IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF … Shapiro 20170119... · 2017. 1. 23. ·...

IN THE UNITED STATES DISTRICT COURTFOR 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

MOTION TO COMPEL DEFENDANTS’ PRODUCTIONOF DOCUMENTS RESPONSIVE TO PLAINTIFFS’ FIRST SET OFREQUESTS FOR PRODUCTION, DEFENDANTS’ RESPONSES TO

PLAINTIFFS’ FIRST SET OF INTERROGATORIES, AND DEFENDANTS’ANSWERS TO PLAINTIFF’S FIRST SET OF REQUESTS FOR ADMISSIONS

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

Alonnie L. Ropp, Edmund Cueman, and Kat O’Connor, pursuant to Rule 37(a)(3) of the

Federal Rules of Civil Procedure and Local Rule 104.8, hereby move this Court for an order

compelling Defendants Linda H. Lamone and David J. McManus, Jr. to produce all

documents in their control responsive to Plaintiffs’ First Request for Production, including

documents in the possession of the GRAC, former Governor O’Malley’s office, members of

the General Assembly, the Department of Planning, and the Department of Legislative

Services. They move further for an order compelling Defendants to answer Plaintiffs’ First

Set of Interrogatories and First Set of Requests for Admissions without regard for any

assertion of legislative privilege.

Plaintiffs submit the attached memorandum in support of this motion.

Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 of 171

Dated: December 29, 2016 Respectfully submitted,

/s/ Michael B. Kimberly

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

Paul W. Hughes, Bar No. 28967Stephen M. Medlock, pro hac viceE. Brantley Webb, pro hac viceMayer Brown LLP1999 K Street NWWashington, D.C. 20006(202) 263-3127 (office)(202) 263-3300 (facsimile)




Plaintiffs,

vs.


Defendants.

Case No. 13-cv-3233

Three-Judge Court

MEMORANDUM OF LAW IN SUPPORT OFMOTION TO COMPEL DEFENDANTS’ PRODUCTION

OF DOCUMENTS RESPONSIVE TO PLAINTIFFS’ FIRST SET OF REQUESTSFOR PRODUCTION, DEFENDANTS’ RESPONSES TO PLAINTIFFS’ FIRST

SET OF INTERROGATORIES, AND DEFENDANTS’ ANSWERS TOPLAINTIFF’S FIRST SET OF REQUESTS FOR ADMISSIONS

Michael B. Kimberly, Bar No. 19086Paul W. Hughes, Bar No. 28967Stephen M. Medlock, pro hac viceE. Brantley Webb, pro hac viceMayer Brown LLP1999 K Street NWWashington, D.C. 20006(202) 263-3127 (office)(202) 263-3300 (facsimile)


i

TABLE OF CONTENTS

Table of Authorities ....................................................................................................... ii

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

Background .................................................................................................................... 4

A. Plaintiffs’ discovery requests and Defendants’ responses ........................... 4

B. Defendants’ control of the requested data and documents .......................... 6

1. Multiple state agencies—including Defendants, the GRAC, theGovernor’s Office, and the General Assembly—worked togetherto draft the 2011 congressional map ......................................................... 6

2. Defendants have already produced documents in the possessionand custody GRAC members, DOP, DLS, the former governor’soffice, and the General Assembly .............................................................. 9

3. The OAG represents Defendants, the General Assembly, theformer governor’s ffice, and all current and many former stateemployees in connection with this litigation........................................... 10

C. Defendants’ attempt to recast their litigation conduct to avoid afinding that they control legislative and GRAC materials........................ 11

Argument ..................................................................................................................... 11

I. The state legislative privilege provides no basis for refusing to producedocuments or answer our interrogatories or requests for admissions here ...... 13

A. State legislative privilege cannot be invoked on a blanket basis incases like this one........................................................................................ 15

B. Defendants cannot carry their burden under the five-factorbalancing test applicable in qualified-privilege cases like this one .......... 18

C. The privilege has not been properly invoked in this case.......................... 25

D. Defendants’ assertion of state legislative privilege ignores therelevant individuals’ repeated waivers of the privilege............................. 28

II. Defendants have demonstrated that they control documents in thepossession of all relevant state officials and agencies........................................ 31

Conclusion.................................................................................................................... 35


ii

TABLE OF AUTHORITIES

Cases

A Helping Hand, LLC v. Baltimore Cnty., Md.,295 F. Supp. 2d 585 (D. Md. 2003) ........................................................................ 27

ACORN v. Nassau,2007 WL 2815810 (E.D.N.Y. 2007) ........................................................................ 30

Baldus v. Members of the Wis. Gov’t Accountability Bd.,2011 WL 6122542 (E.D. Wis. 2011) ........................................................... 18, 19, 24

Bank of N.Y. v. Meridien BIAO Bank Tanzania Ltd.,171 F.R.D. 135 (S.D.N.Y. 1997) ............................................................................. 33

Barb v. Brown’s Buick, Inc.,2010 WL 446638 (E.D. Va. 2010)........................................................................... 12

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

Cano v. Davis,193 F. Supp. 2d 1177 (C.D. Cal. 2002)................................................................... 21

Carver v. Foerster,102 F.3d 96 (3d Cir. 1996)...................................................................................... 25

Castle v. Jallah,142 F.R.D. 618 (E.D. Va. 1992).............................................................................. 12

Chase v. Peay,286 F. Supp. 2d 523 (D. Md. 2003) ........................................................................ 17

Chevron Corp. v. Salazar,275 F.R.D. 437 (S.D.N.Y. 2011) ............................................................................. 34

Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections,2011 WL 4837508 (N.D. Ill. 2011) ............................................................. 20, 23, 30

EEOC v. Wash. Suburban Sanitary Comm’n,631 F.3d 174 (4th Cir. 2011) .................................................................................. 20

EEOC v. Wash. Suburban Sanitary Comm’n,666 F. Supp. 2d 526 (D. Md. 2009) ........................................................................ 17

Elrod v. Burns,427 U.S. 347 (1976) ................................................................................................ 22

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


iii

Cases—continued

Flame S.A. v. Indus. Carriers, Inc.,2014 WL 1681426 (E.D. Va. 2014)......................................................................... 32

Gross v. Lunduski,304 F.R.D. 136 (W.D.N.Y. 2014) ............................................................................ 35

Harris v. Arizona Indep. Redistricting Comm’n,993 F. Supp. 2d 1042 (D. Ariz. 2014)............................................................... 20, 21

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

Mitchell v. Glendenning,No. WMN-02-602 (D. Md. June 4, 2002) ............................................................... 17

Nashville Student Organizing Comm. v. Hargett,123 F. Supp. 3d 967 (M.D. Tenn. 2015) ................................................................. 17

NLRB v. Interbake Foods, LLC,637 F.3d 492 (4th Cir. 2011) .................................................................................. 18

NTL Securities Litigation,244 F.R.D 179 (S.D.N.Y. 2007) .............................................................................. 34

Owen v. City of Independence,445 U.S. 622 (1980) .......................................................................................... 16, 24

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) ............................................................ 15, 18, 30

Reynolds v. Sims,377 U.S. 533 (1964) ............................................................................................ 1, 22

RLI Ins. Co. v. Conseco, Inc.,477 F. Supp. 2d 741 (E.D. Va. 2007)...................................................................... 27

Rodriguez v. Pataki,280 F. Supp. 2d 89 (S.D.N.Y. 2003) ................................................................. 18, 29

Rosie D. v. Romney,256 F. Supp. 2d 115 (D. Mass. 2003) ..................................................................... 32

Shapiro v. McManus,2016 WL 4445320 (D. Md. 2016).....................................................................passim

Smith v. Town of Clarkton, N.C.,682 F.2d 1055 (4th Cir. 1982) ................................................................................ 20


iv

Cases—continued

Soto v. City of Concord,162 F.R.D. 603 (N.D. Cal. 1995) ............................................................................ 32

S.C. Educ. Ass’n v. Campbell,883 F.2d 1251 (4th Cir.1989) ................................................................................. 13

Steele Software Systems, Corp. v. DataQuick Info. Systems, Inc.,237 F.R.D. 561 (D. Md. 2006)........................................................................... 32, 33

Trammel v. United States,445 U.S. 40 (1980) .................................................................................................. 15

Trombetta v. Bd. of Educ., Proviso Twp. High Sch. Dist. 209,2004 WL 868265 (N.D. Ill. 2004) ............................................................... 29, 30, 31

Union First Mkt. Bank v. Bly,2014 WL 66834 (E.D. Va. 2014)............................................................................. 12

United States v. Gillock,445 U.S. 360 (1980) .......................................................................................... 16, 24

United States v. Irvin,127 F.R.D. 169 (C.D. Cal. 1989)............................................................................. 24

United States v. O’Brien,391 U.S. 367 (1968) ................................................................................................ 13

Veasey v. Perry,2014 WL 1340077 (S.D. Tex. 2014).................................................................. 18, 21

Vieth v. Jubelirer,541 U.S. 267 (2004) ................................................................................................ 19

Other Authorities

Fed. R. Civ. P. 34(a)(1)(A)............................................................................................ 32

Fed. R. Civ. P. 37(a)(3)(B)(iv) ...................................................................................... 11

Legislative Privilege,26A Fed. Prac. & Proc. Evid. § 5675 (1st ed.)........................................................ 28

Md. Rule Prof. Conduct 4.2(c) ..................................................................................... 10


1

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 all 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 thepurpose of making it harder for a particular group of voters to achieve electoralsuccess because of the views they had previously expressed”;

• “produce objective evidence, either direct or circumstantial, that the legislaturespecifically intended to burden the representational rights of certain citizensbecause of how they had voted in the past and the political party with whichthey had affiliated”; and

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

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 Defendants with interrogatories and requests for produc-

tion intended to uncover evidence establishing the intent and motivations of the

members of the GRAC, Maryland General Assembly, and governor’s office for drawing


2

the lines of the Sixth Congressional District as they did. Plaintiffs have also sought the

data, documents, and communications that the GRAC, General Assembly, and

governor’s office used, reviewed, and drafted during the planning, development, and

drawing of the boundaries of the Sixth District.

The State now resists answering our discovery requests on two grounds.

1. As to all issues bearing on legislative intent and legislative process,

Defendants have made a sweeping and categorical claim of state legislative privilege.

In their view, no state agency or official involved in the drafting of the Plan can be

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

documents concerning legislative intent or the legislative process. In fact, the State has

made the startling assertion that no state official can even be required to appear for a

deposition, much less to answer any of our questions on the merits—an issue that we

are now litigating in separate, parallel motions to compel compliance with subpoenas to

testify.

Defendants’ assertion of legislative privilege lacks all merit.

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

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

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

particularly given that the legislators 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, Defendants have improperly asserted the privilege, such as it is. In

particular, they lack standing to assert the privilege vicariously on behalf of the


3

individuals who actually hold the privilege. Beyond that, they have asserted the

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

to support their blanket objection.

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

waived. It is well established that communication by legislators with third parties

outside the scope of the legislative privilege constitutes waiver. We have requested

production of documents that fall within this discrete category, yet Defendants assert

their blanket privilege objection even as to those documents. That is manifestly

improper. Moreover, the evidence is clear that several individual legislators have

expressly and repeatedly waived the privilege, both during and after the drafting

process. State officials should not be permitted to sway public opinion with one-sided

statements about their intentions on the one hand, and then attempt to avoid tough

questions about those same motivations in federal litigation, on the other.

2. Apart from legislative privilege, Defendants have asserted that they lack

control of the documents and data sought in our requests for production. They make

this claim despite years of demonstrated collaboration and cooperation among the

relevant agencies and officials with respect to the drafting of the Plan; and despite a

demonstrated pattern and practice of sharing documents and information with one

another upon request in the course of this very litigation. Indeed, Defendants—though

interrogatory responses and prior voluntary productions—have already produced

responsive documents and information of the same kind, held by the same officials and

agencies, as to which they now say they lack control. Caught trying to have it both

ways, Defendants describe these prior productions as mere “courtesies.” The Court

should not countenance such wordplay; Defendants must produce all documents and


4

data that they, as a practical matter, can obtain from other state agencies.

Against this background, the Court should enter an order compelling Defendants

to produce all documents in their control responsive to Plaintiffs’ First Request for

Production, including documents in the possession of the GRAC, former Governor

O’Malley’s office, members of the General Assembly, the Department of Planning, and

the Department of Legislative Services. The Court likewise should enter an order

compelling Defendants to answer Plaintiffs’ First Set of Interrogatories and First Set of

Requests for Admissions without regard for any assertion of legislative privilege.

BACKGROUND

A. Plaintiffs’ discovery requests and Defendants’ 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, the Court went on, 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.

To meet this burden, Plaintiffs propounded discovery requests seeking evidence


5

showing that the boundaries of the Sixth District were redrawn with a specific intent to

burden Republican voters there. For instance, we served request for production seeking

documents related to how the boundaries of the Sixth District were drawn:

• “All Documents reviewed or relied on” by the GRAC, governor’s office, orGeneral Assembly “during the planning, development, negotiation, drawing,revision, or re-drawing of the Proposed Congressional Plan or any alternativeredistricting plan not adopted.” Ex. A at Req. 3-5.

• “All Documents used to plan or draw the Proposed Congressional Plan, or anyalternative redistrict plan not adopted, including without limitation all data filesrelated to election or voter data; election redistricting software . . . ; and all 2010United States Census data, whether adjusted or unadjusted.” Id. at Req. 7.

• “All draft drawings of any congressional districts of the Proposed CongressionalPlan or any alternative plan not adopted, whether created by the GRAC or anyother Person.” Id. at Req. 8.

Defendants’ responses to the requests for production were verbatim the same: “Defend-

ants object to this request because it seeks only documents protected by legislative

privilege that would reveal the subjective motives and intentions of individuals acting

in their legislative capacity to develop legislation.” Ex. B at Req. Resp. 3-5. But,

Defendants stated, “[n]o documents are withheld on the basis of [the legislative

privilege] objection” because, regardless, “Defendants are not in possession, custody or

control of documents known to the Defendants” to be responsive to the respective

request. Id.

We likewise served interrogatories, one of which concerned the intent of the

map-drawers and legislature:

• If you contend that the General Assembly of Maryland, the GRAC, and/or theGovernor did not intend to burden the representational rights of certain citizensand/or to dilute the voting strength of certain citizens because of how they votedin the past or because of the political party with which they had affiliated, statethe factual basis for your contention and identify all facts, documents, andcommunications related to your contention. Ex. C at Interrog. 2.


6

This request was met with a similar assertion of privilege: “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.” Ex. D at Interrog. Resp. 2.

And finally, we served requests for admissions, similarly concerning matters

going to the heart of this lawsuit:

• Admit that members of the GRAC, governor’s office, and General Assembly“considered Maryland voters’ political party affiliations when drawing theboundaries of the Sixth Congressional District.” Ex. E at RFA 1-6.

• Admit that a motivation of members of the GRAC, the governor’s office, and theGeneral Assembly in drafting, introducing, and enacting the Plan “was to makeit more likely that a Democrat would be elected as representative from the SixthCongressional District.” Id. at RFA 7-9.

• Admit that, “[i]n her presentation to the House and Senate DemocraticCaucuses about the proposed plan on October 3, 2011, GRAC Chair JeanneHitchcock stated that the GRAC’s proposed map would make it more likely thata Democrat would be elected as the representative from the Sixth CongressionalDistrict.” Id. at RFA 10.

Defendants’ responses to each of the requests for admission were unsurprisingly the

same: “Defendants object on the grounds that the Request seeks information protected

by legislative privilege and that the Request assumes the truth of matters of which

Defendants lack knowledge.” Ex. F at RFA Resp. 1-10.

B. Defendants’ control of the requested data and documents

1. Multiple state agencies—including Defendants, the GRAC, theGovernor’s Office, and the General Assembly—worked togetherto draft the 2011 congressional map

Multiple state agencies and officials—including Defendants, the Department of

Legislative Services (DLS), the Department of Planning (DOP), members of the GRAC,

the governor’s office, and members of the General Assembly worked together closely to


7

draft, introduce, and enact the Plan. The Executive Director of DLS oversaw the

redistricting process. Organizational Structure, Department of Legislative Services,

perma.cc/E3RN-WNRL (describing the duties of the Director of DLS, including that he

or she “is responsible for oversight of legislative and congressional redistricting”).

DOP—the designated state agency coordinator for the Census Redistricting Data

Program—provided the GRAC with census data and maintained records of alternative

plans submitted by third parties. ECF No. 104 at 4-5; see also DOP, Redistricting,

perma.cc/793Q-ACJE. For their parts, Defendants provided the GRAC with voter and

voting data, including address-level voter registration by party affiliation. ECF No. 104

at 6. The GRAC and DOP together solicited and accepted public comment. Id. at 5.

And, members of the GRAC presented the proposed map to the House and Senate

Democratic Caucuses. Id. at 7.

The GRAC 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 D. 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 relied for its work on staffers from the governor’s office, DLS, 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:

• Patrick Murray, a legislative aide to Senator Miller;

• Yaakov Weissman, a legislative aide to Senator Miller;


8

• 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. D 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. G (Stewart Production) at 1). The same day,

Hitchcock mailed a GRAC meeting agenda to GRAC members, an aide to Governor

O’Malley, and Secretary Hall. Id. at 2. Similarly, on July 7, 2011, John Bryce, an aide

to Governor O’Malley sent a proposed schedule for public meetings regarding the 2011

congressional 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 L. 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;

• Nancy Earnest, an assistant to Speaker Busch;

• Joy Walker, an assistant to Senator Miller; and

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


9

Ex. G (Stewart Production at 3). 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 4. The map generated through this process of liberal information exchange is the

very map that the plaintiffs now seek to enjoin the defendants from enforcing.

2. Defendants have already produced documents in the posses-sion and custody GRAC members, DOP, DLS, the formergovernor’s office, and the General Assembly

During discovery, the named Defendants have voluntarily produced documents

that the GRAC considered when drawing the lines of the Sixth District. For instance,

Defendants have produced copies of all of the briefing books that GRAC members

received, a PowerPoint presentation from a meeting between GRAC members and

members of the Maryland General Assembly, transcripts from the GRAC’s public

meetings, alternative congressional maps that were submitted to the GRAC and DOP,

spreadsheets of data that the GRAC had access to, and public comments that the

GRAC received. ECF No. 104 at ¶¶ 22-26.

Furthermore, Defendants acknowledged during a December 20-21 discovery

conference that they had the ability to obtain documents from DLS, DOP, and Richard

Stewart, Jeanne Hitchcock, and James King (all members of the GRAC). Ex. H (M&C


10

letter) at 2-3. In a December 22 letter, Defendants further conceded that they had the

ability to obtain documents from the State Archives, which is the custodian of records

retained by the office of former Governor O’Malley. See Ex. I (12/22/16 Ltr. From S.

Rice) at 2 (explaining the records can be obtained by Defendants by following certain

procedures).

3. The OAG represents Defendants, the General Assembly, theformer governor’s ffice, and all current and many former stateemployees in connection with this litigation

At the outset of discovery, the Office of the Attorney General (OAG)—counsel for

Defendants—contended that their clients in this litigation were the named Defendants

only. Based on this representation, Plaintiffs attempted to interview various current

and former members of the Maryland General Assembly regarding why the boundaries

of the Sixth District were redrawn as they were.1 In a November 30, 2016 letter, the

OAG asserted that it represents all “current and former legislators in office at the time

of the adoption of the 2011 Congressional Redistricting Plan, all former member of the

Governor’s Redistricting Advisory [Committee], and any former staff of the Governor’s

Redistricting Advisory [Committee].” Ex. K (11/30/16 Ltr. from S. Rice) at 1-2. And a

week later, the OAG made yet a broader assertion of attorney-client relationship,

claiming that it “represents the General Assembly, and all current state officials and

employees” with regard to this litigation. Ex. L (12/6/16 Ltr. from S. Rice). Thus, during

1 As we explained to counsel for Defendants in the ensuing exchange of letters, webelieve the First Amendment’s Petition Clause permits Plaintiffs to make ex parte contactwith sitting legislators concerning the subject matter of the litigation, regardless ofwhether the legislators are represented by OAG. See Md. Rule Prof. Conduct 4.2(c). Wemaintain that position and have agreed not to contact sitting lawmakers as a courtesyonly. Ex. J (12/09/16 Ltr. from S. Medlock).


11

discovery, counsel to Defendants have accepted service of subpoenas directed to former

Governor O’Malley, the GRAC members, and all sitting legislators.

C. Defendants’ attempt to recast their litigation conduct to avoid afinding that they control legislative and GRAC materials

After realizing that their practice of obtaining documents from other state

agencies upon request is evidence that Defendants control these documents within the

meaning of the federal rules, Defendants attempted to re-characterize their actions and

refused to produce additional documents over which they have control. In a December

23 letter, Defendants asserted that they requested and obtained documents from

Governor O’Malley’s office, the General Assembly, and GRAC members only as a

“courtesy” and would continue making productions only “[a]s a continuing courtesy.”

Ex. M (12/23 S. Rice letter) at 5. Perhaps regretting that they had tipped their hand,

Defendants then stated that they would refuse to produce such documents moving

forward:

Given your insistence that such courtesy extended to the Plaintiffs is anadmission that the Defendant officials of the State Board of Electionsmaintain control over documents in the possession, custody, or control ofindependent State agencies, members of the General Assembly, formerGRAC members, or other State officials or employees, and you statedintention to use this courtesy as a rationale for seeking relief from theCourt, counsel for Defendants believe that we can no longer extend such acourtesy on behalf of the Defendants without prejudicing them.

Id. Defendants have since continued to refuse production of responsive documents on

this basis.

ARGUMENT

“A party seeking discovery may move for an order compelling . . . production[] or

inspection . . . if a party fails to respond that inspection will be permitted . . . as

required under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iv). When a party moves to compel,


12

the burden of proof “is with the party objecting to the discovery to establish that the

challenged production should not be permitted.” Union First Mkt. Bank v. Bly, 2014

WL 66834, at *4 (E.D. Va. 2014) (internal quotation marks omitted). The objecting

parties—here, Defendants—cannot meet this burden by resorting to mere “boilerplate”

objections. See Barb v. Brown’s Buick, Inc., 2010 WL 446638, at *1 (E.D. Va. 2010).

Instead, they must make a specific showing of why “the discovery should not be

allowed.” Castle v. Jallah, 142 F.R.D. 618, 620 (E.D. Va. 1992).

Defendants cannot make that showing here. They assert two bases for refusing

our discovery requests: legislative privilege and lack of custody and control. As to the

first issue, courts routinely deny claims of state legislative privilege in federal constitu-

tional 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. More fundamentally, courts have

consistently recognized that state officials cannot hide behind state legislative privilege

to avoid federal judicial scrutiny into unconstitutional legislative motive.

As to the second issue, the Defendants’ pattern of conduct throughout this

litigation has already demonstrated that they have control over the requested

documents. Any doubt on this score is resolved by our letter exchanges and Defendants’

responses to our first set of interrogatories (Ex. D), which show that Defendants and

many other state agencies and officials worked closely together to draft and enact the

Plan, sharing documents and communications as a matter of course. In short, Defend-

ants have failed to meet its burden on either ground.


13

I. THE STATE LEGISLATIVE PRIVILEGE PROVIDES NO BASIS FORREFUSING TO PRODUCE DOCUMENTS OR ANSWER OURINTERROGATORIES OR REQUESTS FOR ADMISSIONS HERE

We begin with the issue of legislative privilege. In response to a majority of our

discovery requests—and in response to virtually every subpoena ad testificandum that

we have served, with respect to which we are litigating parallel motions to compel—De-

fendants have made sweeping assertions of state legislative privilege that, if upheld,

would effectively insulate it from having to answer at all the very serious federal

constitutional claims alleged in the complaint.

This is not the first time that Maryland state officials have made this argu-

ment—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 Mike 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


14

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

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

The Court accordingly must reject the assertion of privilege here, for three

reasons. First, the state legislative privilege—a creature of federal common law—ne-

cessarily 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 cases like this 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, Defendants have not properly asserted the state legislative privilege,

even to the extent that it might apply. The privilege is a personal privilege that belongs

to the individual legislators and is not Defendants’ to invoke. What is more, Defend-

ants offer no evidence to support the claim of privilege despite that it is their burden to

prove its applicability. That alone is sufficient base to enter an order to compel.

Finally, those with the privilege have waived it. As a legal matter, the privilege

does not extend to communications with third parties; sharing documents and

communications with third parties thus constitutes waiver of the privilege. We made

requests for discovery relating to communications with third parties, but the

Defendants assert blanket claims of immunity. Moreover, the conduct of individual

legislators—an in particular, their statements in public speeches and high-profile

newspaper editorials—has waived privilege. That, too, is a basis for rejecting the

Defendants’ objections.


15

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 improperly invoked privilege. Schaefer, 144

F.R.D. at 305.

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

As an initial matter, Defendants’ attempt to assert the legislative privilege on a

blanket basis lacks all legal support. To the extent the privilege applies at all, it is a

qualified one.

“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

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 settled:

“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.


16

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-

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

defendant in the action, “[t]he inhibiting effect [of the threat of liability] is significantly

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


17

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))).2

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.

2 Defendants argued at the December 21-22 conference and in our letter exchangesthat 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 authoritywhere (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 inMitchell upheld the assertion of privilege because the plaintiff’s claim there did notrequire proof of legislative motive. Mitchell, slip op. at 6. That is not the case here. SeeShapiro, 2016 WL 4445320, at *11. And once again, “[t]he doctrine of legislativeimmunity” does not “prohibit judicial inquiry into legislative motive where the chal-lenged legislative action is alleged to have violated an overriding, free-standing publicpolicy.” Schaeffer, 144 F.R.D. at 304.


18

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).

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.

B. Defendants cannot carry their burden under the five-factorbalancing test applicable in qualified-privilege cases like this one

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

and blanket fashion asserted by Defendants 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 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 legislative privilege “has

the burden of demonstrating its applicability.” NLRB v. Interbake Foods, LLC, 637

F.3d 492, 501 (4th Cir. 2011).


19

Here, the balancing test clearly favors compelling disclosure of the evidence that

Plaintiffs seek: the evidence 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; government officials played a direct,

central, and essential role in the constitutional violations here; and compelling

disclosure of the evidence 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

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

at the 12(b)(6) stage, this 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, evidence regarding the intent and motive of the officials 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).


20

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 tangential dispute.

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 a state

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 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 evidence would be as probative of unlawful motive as the

evidence sought. 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 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 have access to direct evidence of


21

these officials’ internal communications—regardless that circumstantial evidence going

to the issue of motive is also available. After all, “[m]otive is often most easily dis-

covered by examining the unguarded acts and statements of those who would otherwise

attempt to conceal evidence of discriminatory intent.” Cano v. Davis, 193 F. Supp. 2d

1177, 1181-82 (C.D. Cal. 2002) (Reinhardt, J., concurring in part and dissenting in

part). That is especially so because “[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 disclosure even when there already some evidence of motive in

the public record. See Favors v. Cuomo, 285 F.R.D. 187, 219 (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 court 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

Representatives for two decades, until Democrats on the GRAC and in the legislature


22

chose to redraw the district’s boundaries with any 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. 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.” Reynolds, 377 U.S. at 561-62. 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.

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


23

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. Government officials 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

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 disclosure. 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. We ask only for the production of docu-

ments (many of which appear to have been destroyed in any event), and not even


24

having to appear for a deposition—the imposition of a single day—is a serious burden

for legislators, many of whom have separate jobs as it is.

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”);

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”).

Defendants have asserted that disclosure here would impede legislative deliber-

ations, but the Supreme Court has readily dismissed such speculation when raised in

previous cases. See Gillock, 445 U.S. at 373. 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. Id.; see also United States v. Irvin, 127 F.R.D. 169, 174 (C.D. Cal.

1989) (“This Court is not convinced that the occasional instance in which disclosure

may be ordered in a civil context will add measurably to the inhibitions already

attending legislative deliberations.”); 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.”).


25

“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 enforcing 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

State has made no effort at all to carry its burden to prove otherwise, this Court should

order the production of all responsive documents that the State has withheld, and

responses to all interrogatories and requests for admissions that the State has refused

to answer, on the ground of state legislative privilege.

C. The privilege has not been properly invoked in this case

The State’s problems do not end there. Even if there were a basis for asserting

legislative privilege in this case (there is not), Defendants have failed to invoke the

privilege properly: They have not demonstrated that the relevant legislators have been

notified of our discovery requests (as they must), they have not shown that each

legislator was informed of his or her right to assert privilege (as they must), they have

not proven that any individual legislator has actually and personally asserted the

privilege (as they must), they have not offered any evidence to establish the privilege’s

applicability as to each such assertion (as they must), and they have not provided a

privilege log detailing the documents or issues as to which the privilege has specifically


26

been invoked (as they must). Defendants, instead, have invoked the privilege

vicariously on behalf of individual legislators (which they may not do) on a blanket

basis (which they may not do).

1. “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 Defendants purport to do here. They say that they will not

produce documents, answer our interrogatories, or answer our requests for admissions

because the “documents [are] protected by legislative privilege” (Ex. B at Req. Resp. 1-

4, 7-8) and answers would reveal “information protected by legislative privilege” (Ex. D

at Interrog. Resp. 2; Ex. F at RFA Resp. 1-6).

There is a glaring problem with this approach: Defendants do not claim that the

individuals who actually hold the privilege have, as a matter of fact, asserted it. They

instead offer a vicarious, blanket assertion of privilege on behalf of all third parties.

That they may not do. The privilege is not Defendants’ to assert; it instead belongs to

individual lawmakers and must be “waived or asserted by each individual legislator.”

Favors, 285 F.R.D. at 211 (quoting Schaefer, 144 F.R.D. at 298).

Doubtless, Defendants will say that they “may not waive the legislators’

privilege and that by producing documents [they] would be doing so.” Bethune-Hill, 114

F. Supp. 3d at 344. “This is not the case.” Id. The Defendants’ obligation is “[to] reach[]

out to the legislators in question and advise[] them of their rights to waive or assert

their privilege.” Id. If individual legislators “fail[] to assert the privilege,” those legis-


27

lators necessarily “waive[] the privilege and their documents must be produced.” Id.

This is a settled practice of which the State must surely be aware.

Bethune-Hill is a prime example. There, the State contacted 29 legislators;

“twenty-one (21) responded to ‘assert’ legislative privilege, four (4) responded by

waiving legislative privilege, and four (4) failed to respond.” 114 F. Supp. 3d at 330.

The State produced documents as to “the four legislators who expressly waived their

legislative privilege” (id.) and the Court ordered production of all material held by “the

four legislators who have failed to respond to the parties’ inquiry,” as “any potential

claim to privilege is deemed to be waived” (id. at 343).

The same inquiry is necessary here. We have served several legislators with

third party document subpoenas, and some (including Senator C. Anthony Muse) have

responded by producing documents without asserting privilege (Exs. N-O). And as we

demonstrate further below, other legislators have affirmatively waived the privilege in

other ways. See infra, 28-31. Against this background, Defendants’ vicarious, blanket

assertion of privilege must be rejected out of hand.

2. Even supposing (contrary to fact) that individual legislators had invoked the

privilege, it is not enough 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 communications [or 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

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

the “integral steps” of the legislative process, and not to post-enactment documents or

communications (Bethune-Hill, 114 F. Supp. 3d at 342-45). The individual asserting


28

the privilege “has the burden of proving the preliminary facts of the privilege” (id. at

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

here that burden is plainly unmet.

It is no answer to say that requiring “specific claims [of privilege]” on a com-

munication-by-communication basis, with supporting facts, “may impose a burden on

the legislator[s].” Bethune-Hill, 114 F. Supp. 3d at 344 (internal quotation marks

omitted). After all, “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 Defendants have done none of this. They have instead offered only naked

assertions of privilege, without an iota of factual development. That, by itself, is

sufficient grounds for overruling their privilege objections and granting the motion to

compel in full.

D. Defendants’ assertion of state legislative privilege ignores therelevant individuals’ repeated waivers of the privilege

Apart from the general problems with Defendants’ assertion of the state

legislative privilege, Defendants offer no explanation of how they might get around

waiver. That is because they cannot. First, when legislators or their staff have shared

information otherwise protected by the privilege with outside third parties, they

necessarily waive the privilege. Second, legislators waive the privilege when they speak

on the public record regarding matters otherwise subject to the privilege. There is

evidence of both kinds of waiver here—but Defendants ignore it.

1. The state legislative privilege does not apply to “any documents or communi-

cations shared with, or received from, any individual or organization outside the

employ of the legislature.” Bethune-Hill, 114 F. Supp. 3d at 343. Because “a conver-

sation between legislators and knowledgeable outsiders . . . is a session for which no


29

one could seriously claim privilege” (id. (quoting Rodriguez, 280 F. Supp. 2d at 101)), “a

legislator waives his or her legislative privilege when the legislator publicly reveals

documents related to internal deliberations” (Favors, 285 F.R.D. at 212). 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.” Id. 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)).

Plaintiffs have reason to believe that members of the GRAC, General Assembly,

and governor’s office all shared responsive documents and communications with out-

siders, including members of Maryland’s federal congressional delegation, members of

the Democratic National Committee, members of the press, and interested members of

the public. Many of the discovery requests served on Defendants sought documents,

data, and communications shared between lawmakers and third parties. See, e.g., Ex.

A at Req. 1; Ex. A at Req. 6; see also Ex. C at Interrog. 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 Governor prior to the final draft of the Proposed

Congressional Plan being made available to the general public.”). Yet Defendants have

nonetheless asserted blanket privilege objections to this material. See Ex. B at ¶ 1; Ex.

D at ¶ 1; Ex. F at ¶ 6. Those objections cannot stand with respect to any documents and

communications shared with outsiders.

2. Beyond all that, the privilege has been affirmatively waived by Senators

Richard Madaleno, Curt Anderson, and C. Anthony Muse. Thus, this Court would have


30

to reject any assertion of privilege by these individuals, even if the privilege were

available, and even if there were sufficient evidence to demonstrate that these three

Senators individually had attempted to invoke the privilege.

As we have now noted several times, legislative privilege is a personal privilege

and may be waived by individual legislators. E.g., Schaefer 144 F.R.D. at 298. 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); see also Perez, 2014 WL 106927, at *2 (“To

the extent . . . that any legislator, legislative aide, or staff member had conversations or

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

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

communications.”); Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *10 (“As

with any privilege, the legislative privilege can be waived when the parties holding the

privilege share their communications with an outsider.” (citing ACORN v. Nassau,

2007 WL 2815810 (E.D.N.Y. 2007)).

Here, Richard Madaleno, C. Anthony Muse, and Curt Anderson, each made

statements to constituents or the press regarding “supposedly privileged matters”

(Favors, 285 F.R.D. at 212 (internal quotation marks omitted)), including the purpose

of and intent behind the Plan. They have each thereby waived any legislative privilege

with respect to that matter.

• In a series of taped interviews, Senator Madaleno discussed the redistrictingprocess: “What you see going on elsewhere is clearly in other states that areRepublican controlled they are drawing maps to try to take out Democrats, so Ithink 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 theopposite.” ECF No. 104 at 8.


31

• Likewise, Senator Andersen stated in an interview on October 17, 2011: “Whatwe’re doing is we are trying to get more, in terms of—currently we have twoRepublican districts and six Democratic Congressional districts and we’re goingto try to move that down to seven and one.” ECF No. 104 at 11 (internalquotation marks omitted).

• Senator Muse also made statements about the legislature’s intent: “You look atthe way these districts are drawn, they’re absolutely drawn with one thing inmind. Now is it right or wrong? You be the judge of that—but it’s certainlydrawn so that you can minimize the voice of the Republicans.” Ex. N at 4.

These statements to third-party constituents and members of the press concerning the

purpose of the redistricting map constitute a waiver as to that subject matter. 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 these senators are

therefore discoverable, and those senators may be deposed on these topics.

Because the privilege is not Defendants to invoke, and because it is inadequately

supported by facts or evidence either way, the motion to compel should be granted.

II. DEFENDANTS HAVE DEMONSTRATED THAT THEY CONTROL DOCU-MENTS IN THE POSSESSION OF ALL RELEVANT STATE OFFICIALSAND AGENCIES

As a fallback to their half-hearted assertion of legislative privilege, Defendants

assert that they lack custody and control of the relevant documents. Ex. B Req. Resp.

3-5, 7-8. But as their own course of conduct has already demonstrated, nothing could be

further from the truth.

A party may serve on any other party a request to produce any designated

documents or electronically stored information in the responding party’s possession,

custody, or control. Fed. R. Civ. P. 34(a)(1)(A). “The phrase ‘possession, custody or

control’ is in the disjunctive and only one of the numerated requirements need be met.”


32

Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995) (emphasis added; internal

quotation marks omitted).

Control is “broadly construed by the courts as the legal right, authority, or

practical ability to obtain the materials sought on demand.” Steele Software Systems,

Corp. v. DataQuick Info. Systems, Inc., 237 F.R.D. 561, 564 (D. Md. 2006) (internal

quotation marks omitted); see also Rosie D. v. Romney, 256 F. Supp. 2d 115, 118-119

(D. Mass. 2003) (state officials had control over documents in non-party state agency’s

possession). To determine whether a party has the “practical ability to obtain

documents from non-parties,” courts examine various factors, including: (1) whether

the party and nonparty have a pattern or practice of exchanging documents, (2) the

nonparty’s connection to the subject matter of the litigation, and (3) the degree to

which the nonparty could benefit from the outcome of the litigation. See Flame S.A. v.

Indus. Carriers, Inc., 2014 WL 1681426, at *1 (E.D. Va. 2014).

1. It is hardly debatable that Defendants here have “control” over responsive

documents held by former members of the GRAC, current and former members of the

General Assembly, the office of former Governor O’Malley, DOP, and DLS. Defendants

have already acknowledged and demonstrated that they have the ability to obtain

documents from these officials and agencies upon request. See supra at 11. Indeed,

preparing the Stipulated Facts in this case, Defendants sua sponte collected and

provided documents from each of these individuals and entities. See supra at 10-11.

Thus, there is no serious question that Defendants “control” these custodians’ docu-

ments and communications within the meaning of the federal rules. See Steele Software

Sys., 237 F.R.D. at 564.


33

Belatedly recognizing the hole they have dug themselves into, Defendants have

recently asserted in letter correspondence that their productions of documents from

DLS, DOP, three members of the GRAC, and the governor’s office were a mere

“courtesy” and that any further productions from those and other agencies and officials

were a mere “continuing courtesy to Plaintiffs.” See Ex. M at 5. It makes no difference

what Defendants call it—regardless whether it’s a response to command discovery or a

“courtesy” extended in negotiations, the point remains that Defendants can “obtain the

materials sought on demand.” Steele Software Systems, 237 F.R.D. at 564 (internal

quotation marks omitted). No more is required to establish control within the meaning

of the federal rules. On that basis alone, compelled production is warranted.

2. As though that were not enough, the evidence shows that the close relation-

ship among the relevant entities has all the hallmarks of a control relationship. Emails

produced in response to third-party subpoenas show that Defendants, the GRAC, the

governor’s office, DOP, DLS, and members of the General Assembly coordinated closely

with one another to draft the 2011 Congressional map. See supra at 8-9. This exchange

of documents satisfied all of the relevant factors for establishing control.

First, it reflects the type of access and practical ability courts have recognized

constitutes “control.” For example, in The Bank of New York v. Meridien BIAO Bank

Tanzania Limited, 171 F.R.D. 135, 149 (S.D.N.Y. 1997), the court held that the

defendant had the practical ability to obtain documents from a third-party because

“[the defendant] ha[d] been able to obtain documents from [the third-party] when it

ha[d] requested them,” and the third-party readily cooperated with the defendant’s

requests by searching for and turning over relevant documents from its files. Precisely

so here. Likewise, in In re NTL, Inc. Securities Litigation, a leading case on control, the


34

court found that NTL “had the simple ‘practical ability’ to obtain the relevant

documents” based on the testimony of NTL’s CEO that “[w]henever there was a

document that we needed [from the third party], . . . we would call [the third party] and

ask if they had it, and if they had it, they’d send it.” 244 F.R.D. 179 at 195-96 (S.D.N.Y.

2007) (internal quotation marks omitted). Again, precisely so here.

There is yet more evidence of the routine document- and communication-sharing

among the various officials and agencies. The OAG has asserted that it represents all

of the relevant agencies and individuals in connection with this case, and that they all

received confidential briefings concerning the Plan during and after its drafting. Ex. L

at 2. That the OAG claims to represent not only Defendants, but also all former

members of the GRAC, the General Assembly, former Governor O’Malley’s office, and

all current state officials and employees (Ex. K at 1-2) is further support for the

conclusion that Defendants have practical access to documents in the possession of

other state agencies and officials. Cf. Chevron Corp. v. Salazar, 275 F.R.D. 437, 447-51

(S.D.N.Y. 2011) (holding that the defendants had control over third-parties’ documents

where the defendant and third-parties were represented by a single attorney in the

same litigation).

Second, the former GRAC members, DOP, DLS, governor’s office, and the

General Assembly were all closely involved in the process of drawing and enacting the

Plan, and each has a distinct interest in seeing the Plan enforced. See supra at 8-9.

Courts have found such congruency of interest to be indicative of “control.” See, e.g.,

Gross v. Lunduski, 304 F.R.D. 136, 143 (W.D.N.Y. 2014) (holding that in a prisoner

civil rights action, the corrections officer had control over documents in the possession

of the Department of Corrections because they shared “interests, missions or goals.”).


35

Finally, and for many of the same reasons, all of the relevant officials and

agencies have a vested interest in winning a judgment in favor of defendants. Having

committed their resources to manipulating the Sixth District’s lines, they all stand to

benefit from continued enforcement of the Plan. A contrary outcome would both be

politically embarrassing and tie their hand in future redistrictings.

Accordingly, Defendants have control of (and thus a duty to produce) responsive

documents in the possession of the former GRAC members, DOP, DLS, governor’s

office, and the General Assembly.

CONCLUSION

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

particular, the Court should enter an order compelling Defendants to produce all

documents in their control responsive to Plaintiffs’ First Request for Production,

including documents in the possession of the GRAC, former Governor O’Malley’s office,

members of the General Assembly, the Department of Planning, and the Department of

Legislative Services, without regard for any assertion of state legislative privilege. The

Court likewise should enter and order compelling Defendants to answer Plaintiffs’

First Set of Interrogatories and First Set of Requests for Admissions without resting on

a state legislative privilege objection.




Plaintiffs,

vs.


Defendants.

Case No. 13-cv-3233

Three-Judge Court

APPENDIX OF EXHIBITS TO PLAINTIFFS’ MOTION TO COMPELDEFENDANTS’ PRODUCTION OF DOCUMENTS RESPONSIVE TO

PLAINTIFFS’ FIRST SET OF REQUESTS FOR PRODUCTION, DEFENDANTS’RESPONSES TO PLAINTIFFS’ FIRST SET OF INTERROGATORIES, AND

DEFENDANTS’ ANSWERS TO PLAINTIFFS’ FIRST SET OF REQUESTS FORADMISSION

Michael B. Kimberly, Bar No. 19086Paul W. Hughes, Bar No. 28967Stephen M. Medlock, pro hac viceE. Brantley Webb, pro hac viceMayer Brown LLP1999 K Street NWWashington, D.C. 20006(202) 263-3127 (office)(202) 263-3300 (facsimile)


1

Exhibit ContentsA Plaintiffs’ First Set of Requests for Production

B Defendants’ Responses to Plaintiffs’ First Set of Requestsfor Production

C Plaintiffs’ First Set of Interrogatories

D Defendant’ Responses to Plaintiffs’ First Set ofInterrogatories

E Plaintiffs’ First Set of Requests for Admissions

F Defendants’ Responses to Plaintiffs’ First Set of Requestsfor Admissions

G Documents Produced by GRAC Member Richard Stewart

H December 22, 2016 letter from Stephen Medlock toJennifer Katz and Sarah Rice regarding December 20-21,2016 discovery conference

I December 22, 2016 letter from Sarah Rice to StephenMedlock regarding December 20-21, 2016 discoveryconference

J December 9, 2016 letter from Stephen Medlock to SarahRice regarding informal discovery

K November 30, 2016 letter from Sarah Rice to StephenMedlock regarding informal discovery

L December 6, 2016 letter from Sarah Rice to StephenMedlock regarding informal discovery

M December 23, 2016 letter from Sarah Rice to StephenMedlock regarding December 20-21, 2016 discoveryconference

N Subpoena to Senator C. Anthony Muse for the productionof documents

O Documents produced by Senator C. Antony Muse


2






EXHIBIT A


1


PLAINTIFFS’ FIRST SET OF REQUESTS FOR PRODUCTION

Pursuant to Federal Rules of Civil Procedure 26 and 34 and Local Rule 104, Plaintiffs

request that Defendants produce for inspection and copying the documents described below, within

the time allotted by the Federal Rules of Civil Procedure, the Local Rules of the District of

Maryland, and the Orders of this Court, or at such other time and location as may be agreed upon by

counsel for the parties.

DEFINITIONS

1. Plaintiffs hereby incorporate by reference all definitions in Appendix D of the Local

Rules of the District of Maryland.

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, and any and all “cc” or “bcc” copies of the

above.

3. The term “Governor” means former Maryland Governor Martin O’Malley.

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

O. John Benisek, et al.

Plaintiffs,

vs.


Defendants.

Case No. 13-cv-3233

Three-Judge Court


2

and proposing a congressional map for Maryland’s eight congressional districts in light of the 2010

United States Census results.

5. The term “Proposed Congressional Plan” refers to the new map for the state of Mary-

land’s federal congressional districts adopted by the Maryland General Assembly as Senate Bill 1

and signed into law by the Governor on October 20, 2011.

6. The terms “Senate Bill 1” OR “S.B. 1” means the Proposed Congressional Plan.

INSTRUCTIONS

1. Plaintiffs hereby incorporate by reference all instructions in Appendix D of the Local

Rules of the District of Maryland.

2. If you object to a Request, the grounds for each objection must be stated with

specificity and must state whether any responsive materials are being withheld on the basis of that

objection. If, in responding to a Request, you encounter any ambiguities when construing a request

or definition, your response shall set forth the matter deemed ambiguous and the construction used in

responding.

3. Your responses, objections, and production of documents and Electronically Stored

Information shall comply with the Discovery Guidelines for the U.S. District Court for the District of

Maryland.

4. All Documents produced should be Bates numbered sequentially, with a unique

number on each page, and with a prefix identifying the party producing the Document.

5. Except where otherwise indicated, each Document request covers the time period

January 1, 2011 to November 1, 2011 (the “Relevant Time Period”).

REQUESTS FOR PRODUCTION

1. All Communications regarding the Proposed Congressional Plan.


3

2. All Communications regarding any alternative redistricting plan that was not adopted.

3. All Documents reviewed or relied on by the GRAC during the planning, develop-

ment, negotiation, drawing, revision or re-drawing of the Proposed Congressional Plan or any

alternative redistricting plan not adopted.

4. All Documents reviewed or relied on by the members of the Maryland General

Assembly concerning the Proposed Congressional Plan or any alternative redistricting plan not

adopted.

5. All Documents reviewed or relied on by the Governor concerning the Proposed

Congressional Plan or any alternative redistricting plan not adopted.

6. All Documents related to public meetings held by the GRAC concerning the redist-

ricting process and Proposed Congressional Plan, including but not limited to, meeting minutes,

agendas, transcripts, and presentations.

7. All Documents used to plan or draw the Proposed Congressional Plan, or any alterna-

tive redistricting plan not adopted, including without limitation all data files related to election or

voter data; election redistricting software, including but not limited to, Maptitude and AutoBound

shapefiles and data, or data from any other district mapping software program(s), including data files

in draft form; and all 2010 United States Census data, whether adjusted or not adjusted.

8. All draft drawings of any congressional districts of the Proposed Congressional Plan

or any alternative redistricting plan not adopted, whether created by the GRAC or any other Person.

9. All Documents related to the proceedings in the Maryland General Assembly

regarding Senate Bill 1, including statements of purpose, procedures followed, committee reports,

and statements by members of the Maryland General Assembly.


4

10. Documents sufficient to show Your Document retention or destruction policies and

practices and all steps You took to retain and preserve documents related to this litigation, as well as

any deviations from these taken with respect to the Documents requested here.

11. All Documents related to any community of interest that You, the GRAC, or

members of the Maryland General Assembly contend would be protected, served, or grouped

together based on the changes to the Sixth Congressional District enacted by Senate Bill 1.

Dated: November 17, 2016



Paul W. Hughes, Bar No. [email protected]

Stephen M. Medlock, pro hac [email protected]

E. Brantley Webb, pro hac [email protected]

Micah D. Stein, pro hac [email protected]

Mayer Brown LLP1999 K Street NWWashington, D.C. 20006(202) 263-3000 (office)(202) 263-3300 (facsimile)

Attorneys for Plaintiffs


EXHIBIT B


IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

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 REQUESTS FOR PRODUCTION

Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Defendants, Linda H.

Lamone and David J. McManus, Jr., respond as follows to Plaintiffs’ First Requests for

Production of Documents:

PRELIMINARY STATEMENT

The following responses are based on the Defendants’ knowledge, information, and

belief, and are complete to the best of its knowledge at this time. As discovery proceeds,

facts, information, evidence, documents, and things may be discovered that are not

referenced in these responses, but which may be responsive to the requests. The

Defendants assume no obligation to supplement or amend voluntarily these responses

beyond applicable legal requirements to reflect information, evidence, documents, or

things discovered following service of these responses. Furthermore, these responses were

prepared based on the Defendants’ good faith interpretation and understanding of


2

Plaintiffs’ requests and are subject to correction for inadvertent errors or omissions, if any.

These responses are given without prejudice to subsequent revision, amendment, or

supplementation based upon any information, evidence, and documentation that may later

be discovered.

Defendants reserve the right to refer to, or to offer into evidence at the time of trial,

any and all facts, evidence, documents, and things developed during the course of

discovery and trial preparation, notwithstanding the reference to facts, evidence,

documents, and things in these responses.

Defendants reserve all objections or other questions as to the competency,

relevance, materiality, privilege or admissibility of any information or documents produced

in response to Plaintiffs’ requests.

Defendants state that, except for facts explicitly admitted, no admission of any

nature whatsoever is to be implied or inferred from its responses. The fact that Defendants

have responded to a request should not be taken as an admission of any fact set forth,

inferred or assumed by such request, or that such response constitutes evidence of any fact

thus set forth, inferred, or assumed.

Defendants construe all requests, including those requests seeking documents that

“reflect or relate to” a fact or allegation, not to call for notes, memoranda and other

documents prepared by or at the direction of its attorneys in anticipation of litigation.

Defendants’ decision to respond to any request, notwithstanding the objectionable

nature of any of the requests themselves, is not: (a) an acceptance of, or agreement with,

any of the characterizations or purported descriptions of the transactions or events


3

contained in the requests; (b) a concession or admission that the material is relevant to this

proceeding; (c) a waiver of the General Objections or of the objections asserted in any

specific response; (d) an admission that any such information exists; or (e) an agreement

that requests for similar information will be treated in a similar manner.

GENERAL OBJECTIONS

1. Defendants object to these requests to the extent that they seek information

that is protected from disclosure pursuant to the attorney-client privilege, the attorney work

product doctrine, executive or legislative privilege, or 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. Here, much of the information

sought by plaintiffs has already been produced by Defendants, has been produced in

response to PIA requests, or is publicly available.

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


4

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

not available to the Defendant and/or that calls for material that is not within the

Defendant’s possession, custody, or control.

9. 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.

RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS

DOCUMENT REQUEST 1: All Communications regarding the Proposed

Congressional Plan.

RESPONSE 1: Defendants object to this request because it seeks irrelevant and

privileged material outside the scope of discovery, including material protected by the


5

deliberative process, executive, and legislative privileges. Defendants further object

because the request is impermissibly broad, vague, and burdensome given that plaintiffs

have made other document requests related to documents generated and kept by non-parties

and it is unclear if plaintiffs intend this request to extend to communications generated or

received by other state agencies or branches of government, and, if so, how many or which

such state entities are implicated by the request. A search of statewide communications is

not feasible because there are multiple email systems in use throughout the state which are

subject to different record retention policies. Moreover, there was no single constituent

correspondence tracking system in use during the relevant time period. Without waiver of

these objections, Defendants have produced communications regarding the Proposed

Congressional Plan with these responses and state that there are no such communications

between State Board of Elections officials or employees including at least one non-state

employee or official.

DOCUMENT REQUEST 2: All Communications regarding any alternative

redistricting plan that was not adopted.

RESPONSE 2: Defendants object to this request because it seeks irrelevant and

privileged material outside the scope of discovery, including material protected by the

deliberative process, executive, and legislative privileges. Defendants further object

because the request is impermissibly broad, vague, and burdensome given that plaintiffs

have made other document requests related to documents generated and kept by non-parties

and it is unclear if plaintiffs intend this request to extend to communications generated or

received by other state agencies or branches of government, and, if so, how many or which


6

such state entities are implicated by the request. A search of statewide communications is

not feasible because there are multiple email systems in use throughout the state which are

subject to different record retention policies. Moreover, there was no single constituent

correspondence tracking system in use during the relevant time period. Without waiver of

these objections, Defendants have produced communications regarding alternative

redistricting plans that were not adopted with these responses and state that there are no

such communications between State Board of Elections officials or employees including

at least one non-state employee or official.

DOCUMENT REQUEST 3: All Documents reviewed or relied on by the GRAC

during the planning, development, negotiation, drawing, revision or re-drawing of the

Proposed Congressional Plan or any alternative redistricting plan not adopted.

RESPONSE 3: Defendants object to this request because it seeks only documents

protected by legislative privilege that would reveal the subjective motives and intentions

of individuals acting in their legislative capacity to develop legislation. E.E.O.C. v.

Washington Suburban Sanitary Comm’n, 631 F.3d 174, 181 (4th Cir. 2011). The request

therefore exceeds the scope of discovery. Fed. Rule Civ. Proc. 26(b)(1). No documents

are withheld on the basis of this objection. Defendants are not in possession, custody or

control of documents known to the Defendants to have been reviewed or relied on by the

GRAC during the planning, development, negotiation, drawing, revision or re-drawing of

the Proposed Congressional Plan or any alternative redistricting plan not adopted. Without

waiving these objections, Defendants state that they have made reasonable inquiry of other

state agencies and officials and that the documents known by Defendants to have been


7

provided by the Maryland Department of Planning to the GRAC in the custody of the

Defendants have been previously provided to plaintiffs or are included with this response.

DOCUMENT REQUEST 4: All Documents reviewed or relied on by the members

of the Maryland General Assembly concerning the Proposed Congressional Plan or any

alternative redistricting plan not adopted.






are withheld on the basis of this objection because Defendants are not in possession,

custody or control of documents known to the Defendants to have been reviewed or relied

on by members of the Maryland General Assembly concerning the Proposed Congressional

Plan or any alternative redistricting plan not adopted. Defendants have made reasonable

inquiry to the General Assembly with respect these documents but documents reviewed or

relied on by General Assembly members are not generally available to executive agencies

and were not provided. Without waiving these objections, Defendants state that documents

in the Defendants’ custody that are known by the Defendants to have been made available

by others to the General Assembly have either been previously provided to the Plaintiffs,

are publicly available, or are included with this response.


8

DOCUMENT REQUEST 5: All Documents reviewed or relied on by the Governor

concerning the Proposed Congressional Plan or any alternative redistricting plan not

adopted.


protected by legislative and/or executive privilege that would reveal the subjective motives

and intentions of individuals acting in their legislative capacity to develop legislation.

E.E.O.C. v. Washington Suburban Sanitary Comm’n, 631 F.3d 174, 181 (4th Cir. 2011).

The request therefore exceeds the scope of discovery. Fed. Rule Civ. Proc. 26(b)(1). No

documents are withheld on the basis of this objection. Defendants state that they have

made reasonable inquiries seeking these documents and Defendants are not in possession,

custody or control of documents known to the Defendants to have been reviewed or relied

on by the Governor concerning the Proposed Congressional Plan or any alternative

redistricting plan not adopted.

DOCUMENT REQUEST 6: All Documents related to public meetings held by the

GRAC concerning the redistricting process and Proposed Congressional Plan, including

but not limited to, meeting minutes, agendas, transcripts, and presentations.

RESPONSE 6: All Documents related to public meetings held by the GRAC in the

possession, custody, or control of the Defendants have been produced to plaintiffs or are

produced with these responses.

DOCUMENT REQUEST 7: All Documents used to plan or draw the Proposed

Congressional Plan, or any alternative redistricting plan not adopted, including without

limitation all data files related to election or voter data; election redistricting software,


9

including but not limited to, Maptitude and AutoBound shapefiles and data, or data from

any other district mapping software program(s), including data files in draft form; and all

2010 United States Census data, whether adjusted or not adjusted.






are withheld on the basis of this objection. Defendants state that they have made the

reasonable inquiries described above, and Defendants are not in possession, custody or

control of documents known to the Defendants to have been used to plan or draw the

Proposed Congressional Plan, or any alternative redistricting plan not adopted.

DOCUMENT REQUEST 8: All draft drawings of any congressional districts of the

Proposed Congressional Plan or any alternative redistricting plan not adopted, whether

created by the GRAC or any other Person.






are withheld on the basis of this objection. Defendants state that they have made the

reasonable inquiries described above, and Defendants are not in possession, custody or


10

control of documents known to the Defendants to be draft drawings of any congressional

districts of the Proposed Congressional Plan or any alternative redistricting plan not

adopted, whether created by the GRAC or any other Person.

DOCUMENT REQUEST 9: All Documents related to the proceedings in the

Maryland General Assembly regarding Senate Bill 1, including statements of purpose,

procedures followed, committee reports, and statements by members of the Maryland

General Assembly.

RESPONSE 9: Defendants object to this request because it seeks publicly available

documents equally accessible for inspection to plaintiffs upon request and therefore poses

an undue burden of production on defendants. No additional material is withheld based on

this objection because the objection is based on scope, specifically the undue burden of

collecting the material because the material is equally available to plaintiffs. Subject to and

without waiving the objection, documents responsive to this request have already been

produced to plaintiffs or are produced with these responses.

DOCUMENT REQUEST 10: Documents sufficient to show Your Document

retention or destruction policies and practices and all steps You took to retain and preserve

documents related to this litigation, as well as any deviations from these taken with respect

to the Documents requested here.

RESPONSE 10: Defendants object to this request to the extent it seeks material

protected by attorney-client and attorney work-product privilege. No documents are

withheld based on this objection. Subject to and without waiving the objection, documents

responsive to this request accompany these responses.


11

DOCUMENT REQUEST 11: All Documents related to any community of interest

that You, the GRAC, or members of the Maryland General Assembly contend would be

protected, served, or grouped together based on the changes to the Sixth Congressional

District enacted by Senate Bill 1.

RESPONSE 11: Defendants object to this request on the grounds that it is vague,

overly broad, and unduly burdensome. Defendants further object that this request is

premised on alleged contentions made by others, of which the Defendants do not have

knowledge at this time. Subject to and without waiving the objections, documents related

to communities of interest protected, served, or grouped together in the creation of the

Proposed Congressional Plan have been produced to plaintiffs or are produced with these

responses.

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 C


1


PLAINTIFFS’ FIRST SET OF INTERROGATORIES

Pursuant to Federal Rules of Civil Procedure 26 and 33 and Local Rule 104, Plaintiffs hereby

submit their First Set of Interrogatories to Defendants. Plaintiffs request that Defendants respond

separately and fully, in writing and under oath, within the time allotted by the Federal Rules of Civil

Procedure, the Local Rules of the District of Maryland, and the Orders of this Court.

DEFINITIONS

1. Plaintiffs hereby incorporate by reference all definitions in Appendix D of the Local

Rules of the District of Maryland and all definitions set forth in the First Set of Requests for

Production of Documents to Defendants in this case.

2. When referring to a person, to “Identify” means to state the person’s full name,

current title or occupation, present or last known address, and, when referring to a natural person, the

present or last known place of employment. If the business and home telephone numbers are known

to the answering party, and if the person is not a party or present employee of a party, said telephone

numbers shall be provided. Once a person has been identified in accordance with this paragraph,

only the name of the person need be listed in response to subsequent discovery requesting the

identification of that person.


Plaintiffs,

vs.


Defendants.

Case No. 13-cv-3233

Three-Judge Court


2

3. When referring to documents, to “Identify” means to state the: (i) type of document;

(ii) general subject matter; (iii) date of the document; and, (iv) author(s), addressee(s), and

recipient(s) or, alternatively, to produce the document.

4. Unless otherwise stated, the relevant time period for these Interrogatories shall be

January 1, 2011 to November 1, 2011 (the “Relevant Time Period”).

INSTRUCTIONS

1. Plaintiffs hereby incorporate by reference all instructions in Appendix D of the Local

Rules of the District of Maryland and all instructions set forth in the First Set of Requests for

Production of Documents to Defendants in this case.

2. If You elect to specify and produce business records in answer to any interrogatory,

the specification shall be in sufficient detail to permit the interrogating party to locate and identify,

as readily as possible, the business records from which the answer may be ascertained.

INTERROGATORIES

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 Governor prior to the final draft

of the Proposed Congressional Plan being made available to the general public.

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.


3

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 reflecting prior voting

patterns, voter history, or party affiliation in deciding where to draw the lines of the Sixth Congres-

sional District under the Proposed Congressional Plan, state the factual basis for your contention and

identify all facts, documents and communications related to your contention.

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.

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

aries 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.

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 Congres-

sional Plan.

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 communi-

cated during the planning, development, and/or preparation of the Proposed Congressional Plan


4

and/or any alternative congressional plans not adopted. For each expert, consultant, or other third

party, state the time period of the Person’s involvement.

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.


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.


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.

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.”


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.”


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


5

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.”











EXHIBIT D




* * * * * *

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:


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,


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



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



3



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


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



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






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.





EXHIBIT E


1


PLAINTIFFS’ FIRST SET OF REQUESTS FOR ADMISSION

Pursuant to Federal Rules of Civil Procedure 26 and 36 and Local Rule 104, Plaintiffs hereby

submit their First Set of Requests for Admission to Defendants. Plaintiffs request that Defendants

serve their answers, in writing and under oath, within the time allotted by the Federal Rules of Civil

Procedure, the Local Rules of the District of Maryland, and the Orders of this Court.

DEFINITIONS AND INSTRUCTIONS

1. Plaintiffs hereby incorporates by reference all definitions and instructions in

Appendix D of the Local Rules of the District of Maryland and all definitions and instructions set

forth in the First Set of Requests for Production of Documents to Defendants in this case.

2. Unless otherwise stated, the relevant time period for these Requests shall be January

1, 2011 to November 1, 2011 (the “Relevant Time Period”).

REQUESTS FOR ADMISSION

1. Members of the GRAC considered Maryland voters’ political party affiliations when

drawing the boundaries of the Sixth Congressional District.

2. Members of the GRAC considered Maryland voters’ voting histories when drawing

the boundaries of the Sixth Congressional District.


Plaintiffs,

vs.


Defendants.

Case No. 13-cv-3233

Three-Judge Court


2

3. The Governor considered Maryland voters’ political party affiliations when approving

the Proposed Congressional Plan, introducing the Proposed Congressional Plan to the Maryland

General Assembly, and/or signing the Proposed Congressional Plan into law.

4. The Governor considered Maryland voters’ voting histories when approving the

Proposed Congressional Plan, introducing the Proposed Congressional Plan to the Maryland General

Assembly, and/or signing the Proposed Congressional Plan into law.

5. Members of the Maryland General Assembly considered Maryland voters’ political

party affiliations when enacting the Proposed Congressional Plan.

6. Members of the Maryland General Assembly considered Maryland voters’ voting

histories when enacting the Proposed Congressional Plan.

7. A motivation of members of the GRAC in drafting the Proposed Congressional Plan

was to make it more likely that a Democrat would be elected as representative from the Sixth

Congressional District.

8. A motivation of the Governor in introducing the Proposed Congressional Plan to the

Maryland General Assembly and in signing it into law was to make it more likely that a Democrat

would be elected as representative from the Sixth Congressional District.

9. A motivation of members of the Maryland General Assembly in enacting the

Proposed Congressional Plan was to make it more likely that a Democrat would be elected as

representative from the Sixth Congressional District.

10. In her presentation to the House and Senate Democratic Caucuses about the proposed

plan on October 3, 2011, GRAC Chair Jeanne Hitchcock stated that the GRAC’s proposed map

would make it more likely that a Democrat would be elected as the representative from the Sixth

Congressional District.


3











EXHIBIT F




* * * * * *

Case No. 13-cv-3233

* * * * * * * * * * * * * * * * * * * * DEFENDANTS’ RESPONSES TO PLAINTIFFS’ FIRST SET

OF REQUESTS FOR ADMISSIONS

Pursuant to Rule 36 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’ First Set of Requests for Admissions.


The following responses are based on the Defendants’ knowledge, information, and

belief, and are complete to the best of their knowledge at this time. The Defendants assume

no obligation to supplement or amend voluntarily these responses beyond applicable legal

requirements to reflect information, evidence, documents, or things discovered following

service of these responses. Furthermore, these responses were prepared based on the

Defendants’ good faith interpretation and understanding of the Plaintiffs’ requests and are

subject to correction for inadvertent errors or omissions, if any. These responses are given

without prejudice to subsequent revision, amendment, or supplementation based upon any

information, evidence, and documentation that hereinafter may be discovered.


2

The Defendants reserve the right to refer to, or to offer into evidence at the time of

trial, any and all facts, evidence, documents, and things developed during the course of

discovery and trial preparation, notwithstanding the reference to facts, evidence,

documents, and things in these responses.

The Defendants reserve all objections or other questions as to the competency,

relevance, materiality, privilege or admissibility of evidence in any subsequent proceeding

of their responses and of any information or documents produced in response thereto.

The Defendants state that, except for facts explicitly admitted herein, no admission

of any nature whatsoever is to be implied or inferred from their responses. The fact that

the Defendants have responded to a request should not be taken as an admission, or a

concession of the existence of any fact set forth, inferred or assumed by such request, or

that such response constitutes evidence of any fact thus set forth, inferred, or assumed.

The Defendants’ decision to respond to any request, notwithstanding the

objectionable nature of any of the requests themselves, is not: (a) an acceptance of, or

agreement with, any of the characterizations or purported descriptions of the transactions

or events contained in the requests; (b) a concession or admission that the material is

relevant to this proceeding; (c) a waiver of the General Objections or of the objections

asserted in any specific response; (d) an admission that any such information exists; or

(e) an agreement that responses for similar information will be treated in a similar manner.


3

GENERAL OBJECTIONS

The Defendants’ responses are subject to, qualified by, and limited by the following

General Objections, which apply to each specific request as if incorporated and set forth in

full in each response.

1. The Defendants object to these requests to the extent they seek material




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


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



4. The 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


5. The Defendants object to these requests to the extent that they seek

admissions regarding information not available to the Defendants and/or that calls for

information that is not within the Defendants’ possession, custody, or control.

6. The Defendants object to these requests to the extent that they seek

information that is protected from disclosure pursuant to the attorney-client privilege, the


4

attorney work product doctrine, executive or legislative privilege, or otherwise is

privileged, protected, or exempt from discovery.

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

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

objections, the Defendants neither intend to, nor do, limit or restrict or waive the General

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

requests that follow, though not specifically referred to or restated therein.

RESPONSES

1. Members of the GRAC considered Maryland voters’ political party

affiliations when drawing the boundaries of the Sixth Congressional District.

Response 1: In addition to their General Objections, Defendants object on the

grounds that the Request seeks information protected by legislative and executive

privileges and that the Request assumes the truth of matters of which Defendants lack

knowledge. Subject to and without waiving those objections, Defendants admit only that

the Maryland State Board of Elections compiles aggregated voter registration data that is

available to the public that includes voters’ political party affiliations.

2. Members of the GRAC considered Maryland voters’ voting histories when

drawing the boundaries of the Sixth Congressional District.





5



available to the public that includes voters’ voting histories.

3. The Governor considered Maryland voters’ political party affiliations when

approving the Proposed Congressional Plan, introducing the Proposed Congressional Plan

to the Maryland General Assembly, and/or signing the Proposed Congressional Plan into

law.






available to the public that includes voters’ political party affiliations.

4. The Governor considered Maryland voters’ voting histories when approving

the Proposed Congressional Plan, introducing the Proposed Congressional Plan to the

Maryland General Assembly, and/or signing the Proposed Congressional Plan into law.






available to the public that includes voters’ voting histories.


6

5. Members of the Maryland General Assembly considered Maryland voters’

political party affiliations when enacting the Proposed Congressional Plan.


grounds that the Request seeks information protected by legislative privilege and that the

Request assumes the truth of matters of which Defendants lack knowledge. Subject to and

without waiving those objections, Defendants admit only that the Maryland State Board of

Elections compiles aggregated voter registration data that is available to the public that

includes voters’ political party affiliations.

6. Members of the Maryland General Assembly considered Maryland voters’

voting histories when enacting the Proposed Congressional Plan.


grounds that the Request seeks information protected by legislative privilege and that the

Request assumes the truth of matters of which Defendants lack knowledge. Subject to and

without waiving those objections, Defendants admit only that the Maryland State Board of

Elections compiles aggregated voter registration data that is available to the public that

includes voters’ voting histories.

7. A motivation of members of the GRAC in drafting the Proposed

Congressional Plan was to make it more likely that a Democrat would be elected as


RESPONSE 7: In addition to their General Objections, Defendants object on

the grounds that the Request seeks information protected by legislative and executive



7


a Democrat has been elected as representative from the Sixth Congressional District in

2012, 2014, and 2016.

8. A motivation of the Governor in introducing the Proposed Congressional

Plan to the Maryland General Assembly and in signing it into law was to make it more

likely that a Democrat would be elected as representative from the Sixth Congressional

District.


the grounds that the Request seeks information protected by legislative and executive



a Democrat has been elected as representative from the Sixth Congressional District in

2012, 2014, and 2016.

9. A motivation of members of the Maryland General Assembly in enacting the

Proposed Congressional Plan was to make it more likely that a Democrat would be elected

as representative from the Sixth Congressional District.


the grounds that the Request seeks information protected by legislative privilege and that

the Request assumes the truth of matters of which Defendants lack knowledge. Subject to

and without waiving those objections, Defendants admit only that a Democrat has been

elected as representative from the Sixth Congressional District in 2012, 2014, and 2016.


8

10. In her presentation to the House and Senate Democratic Caucuses about the

proposed plan on October 3, 2011, GRAC Chair Jeanne Hitchcock stated that the GRAC’s

proposed map would make it more likely that a Democrat would be elected as the



the grounds that the Request seeks information protected by legislative privilege and that

the Request assumes the truth of matters of which Defendants lack knowledge. Subject to

and without waiving those objections, Defendants admit only that GRAC Chair Jeanne

Hitchcock briefed the House and Senate Democratic Caucuses about the proposed plan on

October 3, 2011.





EXHIBIT G


EXHIBIT H


1

Mayer Brown LLP1999 K Street, N.W.

Washington, D.C. 20006-1101

Main Tel +1 202 263 3000Main Fax +1 202 263 3300

www.mayerbrown.com

Stephen M. MedlockDirect Tel +1 202 263 3221

Direct Fax +1 202 263 [email protected]

VIA EMAIL ONLY

December 22, 2016

Jennifer Katz, Esq.Sarah Rice, Esq.Assistant Attorney General, Civil DivisionOffice of the Attorney General200 Saint Paul PlaceBaltimore, MD [email protected]@oag.state.md.us

Re: Benisek v. Lamone (D. Md.): December 20-21, 2017Discovery Conference

Ms. Katz and Ms. Rice:

Thank you for meeting and conferring with us on December 20 and 21 regardingPlaintiffs’ deposition subpoenas to former GRAC members, Plaintiffs’ first set of requests forproduction, Plaintiffs’ first set of interrogatories, and Plaintiffs’ first set of requests foradmission. I write to summarize and confirm the matters that were discussed.

GRAC Deposition Subpoenas: We understand that you have accepted service ofdeposition subpoenas on behalf of Jeanne Hitchcock, Senator Miller, Speaker Busch, andRichard Stewart. Your position with regard to these subpoenas is that the legislative privilegeshields members of the GRAC from testifying or responding to discovery requests concerningtheir official responsibilities. We disagree with your position. As the parties are at an impasse,we will take appropriate steps to enforce these subpoenas.

During our discussion of the GRAC subpoenas, you referenced an opinion regardinglegislative privilege in Mitchell v. Glendening, No. 1:02-cv-00602-WMN (D. Md.). Can youplease send us a copy of the opinion that you referenced by December 23, 2016?

Litigation Holds and Document Retention Policies: To this point, you have not beenable to locate a copy of any document preservation notice provided to relevant individuals orstate agencies regarding the 2011 Congressional Plan. You confirmed that no litigation hold wassent to Governor O’Malley or Governor O’Malley’s office at any time regarding the 2011redistricting. In addition, no litigation hold notice was issued with respect to this litigation.


2

You stated that, as part of the normal course of business, all state emails accounts,including those used by members of the GRAC, are subject to an “auto-delete provision” thatautomatically deletes all emails within 60 to 90 days of receipt unless the user takes some step tomanually archive them, such as saving particular emails or a .pst file to the desktop. Thus, emailsin the possession or custody of the Governor, the Governor’s office, state legislators, and stateagencies related to the 2011 Congressional Plan were deleted.

You stated that emails for different state agencies are stored on multiple email systemsand servers. You were not aware of the number of servers and email systems that may containelectronically stored information responsive to Plaintiffs’ RFPs. However, each of the state emailsystems all have “litigation hold” modes that will suspend the regular course deletion of emailsfor particular users. This litigation hold mode capability was not activated with respect to thiscase or with respect to emails concerning the 2011 Congressional Plan.

You explained that members of the GRAC typically did not retain hard copies of thedocuments that were distributed at GRAC meetings. These documents were collected at the endof the meetings. You believe that some of these documents, such as meeting agendas, have beendestroyed, while other documents, such as informational binders, are in the possession of theDepartment 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 areresponsive to Plaintiffs’ first set of requests for production.

Document Collection: You stated that the Office of Attorney General and State Board ofElections took the following steps to preserve and collect documents and electronically storedinformation that might be potentially responsive to Plaintiffs’ first set of request for production:

• State Board of Elections (SBE): You sent a survey to current SBE employeesinquiring whether they had potentially responsive documents. You provided a copyof the RFPs to SBE employees. SBE employees performed their own search forpotentially responsive documents and then provided those documents to you forfurther review.

• State Department of Planning (DOP): You stated that no custodians with relevantdocuments are still employed at the DOP. However, you were able to identify someresponsive documents from former DOP employees. You did not provide a copy ofthe RFPs to the DOP. DOP employees performed their own search for potentiallyresponsive documents and then provided those documents to you for further review.

• Department of Legislative Services (DLS): During the course of drafting the JointStipulations of Fact (Dkt. 104), you collected, reviewed, and produced documentsfrom DLS concerning the 2011 Congressional Plan. At that time, DLS employeesperformed their own search for documents that might be used in connection with theJoint Stipulation and then provided those documents to you for further review. Youdid not conduct any additional document searches from DLS in response toPlaintiffs’ first set of requests for production.


3

• The Maryland General Assembly: You requested responsive documents from theoffices of Senate President Thomas Miller and House Speaker Michael Busch onbehalf of the legislature. You stated that, in this instance, Speaker Busch and SenatorMiller refused to provide any documents responsive to Plaintiffs’ first set of requestsfor production.

• Governor O’Malley’s Office: Former Governor O’Malley’s documents from thistime period are currently housed at the State Archives. You determined that thedocuments were not accessible because the Archive had not designated a“redistricting” index topic and it was unduly burdensome to search through the un-indexed hardcopy documents for responsive material. In addition, you stated that thedocuments at the Archive are equally accessible to the Plaintiffs and therefore youclaim that you are not obligated to produce documents them. We disagree with yourdetermination regarding undue burden. Reviewing paper documents for responsiveinformation is not burdensome—it is what generations of litigators did prior to theadvent of electronic discovery.

Members of the GRAC: You requested that the members of the GRAC produceany responsive documents in their possession. The GRAC members were asked tosearch their personal email accounts and state email accounts, to the extent they stillhad access to the state accounts. You did not provide a copy of Plaintiffs’ first set ofrequests for production to Ms. Hitchcock, Mr. Stewart, or Mr. King. You also didnot supervise Ms. Hitchcock, Mr. Stewart, or Mr. King when they were searching forpotentially responsive documents. Therefore, you do not know which specific emailaccounts the GRAC members searched, the search methodologies that they used, orwhether they used any search terms to attempt to locate potentially responsivedocuments.

With respect to Mr. Stewart, You received, reviewed, and produced 8 email chainsthat Mr. Stewart identified from his private America Online email account. Initially,these emails were produced without attachments. After our discovery conference,you produced some documents that appear to be attachments to some of the 8 emailchains that you previously produced. We are reviewing these documents and willrevert to you with any additional issues raised by the documents produced from Mr.Stewart’s America Online email account.

Ms. Hitchcock did not retain documents regarding the 2011 Congressional Plan.Although she sent and received emails concerning the 2011 Congressional Plan, Ms.Hitchcock has since deleted those emails.

Mr. King did not retain documents regarding the 2011 Congressional Plan. Althoughhe sent and received emails concerning the 2011 Congressional Plan, he has sincedeleted those emails.

Responses to Requests for Production: In response to your objections, we agreed tolimit certain RFPs to particular individuals, agencies, or time frames in order to minimize theburden. We will provide you with these clarifications on or before December 27.


4

Responses to First Set of Requests for Admission: We agreed that for all responseswhere you indicated that you “lack knowledge,” you will supplement the response by January13, 2017 to indicate the steps that you took to make a reasonable inquiry into whetherinformation exists that would enable you to fully answer the request for admission. You alsoconfirmed that Defendants’ basis of knowledge in responding to the Requests for Admission waslimited to the documents obtained from the SBE, DLS, DOP, and GRAC members Mr. Stewart,Ms. Hitchcock, and Mr. King.

Responses to First Set of Interrogatories: You claim that interrogatories 2, 3, 4, 5, 8, 9,and 10 are premature contention interrogatories. The parties agreed that you will supplementyour responses to these interrogatories by January 13, 2017 to include responses to theseinterrogatories. Of course, you will be under a further duty to supplement these interrogatoryresponses as required by Fed. R. Civ. P. 26(e)(1). In addition, interrogatory responses 8, 9, and10 appear to identify responsive documents pursuant to Fed. R. Civ. P. 33(d), but do not do sowith the specificity required by Rule 33(d) or Fourth Circuit case law. The parties agreed thatyou will provide additional, sufficient detail concerning the documents or electronically storedinformation that you are identifying pursuant to Fed. R. Civ. P. 33(d) in response to theseinterrogatories. Please do so by no later than January 13, 2017.

Custody and Control of Documents: We stated our position that Defendants custodyand control over all state documents as a result of (1) the OAG’s broad assertion of attorney-client privilege over state employees and officials in this matter and (2) Defendants’ establishedpattern of practical ability to retrieve documents from the GRAC, DOP, and DLS. You disagreedwith our view of the control issue. We agreed that we are at an impasse on this issue and mayseek appropriate relief from the court regarding this matter.

Regards,

/s/ Stephen M. Medlock

Stephen M. Medlock


EXHIBIT I


BRIAN E. F ROSII Auomey General

STATE OF MARYLAND

E U ZAUETII H ARRIS

ChiefDepuf.l' Auomey General

DoNNA H 11 .1. S TATON

Deputy A llomey General

C.\ RO J.Y:--1 QUSI'TROCKI Deplll.l' .·IUomey General

F ACSI\IILE No. OFFICE OF THE ATTORNEY GENERAL WRnt·R·~ Duucr Dt\L 1 o .

(41 0) 576-6955

Stephen M. Medlock Mayer Brown LLP 1999 K Street, N.W. Washington, DC 20006

Re: Benisek v. McManus

Dear Mr. Medlock,

December 22, 2016

(4 10} 576-7847 E-M ail Address: [email protected]

I write in fo llow-up to an issue that came up on our calls of December 20, 20 16 and December 21, 2016. First, it remains our position that, when documents are not in the custody of a party but are equally publicly accessible to either party, it is unduly burdensome to request those documents tlu·ough discovery. We were unable to locate the authority to the contrary that you referenced on our December 20, 20 16 phone call. Please provide any such auth01ity, if you intend to rely on it.

However, for clarification, we are providing the following information about the burden of searching the Governor O'Malley papers that Governor O'Malley gifted to the State Archives upon his departure from office. As the archivist informed you in response to your public information act request, the accessioning process of the State Archives has not been completed with respect to the former Governor O'Malley papers, which were gifted to the Archives at the end of the administration. This means that the files have not been sotted into public and non-public files to which access restrictions would attach. I have attached to this letter the preliminary catalogue of boxes created by the State Archives. 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

200 Sa int Pau l Place •!• Baltimore. Maryland 21202-202 1 Main Offi ce (4 1 0) 576-6300 •!• Main OITicc Toll Free (888) 743-0023

Consumer Complaints and Inquiries (4 1 0) 528-8662 •!• Health Advocacy Unit/ Bill ing Complain ts (4 1 0) 528-1840 Health Advocacy Unit Toll Free (877) 26 1-8807 •!• l lomebuilders Division Toll Free (877) 259-4525 •!• Telephone for Deaf (41 0) 576-6372

@ www.marylandattorncygcncral.gov


Stephen M. Medlock December 22,2016 Page2

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. As communicated by the Archives, a requester must:

I. Use the box-level inventory to identify the MSA citation for the record(s) that you wish to access. Please be as specific as possible.

2. It would be quite helpful for you to include as much descriptive information as you can in your request. For example, the MSA citation, description, date, and any other identifying information.

3. Maryland State Archives staff, with assistance from the Office of the Attorney General and the Governor's representatives, will appraise the records and remove or redact any material legally exempt from public access. Archives staff will replace removed records with a placeholder, showing that records have been removed.

4. The Archives will make available records that are responsive and are not otherwise excluded by restriction.

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.

This is not a case where the State Board of Elections already has possession of this information but instead of producing it is requiring plaintiffs to find the same information in the public domain. By contrast, here the information is under the custody and control of a third party, to which the State Board of Elections stands in the same shoes as a nonstate requester. Any search of this material would be burdensome and, because the burden is equal to both parties, it is unduly so. Moreover, any insistence that the State Board of Elections undertake such a search in response to discovery served on it is akin to expecting that the State Board of Elections would also undertake a special search of the collections of libraries for potentially responsive information. Such search is not expected or warranted in response to discovery, and any requests phrased or aimed to require such a search would be outside the scope of Fed. Rule Civ. Pro 26(b)(l).


Stephen M. Medlock December 22, 2016 Page 3

Of comse, if the State Board of Elections attained custody of any responsive documents, regardless of source, discovery responses would be supplemented at that time.

Cc: Michael B. Kimberly Paul W. Hughes

Attachment

Assistant Attorney General


Dates Description Accession

Number

01/10/2007-

1/20/2015

GovPics: 3,878 Events, 418,313 Images, 1,953 GB Size MDSA T3908-0

01/2007-

11/2007

Box 1 Governor's Legislative Office-Bills Passed SJR to SB 296 MDSA T4132-1

01/2007-

11/2007

Box 2 Governor's Legislative Office-Bills Passed SB 302-SB 699 MDSA T4132-2

01/2007-

11/2007

Box 3 Governor's Legislative Office-Bills Passed SB 700-SB 1036 MDSA T4132-3

01/2007-

11/2007

Box 4 Governor's Legislative Office-Bills Passed HJ 4-HB 394 MDSA T4132-4

01/2007-

11/2007

Box 5 Governor's Legislative Office-Bills Passed HB 397- HB 762 MDSA T4132-5

01/2007-

11/2007


01/2007-

11/2007


01/2007-

11/2007

Box 8 Governor's Legislative Office-Bills Passed HB 1326-HB 1442 MDSA T4132-8

01/2007-

11/2007

Box 9 Governor's Legislative Office-Dept. Bills Did Not Pass LR 3-LR

77

MDSA T4132-9

01/2007-

11/2007

Box 10 Governor's Legislative Office-Dept. Bills Did Not Pass LR 71-

LR 120

MDSA T4132-10

01/2007-

11/2007

Box 11 Governor's Legislative Office-Dept. Bills Did Not Pass LR 121-

LR 185

MDSA T4132-11

01/2007-

11/2007

Box 12 Governor's Legislative Office-Dept. Bills Did Not Pass,

Session Letters

MDSA T4132-12

01/2007-

11/2007

Box 1 Governor's Office Executive Services: Governor's

correspondence: LID 420xxx

MDSA T4132-13

01/2007-

11/2007


correspondence: LIDS 428XXX; 428636-428999

MDSA T4132-14

01/2007-

11/2007

Box 3 Governor's Office Executive Services: letters, faxes, emails:

414

MDSA T4132-15

06/2007-

07/2007

Box 4 Governor's Office Executive Services: citations MDSA T4132-16

03/2007-

04/2007

Box 5 Governor's Office Executive Services: scheduling MDSA T4132-17

01/2007-

11/2007

Box 6 Governor's Office Executive Services: 422xxx LIDS MDSA T4132-18

01/2007-

11/2007

Box 7 Governor's Office Executive Services: 423xxx MDSA T4132-19

01/2007-

11/2007


01/2007-

11/2007


Governor Press Office (Photorgaphs, Electronic) T3908

Governor (General File) T4132

Governor O'Malley's Records at the Archives as of

8/3/2015


01/2007-

11/2007


01/2007-

11/2007


01/2007-

11/2007

Box 12 Governor's Office Executive Services: 417000-417005 MDSA T4132-24

02/2007 Box 13 Governor's Office Executive Services: Adult Education 412 MDSA T4132-25

02/2004-

10/2004

Box 14 Governor's Office: BPW minutes MDSA T4132-26

02/2007-

03/2007


01/2007-

11/2007

Box 16 Governor's Office Executive Services: transition work MDSA T4132-28

01/2007-

11/2007

Box 17 Governor's Office Executive Services: general mail: 425xxx MDSA T4132-29

02/2007 Box 18 Governor's Office Executive Services: general mail MDSA T4132-30

01/2007-

03/2007

Box 19 Governor's Office Executive Services: hot & general mail MDSA T4132-31

01/2007-

11/2007


correspondence

MDSA T4132-32

01/2007-

11/2007


correspondence

MDSA T4132-33

01/2007-

11/2007

Box 22 Governor's Office Executive Services: 428: 428000-428635 MDSA T4132-34

01/2007-

11/2007

Box 23 Governor's Office Executive Services: copy mail 41000-

420163

MDSA T4132-35

01/2007-

11/2007

Box 24 Governor's Office: transition work MDSA T4132-36

01/2007-

11/2007

Box 25 Governor's Office Executive Services: 417: 417707-417935 MDSA T4132-37

01/2007-

11/2007

Box 26 Governor's Office Executive Services: copy mail 426978-

429059

MDSA T4132-38

01/2007-

11/2007


01/2007-

11/2007


01/2007-

11/2007


01/2007-

11/2007


01/2007-

11/2007

Box 31 Governor's Office Executive Services: general mail: 413700-

413999

MDSA T4132-43

01/2007-

11/2007


01/2007-

11/2007


01/2007-

11/2007


correspondence

MDSA T4132-46

01/2007-

11/2007



01/2007-

11/2007

Box 36 Governor's Office Executive Services: general mail: 424xxx MDSA T4132-48

01/2007-

11/2007


09/2007-

10/2007

Box 38 Governor's Office: Briefing Books

NOTE: box returned to Governor's Office 5458-51-3811

MDSA T4132-50

07/2007-

08/2007

Box 39 Governor's Office: Briefing Books


MDSA T4132-51

01/2007-

03/2007

Box 41 Governor's Office Executive Services: hotmail MDSA T4132-53

01/2007-

03/2007


08/2007-

09/2007


08/2007-

10/2007


correspondence

MDSA T4132-56

01/2007-

11/2007

Box 45 Governor's Office Executive Services: 429xxx: 429000-

429499

MDSA T4132-57

04/01/2007-

04/2007


01/2007-

11/2007

Box 48 Governor's Office Executive Services: 424xxx: 429500-

429999

MDSA T4132-60

01/2007-

11/2007

Box 49 Governor's Office Executive Services: copy mail MDSA T4132-61

07/2007-

08/2007


correspondence

MDSA T4132-63

01/2007-

11/2007


correspondence

MDSA T4132-64

02/28/2007-

03/29/2007

Box 53 Governor's Office Executive Services: Governor's Briefing

Books


MDSA T4132-65

01/2007-

11/2007


correspondence

MDSA T4132-66

02/2007 Box 55 Governor's Office Executive Services: 412000-412499 MDSA T4132-67

07/2007-

08/2007


01/2007-

11/2007


02/2007 Box 58 Governor's Office Executive Services: 414xxx MDSA T4132-70

01/2007-

11/2007


correspondence

MDSA T4132-71

01/2007-

11/2007

Box 60 Governor's Office Executive Services: copy mail MDSA T4132-72

01/2007-

11/2007


01/2007-

11/2007



01/2007-

11/2007


01/2007 Box 64 Governor's Office Executive Services: transition work MDSA T4132-76

2007 Box 1 Maryland Hazard Anaysis; A Commitment to Maryland's

Veterans; FY 2007-2012 MD Consolidated Transportation Program;

Education in the South: A Passport to Opportunity; Transition

Briefing

MDSA T4132-77

2006-2007 Box 2 Road Trip to Maryland's Future; Hurricane Preparedness for

Senior Leaders; Office of Secretary of State memo book from Brian

Moe; Rating Agency Visit; Chesapeake Executive Council Meeting;

Capital Improvements Authorized by General Assembly 1998;

Special Session binder

MDSA T4132-78

2007 Box 3 Judicial Nomination Commission briefings; Budget Briefing

book FY08; Agency briefing book prepared by BWH; Budget &

Legislative briefing book 2007


MDSA T4132-79

2007 Box 4 Innovation America; FY 2008 Public School Construction

Capital Improvement Plan; Screwed; Trimmers Almanac;

Downsizing Prisons; Forgotten Homeland; Islamic Imperialism

MDSA T4132-80

07/2008-

08/2008

Box 1 Governor's Incoming Correspondence - GEN 431 MDSA T4132-81

07/2008-

08/2008


02/2008 Box 3 Governor's Incoming Correspondence - Global Warming

Petition Cards

MDSA T4132-83

06/2007-

10/2007

Box 4 Governor's Incoming Correspondence - HOT 428-440 MDSA T4132-84

2007 Box 5 Miscellaneous Governor's Incoming Correspondence MDSA T4132-85

07/2007 Box 6 Governor's Incoming Correspondence - CCM 429-431 MDSA T4132-86

07/2008-

08/2008

Box 7 Governor's Incoming Correspondence - "N.U.T." Letters (no

unnecessary taxes)

MDSA T4132-87

07/2008-

08/2008


01/2008-

02/2008

Box 9 Governor's Incoming Correspondence - GEN 449 & 450 MDSA T4132-89

09/2007 Box 10 Governor's Incoming Correspondence - GEN 433600-433999 MDSA T4132-90


08/2007 Box 12 Miscellaneous Governor's Incoming Correspondence MDSA T4132-92

01/2008 Box 13 Governor's Incoming Correspondence - GEN & CCM 447-448 MDSA T4132-93

01/2008 Box 14 Governor's Incoming Correspondence - GEN & CCM 451-452 MDSA T4132-94

03/2007-

08/2007

Box 15 Governor's Incoming Correspondence - CCM MDSA T4132-95



10/2007-

11/2007

Box 17 Governor's Incoming Correspondence - GEN & CCM 441000-

442499

MDSA T4132-97

11/2007 Box 18 Governor's Incoming Correspondence - GEN & CCM 442500-

442999

MDSA T4132-98

09/2007 Box 19 Governor's Incoming Correspondence - GEN & CCM 434600-

434999

MDSA T4132-99

08/2008 Box 20 Governor's Incoming Correspondence - GEN & CCM 432 MDSA T4132-





10411/2007-

12/2007

Box 25 Governor's Incoming Correspondence - GEN & CCM 440 MDSA T4132-

10501/2008-

02/2008

Box 26 Miscellaneous Governor's Incoming Correspondence MDSA T4132-

10612/2007-

01/2008

Box 27 Governor's Incoming Correspondence - GEN & CCM 446 MDSA T4132-

10710/2007-

11/2007

Box 28 Governor's Incoming Correspondence - GEN & CCM 438-439 MDSA T4132-


10903/17/2008-

03/24/2008

Box 1 Governor's General Constituent Letters MDSA T4132-

11003/25/2008-

04/08/2008


11104/09/2008-

04/24/2008


11204/25/2008-

05/08/2008


11305/09/2008-

05/21/2008


11405/21/2008-

05/29/2008


11505/29/2008-

06/19/2008


11606/19/2008-

07/07/2008


11707/08/2008-

07/28/2008


11807/29/2008-

08/15/2008


11908/18/2008-

09/10/2008


12009/11/2008-

09/25/2008


121


09/26/2008-

10/09/2008


12210/10/2008-

10/31/2008


12311/01/2008-

11/14/2008


12403/2008-

06/2008

Box 16 Governor's Hot Mail MDSA T4132-

12503/2008-

06/2008


12607/2008-

11/2008


12707/2008-

11/2008


12807/2008-

11/2008


12905/2008-

10/2008


13005/2008-

10/2008


1312007 Box 23 Governor's Constituent Proclamations MDSA T4132-



1342007 Box 26 Governor's Scheduling/Proclamations MDSA T4132-

1352008 Box 1 SB 1-SB 211 MDSA T4132-

1362008 Box 2 SB 213-SB 623 MDSA T4132-

1372008 Box 3 SB 646-SB 1013 MDSA T4132-

1382008 Box 4 HB 5-HB 269 MDSA T4132-

1392008 Box 5 HB 271-HB 409 MDSA T4132-

1402008 Box 6 HB415- HB 706 MDSA T4132-

1412008 Box 7 HB 707-HB 957 MDSA T4132-

1422008 Box 8 HB 963-HB 1296 MDSA T4132-

1432008 Box 9 HB 1301-HB 1537 MDSA T4132-

1442008 Box 10 HB 1550-HB 1627 MDSA T4132-

1452008 Box 11 Department Bills 1-127 MDSA T4132-

1462008 Box 12 Department Bills 169-226 MDSA T4132-

147


01/2008-

03/2008

Box 27 Governor’s Office, Scheduling/PR MDSA T4132-

14801/2008-

05/2008

Box 1 Legislative Office Vetoed Bills MDSA T4132-

1492005-2006 Box 2 Legislative Office Executive Orders MDSA T4132-

150Box 6 Legislative Office Rejected Bills LR002-LR0054 MDSA T4132-

153Box 7 Legislative Office Rejected Bills LR-156-LR-254 MDSA T4132-

1542007 Box 8 Legislative Office Vetoed Bills MDSA T4132-

1552007 Box 9 Legislative Office ABR Reports MDSA T4132-

1562007 Box 10 Legislative Office Special Session MDSA T4132-

1572007 Box 11 Legislative Office Vetoed Bills MDSA T4132-

15803/2008-

04/2008

Box 1 Briefing Book Materials


MDSA T4132-

159

04/2008-

05/2008



MDSA T4132-

160

06/2008-

07/2008



MDSA T4132-

161

07/2008-

09/2008



MDSA T4132-

162

09/2008-

10/2008



MDSA T4132-

163

11/2008 Box 6 Briefing Book Materials


MDSA T4132-

164

2007-2008 Box 7 Policy Notebooks MDSA T4132-

1652007-2008 Box 8 Policy Notebooks Reports MDSA T4132-

1662007-2008 Box 9 Policy Briefing Notebooks/Reports: Vocation Policy Reading


MDSA T4132-

167

01/2008-

02/2008

Box 10 Governor's Briefing Books contents pt. 1


MDSA T4132-

168

01/2008-

02/2008

Box 11 Governor's Briefing Books contents pt. 2


MDSA T4132-

169


04/2007-

06/2007

Box 12 Governor's Briefing Books


MDSA T4132-

170

05/2007-

06/2007



MDSA T4132-

171

11/2007-

12/2007



MDSA T4132-

172

01/2007-

02/2007

Box 1 Invitations MDSA T4132-

17304/2008 Box 2 Invitations MDSA T4132-


17503/2008-

08/2008



17701/2007-

05/2007

Box 6 Scheduling MDSA T4132-

17805/2007-

12/2007

Box 7 Scheduling MDSA T4132-

1792008 Box 8 Hotmail 440-446 MDSA T4132-

1802008 Box 9 GEN & CCM: 453-454 MDSA T4132-

1812008 Box 10 Hotmail MDSA T4132-

1822008 Box 11 MDSA T4132-

1832008 Box 12 GEN & CCM 455-456 MDSA T4132-

18401/2009-

03/2009

Box 1 Scheduling/PR: Citations, Proclamations MDSA T4132-

18509/2008-

12/2008


18606/2008-

08/2008


18705/2008 Box 4 Scheduling/PR: Citations, Proclamations MDSA T4132-

18804/2008 Box 5 Scheduling/PR: Citations, Proclamations MDSA T4132-

1892008 Box 1 Governor's Correspondence - HOT MDSA T4132-

19007/2008-

10/2008

Box 2 Governor's Correspondence - Hotmail MDSA T4132-

19104/2008-

08/2008

Box 3 Governor's Correspondence MDSA T4132-

19212/2008 Box 4 Current GEN Correspondence MDSA T4132-

193


2008 Box 5 Governor's Correspondence - LSARS - HOT MDSA T4132-

19401/2008-

03/2008

Box 6 Hot Mail MDSA T4132-

19512/2008 Box 7 Current General MDSA T4132-

19612/2008 Box 8 Governor's Correspondence - General Constituent

Correspondence

MDSA T4132-

19712/2008 Box 9 Governor's Correspondence - General Constituent Mail MDSA T4132-

1982008 Box 1 Miscellaneous Policy Notebooks and information from Front

Office

MDSA T4132-

1992008 Box 2 Miscellaneous reports, documents and files from Front Office MDSA T4132-

2002008-2009 Box 3 Miscellaneous Reports, notebooks and files front Front Office MDSA T4132-

20111/2001-

11/30/2009


20210/2001-

10/30/2009


20311/2001-

11/30/2009


20409/2001-

09/30/2009


20503/2009-

04/2009


2062009 Box 1 SJR 2-SB 162 MDSA T4132-

2072009 Box 2 SB 163-SB 425 MDSA T4132-

2082009 Box 3 SB 433-SB 690 MDSA T4132-

2092009 Box 4 SB 698-SB 1072 MDSA T4132-

2102009 Box 5 HB 7-HB 184 MDSA T4132-

2112009 Box 6 HB 193-HB 493 MDSA T4132-

2122009 Box 7 HB 500-HB 788 MDSA T4132-

2132009 Box 8 HB 782-HB 1385 MDSA T4132-

2142009 Box 9 HB 1395-HB 1479 MDSA T4132-

2152009 Box 10 HB 1480-HB 1573 MDSA T4132-

2162009 Box 11 Legislative Dept. Proposals LR 3-LR 10 MDSA T4132-

2172009 Box 12 Legislative Dept. Proposals LR 174-LR 201 MDSA T4132-

2182009 Box 13 ABR Reports MDSA T4132-

219


2009 Box 14 Withdrawn Proposals MDSA T4132-

2202009 Box 15 Withdrawn Proposals MDSA T4132-

2212009 Box 16 Departmental Proposals MDSA T4132-

2222009 Box 17 Departmental Proposals MDSA T4132-

22307/01/2009-

08/31/2009

Box 1 Governor's Office Daily Briefing Materials MDSA T4132-

22408/15/2009-

10/19/2009

Box 2 Governor's Office Daily Briefing Materials MDSA T4132-

22501/01/2009-

01/20/2009

Box 1 Governor's General Correspondence MDSA T4132-

22601/21/2009-

02/09/2009


22702/10/2009-

02/26/2009


22802/27/2009-

03/16/2009


22903/17/2009-

04/08/2009


23004/09/2009-

05/11/2009


23105/12/2009-

06/09/2009


23206/10/2009-

07/08/2009


23307/09/2009-

08/04/2009


23408/04/2009-

08/27/2009


23501/2009-

02/2009

Box 11 Governor's Correspondence-Hot Mail MDSA T4132-

23601/2009-

03/2009


23703/2009-

04/2009


23804/2009-

05/2009


23905/2009-

06/2009


24006/2009-

07/2009


24108/2009-

09/2009


24205/2009-

09/2009

Box 18 Governor's Correspondence-General & Copy Mail MDSA T4132-

24301/2010-

04/2010

Box 1 Hot Mail Correspondence Session 2010 Brooks MDSA T4132-

24401/2010-

04/2010


245


01/2010-

04/2010


24601/2010-

04/2010


24701/2010-

04/2010


24801/2010-

04/2010


24901/2010-

04/2010


25005/26/2010-

07/15/2010

Box 1 Hot Mail Correspondence MDSA T4132-

25207/07/2010-

08/11/2010

Box 2 Hot Mail Correspondence MDSA T4132-

25308/28/2009-

09/29/2009

Box 1 General Constituents Correspondence MDSA T4132-

25410/28/2009-

11/24/2009


25511/30/2009-

01/04/2010


25601/05/2010-

01/22/2010


25701/25/2010-

02/15/2010


25802/16/2010-

03/12/2010


25903/16/2010-

04/26/2010


26004/27/2010-

06/11/2010


26106/14/2010-

07/19/2010


26207/20/2010-

08/24/2010


26309/29/2010-

10/29/2010


2642010 Box 1 General Constituents Correspondence No Response MDSA T4132-




26805/2008-

01/2009

Box 1 General Mail MDSA T4132-

26905/2008-

01/2009


27008/2009-

09/2009

Box 3 Invitations and Meeting Requests MDSA T4132-

27101/2010-

05/2010

Box 4 Governors Correspondence-general MDSA T4132-

272


06/2010-

11/2010

Box 5 Copy Mail MDSA T4132-

27308/25/2010-

10/18/2010


27409/20/2010-

11/20/2010


27510/19/2010-

11/03/2010

Box 8 H-8 General MDSA T4132-

27611/04/2010-

12/16/2010


27711/2020-

01/10/2011


27812/17/2010-

01/23/2011


27901/01/2011-

01/31/2011


28001/2011-

03/2011


28101/24/2011-

02/20/2011


28201/2011-

03/2011

Box 15 Copy Mail MDSA T4132-

28302/01/2011-

02/28/2011


28402/01/2011-

03/01/2011


28502/21/2011-

03/15/2011


28605/2011-

05/2011


28705/2011 Box 20 Hot Mail MDSA T4132-

28805/2011-

08/2011


28906/2011 Box 22 Hot Mail MDSA T4132-

2902007-2009 Box 1 Scheduling 2007-2009- Box 1 (of 1) MDSA T4132-

2912009 Box 2 Scheduling 2009- Box 1 (of 1) MDSA T4132-






2972010-2012 Box 8 Hotmail 2010-2012 MDSA T4132-

298


2011 Box 9 Hotmail 2011- Box 1 (of 5) MDSA T4132-







30503/16/2011-

03/31/2011

Box 16 General Mail Box 1 (of 22) MDSA T4132-

30604/01/2011-

04/2031


30705/03/2011-

05/25/2011


30805/26/2011-

06/27/2011


30906/28/2011-

07/15/2011


31007/19/2011-

08/15/2011


31108/16/2011-

09/12/2011


31209/13/2011-

10/04/2011


31310/05/2011-

10/26/2011


31410/27/2011-

11/14/2011


31511/15/2011-

12/05/2011


31612/06/2011-

12/22/2011


31712/27/2011-

01/12/2012


31801/13/2012-

01/26/2012


31901/27/2012-

02/09/2012


32002/10/2012-

02/23/2012


32102/24/2012-

03/02/2012


32203/05/2012-

03/12/2012


32303/13/2012-

03/23/2012


324


03/26/2012-

04/05/2012


32504/06/2012-

04/19/2012


32604/20/2012-

05/02/2012


3272001-

04/2012

Box 38 Form Letters- Box 1 (of 3) MDSA T4132-

3282001-

04/2012


3292001-

04/2012


33008/11/2012-

08/09/2012


33107/10/2012-

07/31/2012


33206/12/2012-

07/09/2012


33305/23/2012-

06/11/2012


33410/24/2012-

11/16/2012


33510/10/2012-

10/23/2012


33609/19/2012-

10/09/2012


33708/30/2012-

09/18/2012


33808/10/2012-

08/29/2012


33902/11/2013-

02/27/2013


34001/24/2013-

02/10/2013


34101/24/2013-

02/10/2013


34201/04/2013-

01/22/2013


34312/11/2012-

01/03/2013


34411/06/2013-

12/10/2012


34511/29/2012-

01/03/2013


34610/02/2012-

11/28/2012


34708/01/2012-

09/20/2012


34805/30/2012-

07/31/2012


3492009-2012 Box 20 Hot Mail MDSA T4132-

350


12/2012-

02/2013


35103/01/2012-

03/19/2013


35211/2013-

02/2013

Box 23 Miscellaneous MDSA T4132-

35311/2011-

11/2012


35408/03/2011-

11/20/2012


35505/29/2013-

06/11/2013


35605/09/2013-

05/30/2013


35704/29/2013-

05/31/2013


35804/16/2013-

04/29/2013


35909/23/2013-

10/11/2013


36009/03/2013-

09/10/2013


36107/29/2013-

08/15/2013


36206/26/2013-

07/11/2013


36303/11/2013-

04/02/2013


36404/03/2013-

04/15/2013


36509/11/2013-

09/19/2013


36608/15/2013-

09/2031


36707/11/2013-

07/26/2013


36806/11/2013-

06/25/2013


36901/2013-

05/2013


3702012-2013 Box 41 Hot Mail MDSA T4132-

3712013 Box 42 Hot Mail MDSA T4132-

3722013 Box 43 Hot Mail MDSA T4132-

3732013 Box 44 Miscellaneous MDSA T4132-

3742013 Box 45 Form Letters MDSA T4132-


376



37710/02/2013-

10/08/2013

General Mail MSA T4132-378

10/09/2013-

10/22/2013


10/23/2013-

10/23/2013


10/31/2013-

11/04/2013


11/08/2013-

11/18/2013


11/19/2013-

11/25/2013


11/26/2013-

12/03/2013


12/06/2013-

12/13/2013


12/16/2013-

12/26/2013


12/27/2013-

01/06/2014


01/07/2014-

01/15/2014


01/16/2014-

01/30/2014


01/31/2014-

02/10/2014


02/11/2014-

02/19/2014


02/20/2014-

03/04/2014


03/04/2014-

03/10/2014


03/11/2014-

03/19/2014


03/20/2014-

03/27/2014


03/28/2014-

04/07/2014


04/08/2014-

04/16/2014


04/17/2014-

04/24/2014


04/25/2014-

05/07/2014


05/08/2014-

05/21/2014


05/27/2014-

06/18/2014


06/19/2014-

06/27/2014



06/30/2014-

07/14/2014


07/15/2014-

07/23/2014


07/24/2014-

08/01/2014


08/03/2014-

08/13/2014


08/14/2014-

08/27/2014


08/28/2014-

09/09/2014


09/09/2014-

09/18/2014


09/19/2014-

10/03/2014


10/06/2014-

10/17/2014


10/18/2014-

10/31/2014


2014 Form Letters MSA T4132-413











2014 Miscellaneous MSA T4132-424

11/03/2014-

11/19/2014


11/19/2014-

12/04/2014


12/05/2014-

12/18/2014


12/19/2014-

01/05/2015



01/06/2015-

01/13/2015


09/2014-

12/2014

Lt. Governor Scheduling MSA T4132-430

2014 Hotmail MSA T4132-431

05/22/2014-

05/30/2014


Governor’s Briefing Book Materials: Read Files MSA T4957-1












Governor’s Briefing Book Materials: Executive Briefing Memos and

“State Stat” Memos

MSA T4957-13



MSA T4957-14



MSA T4957-15



MSA T4957-16



MSA T4957-17



MSA T4957-18

Governor’s Briefing Book Materials: Briefing Memos to Governor for

Events

MSA T4957-19


Events

MSA T4957-20


Events

MSA T4957-21


Events

MSA T4957-22


Events

MSA T4957-23


Events

MSA T4957-24


Events

MSA T4957-25


Events

MSA T4957-26


Events

MSA T4957-27

Governor (Briefing Book Files) T4957



Events

MSA T4957-28


Events

MSA T4957-29


Events

MSA T4957-30


Events

MSA T4957-31


Events

MSA T4957-32


Events

MSA T4957-33

Governor’s Briefing Book Materials: Daily Crime Reports and

Federal Priority Briefings

MSA T4957-34



MSA T4957-35



MSA T4957-36

Governor’s Briefing Book Materials: Official Reports and Publicly

Available Materials

MSA T4957-37


Available Materials

MSA T4957-38


Available Materials

MSA T4957-39


Available Materials

MSA T4957-40


Available Materials

MSA T4957-41

Read Files MSA T4957-42

Briefing Memos for Meetings MSA T4957-43

Email messages sent from the public to the Governor's constituent

services staff via a public web site.

MSA TE3-2

2010 Box 1 LR0004 - 0145 Dept. Legislation MDSA T4875-1

2010 Box 4 LR0147 - 148 MDSA T4875-2

2011 Box 1 2011 Dept. Bills MDSA T4875-3

2001-

04/2012

Box 11 Departmental Legislation MDSA T4875-4

9/2012 -

5/2013

2013 Departmental Proposals - LR 2 to LR 82 MDSA T4875-5

9/2012 -

5/2013


9/2013-

5/2014


9/2013-

5/2014


2010 Box 3 Duplicate Vetoes MDSA T4877-1

2011 Box 2 Duplicate Vetoes MDSA T4877-2

2001-

04/2012

Box 10 Duplicate Vetos MDSA T4877-3

Governor Legislative Office (Duplicate Vetoes) T4877

Governor Legislative Office (Department Legislation) T4875

Governor (Correspondence, Electronic) TE3


2001-

04/2013

Box 12 Duplicate Vetos MDSA T4877-4

4/2014-

5/2014

Signed Bills - Senate Dublicate Vetoes MDSA T4877-5

4/2014-

5/2014

Signed Bills - House Duplicate Vetoes MDSA T4877-6

01/17/2007-

04/19/2007

Box 1 Senate Resolution 1-SB 119 MDSA T857-236

01/17/2007-

04/19/2007

Box 2 SB 120-SB 366 MDSA T857-237

01/17/2007-

04/19/2007

Box 3 SB 369-SB 998 MDSA T857-238

01/17/2007-

04/19/2007

Box 4 SB 1036-SB 1107, HB1107, HB 2-HB 358 MDSA T857-239

01/17/2007-

04/19/2007

Box 5 HB 367-HB 724 MDSA T857-240

01/17/2007-

04/19/2007

Box 6 HB 725-HB 1211 MDSA T857-241

01/17/2007-

04/19/2007

Box 7 HB 1215-HB 1737, Senate Resolution 8, House Joint

Resolution 1, 3, 7

MDSA T857-242

01/17/2007-

04/19/2007

Box 8 Signed Bills 2006, Special Session, HB 2, SB 1 MDSA T857-243

2010 Box 1 SJR0004 - SB0095 MDSA T857-250

2010 Box 2 SB96 - SB256 MDSA T857-251

2010 Box 3 SB261 - SB529 MDSA T857-252

2010 Box 4 SB531 - SB966 MDSA T857-253

2010 Box 5 HJR3 - HB128 MDSA T857-254

2010 Box 6 HB133 - HB417 MDSA T857-255

2010 Box 7 HB420 - HB717 MDSA T857-256

2010 Box 8 HB730 - HB1034 MDSA T857-257

2010 Box 9 SB978 - SB1128; HB1042 - HB1335 MDSA T857-258

2010 Box 10 HB1345-HB1568 MDSA T857-259

2001-

04/2011

Box 1 SB0001-SB0248 MDSA T857-260

2001-

04/2011

Box 2 SB0253-SB0516 MDSA T857-261

2001-

04/2011

Box 3 SB0529-SB0847 MDSA T857-262

2001-

04/2011

Box 4 SB0850-SB0997 MDSA T857-263

Governor Legislative Office (Legislation File) T857


2001-

04/2011

Box 6 HB0007-HB0208 MDSA T857-264

2001-

04/2011

Box 7 HB0210-HB0407 MDSA T857-265

2001-

04/2011

Box 8 HB0408-HB0817 MDSA T857-266

2001-

04/2011

Box 9 HB0823-HB1196 MDSA T857-267

2001-

04/2012

Box 1 SB 1 - SB 148 MDSA T857-268

2001-

04/2012

Box 2 SB 150 - SB 337 MDSA T857-269

2001-

04/2012

Box 3 SB 343 - SB 689 MDSA T857-270

2001-

04/2012

Box 4 SB 691 - SB 1086 MDSA T857-271

2001-

04/2012

Box 5 HJR 3 - HB 329 MDSA T857-272

2001-

04/2012

Box 6 HB 334 - HB 644 MDSA T857-273

2001-

04/2012

Box 7 HB 651 - HB 929 MDSA T857-274

2001-

04/2012

Box 8 HB 930 - HB 1329 MDSA T857-275

2001-

04/2012

Box 9 HB 1334 - HB 1476 MDSA T857-276

2001-

04/2013

Box 1 SB 2 - SB 139 MDSA T857-277

2001-

04/2013

Box 2 SB 140 - SB 369 MDSA T857-278

2001-

04/2013

Box 3 SB 370 - SB 639 MDSA T857-279

2001-

04/2013

Box 4 SB 640 - SB 899 MDSA T857-280

2001-

04/2013

Box 5 SB 900- SB 1072 MDSA T857-281

2001-

04/2013

Box 6 HB 1 - HB 247 MDSA T857-282

2001-

04/2013

Box 7 HB 250 - HB 380 MDSA T857-283

2001-

04/2013

Box 8 HB 385- HB 583 MDSA T857-284

2001-

04/2013

Box 9 HB 585 - HB 802 MDSA T857-285

2001-

04/2013

Box 10 HB 803 - HB 1121 MDSA T857-286

2001-

04/2013

Box 11 HB 1124 - HB 1534 MDSA T857-287


2011 Misc Files included: LR0042.MDE#2- reduction of led risk in housing-

registration and fee; LR0153.Community Initiatives#1-MD Comm.

on African Americans History & Culture; LR0131.DBM#2- Volunteer

Company Assistance Fund- Reporting Requirements;

mLR0048.DBED#2- Invest/Maryland Program; LR0019.MIA#2-

Health Insurance Conformity with Federal Law- PPACA;

LR0073.DpSCS#12- Public Saftey/9-1-1 Emergency telephone

Systems- Prepaid Service- Collection of Surcharge; SB0003 (specila

session); SB0270; SB0330; SB0367; SB0685; SB0947; HB0022;

HB0262; HB0292; HB0302; HB1193; HB1202; HB1208; HB1212;

HB1213; HB1218; HB1225; HB1228; HB1233; HB1240; HB1242;

HB1245; HB1246; HB1252; HB1253; HB1274; HB1276; HB1277;

HB1281; HB1282; HB1292; HB1310; HB1312; HB1314; HB1315;

HB1327; HB1334; HB1338; HB1347; HB1254

MDSA T857-288

4/2014-

5/2014

Signed Bills - SJ 1 to SB 99 MDSA T857-289

4/2014-

5/2014

Signed Bills - SB 100 to SB171 MDSA T857-290

4/2014-

5/2014

Signed Bills - SB 172 to SB440 MDSA T857-291

4/2014-

5/2014

Signed Bills - SB 441 to SB 699 MDSA T857-292

4/2014-

5/2014

Signed Bills - SB 700 to SB 1112 MDSA T857-293

4/2014-

5/2014

Signed Bills - HB 4 to HB 295 MDSA T857-294

4/2014-

5/2014


4/2014-

5/2014


4/2014-

5/2014


4/2014-

5/2014


2007-2009 Box 1 2007 vetoed bills files; 2008 adm bill files- information

technology & DNA bill; special session 2007 files; 2009 ADM bill;

DPSCS Dept bills from 2009

MDSA T4878-1

2010 Box 2 W/D & Rejected Bills 2010 MDSA T4876-1

2001-

04/2011

Box 5 Rejected and Withdrawn Bills MDSA T4876-2

Legal, A-B MSA T4958-1

Legal, B MSA T4958-2

Legal, B-C MSA T4958-3

Legal, C-D MSA T4958-4

Legal, D MSA T4958-5

Legal, D-E MSA T4958-6

Legal, E MSA T4958-7

Legal, E-G MSA T4958-8

Governor Office of Legal Counsel (Subject File) T4958

Governor Legislative Office (Withdrawn and Rejected Bills) T4876

Governor Legislative Office (Miscellaneous Bill File) T4878


Legal, F-G MSA T4958-9

Legal, H-L MSA T4958-10

Legal, L-M MSA T4958-11

Legal, M-N MSA T4958-12

Legal, N-P MSA T4958-13

Legal, P MSA T4958-14

Legal, R-S MSA T4958-15

Legal, S-W MSA T4958-16

Legal, U-W MSA T4958-17

2007-2013 Letters of Agency Employee Misconduct MSA T4958-18

Constellation Energy MSA T4958-19


Pardons & Commutations MSA T4958-21

Pardons & Commutations MSA T4958-22

Original Pardon Decisions MSA T4958-23


2007 Transition Reports MSA T4958-25

2008-2014 Lieutenant Governor Brown Redacted Schedules MSA T4958-26

Judicial Files and Recommendation Letters MSA T4958-27

Judicial Files MSA T4958-28



2008-2014 Governor O'Malley Redacted Schedules MSA T4958-31

Assorted and Miscellaneous Files MSA T4958-32

Vernon Evans File (Death Row Inmate) MSA T4958-33






EXHIBIT J


EXHIBIT K


EXHIBIT L


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


EXHIBIT O


1

From: Brandi Calhoun [[email protected]]Sent: Tuesday, December 20, 2016 11:00 PMTo: Stein, Micah D.Subject: Fwd: Congressional Redistricting: Draft Talking Point and MapsAttachments: Black_VAP[1].jpg; ATT00001.htm; Asian_VAP[1].jpg; ATT00002.htm; Hispanic_VAP[1].jpg;

ATT00003.htm; Unadjusted_Total_Minority_VAP[1].jpg; ATT00004.htm; Maryland_-_Redistricting_Talking_Points[rev].docx; ATT00005.htm

Hi Micah, Per our conversation yesterday, I did a search in my emails and I am sending you every communication that I have that deals with redistricting. Thanks, Brandi Calhoun COS, Senator Muse From: Aisha Braveboy <[email protected]> Date: Mon, 10 Oct 2011 09:18:55 -0400 To: Aisha Braveboy<[email protected]> Subject: Fwd: Congressional Redistricting: Draft Talking Point and Maps Attached are more comprehensive talking points and maps to illustrate the minority vote dilution (across the board) that would occur as a result of the maps proposed by the Governor's Advisory Committee. Thanks, Aisha


DRAFT TALKING POINTS Congressional Redistricting -- October 8 2011

Governor O’Malley and the Redistricting Advisory Committee’s proposal is far too costly to Maryland

Democrats and to minority voters. The proposal is a clear threat to minority voting rights, shifting

minority voters to achieve certain partisan interests while reducing the strength of majority-black districts,

and diluting minority voters across the board.

1. The Plan would reduce the adjusted Black share of the voting age population in Districts 4, 5 and

7:

Current Advisory Committee

4 56.3% 54.5% 5 36.1% 35.8% 7 55.4% 54.5%

While these numbers may appear to be de minimis, the impact of these shifts are significant to the

outcomes of elections, especially in Congressional District 5. Using as a benchmark, the 2006

Mfume/Cardin primary race, Mfume would have received approximately 50% of the primary vote in

current District 5. In the reconstituted 5th Congressional District, as proposed by the Committee,

Mfume would have received approximately 40% of the votes. This 10% drop appears to be caused

by the reduction of black and other minority voters in the 5th, as well as the loss of white voters who

were willing to vote for a Black candidate.

2. Congressional District 8 currently has an overall minority voting age population (Hispanics plus

non-Hispanic minorities) of 50.4 percent. The Advisory Committee’s proposed plan reconfigures

District 8 to have a 66 percent non-Hispanic-white voting age population, going into parts of

Fredrick and Carroll Counties.

3. Montgomery County is a majority-minority County, with an overall minority population of 50.7

percent. While District 4 currently provides minority representation to Montgomery County, the

Advisory Committee’s proposal takes District 4 entirely out of Montgomery County, leaving

virtually no possibility of electing a minority candidate at the Congressional level in Montgomery

County for the foreseeable future.

4. The majority of the Black voting strength in Montgomery County is put into District 3, while the

balance is in 8 and 6.

5. The Asian population in Montgomery County is taken out of District 8 and put into District 6, as

well as into District 3, which has its base in the Baltimore Region. (See attached Map)

6. Hispanic voting strength is split in Montgomery between Districts 6 and 8. (See attached Map)

7. The Advisory Committee’s proposed plan increases the Democratic performance in majority-white

Districts 2 and 3 at the expense of black voting strength, not just in majority-black Districts 4 and 7,


but especially in District 5, where the black population has continued to grow.

8. Both Maryland Legislative Caucus plans made District 4 much more compact than it currently is,

while the Advisory Committee’s proposed plan takes District 4 into Anne Arundel County,

connecting it by a thin stretch of roadway. This configuration combines politically and regionally

diverse, non synergistic populations from Prince George's and Anne Arundel Counties, and invites a

gerrymandering challenge.

9. The Governor's Redistricting Committee failed to provide a detailed summary or tables to go along

with the proposed maps. It provided only equivalency files, which require redistricting software that

costs thousands of dollars in order to analyze the maps, making it virtually impossible for the average

citizen see, evaluate and comment on the proposal.



O. John Benisek, et al.,Plaintiffs,vs.Linda H. Lamone, et al.,Defendants.

Case No. 13-cv-3233Three-Judge Court

CERTIFICATE OF SERVICE

I hereby certify that on December 29, 2016, a copy of the foregoing Plaintiffs’ Motion To

Compel Defendants’ Production of Documents Responsive to Plaintiffs’ First Set of Requests for

Production, Defendants’ Responses to Plaintiffs’ First Set of Interrogatories, and Defendants’

Answers to Plaintiffs’ First Set of Requests for Admissions, the accompanying memorandum of

law, and the attached exhibits were served on Defendants in compliance with Local Rule 104.8. I

further certify that on this 19th day of January, 2017, a copy of the foregoing motion,

memorandum, and exhibits 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.

Dated: January 19, 2017 Respectfully submitted,

/s/ Stephen M. Medlock




IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF … Shapiro 20170119... · 2017. 1. 23. ·...

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