic Party.” See Exs. C, D, E, and F at Req. 1.

“All external Communications between or among You and third parties (including consultants, experts, constituents, and members of the press) related in any way to Maryland’s 2011 congressional redistricting process, its goals, or its results during the Relevant Time Period.” See Exs. C, D, E, and F at Req. 2.

“All interim or draft maps or reports related to Maryland’s 2011 congressional redistricting plan, whether electronic or in hard copy, provided to You by any third party or by You to any third part during the Relevant Time period.” See Exs. C, D, E, and F at Req. 3.


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The four democratic members of the GRAC responded to our requests for

documents in different ways.

By letter dated December 19, 2016, counsel for Hitchcock stated that “she was

unable to locate any electronic or hard copy documents responsive to the subpoena.”

See Ex. K. Among what was surely a voluminous exchange of documents and com-

munications concerning the 2011 redistricting, Hitchcock (the Chair of the GRAC) found

not one single responsive communication or other document.

In the same letter, counsel for Stewart produced eleven pages of emails (and

later six email attachments) and stated that Stewart was withholding one document on

the basis of attorney-client privilege. Id. Again, among all the emails, letters, and other

documents shared in the course of drafting the Plan, Stewart found just eleven pages

of emails. Neither Hitchcock nor Stewart invoked the state legislative privilege as a

basis for refusing to produce documents.

Senator Miller, Speaker Busch, and Senator Madaleno responded differently. See

Ex. N. While they produced a limited number of documents—collectively, fewer than

150 pages in all—they asserted legislative privilege as a basis for withholding 30 re-

sponsive documents. See Exs. O-Q. In addition to serving three privilege logs, counsel

for the legislators explained in her cover letter that “Plaintiffs seek, through the

subpoenas, to invade individual General Assembly members’ deliberations over the

drafting of legislation by seeking documents compiled by legislators, or their close aides

at their direction, to produce the legislation.” Ex. N at 1. “Accordingly, legislative

privilege applies because the members’ activities and contribution to any draft maps,

reports, or other materials that resulted in Senate Bill l are legislative in nature.” Id.

Plaintiffs now move to compel.


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ARGUMENT

A court “may hold in contempt a person who, having been served, fails without

adequate excuse to obey [a] subpoena or order related to it.” Fed. R. Civ. P. 45(g).

Likewise, when an individual refuses to produce documents in response to a subpoena

“the serving party move the court . . . for an order compelling production or inspection.”

Fed. R. Civ. P. 45(d)(2)(B)(i). In this case, the subpoenas served on the GRAC members

and Senator Madaleno are valid, enforceable, and properly served, complying in all

respects with the requirements of Rule 45. Yet the subpoena targets’ privilege

objections are not an “adequate excuse” for avoiding the subpoenas. Courts routinely

deny claims of state legislative privilege in federal constitutional cases like this one,

challenging redistricting practices. Little wonder why: The purpose of the privilege is

not served in the context of federal lawsuits to vindicate important constitutional

rights where the relief requested is injunctive and those asserting the privilege are not

named defendants. Courts have thus consistently recognized that state officials cannot

hide behind state legislative privilege to avoid federal judicial scrutiny into

unconstitutional legislative motive. This Court should hold the same.

I. THE STATE LEGISLATIVE PRIVILEGE PROVIDES NO BASIS FOR REFUSING TO SIT FOR DEPOSITIONS OR PRODUCE DOCUMENTS IN THIS CASE

In response to every subpoena ad testificandum that we have served, the OAG

has made sweeping assertions of state legislative privilege that, if upheld, would

effectively insulate GRAC members and other state officials from having to answer at

all the very serious federal constitutional claims alleged in the complaint. It has also

asserted privilege with respect to more than one quarter of the (suspiciously few)


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responsive documents it has found in the possession of the Democratic members of the

GRAC and Senator Madaleno.

This is not the first time that Maryland state officials have asserted privilege in

such a way—nor, if the Court grants our motion to compel, would it be the first time

this Court had rejected it. In Marylanders for Fair Representation, Inc. v. Schaefer, 144

F.R.D. 292 (D. Md. 1992), members of the GRAC (including Senator Miller) asserted

legislative privilege as a blanket basis to avoid producing documents and answering

questions concerning the legislature’s motives for drawing of the lines of 1991 map.

Denying their assertion of privilege, this Court—sitting then, as now, as a panel of

three judges—explained that in the special context of redistricting, the doctrine of

legislative privilege does not “prohibit judicial inquiry into legislative motive where the

challenged legislative action is alleged to have violated an overriding, free-standing

public policy.” Id. at 304. On the contrary, “judicial inquiry into legislative motive is

appropriate where ‘the very nature of the constitutional question requires an inquiry

into legislative purpose.’” Id. (quoting S.C. Educ. Ass’n v. Campbell, 883 F.2d 1251,

1259 (4th Cir.1989), in turn quoting United States v. O’Brien, 391 U.S. 367, 383 n.30

(1968)). That is the case here. The Court has held that Plaintiffs’ claims—which turn

on questions of legislative motive and purpose—are justiciable and that their

allegations are plausible. Shapiro, 2016 WL 4445320, at *1.

The Court should reject the assertion of privilege here, for two reasons.

First, the state legislative privilege—a creature of federal common law—neces-

sarily yields in cases involving important federal constitutional rights, where the state

legislators do not themselves face personal liability. That is particularly apparent

under the five-factor balancing test that applies in qualified-privilege cases like this


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one: Among other things, the evidence sought goes to the heart of Plaintiffs’ claims, and

state officials played an essential role in the very serious constitutional violations

alleged in the complaint.

Second, the GRAC members have not properly supported their assertion of the

state legislative privilege, even to the extent that it might apply. With respect to both

documents and testimony, the members of the GRAC bear the burden of proving the

availability of the privilege. Yet they have not offered any assertion of fact, much less

article of evidence, supporting their claim of privilege.

Beyond that, Senator Madaleno has plainly waived the privilege (such as it is)

with respect to the matter of legislative intent.

In sum, “[t]he promise having been made” to hear Plaintiffs’ complaint, the

Court should not tolerate the State’s effort “to bar virtually all discovery of relevant

facts” in the name of an inapplicable and unsupported privilege. Schaefer, 144 F.R.D.

at 305.

A. State legislative privilege cannot be invoked on a blanket basis in cases like this one

As an initial matter, the proposed deponents’ attempt to assert the legislative

privilege on a blanket basis and as ground for avoiding sitting for depositions

altogether lacks any legal support. To the extent the privilege applies at all, it is a

qualified one that must be asserted question-by-question.

“Testimonial and evidentiary privileges” like the state legislative privilege “exist

against the backdrop of the general principle that all reasonable and reliable measures

should be employed to ascertain the truth of a disputed matter.” Page v. Va. State Bd.

of Elections, 15 F. Supp. 3d 657, 660 (E.D. Va. 2014) (three-judge district court).

“Privileges are therefore strictly construed” and will be deemed to apply “only where


13

the public good associated with the exclusion of relevant evidence overrides the general

principle in favor of admission.” Id.; accord, e.g., Perez v. Perry, 2014 WL 106927, at *1

(W.D. Tex. 2014) (citing Trammel v. United States, 445 U.S. 40, 50 (1980)).

The “public good” associated with the state legislative privilege is well under-

stood: “Because ‘legislators bear significant responsibility for many of our toughest

decisions,’” the privilege “‘provides legislators with the breathing room necessary to

make these choices in the public’s interest’ without fear of undue judicial interference

or personal liability.” Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323,

332-333 (E.D. Va. 2015) (three-judge district court; citation omitted).

“State legislative immunity differs, however, from federal legislative immunity

in its source of authority, purposes, and degree of protection.” Bethune-Hill, 114 F.

Supp. 3d at 333. Unlike the federal privilege, which is grounded in the Constitution’s

separation of powers, the state legislative privilege is a creature of “federal common

law” only. Id. “[F]ederal interference in the state legislative process is [therefore] not on

the same constitutional footing with the interference of one branch of the Federal

Government in the affairs of a coequal branch” (United States v. Gillock, 445 U.S. 360,

370 (1980))—particularly “in ‘those areas where . . . the Supremacy Clause dictates

that federal [law prevails] over competing state exercises of power.’” Bethune-Hill, 114

F. Supp. 3d at 333 (quoting Gillock, 445 U.S. at 370). In other words, the state

legislative privilege—a product only of federal common law only—necessarily “yields”

when a plaintiff “seeks evidence to vindicate important public rights [that are them-

selves] guaranteed by federal law.” Id. at 336.

The manner in which the state legislative privilege applies in federal litigation

“depends upon the nature [not only] of the claim [but also of] the defendant.” Bethune-


14

Hill, 114 F. Supp. 3d at 335. When the person asserting privilege is not himself or

herself a defendant in the action, “[t]he inhibiting effect [of the threat of liability] is sig-

nificantly reduced, if not eliminated.” Owen v. City of Independence, 445 U.S. 622, 656

(1980). ”[T]here is,” in other words, “little to no threat to the ‘public good’ of legislative

independence when a legislator is not threatened with individual liability.” Bethune-

Hill, 114 F. Supp. 3d at 335.

It follows that the privilege is at its apex in the context of “civil action[s] brought

by . . . private plaintiff[s] to vindicate private rights” against individual lawmakers,

where “‘the threat of personal monetary liability will introduce an unwarranted and

unconscionable consideration into the decisionmaking process.’” Bethune-Hill, 114 F.

Supp. 3d at 333-335 (quoting Gillock, 445 U.S. at 372 Owen, 445 U.S. at 655). In such

cases, “the legislative privilege prevents compelled testimony or documentary

disclosure in support of such claims.” Id. at 335.

But the state legislative privilege is at its nadir in cases like this one, where

individual lawmakers are not themselves named as defendants and thus face no threat

of personal liability, where the request for relief is injunctive only, and where the

privilege “stands as a barrier to the vindication of important federal interests and

insulates against effective redress of public rights.” Bethune-Hill, 114 F. Supp. 3d at

334. Simply put, in federal constitutional redistricting cases, “[t]he argument that

‘legislative privilege is an impenetrable shield that completely insulates any disclosure

of documents’ is not tenable.” Id. at 336 (quoting Page, 15 F. Supp. 3d at 665, in turn

quoting EEOC v. Wash. Suburban Sanitary Comm’n, 666 F. Supp. 2d 526, 552 (D. Md.

2009), aff’d 631 F.3d 174 (4th Cir. 2011))).


15

Unsurprisingly, therefore, there is a “litany of recent federal decisions in which,

in cases involving federal constitutional challenges premised on the right to vote,

federal courts have found that the [state legislative] privilege did not (at least in part)

shield state legislators from producing responsive records or testifying at deposition.”

Nashville Student Organizing Comm. v. Hargett, 123 F. Supp. 3d 967, 969 (M.D. Tenn.

2015) (citing Rodriguez v. Pataki, 280 F. Supp. 2d 89, 95–96 (S.D.N.Y. 2003); Favors v.

Cuomo, 285 F.R.D. 187, 214 (E.D.N.Y. 2012) (three-judge district court); Perez, 2014

WL 106927, at *1; Veasey v. Perry, 2014 WL 1340077, at *1 (S.D. Tex. 2014), aff’d in

part and rev’d in part, 796 F.3d 487 (5th Cir. 2015); Bethune-Hill, 114 F. Supp. 3d at

337; Baldus v. Members of the Wis. Gov’t Accountability Bd., 2011 WL 6122542, at *2

(E.D. Wis. 2011); Page, 15 F. Supp. 3d at 666).1

This Court should follow these other courts and hold that the state legislative

privilege, “a judicially crafted evidentiary privilege based on federal common law,” does

not “trump the need for direct evidence that is highly relevant to the adjudication of

public rights guaranteed by . . . the [federal] Constitution, especially where no threat to

legislative immunity itself is presented.” Bethune-Hill, 114 F. Supp. 3d at 337.

1 The OAG argued at the December 21-22 conference and in our letter exchanges that Mitchell v. Glendenning, No. WMN-02-602 (D. Md. June 4, 2002) (ECF No. 11), supports a contrary conclusion. But unpublished opinions are not persuasive authority where (as here) “they are against the clear weight of current published authority.” Chase v. Peay, 286 F. Supp. 2d 523, 528 n.8 (D. Md. 2003). Regardless, the court in Mitchell upheld the assertion of privilege because the plaintiff’s claim there did not require proof of legislative motive. Mitchell, slip op. at 6. That is not the case here. See Shapiro, 2016 WL 4445320, at *11. And once again, “[t]he doctrine of legislative immunity” does not “prohibit judicial inquiry into legislative motive where the chal-lenged legislative action is alleged to have violated an overriding, free-standing public policy.” Schaeffer, 144 F.R.D. at 304.


16

B. The five-factor balancing test clearly favors disclosure

Recognizing that the state legislative privilege cannot be invoked in the absolute

and blanket fashion asserted by the proposed deponents here, “[m]ost courts that have

conducted [a] qualified privilege analysis in the redistricting context.” Bethune-Hill,

114 F. Supp. 3d at 337. In particular, they “have employed a five-factor balancing test

imported from deliberative process privilege case law.” Id. This five-factor test, which

applies in a qualified manner to individual topics and documents, examines “‘(i) the

relevance of the evidence sought to be protected; (ii) the availability of other evidence;

(iii) the ‘seriousness’ of the litigation and the issues involved; (iv) the role of govern-

ment in the litigation;’ and (v) the purposes of the privilege.” Id. at 337-38 (quoting

Page, 15 F. Supp. 3d at 666). And, again, the party asserting privilege “has the burden

of demonstrating its applicability” (NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501

(4th Cir. 2011)) and thus the burden of satisfying the balancing test.

Here, the facts do not come close to overcoming the presumption of disclosure of

the testimony and evidence that Plaintiffs seek: the evidence and testimony sought is

highly relevant; no other evidence would be as probative of unlawful motive as the

evidence sought; the federal constitutional issues in this litigation are of the utmost

seriousness; the members of the GRAC played a direct, central, and essential role in

the constitutional violations here; and compelling disclosure of the evidence and

testimony sought will not conflict with the purposes of the privilege. The motion to

compel accordingly should be granted.

1. The evidence sought is highly relevant to Plaintiffs’ claims. Plaintiffs

allege that the State redrew the boundaries of the Sixth District for the specific

purpose of retaliating against Plaintiffs and other Republicans by reason of their


17

political affiliations or voting histories. In approving our theory of constitutional injury

at the 12(b)(6) stage, the Court held that Plaintiffs must show that the legislature

“specifically intended to burden the representational rights of certain citizens” by

reason of their political affiliations and voting histories. Shapiro, 2016 WL 4445320, at

*11; see also Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring in the

judgment) (noting that this First Amendment theory requires proof that “an apportion-

ment has the purpose and effect of burdening a group of voters’ representational

rights”) (emphasis added).

Thus, testimonial and documentary evidence regarding the intent and motive of

the GRAC members and legislators who drafted and approved the Plan goes to the very

heart of this case. Cf. Page, 15 F. Supp. 3d at 666 (noting that in redistricting cases,

“[t]he subjective decision-making process of the legislature is at the core of the” claim);

Baldus v. Brennan, 2011 WL 6122542, at *1 (E.D. Wis. 2011) (“proof of a legislative

body’s discriminatory intent is relevant and extremely important as direct evidence in”

redistricting cases).

This is not a case where “the government’s decision-making process [may be]

swept up unnecessarily into the public domain” as part of a dispute only tangentially

related to legislative motive. Bethune-Hill, 114 F. Supp. 3d at 339 (alterations omitted)

(quoting Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *8 (N.D. Ill. 2011)).

Nor is this a case where compulsory process is sought in aid of an action seeking

damages against an individual state official or agency. See EEOC v. Wash. Suburban

Sanitary Comm’n, 631 F.3d 174, 177-78 (4th Cir. 2011). Rather, this is a case “where

the decisionmaking process is the case.” Bethune-Hill, 114 F. Supp. 3d at 339. (internal

quotation marks omitted) (emphasis added). As in similar redistricting suits, “what


18

motivated the [General Assembly] . . . is at the heart of this litigation” and “evidence

bearing on what justifies [its actions] is [therefore] highly relevant.” Harris v. Arizona

Indep. Redistricting Comm’n, 993 F. Supp. 2d 1042, 1070 (D. Ariz. 2014), aff’d 136 S.

Ct. 1301 (2016). The State hardly could contend otherwise.

2. No other testimony or evidence would be as probative of unlawful motive

as the GRAC members’ deposition testimony. Although Plaintiffs will rely on various

types of evidence (including the voter data used to draw the 2011 district map, election

returns, public statements made by legislators, demographic evidence, and expert

testimony), there is no question that the testimony and documentary evidence sought

here is critical to Plaintiffs’ case. It goes without saying that government officials

“seldom, if ever, announce on the record that they are pursuing a particular course of

action because of [a] desire to discriminate.” Smith, 682 F.2d at 1064.

Given that officials and legislators are typically careful to keep intimations of

discriminatory motive out of public view (see Smith v. Town of Clarkton, N.C., 682 F.2d

1055, 1064 (4th Cir. 1982)), it is vital that Plaintiffs be allowed to question these

officials regarding their intentions and review all of their responsive communications

and other documents—regardless of whether circumstantial evidence going to the issue

of motive is also available. After all, “[i]n the event that plaintiffs’ claims have merit,

and that the commissioners were motivated by an impermissible purpose, the

commissioners would likely have kept out of the public record evidence making that

purpose apparent.” Harris, 993 F. Supp. 2d at 1070-71.

Several courts accordingly have held in redistricting cases that the second

balancing factor favors testimony and disclosure even when there already some

evidence of motive in the public record. See Favors v. Cuomo, 285 F.R.D. 187, 219


19

(E.D.N.Y. 2012) (noting that although plaintiffs had access to “substantial” public

information, including “maps, analyses, data, and memoranda,” “such evidence may

provide only part of the story” and the second factor thus “militate[d] in favor of

disclosure”). These courts have recognized that redistricting plaintiffs “need not confine

their proof to circumstantial evidence” because “[t]he real proof is what was in the

contemporaneous record in the redistricting process.”) Bethune-Hill, 114 F. Supp. 3d at

341 (internal quotation marks omitted); accord, e.g., Veasey, 2014 WL 1340077, at *3.

Just so here.

3. The federal constitutional issues in this litigation are of the utmost

seriousness. There can be no doubt that the seriousness of the federal constitutional

issues at stake in this case demands disclosure. Plaintiffs and other Republicans in the

Sixth District had been able to elect a candidate of their choice to the House of Rep-

resentatives for two decades, until Democrats on the GRAC and in the General

Assembly chose to redraw the district’s boundaries with an eye to Plaintiffs’ and other

Marylanders’ voting histories and party affiliations, and with the express purpose of

ensuring that they would no longer be able to elect their chosen candidates.

That kind of politically motivated retaliation is cause for great concern. The

right to vote, the Supreme Court has held time and again, “is a fundamental matter in

a free and democratic society.” Reynolds, 377 U.S. at 561. “Especially since the right to

exercise the franchise in a free and unimpaired manner is preservative of other basic

civil and political rights, any alleged infringement of the right of citizens to vote must

be carefully and meticulously scrutinized.” Id. at 561-562. Any attempt to deprive a

citizen of the right to “an equally effective voice in the election of members of his state

legislature” is illegal. Id. at 565.


20

Government actions singling out individuals or groups and imposing burdens on

them because of conduct protected by the First Amendment are equally illegal.

“[P]olitical belief and association constitute the core of those activities protected by the

First Amendment,” Elrod v. Burns, 427 U.S. 347, 356 (1976), and government actions

that punish members of a particular political group are accordingly “inimical to the

process which undergirds our system of government and . . . at war with the deeper

traditions of democracy embodied in the First Amendment.” Id. at 357 (internal

quotation marks omitted).

Discriminatory political gerrymandering implicates both of these fundamental

constitutional concerns. By depriving members of the disadvantaged group of the

opportunity to elect candidates of their choice, such gerrymandering strips away their

“foundational right [to] meaningful representation” in government. Bethune-Hill, 114

F. Supp. 3d at 341. And by subjecting voters to differential burdens based on their

political affiliation, it erodes the principles of freedom of thought and belief that form

the essence of the First Amendment. Plaintiffs’ allegations of political gerrymandering

here are thus “undoubtedly serious,” which means that this third factor “weighs

heavily in favor of disclosure.” Id.

4. The GRAC members and other members of the General Assembly played a

direct, central, and essential role in the constitutional violations here. Officials on

the GRAC and in the General Assembly and governor’s office were directly responsible

for drafting and approving the Plan. ECF No. 104 at ¶¶ 22-28, 33-34.

In these circumstances, where the legislature’s subjective “decision-making [is]

at the core of the plaintiffs’ claims,” “the legislature’s direct role in the litigation

supports overcoming the privilege” and disclosing evidence going to the legislature’s


21

intent in approving the plan. See Bethune-Hill, 114 F. Supp. 3d at 341 (quoting Favors,

285 F.R.D. at 220); see also, e.g., Comm. for a Fair & Balanced Map, 2011 WL 4837508,

at *8 (explaining that because “the legislators’ role in the allegedly unlawful conduct is

direct,” and the legislators’ actions were the very actions “under scrutiny,” this factor

favored disclosure).

5. Compelling disclosure of the evidence sought will not conflict with the

purposes of the privilege. The final factor, which looks to the “purposes of the

privilege,” likewise favors granting the motion. Some courts applying this fifth factor

have spoken of an anti-“distraction” purpose for the privilege that “guards legislators

from the burdens of compulsory process.” Bethune-Hill, 114 F. Supp. 3d at 341. Any

such concern about “distraction” here is minimal. Having to appear for a deposition—

the imposition of a single day at most—is not a serious burden for the GRAC members

or legislators, many of whom have separate jobs as it is. Nor is there any evidence that

searching for and producing documents is a serious burden—indeed, Senator Miller,

Speaker Busch, and Senator Madaleno have already done so and produced privilege

logs. See Exs. O-Q. No conceivable additional burden could be imposed by production of

the documents, instead.

Similarly, any concern here about legislative independence is minor at best.

Numerous courts have recognized that where legislators are not themselves defen-

dants, the threat to legislative independence is minimal or nonexistent. See, e.g.,

Bethune-Hill, 114 F. Supp. 3d at 342 (“[T]he threat to [the legislative-independence]

interest is substantially lowered when individual legislators are not subject to

liability.”); see also Owen, 445 U.S. at 656 (noting that the threat is “significantly

reduced, if not eliminated, . . . when the threat of personal liability is removed”);


22

Gillock, 445 U.S. at 372 (suggesting that legislative independence is only implicated in

a “civil action brought by a private plaintiff to vindicate private rights”).

Nor would sitting for a deposition impede legislative deliberations, as other

courts have consistently held. In fact, “the occasional instance in which disclosure may

be ordered in a civil context will [not] add measurably to the inhibitions already

attending legislative deliberations.” United States v. Irvin, 127 F.R.D. 169, 174 (C.D.

Cal. 1989). And even if there were “some minimal impact on the exercise of his

legislative function,” it would easily be offset by the “impair[ment of] the legitimate

interest of the Federal Government” to see federal constitutional rights vindicated.

Gillock, 445 U.S. at 373; see also Baldus, 2011 WL 6122542, at *2 (“Allowing the

plaintiffs access to these items may have some minimal future ‘chilling effect’ on the

Legislature, but that fact is outweighed by the highly relevant and potentially unique

nature of the evidence.”). “For better or worse, lawsuits concerning constitutional

matters such as equal protection, the First Amendment, and substantive due process

all require judicial inquiry of the legislator’s motive.” Carver v. Foerster, 102 F.3d 96,

104 (3d Cir. 1996). In such cases, “the balance of interests calls for the legislative

privilege to yield.” Bethune-Hill, 114 F. Supp. 3d at 343.

In sum, none of the factors relied on by courts in assessing legislative-privilege

claims supports recognizing the privilege here. On the contrary, each factor makes

clear that the privilege does not apply. “In this context, . . . the balance of interests

calls for the legislative privilege to yield.” Bethune-Hill, 114 F. Supp. 3d at 343.

Because the GRAC members have made no effort at all to carry their burden to prove

otherwise, this Court should order the GRAC members to sit for their depositions and

produce responsive documents.


23

II. EVEN IF THE PRIVILEGE WERE AVAILABLE HERE, THE ASSERTION OF PRIVILEGE IS WHOLLY UNSUPPORTED BY FACTS OR EVIDENCE

Even if there were a basis in the abstract for asserting legislative privilege here

(there is not), the subpoena targets have failed to support the privilege properly.

Once again, any individual asserting the privilege “has the burden of proving the

preliminary facts of the privilege.” Bethune-Hill, 114 F. Supp. 3d at 344 (quoting

Legislative Privilege, 26A Fed. Prac. & Proc. Evid. § 5675 (1st ed.)). That means that it

is insufficient to offer up “[a] conclusory assertion of privilege” without more. Page, 15

F. Supp. 3d at 661. On the contrary, “the proponent of a privilege must ‘demonstrate

specific facts showing that the [documents or deposition answers] were privileged.’”

Bethune-Hill, 114 F. Supp. 3d at 344 (quoting RLI Ins. Co. v. Conseco, Inc., 477 F.

Supp. 2d 741, 751 (E.D. Va. 2007)). That is an unavoidable requirement, given both

that the privilege “may be waived” (Schaefer, 144 F.R.D. at 298), and that it applies

only to the “integral steps” of the legislative process, not to post-enactment issues,

documents, or communications (Bethune-Hill, 114 F. Supp. 3d at 342-45). Against this

background, “one does not prove entitlement to legislative (or, indeed, any) privilege

simply by asserting it.” Id. Quite the contrary, the privilege “must be proved.” Id. Yet

the subpoena targets have done none of this. They have instead offered only naked

assertions of privilege, lacking factual development.

In no respect is that more apparent than with the OAG’s conclusory assertion of

privilege concerning the deposition subpoenas. But even with respect to the document

subpoenas, the three privilege logs served by Senator Miller, Speaker Busch, and

Senator Madaleno are notably deficient.

Federal Rule of Civil Procedure 45(e)(2)(A) states expressly that “[a] person

withholding subpoenaed information under a claim that it is privileged . . . must . . .


24

describe the nature of the withheld documents, communications, or tangible things in a

manner that, without revealing information itself privileged, will enable the parties to

assess the claim.” Courts take this obligation seriously. “When a party relies on a

privilege log to assert [a] privilege[], the log must ‘as to each document set forth specific

facts that, if credited, would suffice to establish each element of the privilege or

immunity that is claimed.’” Kelly v. United States, 281 F.R.D. 270, 277 (E.D.N.C. 2012)

(citing NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501-502 (4th Cir. 2011)).

In this case, that means establishing facts sufficient to show, at a bare min-

imum, that (1) the withheld documents and communications concern legislative pur-

pose and intent; (2) the subject matter of the documents and communications concern

“integral steps” of the legislative process; (3) the withheld documents and communi-

cations concern matters as to which the privilege has not been waived; and (4) the

relevant individual has actually asserted the privilege. See generally Bethune-Hill, 114

F. Supp. 3d at 342-45; Favors, 285 F.R.D. at 211-212; Schaefer, 144 F.R.D. at 298;

Perez, 2014 WL 106927, at *2.

Crucially, “the production of an inadequate privilege log may constitute waiver

of any asserted privileges.” Mezu v. Morgan State U., 269 F.R.D. 565, 577 (D. Md. 2010)

(quoting Herbalife Int’l, Inc. v. St. Paul Fire & Marine Ins. Co., 2006 WL 2715164, at *4

(N.D.W. Va. 2006), and citing Ruran v. Beth El Temple of W. Hartford, Inc., 226 F.R.D.

165, 168-169 (D. Conn. 2005), and Banks v. Office of Senate Sergeant-at-Arms, 222

F.R.D. 7, 20-21 (D.D.C. 2004)).

Here, the privilege logs for Senator Miller, Speaker Busch, and Senator

Madaleno have “failed to perfect [their] privilege claim,” Mezu, 269 F.R.D. at 577

(citing Ruran, 226 F.R.D. at 168-69), with respect to each withheld document. In most


25

cases, the individuals sending or receiving the communications or documents are un-

identified; individuals other than the subpoena targets are identified ambiguously as

“staff,” “delegates,” or not identified at all. See Ex. O at Doc. Nos. 1-11; Ex. P at Doc.

Nos. 1-9; Ex. Q at Doc. Nos. 2-4, 10. As a consequence, it is impossible to evaluate

potential waivers of the privilege by those other parties. What is more, only general

dates are given in several cases (e.g., “2011” or “October 2011”), making it impossible to

evaluate whether the communications or documents were in fact integral to the

legislative process. See Ex. O at Doc. Nos. 1-2, 11; Ex. Q at Doc. No. 10. And at other

times still, the privilege logs assert ambiguously that the withheld documents “may

have been used” by the subpoena target in legislative deliberations. See Ex. O at Doc.

No. 10; Ex. Q at Doc. No. 10. That of course opens the possibility that they were not.

Most fundamentally, neither the privilege logs nor the letter that accompanied

them establishes that the lawmakers themselves actually asserted the legislative

privilege. That is no mere technicality. “It is well settled that the legislative privilege

‘is a personal one and may be waived or asserted by each individual legislator.’” Favors,

285 F.R.D. at 211 (quoting Schaefer, 144 F.R.D. at 298). “It follows, then, that [a third

party] cannot assert or waive the privilege on behalf of [a] legislator” who holds the

privilege. Id. (citing A Helping Hand, LLC v. Baltimore Cnty., Md., 295 F. Supp. 2d

585, 590 (D. Md. 2003)). Yet that is precisely what the OAG purports to do here: it

asserts the privilege for the former members of the GRAC and Senator Madaleno on

their behalves. That, it may not do—it must instead show that they have each

individually asserted the privilege.

Because the claims of privilege (such as they are) are not supported by the

necessary facts or evidence, the third-party subpoena targets have “failed to perfect


26

privilege claim.” Mezu, 269 F.R.D. at 577 (citing Ruran, 226 F.R.D. at 168-169). As to

the deposition subpoenas, the proposed deponents offer nothing at all; as for the

document subpoenas, the subpoena targets offer only “terse” assertions of privilege that

“[do] not constitute a particularized justification for asserting privilege” and are

therefore “insufficient to establish any privilege.” Id. They have therefore violated Fed.

R. Civ. P. 45(e)(2)(A) and failed to carry their burden of proving applicability of the

privilege. The motion to compel should be granted for that reason alone.

III. SENATOR MADALENO HAS WAIVED THE PRIVILEGE, TO THE EXTENT HE CAN ASSERT IT AT ALL

There is yet an additional reason to reject Senator Madaleno’s assertion of

privilege with respect to the requested documents: He cannot get around his express

waiver. Plainly put, the legislative privilege “is waived if the purported legislator

testifies, at a deposition or otherwise, on supposedly privileged matters.” Favors, 285

F.R.D. at 212 (quoting Trombetta, 2004 WL 868265, at *5). Crucially, “the waiver of the

privilege need not be ‘explicit and unequivocal,’ and may occur either in the course of

the litigation when a party testifies as to otherwise privileged matters, or when

purportedly privileged communications are shared with outsiders.” Favors, 285 F.R.D.

at 211-12 (internal citations omitted; citing Trombetta v. Bd. of Educ., Proviso Twp.

High Sch. Dist. 209, 2004 WL 868265, at *5 (N.D. Ill. 2004)). Thus, “[t]o the extent . . .

that any legislator, legislative aide, or staff member had conversations or com-

munications with any outsider (e.g. party representatives, non-legislators, or non-

legislative staff), any privilege is waived as to the contents of those specific com-

munications.” Perez, 2014 WL 106927, at *2.

As relevant here, Senator Madaleno made statements to the press regarding

“supposedly privileged matters” (Favors, 285 F.R.D. at 212 (internal quotation marks


27

omitted)), including the purpose of and intent behind the Plan. See supra at 5-6; see

also Joint Stips. (ECF No. 104) ¶¶ 40, 63-65 & Exs. 7-9. Senator Madaleno’s statements

to third-party constituents and members of the press concerning the purpose of the

redistricting map constitute a waiver of any legislative privilege as to that subject

matter. See, e.g., Favors, 285 F.R.D. at 212; Trombetta, 2004 WL 868265, at *5.

Responsive documents concerning legislative purpose and intent in the possession of

Senator Madaleno are therefore discoverable. Senator Madaleno should not be allowed

to describe the legislature’s intent for his own purposes in public speeches on the one

hand, while avoiding discovery of evidence impeaching or corroborating those

statements, on the other.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion to compel should be granted. The

Court should enter an order compelling Ms. Hitchcock, Senator Miller, Speaker Busch,

and Mr. Stewart to testify at a deposition without resting on an assertion of legislative

privilege. And it should order Senator Miller, Speaker Busch, and Senator Madaleno to

produce all responsive documents regardless of any invocation of legislative privilege.

Dated: January 3, 2017

Respectfully submitted, /s/ Michael B. Kimberly




28

CERTIFICATE OF CONFERENCE

Pursuant to Local Rules 104.7 and 104.8, I hereby certify that on December 20

and 21, 2016 counsel for Jeanne Hitchcock, Thomas Miller, Michael Busch, and

Richard Stewart (Jennifer Katz and Sarah Rice) and counsel for Plaintiffs (Michael

Kimberly, Stephen Medlock, Brantley Webb, and Micah Stein) met and conferred via

telephone regarding the subpoenas ad testificandum served on Ms. Hitchcock, Senator

Miller, Speaker Busch, and Mr. Stewart.

I further certify that on January 3, 2017, counsel for Plaintiffs (Stephen

Medlock) met and conferred via telephone with counsel for Senator Miller, Speaker

Busch, and Senator Madaleno (Sandra Brantley) concerning their responses to the

document subpoenas.

The sole issue requiring resolution by the Court in this motion is the assertion of

legislative privilege.

/s/ Stephen M. Medlock Stephen M. Medlock, pro hac vice Mayer Brown LLP

1999 K Street NW Washington, D.C. 20006 (202) 263-3221 (office) (202) 263-3300 (facsimile)


1



Plaintiffs,

vs.


Defendants.

Case No. 13-cv-3233

Three-Judge Court

APPENDIX OF EXHIBITS TO MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL NON-PARTIES JEANNE D.

HITCHCOCK, THOMAS V. “MIKE” MILLER JR., MICHAEL E. BUSCH, AND RICHARD STEWART TO TESTIFY AT DEPOSITION, AND TO COMPEL NON-

PARTIES THOMAS V. “MIKE” MILLER JR., MICHAEL E. BUSCH, AND RICHARD S. MADALENO JR. TO PRODUCE DOCUMENTS


2

Exhibit Contents

A Defendants’ Responses to Plaintiffs’ First Set of Interrogatories

B Documents produced by Richard Stewart in response to Plaintiffs’ document subpoena

C Plaintiffs’ document subpoena to Jeanne D. Hitchcock, dated December 2, 2016

D Plaintiffs’ document subpoena to Richard Stewart, dated December 2, 2016

E Plaintiffs’ document subpoena to Michael E. Busch, dated December 2, 2016

F Plaintiffs’ document subpoena to Thomas V. Miller, Jr., dated December 2, 2016

G Plaintiffs’ deposition subpoena to Jeanne D. Hitchcock, dated December 16, 2016

H Plaintiffs’ deposition subpoena to Michael E. Busch, dated December 16, 2016

I Plaintiffs’ deposition subpoena to Richard Stewart, dated December 16, 2016

J Plaintiffs’ deposition subpoena to Thomas V. Miller, Jr., dated December 16, 2016

K December 19, 2016 letter from Sarah W. Rice, Esq. to Stephen Medlock, Esq. regarding document subpoenas to Governor Martin O’Malley, Jeanne Hitchcock, and Richard Stewart

L December 16, 2016 email from Jennifer Katz, Esq. to Stephen Medlock, Esq. asserting privilege with respect to all current and former legislators and state employees

M December 23, 2016 letter from Sarah W. Rice, Esq. to Stephen Medlock, Esq. regarding December 20-21 discovery conference

N December 30, 2016 letter from Sandra Benson Brantley, Esq. to Stephen Medlock, Esq. regarding responses to document subpoenas from Senate President Miller, Speaker Busch, and


3

Senator Madaleno

O Privilege log for Speaker Michael E. Busch

P Privilege log for Senator Richard Madaleno

Q Privilege log for Senate President Thomas V. Miller, Jr.

R January 3, 2017 letter from Jennifer Katz, Esq. to Stephen Medlock, Esq. denying request for joint interview of current and former legislators and state employees

S Plaintiffs’ document subpoena to Richard Madaleno, dated December 13, 2016

Dated: January 3, 2017

Respectfully submitted, /s/ Michael B. Kimberly




EXHIBIT A



O. JOHN BENISEK, et al., Plaintiffs, v. LINDA H. LAMONE, et al., Defendants.

* * * * * *

Case No. 13-cv-3233

* * * * * * * * * * * * * * * * * * * *

DEFENDANTS’ RESPONSES TO PLAINTIFFS’ FIRST SET OF INTERROGATORIES

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Defendants Linda H.

Lamone and David J. McManus, Jr., state as follows for their responses and objections to

Plaintiffs’ interrogatories:

PRELIMINARY STATEMENT

The Information supplied in these answers is not based solely on the knowledge of

the executing parties, but also includes the knowledge of their agents, representatives,

and attorneys, unless privileged. The language, word usage and sentence structure is that

of the attorney assisting in the preparation of these Answers and does not purport to be

the precise language of the executing party. The Defendants have not yet completed

discovery or gathering of facts and documents relating to this action and therefore reserve

the right to revise, correct, add to, supplement, and clarify the responses set forth below.


2

Each response to the Plaintiffs’ First Set of Interrogatories is made subject to these

preliminary statements and objections. By responding to an interrogatory in as complete

a manner as possible subject to the stated objections, Defendants do not in any way waive

any applicable objection or the right to seek appropriate protection orders, if necessary.

GENERAL OBJECTIONS

1. As to the Interrogatories generally, and as to each and every interrogatory

individually, Defendants object to the extent that they request information protected by

the attorney-client privilege, the work product doctrine, the deliberative or executive

privilege, legislative privilege, or that is otherwise privileged, protected, or exempt from

discovery.

2. Defendants object to these requests to the extent that they request

information already within the possession and control of Plaintiffs and/or their counsel,

on the grounds that such requests are duplicative and unduly burdensome.

3. Defendants object to these requests to the extent that they are overbroad,

oppressive, duplicative, or cumulative.

4. Defendants object to these requests to the extent that they are vague,

ambiguous, fail to specify with reasonable particularity the information sought, or

otherwise are incomprehensible.

5. The Defendant objects to these requests to the extent they seek material

that is not relevant to the subject matter involved in this action or is beyond the scope of


3

what is required to be provided by the Federal Rules of Civil Procedure, the local rules of

this Court, or the Orders of the Court in this matter.

6. Defendants object to these requests to the extent that they require the

Defendants to make legal conclusions and/or presuppose legal conclusions or assume the

truth of matters that are disputed.

7. Defendants object to these requests to the extent that the information sought

is a matter of public record and is equally accessible and available to Plaintiffs, on the

grounds that compiling such information would impose an unreasonable burden and

expense upon the Defendants and constitute attorney work product.

8. In addition to these General Objections, Defendants also state, where

appropriate, specific objections to individual requests. By setting forth such specific

objections, the Defendants neither intends to, nor does, limit or restrict or waive the

General Objections, which shall be deemed incorporated in each of the responses to the

specific requests.

Without waiving, subject to, and notwithstanding these General Objections,

Defendants provide the following:

SPECIFIC OBJECTIONS AND ANSWERS

INTERROGATORY NO. 1: Identify all persons and entities who reviewed or had

access to the final or any interim or alternative drafts of the Proposed Congressional Plan,

other than the members of the GRAC, members of the General Assembly, and the


4

Governor prior to the final draft of the Proposed Congressional Plan being made

available to the general public.

ANSWER TO INTERROGATORY NO. 1: The Defendants object to this

interrogatory on the grounds that it is vague, overly broad, and unduly burdensome.

Without waiving these objections, the Defendants believe, as of the date of this answer,

that the following persons reviewed or had access to the final or any interim or alternative

drafts of the Proposed Congressional Plan prior to the final draft of the Proposed

Congressional Plan being made available to the general public:

1. Patrick Murray, former legislative aide to Senate President Thomas v. Mike Miller.

2. Yaakov Weissman, legislative aide to Senate President Thomas v. Mike Miller.

3. Jeremy Baker, legislative aide to House Speaker Michael E. Busch.

4. Joseph Bryce, aide to former Governor Martin O’Malley.

5. John McDonough, former Secretary of State in the administration of former Governor Martin O’Malley

6. Hon. Daniel Friedman, former Assistant Attorney General serving as Counsel to the General Assembly.

7. Michele Davis, Senior Policy Analyst, Department of Legislative Services.

8. Karl Arro, former Executive Director, Department of Legislative Services.

9. Bruce E. Cain, Ph.D., Professor, Stanford University, Y2E2 Building, Room 173 473 Via Ortega, Stanford, CA 94305-4225, (650) 725-1320, consultant hired in anticipation of litigation by the Office of the Attorney General.

With the exception of Bruce E. Cain, whose contact information is provided, all

identified persons are represented by the Office of the Attorney General in connection

with this matter, and all correspondence should be directed to undersigned counsel.


5

INTERROGATORY NO. 2: If you contend that the General Assembly of

Maryland, the GRAC, and/or the Governor did not intend to burden the representational

rights of certain citizens and/or to dilute the voting strength of certain citizens because of

how they voted in the past or because of the political party with which they had affiliated,

state the factual basis for your contention and identify all facts, documents, and

communications related to your contention.


interrogatory on the grounds that it is a premature “contention interrogatory” and it

requests all facts, documents, and communications concerning defenses to matters

alleged in the second amended complaint when discovery has not concluded. See Fed.

R. Civ. P. 33(a)(2). The Defendants further object because the interrogatory calls for

statements of subjective intent of legislators acting within their legislative capacities in

enacting legislation, which is information protected by legislative privilege. The

Defendants additionally object because the interrogatory is vague and not reasonably

particular, as there is no definition of “certain citizens” or “representational rights.”

Without waiving any objections, the Defendants state that each district in the Proposed

Congressional Plan achieved precise mathematical equality of population consistent with

the No Representation Without Population Act, except for District Eight, which has one

fewer person. Therefore, the vote of each citizen of Maryland has equal strength as the

vote of each other citizen in Congressional elections under the current plan.

INTERROGATORY NO. 3: If you contend that the General Assembly of

Maryland, the GRAC, and/or the Governor did not use and/or was not influenced by data


6

reflecting prior voting patterns, voter history, or party affiliation in deciding where to

draw the lines of the Sixth Congressional District under the Proposed Congressional Plan,

state the factual basis for your contention and identify all facts, documents and

communications related to your contention.





R. Civ. P. 33(a)(2).

INTERROGATORY NO. 4: If you contend that the General Assembly’s, the

GRAC’s, and/or the Governor’s consideration of data reflecting prior voting patterns,

voter history, or party affiliation did not affect the drawing of the lines of the Sixth

Congressional District in such a way that such consideration altered the outcome of the

congressional elections in the Sixth Congressional District after 2011, state the factual

basis for your contention and identify all facts, documents and communications related to

your contention.





R. Civ. P. 33(a)(2).


7

INTERROGATORY NO. 5: If you contend that there are any justifications for the

boundaries of the Sixth Congressional District (such as respect for communities of

interest), state the factual basis for all such justifications and identify all facts, documents,

and communications supporting all such justifications.





R. Civ. P. 33(a)(2). Without waiving those objections, the Defendants identify

documents produced to the Plaintiffs with the Joint Stipulations and in response to

Plaintiffs First Request for Production of Documents.

INTERROGATORY NO. 6: Identify all Persons who were involved in planning,

developing, drawing, and/or approving the Proposed Congressional Plan and any

alternative plans not adopted. For each Person identified, state that Person’s involvement

with respect to the Proposed Congressional Plan.


interrogatory on the grounds that it is vague, overly broad, and unduly burdensome.

Without waiving these objections, the Defendants believe that, in addition to the

members of the GRAC and the Governor, the following persons were involved in

planning, developing, drawing, and/or approving the Proposed Congressional Plan and

any alternative drafts:


8

1. Patrick Murray, in his capacity as legislative aide to Senate President Thomas v. Mike Miller, was involved in developing and drawing the Proposed Congressional Plan.

2. Yaakov Weissman, in his capacity as legislative aide to Senate President Thomas v. Mike Miller, was involved in developing and drawing the Proposed Congressional Plan.

3. Jeremy Baker, in his capacity as legislative aide to House Speaker Michael E. Busch, was involved in developing and drawing the Proposed Congressional Plan.

4. Joseph Bryce, in his capacity as aide to former Governor Martin O’Malley, was involved in developing and drawing the Proposed Congressional Plan.

5. John McDonough, in his capacity as a high-ranking member of Governor O’Malley’s administration and at the request of the Governor, was involved in developing and drawing the Proposed Congressional Plan.

All identified persons are represented by the Office of the Attorney General in connection

with this matter, and all correspondence should be directed to undersigned counsel. To

the extent this Interrogatory seeks information concerning third-party alternative plans,

the Defendants object on the ground that the request is not relevant to the Plaintiffs’

claims and thus exceeds the scope of discovery. Fed. Rule Civ. P. 26(b)(1). Without

waiving this objection, the Defendants identify the third-party plans submitted to the

GRAC already provided to the Plaintiffs at Bates range MCM000908-1134, and

additional documents concerning third-party plans produced in response to Plaintiffs’

First Request for Production of Documents.

INTERROGATORY NO. 7: Identify all experts, consultants, and/or other third

parties with whom You, the GRAC, the Governor, or members of the Maryland General

Assembly communicated during the planning, development, and/or preparation of the

Proposed Congressional Plan and/or any alternative congressional plans not adopted. For


9

each expert, consultant, or other third party, state the time period of the Person’s

involvement.


interrogatory on the grounds that it is vague, overly broad, not reasonably particular, and

unduly burdensome. Without waiving these objections, and to the extent Interrogatory

No. 7 intends to identify persons with whom communications were had specifically

concerning the drafting of the Proposed Congressional Plan and/or any alternative drafts,

the Defendants cannot identify any experts, consultants, and/or third parties because the

Defendants, having made reasonable inquiries, believe that no such communications took

place. To the extent this Interrogatory seeks information concerning third-party

alternative plans submitted to the GRAC that were not adopted, the Defendants object on

the ground that the request is not relevant to the Plaintiffs’ claims and thus exceeds the

scope of discovery. Fed. Rule Civ. P. 26(b)(1).

INTERROGATORY NO. 8: If you contend that Plaintiffs’ complaint is barred, in

whole or part, by the doctrine of laches, state the factual basis for your laches defense and

identify all facts, documents, and communications related to your laches defense.

ANSWER TO INTERROGTORY NO. 8: The Defendants object to this



alleged in the second amended complaint when discovery has not concluded. See Fed. R.


10

Civ. P. 33(a)(2). Without waiving those objections, the Defendants identify all of the

Plaintiffs’ pleadings filed in this lawsuit.

INTERROGATORY NO. 9: If you contend that Plaintiffs’ complaint is barred, in

whole or part, by the doctrine of waiver, state the factual basis for your waiver defense

and identify all facts, documents, and communications related to your waiver defense.







INTERROGATORY NO. 10: If you contend that Plaintiffs’ complaint is barred,

in whole or part, by the doctrine of estoppel, state the factual basis for your estoppel

defense and identify all facts, documents, and communications related to your estoppel

defense.








11

INTERROGATORY NO. 11: Describe all facts, documents, and communications

supporting the October 4, 2011 statement made by GRAC Chair Jeanne Hitchcock: “The

map we are submitting today conforms with State and federal law and incorporates the

331 comments we received from the public during our 12 regional hearings around the

State.”


interrogatory on the grounds that it is premature and requests all facts, documents, and

communications when discovery has not concluded. Without waiving those objections,

the Defendants identify documents provided to the Plaintiffs during the joint stipulations

at Bates ranges MCM000001-704 and MCM000705-906, and the documents responsive

to Plaintiffs’ sixth request for production of documents.


supporting the statement in the PowerPoint presentation prepared by the GRAC to

accompany its recommended plan: “Congressional Districts 6 and 8 are drawn to reflect

the North-South connections between Montgomery County, the I-270 Corridor, and

western portions of the State.”





at Bates ranges MCM000001-704, MCM000705-906, MCM001135-1389, MCM001392-

1824.


12


supporting the statement in the PowerPoint presentation prepared by the GRAC to

accompany its recommended plan: “Public testimony in this region expressed a desire to

have a Congressional map that better reflects patterns in this region – the growth in

Southern Maryland from Prince George’s County, and the growth of the suburbs along

the I-270 Corridor.”





at Bates ranges MCM000001-704, MCM000705-906, MCM001135-1389, MCM001392-

1824.

BRIAN E. FROSH Attorney General of Maryland

___/s/__Jennifer L. Katz______________ JENNIFER L. KATZ (Bar No. 28973) SARAH W. RICE (Bar No. 29113) JEFFREY L. DARSIE (Bar No. 19485) Assistant Attorneys General Office of the Attorney General 200 St. Paul Place, 20th Floor Baltimore, Maryland 21202 (410) 576-7005 (tel.); (410) 576-6955 (fax) [email protected]

Dated: December 19, 2016 Attorneys for Defendants


EXHIBIT B


EXHIBIT C


EXHIBIT D


EXHIBIT E


EXHIBIT F


EXHIBIT G


EXHIBIT H


EXHIBIT I



MS048705

Stamp

EXHIBIT J


EXHIBIT K


EXHIBIT L


1

Medlock, Stephen M.

From: Katz, Jennifer [[email protected]]Sent: Friday, December 16, 2016 4:17 PMTo: Medlock, Stephen M.Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, SarahSubject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Steve,

Thank you for your email. We continue to think it is premature to agree to 5 more depositions at this time,given the likelihood that a number of the individuals you seek to depose cannot be compelled to testify in thismatter. We would move to quash subpoenas served on members of the GRAC, as well as current or formermembers of the Maryland General Assembly who seek to assert the testimonial privilege. Thus, we continue tobelieve that 10 depositions is sufficient. We are open to reexamining our position should the Court not grantthose motions to quash, but would anticipate seeking to extend the discovery period to accommodate anyincreased discovery upon which we may agree.

I note that you say you originally thought you might be able to obtain through “informal discovery” informationyou now intend to seek through deposition. To the extent you use the term “informal discovery” in its standarduse – i.e., the counsel-facilitated exchange of information without resort to formal discovery mechanisms – youhave not proposed any such mechanism, nor have we rejected it. What we objected to – ex parte contact withrepresented parties – is not informal discovery. If you would like to discuss mechanisms other than depositionsto obtain information that is properly subject to discovery, whether formal or informal, please let us know.

Best,Jennifer

Jennifer KatzAssistant Attorney General, Civil [email protected](410) 576-7005

From: Medlock, Stephen M. [mailto:[email protected]]Sent: Friday, December 16, 2016 9:27 AMTo: Katz, Jennifer <[email protected]>Cc: Webb, Brantley <[email protected]>; Kimberly, Michael B. <[email protected]>; Darsie, Jeffrey<[email protected]>; Hughes, Paul W. <[email protected]>; Rice, Sarah <[email protected]>Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Jennifer:

We do not believe that Plaintiffs have to disclose precisely who they plan to depose in order to agree on a relativelysmall extension in the number of deponents. Nevertheless, in order to reach an agreement on this matter, we willprovide you with additional information regarding who Plaintiffs plan to depose. At this juncture, Plaintiffs plan todepose 5 GRAC members, the Defendants’ 30(b)(6) representative, at least 5 current or former members of theMaryland General Assembly, and at least one member of the Department of Legislative Services. In addition, we maydepose at least one official in the Maryland Democratic Party and one of Maryland’s U.S. Congressional representatives.In many cases, we would have sought information from these individuals through informal discovery. However, given

our recent exchange of correspondence, Plaintiffs are not now seeking this informal discovery.


2

As you noted, the discovery window in this matter is fairly tight. Please let us know by close of business today if you willagree to increase the number of fact witness depositions in this matter from 10 per side to 15 per side.

Regards,

Steve

Stephen M. Medlock

Mayer Brown LLP1999 K Street NW | Washington, DC 20006T: (202) 263-3221 | F: (202) [email protected]

From: Katz, Jennifer [mailto:[email protected]]Sent: Wednesday, December 14, 2016 3:57 PMTo: Medlock, Stephen M.Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, SarahSubject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Steve, please see the forwarded email. I am working from home today and somehow managed to send this toeveryone but you.

Best,Jennifer

From: Katz, JenniferSent: Wednesday, December 14, 2016 3:52:20 PMTo: Katz; JenniferCc: Webb; Brantley; Kimberly; Michael B.; Darsie; Jeffrey; Hughes; Paul W.; Rice; SarahSubject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Steve,

We think that the 10 depositions you originally proposed, and to which we agreed, is more than enough giventhe subject matter of the litigation and, given the very tight discovery schedule, we are not inclined to agree tomore at this time. You have not identified a list of who you intend to depose, but we assume that you mayseek to depose members of the GRAC and others who are protected by legislative privilege and cannot becompelled to testify in this matter. Thus, we continue to believe that 10 depositions is more than adequate.Further, when we agreed to the 10 depositions per side, we did not understand that agreement to beconditioned on your ability to seek pre-discovery from current and former state officials represented by theAttorney General's Office. If you want to provide us with a list of who you seek to depose, we can furtherdiscuss your request, and try to reach an agreement.

Best,Jennifer

On Dec 13, 2016 1:41 PM, "Medlock, Stephen M." <[email protected]> wrote:


3

Jennifer:

When we initially agreed to 10 depositions per side in the joint discovery plan, we believed that we would beable to conduct informal discovery with current and former delegates and senators who were not represented inthis matter. Following on our recent exchange of letters, however, we must now resort to commanddiscovery. Accordingly, we propose raising the number of depositions per side from 10 to 15. By Friday, canyou please let us know whether you will consent to this mutual increase in the number of depositions?

Regards,

Steve

Stephen M. MedlockAssociate


__________________________________________________________________________

This email and any files transmitted with it are intended solely for the use of the individual or entity to whomthey are addressed. If you have received this email in error please notify the system manager. If you are not thenamed addressee you should not disseminate, distribute or copy this e-mail.


EXHIBIT M


200 Saint Paul Place Baltimore, Maryland, 21202-2021

Main Office (410) 576-6300 Main Office Toll Free (888) 743-0023

Consumer Complaints and Inquiries (410) 528-8662 Health Advocacy Unit/Billing Complaints (410) 528-1840

Health Advocacy Unit Toll Free (877) 261-8807 Homebuilders Division Toll Free (877) 259-4525 Telephone for Deaf (410) 576-6372

www.marylandattorneygeneral.gov

BRIAN E. FROSH

Attorney General

STATE OF MARYLAND

OFFICE OF THE ATTORNEY GENERAL

ELIZABETH F. HARRIS

Chief Deputy Attorney General

DONNA HILL STATON

Deputy Attorney General

CAROLYN QUATTROCKI

Deputy Attorney General

FACSIMILE NO. WRITER’S DIRECT DIAL NO.

(410) 576-6955 (410) 576-7847

Email: [email protected]

December 23, 2016

Via email to counsel of record

Stephen M. Medlock

Mayer Brown LLP

1999 K Street, N.W.

Washington, DC 20006-1101

Re: Benisek v. McManus

Mr. Medlock,

This letter responds to your letter of December 22, 2016, in which you memorialized our

telephone conference that was held on December 20 and 21, 2016. This letter provides

clarifying information in response to certain statements and corrects certain incorrect

statements contained in the December 22 letter.

First, your letter sets forth your understanding that Ms. Katz and I have accepted service

of deposition subpoenas on behalf of Senator Miller and Speaker Busch. Federal Rule of

Civil Procedure 4(j)(2)(B) provides that service of process on state entities is to be made

in accordance with governing state law. Under Maryland Rule 2-124(k), service of

compulsory process on State officials is to be made on the Attorney General or his or her

designee. The Attorney General has designated Assistant Attorneys General within the

Civil Division of the Office of the Attorney General as authorized to accept compulsory

process on State officials. Ms. Katz and I, in addition to being counsel to the defendant

officials of the State Board of Elections in this case, are Assistant Attorneys General in the

Office’s Civil Division. Accordingly, we are authorized by statute and the designation of

the Attorney General to accept service of these subpoenas. We forwarded the subpoenas

to the Assistant Attorneys General who represent President Miller and Speaker Busch,

Sandra Brantley and Kathryn Rowe. You have accurately stated that the GRAC members

who have been subpoenaed for deposition in this matter intend to seek protective orders

quashing those subpoenas on grounds of legislative privilege.


Stephen M. Medlock

December 23, 2016

Page 2

Second, your letter misstates several aspects of our conversation concerning preservation

of documents, as follows:

a. Your letter sets forth your understanding that Ms. Katz and I “have not been able to

locate a copy of any document preservation notice provided to relevant individuals

or state agencies regarding the 2011 Congressional Plan.”

On the contrary, we informed you that we had located a preservation notice sent by then-

Assistant Attorney General Daniel Friedman, counsel to the General Assembly, in response

to litigation that was commenced against Governor O’Malley in October 2011 concerning

the 2011 congressional redistricting.

b. Your letter states that Ms. Katz and I “stated that, as part of the normal course of

business, all state email accounts, including those used by members of the GRAC,

are subject to an ‘auto-delete provision’ that automatically deletes all emails within

60 to 90 days of receipt unless the user takes some step to manually archive them,

such as saving particular emails or a .pst file to the desktop. Thus, emails in the

possession or custody of the Governor, the Governor’s office, state legislators, and

state agencies related to the 2011 Congressional Plan were deleted.”

During the telephone conference, we explained the general status of e-mail in many

executive branch agencies of Maryland State government. We have no specific knowledge

whether e-mails in the possession or custody of the Governor, the Governor’s office, state

legislators, and state agencies related to the 2011 Congressional Plan were deleted. We

know that not all such e-mails were deleted; many have been produced to you. With respect

to the State Board of Elections, not only were no responsive communications found, but

the agency believes there to have never been any such communications. In any event,

Defendants will supplement their discovery responses consistent with the federal rules to

the extent any responsive communications are located.

c. Your letter sets forth that Ms. Katz and I “stated that emails for different state

agencies are stored on multiple email systems and servers. You were not aware of

the number of servers and email systems that may contain electronically stored

information responsive to Plaintiffs’ RFPs. However, each of the state email

systems all have ‘litigation hold’ modes that will suspend the regular course deletion

of emails for particular users. This litigation hold mode capability was not activated

with respect to this case or with respect to emails concerning the 2011 Congressional

Plan.”


Stephen M. Medlock

December 23, 2016

Page 3

We are not aware of the number of servers and email systems that may contain

electronically stored information sought by Plaintiff’s RFP 1 and 2 only to the extent that

such RFPs sought “All” such emails. As noted in our objection, we do not believe that it

is properly within the scope of discovery outlined in Fed. R. Civ. P. 26(b)(1) to request

communications statewide. Therefore, while we have given you this general information

to help you understand what may or may not be available through non-party subpoenas or

other avenues, our systematic survey of email availability is limited to the State Board of

Elections. Any electronically stored information in the form of e-mail at State Board of

Elections resides within the Google mail system and servers unless preserved by an

individual custodian in another form.

Again, it is our general understanding that in state government, across email systems there

are litigation hold functions and this is what we expressed in our teleconference. We

further expressed that we had no knowledge whether or when any litigation hold policies

had been activated specific to automatic e-mail retention with respect to this litigation or

the 2011 Congressional Plan statewide. We have since learned that the State Board of

Elections migrated from Microsoft Exchange to Gmail on January 19, 2013. Our best

information, as of the date of this letter, is that there was no litigation hold in place with

respect to 2011 congressional redistricting on the date of the migration, which was nearly

nine months before this litigation was commenced.

d. Your letter states that Ms. Katz and I “explained that members of the GRAC

typically did not retain hard copies of the documents that were distributed at GRAC

meetings. These documents were collected at the end of the meetings. You believe

that some of these documents, such as meeting agendas, have been destroyed, while

other documents, such as informational binders, are in the possession of the

Department of Planning. To the extent that you have not already done so, by

December 30, please produce all binders and paper documents that were distributed

at GRAC meetings that are responsive to Plaintiffs’ first set of requests for

production.”

At the outset, counsel for Defendants have no knowledge that any documents distributed

at GRAC meetings and retained by the Department of Planning have been destroyed. As

a courtesy to Plaintiffs during the joint stipulations process and formal discovery, we have

coordinated with colleagues who represent the Department of Planning to produce copies

of approximately 3,000 pages of hard copy documents retained by the Department of

Planning and over 550 electronic files of documents retained by the Department of

Planning relating to the 2011 congressional redistricting. Further, due to pre-planned

family vacations and school closures between the date of your letter and December 30,

your request that Defendants produce additional documents within the possession of the


Stephen M. Medlock

December 23, 2016

Page 4

Department of Planning by December 30 is not feasible. Counsel for the Defendants will

have to arrange with counsel for the Department of Planning to obtain, review, and copy

any such documents. Accordingly, the Defendants will provide these documents, as a

continuing courtesy to Plaintiffs, by close of business on January 13, 2017.

Third, regarding the Defendants’ responses to Plaintiffs’ First Set of Requests for

Admission, your letter states that Ms. Katz and I “confirmed that Defendants’ basis of

knowledge in responding to the Requests for Admission was limited” to certain documents.

We made no such confirmation. To the extent necessary and appropriate under the federal

rules, we will provide further information about our reasonable inquiries when we

supplement the responses, as we have agreed to do, on January 13, 2017.

Fourth, with regard to data collection, I have by letter dated December 22, 2016, explained

to you the burdensome nature of searching Governor O’Malley’s files in the State

Archives. In that letter, I explained that the State Board of Elections does not have

possession, custody, or control of the materials that Governor O’Malley gifted to the State

Archives upon departure from office. I further explained, as the archivist had informed

you in response to your public information act request, that the accessioning process of the

State Archives has not been completed with respect to the former Governor O’Malley

papers. This means that the files have not been sorted into public and non-public files to

which access restrictions would attach. There are 592 cubic feet of materials, which, at an

estimated 3,000 to 5,000 pages per cubic foot, ranges from 1,776,000 to 2,960,000 pages

of material. Some of this material is organized by date and some is not. The boxes were

not transmitted to Archives with individual-level custodian information. The procedure to

access material not yet accessioned by the Archives is burdensome. I further explained to

you that Archives treats requests for material from state agencies in the same manner as

requests from the public, unless the records are the agency’s own records needed for

conduct of regular business. The Archives search and copy fees would apply to a state

agency. The Assistant Attorneys General involved in such a search would be representing

the Archives and the former Governor, not the requesting agency.

Fifth, your letter misstates that Ms. Katz and I informed you that Jeanne Hitchcock and

James King deleted emails. With regard to Jeanne Hitchcock, the Office of the Attorney

General assisted Ms. Hitchcock in responding to the subpoena served on her in connection

with this matter. Ms. Hitchcock searched for hard copy and electronic documents and

found none. Counsel for Defendants have no information that Ms. Hitchcock deleted

emails and made no such assertion to you. Rather, we explained to you that Ms. Hitchcock

sent and received emails over her State government email address when she served on the

GRAC and that she no longer has access to those emails.


Stephen M. Medlock

December 23, 2016

Page 5

With regard to James King, counsel for Defendants never made the assertion that he deleted

emails. Mr. King is represented by the Office of the Attorney General in connection with

this matter. Although he has not been served with a subpoena in this matter, as a courtesy

to Plaintiffs, Mr. King had searched for hard copy and electronic documents pertaining to

or related to his service on the GRAC. He was unable to locate any such documents.

As a continuing courtesy to Plaintiffs, Ms. Katz and I requested that Ms. Hitchcock, Mr.

King, and Richard Stewart conduct additional searches using the Plaintiffs’ First Set of

RFPs as a guide. Ms. Katz and I reiterate our position that we are engaging in this practice

as a courtesy to Plaintiffs and to obviate the need for additional non-party discovery.

Further, to the extent that the former GRAC members maintained copies of records

pertaining to their service on the GRAC that are not otherwise protected by privilege, we

believe those records would be publicly available. We sought to locate any such documents

and provide those that were not protected by privilege in our continued effort to help

expedite non-party discovery as a courtesy to Plaintiffs. As of the date of this letter, Mr.

King has located two potentially responsive emails. The Office of the Attorney General

will review these emails for privilege and provide any that are not protected by privilege

to Plaintiffs by January 6, 2017. Again, the Office will undertake these efforts as a courtesy

to Plaintiffs.

Further, counsel for Defendants had provided Plaintiffs’ first set of discovery requests to

Ms. Brantley and Ms. Rowe, counsel to President Miller and Speaker Busch. We

understand that you have been in contact with Ms. Brantley and Ms. Rowe concerning the

document subpoenas served on President Miller and Speaker Busch and have agreed to a

response date of December 30, 2016. Again, as a courtesy to Plaintiffs, the Defendants

requested any documents responsive to the discovery requests and in the possession of

Speaker Busch and President Miller, and the Defendants were denied access to any such

documents.

Given your insistence that any such courtesy extended to the Plaintiffs is an admission that

the Defendant officials of the State Board of Elections maintain control over documents in

the possession, custody, or control of independent State agencies, members of the General

Assembly, former GRAC members, or other former State officials or employees, and your

stated intention to use this courtesy as a rationale for seeking relief from the Court, counsel

for Defendants believe that we can no longer extend such courtesy on behalf of the

Defendants without prejudicing them. As Ms. Katz and I explained in our telephone

conference with you on October 6, 2016, this courtesy arose out of our willingness to

engage in informal discovery mechanisms to limit or eliminate the need for third-party

subpoenas and to expedite any third-party subpoena requests to other potential fact-witness

State agencies and officials through coordination with colleagues within the Office of the


Stephen M. Medlock

December 23, 2016

Page 6

Attorney General. During that call, we explained that the Maryland Office of the Attorney

General, unlike the offices in some other states, provides representation to all State entities

and State officials and employees. The scope of this representation is set forth by statute

in Md. Code Ann., State Gov’t § 6-106.

Toward those stated ends, Ms. Katz and I spent many hours working with our colleagues

in the Attorney General’s Office to locate, review, and produce documents during the joint

stipulations process and have continued that courtesy during formal discovery, in a

concerted and we had hoped cooperative attempt to expedite discovery in this case, based

largely on Plaintiffs’ counsels’ insistence that this litigation move as swiftly as possible.

Ms. Katz and I have provided you with substantial detail of the extent of these efforts to

allow you to pursue additional material relevant to your claims through formal party and

non-party discovery. Further, Ms. Katz and I have offered to engage in informal discovery

with you even after we learned that you had made ex parte contact with persons represented

by counsel in connection with this matter. Ms. Katz and I find it quite unfortunate and

unreasonable that you have stated your intention to use that courtesy as a sword against the

Defendant officials of the State Board of Elections by seeking some unstated relief from

the Court.

Finally, given your admission during the December 21 telephone conference that during

the joint stipulations process, completed in mid-November, you formed the belief that

President Miller, Speaker Busch, and the other GRAC members were represented by the

Office of the Attorney General in connection with this matter, we now believe that you

misrepresented yourself in your letters of December 6 and 9, in which you disclaimed any

knowledge of this representation. We now view as essential to avoid unfair prejudice to

the Defendants disclosure of all contacts you had with these persons, other members of the

General Assembly all of whom are represented by the Office in connection with this matter,

and any other current or former State officials who are represented by the Office in their

official capacity in connection with this matter, and any notes or other tangible item created

as a result.

Best,

/s/ Sarah W. Rice

Sarah W. Rice

Assistant Attorney General


EXHIBIT N


Bnr¡,¡ E. FnosnATTONEY GENER,AL

Errze¡¡:rn F, HennrsCHIEF DEPUTY ATTONEY GENERAL

Canorvx A. QuerrnocxrDEPUTY ATTORNEY GENEML

Do¡¡e Hrrr SmroNDEPUry ATTORNEY GENEML

THE ,{ITORNEY GENERAL OF MARYLAND

OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY

Sexonn BBNsoN Bn¡NrrevCOUNSEL TO THE GENERAL ÀSSEMBLY

Knrr¡nvN M, RorveDEPUTY COUNSEL

Jenrruv M. McCovASSISTANT ÄTTORNEY GENERÂL

D.ryro'Wi Sr¡vppnASSISTANT ATTORNEY GEN ERAL

December 30,20L6

Stephen M, MedlockMayer Brown, LLP1999 K Street, NWWashington, DC 20006

Re: Benisek v. Lamone, No. JKB-13-3233 (D. Md.)

Dear Mr. Medlock:

Ënclosed are docurnents ¡n response to the subpoenas served on SenatePresidentThomas V, Mike Miller, Jr., Speaker of the House Michael E. Busch, andSenator Richard S. Madaleno, Jr. You also served a subpoena on Delegate CurtAnderson. He has no materials responsive to the subpoena. We have also encloseda privilege log each for President Miller, Speaker Busch, and Senator Madaleno,indicating that some documents and information have been withheld because theyare protected under either the attorney-client privilege or the legislative privilege.

The Fourth Circuit recognizes that "Ilegislative privilege clearly falls withinthe category of accepted privileges." E,E.O.C, v. Washington Suburban SanitaryComm'n,631 F.3d I74,180 (4th Cir.2OL1) (hereinafter "yySSC") (citing Burtnickv. McLean, 76 F.3d 611, 613 (4th Cir, 1996)) .In Burtnick, the court announcedthat "[t]he existence of testimonial privilege is the prevailing law" in the FourthCircuit. 76 F.3d at 613, Plaintiffs seek, through the subpoenas, to invade individualGeneral Assembly members' deliberations over the drafting of legislation by seekingdocuments compiled by legislators, or their close aides at their direction, to producethe legislation, Accordingly, legislative privilege applies because the members'activities and contribution to any draft maps, reports, or other materials thatresulted in Senate Bill l are legislative in nature, The Fourth Circuit declared inWSSC that if the parties "sought to compel information from legislative actors abouttheir legislative activities, they would not need to comply," WSSC,631 F.3d at 181.Moreover, "[ê] litigant does not have to name members or their staffs as parties toa suit in order to distract them fr:om their legislative work. Discovery procedurescan prove just as intrusive," Id. See also North Carolina State Conf. v. McCrory,2 0 1 s w L 1 2 6 8 3

:::.::: i;l lll:l ;.1i1:li: ::::::::-:ïm u n ca'[' n s

4to-946-56oo . 3or-97o-56oo . r*.4ro-946-56or . rw 4ro-946-540r ' 3or-97o-t4or


Stephen M. MedlockDecember 30, 2016Page 2

between legislators or legislators and staff and also declining to order a privilege logbecause to do so would "undermine the very purpose and function of legislativeprivilege, unduly intruding into legislative affairs and imposing significant burdenson the legislative process"). Thus, any effort to compel information about thelegislative activity of those engaging in the legislative activity should be rejected,

A final note about the maps on the enclosed CD, which are in response toQuestion 3. The maps labeled Option 1, Option 2, Option 3 and Option 4, were,upon his best information and belief, generated by the personal legislative aide ofPresident Miller, As the events took place more than five years ago, PresidentMiller's aide could not accurately recall whether those maps were provided to anythird party.To the extent that the maps are protected by legislative privilege,President Miller waives privilege to the maps.

Sincerely,

Sandra Be nson Brant eyCounsel to the General Assembly


EXHIBIT O


Benisek v. Lamone Privilege Log for Speaker Michael E. Busch

Document No. Date Description Reason for Withholding 1 October

2011 Email from Speaker’s staff to staff of Speaker, President and Governor re scheduling

Legislative Privilege

2 October 2011

Email from Speaker’s staff to DLS staff re Special Session


3 3/25/2011 Email from Delegate to staff and Speaker’s staff re constituent request


4 8/1/2011 Email from DLS staff to Speaker’s staff re research request

Legislative Privilege – Deliberative Process

5 10/17/2011 Email from President’s staff to staff of Speaker, President and Governor re plan submitted by Rep. Edwards


6

10/24/2011 Email from County staff to Speaker’s staff for information on Congressional Districts in County


7 7/6/2011 Speaker’s Staff to President’s staff re plan


8 9/15/2011 Speaker’s staff to Delegate on Congressional plan


9 10/7/2011 Email Delegate to Speaker’s staff on Congressional plan


10 10/17/2011 Spreadsheet prepared by the President’s staff as part of his job duties in preparing drafts of SB1 containing plan summaries of congressional districts which may have been used by the President’s and Speakers’s staff in preparing and analyzing draft and proposed legislation in the special session


11 2011 Spreadsheet containing plan summaries of congressional districts, which may have been used by President Miller's and Speaker Busch's personal legislative staff and Governor’s staff while they were performing their job duties in preparing drafts of SB1 for consideration.



EXHIBIT P


Benisek v. Lamone Privilege Log for Senator Richard S. Madaleno, Jr.

Document No. Date Description Reason for Withholding 1 8/19.2011 Email to Senator Madaleno re

proposed meeting about congressional redistricting plan

Legislative privilege – deliberative process

2 9/15/2011 Redacted portion of email chain containing email from David Churchill in which Senator Madaleno and his aide discuss the email

Legislative privilege

3 9/28/2011 Emails between Senator Madaleno and his aide concerning letter from constituent

Legislative privilege

4 10/4/2011 Email between a Delegate and Senator Madaleno on proposed map


5 10/4/2011 Email relating to Congressional redistricting plan


6 10/5/2011 Email relating to Congressional redistricting plan


7 10/10/2011 Email between a Delegate and Senator Madaleno on proposed map


8 10/11/2011 Email between Senator Madaleno and a Delegate on proposed map


9 10/6/2011 Redacted portion of email chain containing email from Brian Brooks in which Senator Madaleno and his aide discuss the email



EXHIBIT Q


Benisek v. Lamone Privilege Log for Senator Thomas V. Mike Miller, Jr.

Document No. Date Description Reason for Withholding 1 4/25/11 Email from one member of the

President’s staff to another forwarding email from Dan Friedman concerning Martin case.

Attorney Client Privilege

2 10/13/11 Email from President Miller to members of Senate and Staff about Special Session


3 10/14/11 Email from President Miller to members of Senate and Staff about Special Session


4 10/20/11 Email from Planning Staff to GRAC members and staff and Secretary of State about equivalency files


5 10/31/11 Email from Dan Friedman, Assistant Attorney General to GRAC members, staff, and other Assistant Attorneys General re litigation

Attorney Client Privilege

6 11/10/11 Same as above Attorney Client Privilege 7 11/18/11 Same as above Attorney Client Privilege 8 11/21/11 Same as above Attorney Client Privilege 9 11/29/11 Same as above Attorney Client Privilege 10 2011 Data compiled from internal and

external sources, which may have been used by President Miller's and Speaker Busch’s personal legislative staff while they were performing their job duties in preparing plan drafts for consideration.



EXHIBIT R


1

Medlock, Stephen M.

From: Katz, Jennifer [[email protected]]Sent: Tuesday, January 03, 2017 5:01 PMTo: Medlock, Stephen M.; Kimberly, Michael B.; Hughes, Paul W.; Webb, BrantleyCc: Rice, SarahSubject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Steve,

We do not agree to your modifications. If you reject the terms we have offered, we reiterate our demand that you donot engage in any ex parte contact with represented persons to conduct what you have termed “informal discovery” inthis case, by which we understand you are not seeking to speak with State officials in order to redress your clients’grievances. You may contact counsel to the General Assembly, AAGs Sandra Brantley and Kathryn Rowe, at (410) 946-5600, who will communicate your requests to speak with their clients. Assistant Attorney General Meghan Casey isrepresenting former Governor O’Malley and his former staffers concerning this litigation. She can be reached at (410)576-6324 or [email protected].

Best,Jennifer

Jennifer KatzAssistant Attorney General, Civil DivisionOffice of the Attorney General200 Saint Paul Place, 20th FloorBaltimore, Maryland [email protected](410) 576-7005

From: Medlock, Stephen M. [mailto:[email protected]]Sent: Tuesday, January 03, 2017 10:43 AMTo: Katz, Jennifer <[email protected]>; Kimberly, Michael B. <[email protected]>; Hughes, Paul W.<[email protected]>; Webb, Brantley <[email protected]>Cc: Rice, Sarah <[email protected]>Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Jennifer:

Thanks for your reply. We are willing to agree to your conditions, but with the following modifications:

1) We don’t think it’s appropriate to place artificial limits on the number of interviews that can be conducted; if alegislator wants to speak with us, we should be allowed to speak with him or her.

2) We propose that we start by sending a list of 10 current and former legislators, legislative staff members, orstaffers in the Governor’s office whom we would like to interview.

3) Counsel to the General Assembly will initiate contact with those legislators, explaining that plaintiffs’ counselwould like to interview them in connection with pending litigation concerning the 2011 congressionalredistricting legislation.


2

4) If those individuals make themselves available for an interview, the parties will jointly interview them (each sidehaving equal time to ask questions) in the presence of counsel to the General Assembly. While counsel for theGeneral Assembly may advise individuals of their right to assert privilege in appropriate circumstances, counselmay not assert the privilege on anyone’s behalf.

5) Plaintiffs may, at their own expense, arrange for the telephone interview to be transcribed by a court reporter.

6) And the parties will jointly collaborate on drafting an affidavit from the individual interviewed in the event theindividual expresses a willingness to sign an affidavit.

If you agree to these terms, we propose that the parties submit a joint amended scheduling order to the Court thatcontains these parameters, so that the Court is apprised that these interviews will take place.

Regards,

Steve

Stephen M. Medlock


From: Katz, Jennifer [mailto:[email protected]]Sent: Friday, December 30, 2016 10:38 AMTo: Medlock, Stephen M.; Kimberly, Michael B.; Hughes, Paul W.; Webb, BrantleyCc: Rice, SarahSubject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Steve,

Good morning. We have considered your proposal concerning informal discovery. As I initially stated, any interviewswith current or former legislators regarding the subject matter of this lawsuit will need to be coordinated throughcounsel to the General Assembly, Assistant Attorneys General Sandra Brantley and Kathryn Rowe. Accordingly, we sentyour proposal to Ms. Brantley and Ms. Rowe. Based on their concerns about adequately protecting their clients'privileges, we propose the following. (1) The plaintiffs send a list of 5 current or former legislators they would like tointerview to counsel to the General Assembly; (2) counsel to the General Assembly will initiate contact with thoselegislators, explaining that plaintiffs' counsel would like to interview them in connection with pending litigationconcerning the 2011 congressional redistricting legislation; (3) if those legislators make themselves available for aninterview, the parties will jointly interview them (each side having equal time to ask questions) in the presence ofcounsel to the General Assembly; (4) counsel to the General Assembly may raise any objections necessary to protect themember's legislative privilege, if not waived, and to protect privileges of any other General Assembly member; and (4)the parties will jointly collaborate on drafting an affidavit from the current or former legislator in the event the legislatorexpresses a willingness to sign an affidavit.

Best,Jennifer

Jennifer KatzAssistant Attorney General


3

From: Medlock, Stephen M. <[email protected]>Sent: Thursday, December 22, 2016 3:13 PMTo: Katz, JenniferCc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, SarahSubject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Jennifer:

At this point, we anticipate that we would want to conduct approximately 10 such interviews.

Regards,

Steve

Stephen M. Medlock


From: Katz, Jennifer [mailto:[email protected]]Sent: Thursday, December 22, 2016 2:49 PMTo: Medlock, Stephen M.Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, SarahSubject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Thank you, Steve. So that we can provide a response by December 27, will you provide us with an estimation of thenumber of current or former legislators with whom you would seek to hold informal, telephone interviews. We will alsoneed to coordinate with the Assistant Attorneys General who represent General Assembly members.

Best,Jennifer

Jennifer KatzAssistant Attorney General, Civil DivisionOffice of the Attorney General200 Saint Paul Place, 20th FloorBaltimore, Maryland [email protected](410) 576-7005

From: Medlock, Stephen M. [mailto:[email protected]]Sent: Thursday, December 22, 2016 11:13 AMTo: Katz, Jennifer <[email protected]>Cc: Webb, Brantley <[email protected]>; Kimberly, Michael B. <[email protected]>; Darsie, Jeffrey<[email protected]>; Hughes, Paul W. <[email protected]>; Rice, Sarah <[email protected]>Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Jenifer and Sarah:


4

We have given some thought to your offer to engage in non-ex parte, informal discovery. To that end, here is ourproposal: (1) the parties can jointly reach out to current or former legislators to hold informal, telephone interviews, (2)if those individuals make themselves available for an interview, the parties will jointly interview them (each side havingequal time to ask questions), and (3) the parties will jointly collaborate on drafting an affidavit from the current orformer legislator. Of course, Plaintiffs reserve their right to depose current and former legislators and other current andformer state officials, but we believe that this may obviate the need for enlarging the number of depositions.

Please let us know if you agree with this proposal by December 27, so that we can jointly begin reaching out to currentand former legislators that we would like to informally interview.

Regards,

Steve

Stephen M. Medlock


From: Katz, Jennifer [mailto:[email protected]]Sent: Friday, December 16, 2016 4:17 PMTo: Medlock, Stephen M.Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, SarahSubject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Steve,

Thank you for your email. We continue to think it is premature to agree to 5 more depositions at this time,given the likelihood that a number of the individuals you seek to depose cannot be compelled to testify in thismatter. We would move to quash subpoenas served on members of the GRAC, as well as current or formermembers of the Maryland General Assembly who seek to assert the testimonial privilege. Thus, we continue tobelieve that 10 depositions is sufficient. We are open to reexamining our position should the Court not grantthose motions to quash, but would anticipate seeking to extend the discovery period to accommodate anyincreased discovery upon which we may agree.

I note that you say you originally thought you might be able to obtain through “informal discovery” informationyou now intend to seek through deposition. To the extent you use the term “informal discovery” in its standarduse – i.e., the counsel-facilitated exchange of information without resort to formal discovery mechanisms – youhave not proposed any such mechanism, nor have we rejected it. What we objected to – ex parte contact withrepresented parties – is not informal discovery. If you would like to discuss mechanisms other than depositionsto obtain information that is properly subject to discovery, whether formal or informal, please let us know.

Best,Jennifer

Jennifer KatzAssistant Attorney General, Civil [email protected](410) 576-7005


5

From: Medlock, Stephen M. [mailto:[email protected]]Sent: Friday, December 16, 2016 9:27 AMTo: Katz, Jennifer <[email protected]>Cc: Webb, Brantley <[email protected]>; Kimberly, Michael B. <[email protected]>; Darsie, Jeffrey<[email protected]>; Hughes, Paul W. <[email protected]>; Rice, Sarah <[email protected]>Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Jennifer:

We do not believe that Plaintiffs have to disclose precisely who they plan to depose in order to agree on a relativelysmall extension in the number of deponents. Nevertheless, in order to reach an agreement on this matter, we willprovide you with additional information regarding who Plaintiffs plan to depose. At this juncture, Plaintiffs plan todepose 5 GRAC members, the Defendants’ 30(b)(6) representative, at least 5 current or former members of theMaryland General Assembly, and at least one member of the Department of Legislative Services. In addition, we maydepose at least one official in the Maryland Democratic Party and one of Maryland’s U.S. Congressional representatives.In many cases, we would have sought information from these individuals through informal discovery. However, given

our recent exchange of correspondence, Plaintiffs are not now seeking this informal discovery.

As you noted, the discovery window in this matter is fairly tight. Please let us know by close of business today if you willagree to increase the number of fact witness depositions in this matter from 10 per side to 15 per side.

Regards,

Steve

Stephen M. Medlock


From: Katz, Jennifer [mailto:[email protected]]Sent: Wednesday, December 14, 2016 3:57 PMTo: Medlock, Stephen M.Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, SarahSubject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]

Steve, please see the forwarded email. I am working from home today and somehow managed to send this toeveryone but you.

Best,Jennifer

From: Katz, JenniferSent: Wednesday, December 14, 2016 3:52:20 PMTo: Katz; JenniferCc: Webb; Brantley; Kimberly; Michael B.; Darsie; Jeffrey; Hughes; Paul W.; Rice; SarahSubject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID1259210]


6

Steve,

We think that the 10 depositions you originally proposed, and to which we agreed, is more than enough giventhe subject matter of the litigation and, given the very tight discovery schedule, we are not inclined to agree tomore at this time. You have not identified a list of who you intend to depose, but we assume that you mayseek to depose members of the GRAC and others who are protected by legislative privilege and cannot becompelled to testify in this matter. Thus, we continue to believe that 10 depositions is more than adequate.Further, when we agreed to the 10 depositions per side, we did not understand that agreement to beconditioned on your ability to seek pre-discovery from current and former state officials represented by theAttorney General's Office. If you want to provide us with a list of who you seek to depose, we can furtherdiscuss your request, and try to reach an agreement.

Best,Jennifer

On Dec 13, 2016 1:41 PM, "Medlock, Stephen M." <[email protected]> wrote:Jennifer:

When we initially agreed to 10 depositions per side in the joint discovery plan, we believed that we would beable to conduct informal discovery with current and former delegates and senators who were not representedin this matter. Following on our recent exchange of letters, however, we must now resort to commanddiscovery. Accordingly, we propose raising the number of depositions per side from 10 to 15. By Friday, canyou please let us know whether you will consent to this mutual increase in the number of depositions?

Regards,

Steve

Stephen M. MedlockAssociate


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EXHIBIT S



ms048705

Stamp

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EXHIBIT A TO SUBPOENA

DOCUMENTS TO BE PRODUCED

REQUEST FOR PRODUCTION NO. 1:

All Documents and Communications concerning Your September 13, 2011 statement to

the Maryland Juice website: “What you see going on elsewhere is clearly in other states that are

Republican controlled they are drawing maps to try to take out Democrats, so I think there is

pressure on saying look, if they are playing that game elsewhere, then in states like Maryland

where democrats control we’ve got to do the opposite.” (available at:

https://www.youtube.com/watch?v=by_mclsHZv8).



the Maryland Juice website: “This is a conflict between, what you could say, the heart and the

mind of the Democratic party. The heart is ‘Frank Kratovil had that seat [the 1st District] before,

Frank Kratovil won before, he made hard votes on behalf of Barack Obama, we should find a

way to reward our friend Frank Kratovil.’ The head is telling you, ‘Look, western Maryland, a

new district focused toward western Maryland is one that you could actually pick up easier…’

Do you reach out and help your good old friend Frank Kratovil, or do you go for where, in fact,

you probably have a better chance at a pick up.” (available at:

https://www.youtube.com/watch?v=by_mclsHZv8).



the Maryland Juice website: “If you go with a competitive western Maryland district, the way

that works is clearly that district comes further into Montgomery county, substantially into


2

Montgomery county.” (available at: https://www.youtube.com/watch?v=7bTNNn6zLj8).



the Maryland Juice website: “I think trying to achieve both makes it a little more difficult for

everyone trying to draw the maps. But you’re dealing with—one of the things that’s interesting

is—you’re dealing with people like a Mike Miller or some of the staff of the legislature who

have done this several cycles, so it’s not like they are a bunch of people experimenting for the

first time on how to do this.” (available at: https://www.youtube.com/watch?v=ddqQcOKzAT0).


All external Communications between or among Your office (including its staff or

agents) and third parties (including consultants, experts, constituents, or members of the press)

relating in any way to Maryland’s 2011 congressional redistricting process, its goals, or its

results.


All interim or draft maps or reports related to Maryland’s 2011 congressional

redistricting plan, whether electronic or in hard copy, provided to You by any third party or by

You to any third party.


All external Communications between or among Your office (including its staff or

agents) and third parties (including consultants, experts, constituents, or members of the press)

related to the implications of Maryland’s 2011 congressional redistricting plan for future

elections, including but not limited to responsive Documents and Communications concerning

the 2012 Maryland Redistricting Referendum, from the time period January 1, 2011 to


3

November 30, 2012.

DEFINITIONS

1. Plaintiffs hereby incorporate by reference all definitions in Appendix D of the

Local Rules of the United States District Court for the District of Maryland, available at

http://www.mdd.uscourts.gov/publications/forms/LocalRules.pdf.

2. The term “Communication” means the transmittal of information by any means,

and includes letters, memoranda, facsimile transmissions, telephone conversations, telephone

logs and records, electronic mail messages, voicemail messages, press releases, and any and all

“cc” or “bcc” copies of the above.

3. The term “Governor” means former Maryland Governor Martin O’Malley and

any staff member working for him or his official office.

4. The terms “Governor’s Redistricting Advisory Committee” or “GRAC” mean the

committee appointed by the Governor on July 4, 2011 for the purpose of drafting a redistricting

plan and proposing a congressional map for Maryland’s eight congressional districts following

the 2010 United States Census results.

5. The term “2012 Maryland Redistricting Referendum” refers to the statewide

referendum Question 5 on the 2012 ballot, asking voters whether they were “for” or “against” the

Maryland law “[e]stablish[ing] the boundaries for the State’s eight United States Congressional

Districts based on recent census figures, as required by the United States Constitution.”

INSTRUCTIONS

1. Unless otherwise indicated, each of these Requests seeks materials for the time

period January 1, 2011 to November 30, 2011, including any records or communications dated,

generated, received, sent, or in effect during this time period (the “Relevant Time Period”).


4

2. With regard to any record or communication withheld by You, such as on the

basis of a claim of attorney-client privilege or work product protection or some other form of

immunity, Identify the Document by its: date; type (e.g., e-mail); subject matter; author or

originator; addressee or addressees; and the alleged ground or grounds for withholding

production (e.g., attorney-client privilege).
