IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF … Shapiro 20170119... · 2017. 1. 23. ·...
Transcript of 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.
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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)
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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
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)
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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
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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
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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
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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
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INTRODUCTION
Plaintiffs allege that the State of Maryland—through the Democrat-controlled
Governor’s Redistricting Advisory Committee (GRAC), the Democrat-controlled
General Assembly, and the then-Democrat-controlled governor’s office—retaliated
against Republicans living in the former Sixth Congressional District by reason of their
political associations and voting histories. These state agencies and officials gerry-
mandered the Sixth District by moving into the district tens of thousands of Demo-
cratic voters and out of the district tens of thousands of Republican voters, all with the
specific intent and purpose of changing the outcome of 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
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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
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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
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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
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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.
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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
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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;
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• 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.
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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
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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).
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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,
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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.
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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
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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.
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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.
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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
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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.
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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).
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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).
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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
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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
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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
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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
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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.”).
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“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
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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-
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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
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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
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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
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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.
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• 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.”
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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.
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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
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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.”).
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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.
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 42 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)
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 43 of 171
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
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)
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 44 of 171
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
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2
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)
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 46 of 171
EXHIBIT A
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1
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND
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.
Linda H. Lamone, et al.,
Defendants.
Case No. 13-cv-3233
Three-Judge Court
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 48 of 171
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.
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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.
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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
/s/ Michael B. Kimberly
Michael B. Kimberly, Bar No. [email protected]
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
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 51 of 171
EXHIBIT B
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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
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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
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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
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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
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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
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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
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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.
RESPONSE 4: 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 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.
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DOCUMENT REQUEST 5: All Documents reviewed or relied on by the Governor
concerning the Proposed Congressional Plan or any alternative redistricting plan not
adopted.
RESPONSE 5: Defendants object to this request because it seeks only documents
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,
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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.
RESPONSE 7: 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 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.
RESPONSE 8: 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 state that they have made the
reasonable inquiries described above, and Defendants are not in possession, custody or
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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.
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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
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EXHIBIT C
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1
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND
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.
O. John Benisek, et al.
Plaintiffs,
vs.
Linda H. Lamone, et al.,
Defendants.
Case No. 13-cv-3233
Three-Judge Court
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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.
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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
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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.
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.
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 NO. 12: Describe all facts, documents, and communications 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.”
INTERROGATORY NO. 13: Describe all facts, documents, and communications 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
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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.”
Dated: November 17, 2016
/s/ Michael B. Kimberly
Michael B. Kimberly, Bar No. [email protected]
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
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EXHIBIT D
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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 INTERROGATORIES
Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Defendants Linda H.
Lamone and David J. McManus, Jr., state as follows for their responses and objections to
Plaintiffs’ interrogatories:
PRELIMINARY STATEMENT
The Information supplied in these answers is not based solely on the knowledge of
the executing parties, but also includes the knowledge of their agents, representatives,
and attorneys, unless privileged. The language, word usage and sentence structure is that
of the attorney assisting in the preparation of these Answers and does not purport to be
the precise language of the executing party. The Defendants have not yet completed
discovery or gathering of facts and documents relating to this action and therefore reserve
the right to revise, correct, add to, supplement, and clarify the responses set forth below.
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2
Each response to the Plaintiffs’ First Set of Interrogatories is made subject to these
preliminary statements and objections. By responding to an interrogatory in as complete
a manner as possible subject to the stated objections, Defendants do not in any way waive
any applicable objection or the right to seek appropriate protection orders, if necessary.
GENERAL OBJECTIONS
1. As to the Interrogatories generally, and as to each and every interrogatory
individually, Defendants object to the extent that they request information protected by
the attorney-client privilege, the work product doctrine, the deliberative or executive
privilege, legislative privilege, or that is otherwise privileged, protected, or exempt from
discovery.
2. Defendants object to these requests to the extent that they request
information already within the possession and control of Plaintiffs and/or their counsel,
on the grounds that such requests are duplicative and unduly burdensome.
3. Defendants object to these requests to the extent that they are overbroad,
oppressive, duplicative, or cumulative.
4. Defendants object to these requests to the extent that they are vague,
ambiguous, fail to specify with reasonable particularity the information sought, or
otherwise are incomprehensible.
5. The Defendant objects to these requests to the extent they seek material
that is not relevant to the subject matter involved in this action or is beyond the scope of
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3
what is required to be provided by the Federal Rules of Civil Procedure, the local rules of
this Court, or the Orders of the Court in this matter.
6. Defendants object to these requests to the extent that they require the
Defendants to make legal conclusions and/or presuppose legal conclusions or assume the
truth of matters that are disputed.
7. Defendants object to these requests to the extent that the information sought
is a matter of public record and is equally accessible and available to Plaintiffs, on the
grounds that compiling such information would impose an unreasonable burden and
expense upon the Defendants and constitute attorney work product.
8. In addition to these General Objections, Defendants also state, where
appropriate, specific objections to individual requests. By setting forth such specific
objections, the Defendants neither intends to, nor does, limit or restrict or waive the
General Objections, which shall be deemed incorporated in each of the responses to the
specific requests.
Without waiving, subject to, and notwithstanding these General Objections,
Defendants provide the following:
SPECIFIC OBJECTIONS AND ANSWERS
INTERROGATORY NO. 1: Identify all persons and entities who reviewed or had
access to the final or any interim or alternative drafts of the Proposed Congressional Plan,
other than the members of the GRAC, members of the General Assembly, and the
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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.
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5
INTERROGATORY NO. 2: If you contend that the General Assembly of
Maryland, the GRAC, and/or the Governor did not intend to burden the representational
rights of certain citizens and/or to dilute the voting strength of certain citizens because of
how they voted in the past or because of the political party with which they had affiliated,
state the factual basis for your contention and identify all facts, documents, and
communications related to your contention.
ANSWER TO INTERROGATORY NO. 2: The Defendants object to this
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
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6
reflecting prior voting patterns, voter history, or party affiliation in deciding where to
draw the lines of the Sixth Congressional District under the Proposed Congressional Plan,
state the factual basis for your contention and identify all facts, documents and
communications related to your contention.
ANSWER TO INTERROGATORY NO. 3: The Defendants object to this
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).
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.
ANSWER TO INTERROGATORY NO. 4: The Defendants object to this
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).
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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.
ANSWER TO INTERROGATORY NO. 5: The Defendants object to this
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). 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.
ANSWER TO INTERROGATORY NO. 6: 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 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:
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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
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9
each expert, consultant, or other third party, state the time period of the Person’s
involvement.
ANSWER TO INTERROGATORY NO. 7: The Defendants object to this
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
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.
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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.
ANSWER TO INTERROGTORY NO. 9: The Defendants object to this
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). Without waiving those objections, the Defendants identify all of the
Plaintiffs’ pleadings filed in this lawsuit.
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.
ANSWER TO INTERROGTORY NO. 10: The Defendants object to this
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). Without waiving those objections, the Defendants identify all of the
Plaintiffs’ pleadings filed in this lawsuit.
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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.”
ANSWER TO INTERROGTORY NO. 11: The Defendants object to this
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.
INTERROGATORY NO. 12: Describe all facts, documents, and communications
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.”
ANSWER TO INTERROGTORY NO. 12: The Defendants object to this
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, MCM000705-906, MCM001135-1389, MCM001392-
1824.
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INTERROGATORY NO. 13: Describe all facts, documents, and communications
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.”
ANSWER TO INTERROGTORY NO. 13: The Defendants object to this
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, MCM000705-906, MCM001135-1389, MCM001392-
1824.
BRIAN E. FROSH Attorney General of Maryland
___/s/__Jennifer L. Katz______________ JENNIFER L. KATZ (Bar No. 28973) SARAH W. RICE (Bar No. 29113) JEFFREY L. DARSIE (Bar No. 19485) Assistant Attorneys General Office of the Attorney General 200 St. Paul Place, 20th Floor Baltimore, Maryland 21202 (410) 576-7005 (tel.); (410) 576-6955 (fax) [email protected]
Dated: December 19, 2016 Attorneys for Defendants
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EXHIBIT E
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1
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND
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.
O. John Benisek, et al.
Plaintiffs,
vs.
Linda H. Lamone, et al.,
Defendants.
Case No. 13-cv-3233
Three-Judge Court
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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.
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3
Dated: November 17, 2016
/s/ Michael B. Kimberly
Michael B. Kimberly, Bar No. [email protected]
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
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EXHIBIT F
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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 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.
PRELIMINARY STATEMENT
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.
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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.
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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
that is not relevant to the subject matter involved in this action or is beyond the scope of
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.
2. The Defendants object to these requests to the extent that they are overbroad,
oppressive, duplicative, or cumulative.
3. The 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.
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
truth of matters that are disputed.
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
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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.
Response 2: 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
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5
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.
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.
Response 3: 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.
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.
Response 4: 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’ voting histories.
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6
5. Members of the Maryland General Assembly considered Maryland voters’
political party affiliations when enacting the Proposed Congressional Plan.
Response 5: In addition to their General Objections, 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. 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.
Response 6: In addition to their General Objections, 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. 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
representative from the Sixth Congressional District.
RESPONSE 7: 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
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7
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. 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.
RESPONSE 8: 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
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.
RESPONSE 9: In addition to their General Objections, 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. 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.
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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
representative from the Sixth Congressional District.
RESPONSE 10: In addition to their General Objections, 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. 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.
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
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EXHIBIT G
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EXHIBIT H
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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.
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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.
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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.
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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
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EXHIBIT I
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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
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 114 of 171
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).
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 115 of 171
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
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 116 of 171
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
Box 6 Governor's Legislative Office-Bills Passed HB 740- HB 1155 MDSA T4132-6
01/2007-
11/2007
Box 7 Governor's Legislative Office-Bills Passed HB 1185- HB 1325 MDSA T4132-7
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
Box 2 Governor's Office Executive Services: Governor's
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
Box 8 Governor's Office Executive Services: 420xxx MDSA T4132-20
01/2007-
11/2007
Box 9 Governor's Office Executive Services: 427xxx MDSA T4132-21
Governor Press Office (Photorgaphs, Electronic) T3908
Governor (General File) T4132
Governor O'Malley's Records at the Archives as of
8/3/2015
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 117 of 171
01/2007-
11/2007
Box 10 Governor's Office Executive Services: 423xxx MDSA T4132-22
01/2007-
11/2007
Box 11 Governor's Office Executive Services: 421xxx MDSA T4132-23
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
Box 15 Governor's Office Executive Services: scheduling MDSA T4132-27
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
Box 20 Governor's Office Executive Services: Governor's
correspondence
MDSA T4132-32
01/2007-
11/2007
Box 21 Governor's Office Executive Services: Governor's
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
Box 27 Governor's Office Executive Services: 425xxx MDSA T4132-39
01/2007-
11/2007
Box 28 Governor's Office Executive Services: 422xxx MDSA T4132-40
01/2007-
11/2007
Box 29 Governor's Office Executive Services: 426xxx MDSA T4132-41
01/2007-
11/2007
Box 30 Governor's Office Executive Services: 426xxx MDSA T4132-42
01/2007-
11/2007
Box 31 Governor's Office Executive Services: general mail: 413700-
413999
MDSA T4132-43
01/2007-
11/2007
Box 32 Governor's Office Executive Services: 419xxx MDSA T4132-44
01/2007-
11/2007
Box 33 Governor's Office Executive Services: 419xxx MDSA T4132-45
01/2007-
11/2007
Box 34 Governor's Office Executive Services: Governor's
correspondence
MDSA T4132-46
01/2007-
11/2007
Box 35 Governor's Office Executive Services: 427xxx MDSA T4132-47
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 118 of 171
01/2007-
11/2007
Box 36 Governor's Office Executive Services: general mail: 424xxx MDSA T4132-48
01/2007-
11/2007
Box 37 Governor's Office Executive Services: 412500-412999 MDSA T4132-49
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
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-51
01/2007-
03/2007
Box 41 Governor's Office Executive Services: hotmail MDSA T4132-53
01/2007-
03/2007
Box 42 Governor's Office Executive Services: 413000-413699 MDSA T4132-54
08/2007-
09/2007
Box 43 Governor's Office Executive Services: scheduling MDSA T4132-55
08/2007-
10/2007
Box 44 Governor's Office Executive Services: Governor's
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
Box 46 Governor's Office Executive Services: scheduling MDSA T4132-58
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
Box 51 Governor's Office Executive Services: Governor's
correspondence
MDSA T4132-63
01/2007-
11/2007
Box 52 Governor's Office Executive Services: Governor's
correspondence
MDSA T4132-64
02/28/2007-
03/29/2007
Box 53 Governor's Office Executive Services: Governor's Briefing
Books
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-65
01/2007-
11/2007
Box 54 Governor's Office Executive Services: Governor's
correspondence
MDSA T4132-66
02/2007 Box 55 Governor's Office Executive Services: 412000-412499 MDSA T4132-67
07/2007-
08/2007
Box 56 Governor's Office Executive Services: scheduling MDSA T4132-68
01/2007-
11/2007
Box 57 Governor's Office Executive Services: 424xxx MDSA T4132-69
02/2007 Box 58 Governor's Office Executive Services: 414xxx MDSA T4132-70
01/2007-
11/2007
Box 59 Governor's Office Executive Services: Governor's
correspondence
MDSA T4132-71
01/2007-
11/2007
Box 60 Governor's Office Executive Services: copy mail MDSA T4132-72
01/2007-
11/2007
Box 61 Governor's Office Executive Services: 414000-414999 MDSA T4132-73
01/2007-
11/2007
Box 62 Governor's Office Executive Services: 410xxx MDSA T4132-74
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 119 of 171
01/2007-
11/2007
Box 63 Governor's Office Executive Services: 411000-411399 MDSA T4132-75
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
NOTE: box returned to Governor's Office 5458-51-3811
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
Box 2 Governor's Incoming Correspondence - GEN 430 MDSA T4132-82
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
Box 8 Governor's Incoming Correspondence - GEN 430 MDSA T4132-88
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
09/2007 Box 11 Governor's Incoming Correspondence - GEN 434000-434500 MDSA T4132-91
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
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 120 of 171
09/2007 Box 16 Governor's Incoming Correspondence - GEN 433000-433599 MDSA T4132-96
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-
10009/2007 Box 21 Governor's Incoming Correspondence - GEN & CCM 435 MDSA T4132-
10112/2007 Box 22 Governor's Incoming Correspondence - GEN & CCM 445 MDSA T4132-
10212/2007 Box 23 Governor's Incoming Correspondence - GEN & CCM 444 MDSA T4132-
10310/2007 Box 24 Governor's Incoming Correspondence - GEN & CCM 436 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-
10810/2007 Box 29 Governor's Incoming Correspondence - GEN & CCM 437 MDSA T4132-
10903/17/2008-
03/24/2008
Box 1 Governor's General Constituent Letters MDSA T4132-
11003/25/2008-
04/08/2008
Box 2 Governor's General Constituent Letters MDSA T4132-
11104/09/2008-
04/24/2008
Box 3 Governor's General Constituent Letters MDSA T4132-
11204/25/2008-
05/08/2008
Box 4 Governor's General Constituent Letters MDSA T4132-
11305/09/2008-
05/21/2008
Box 5 Governor's General Constituent Letters MDSA T4132-
11405/21/2008-
05/29/2008
Box 6 Governor's General Constituent Letters MDSA T4132-
11505/29/2008-
06/19/2008
Box 7 Governor's General Constituent Letters MDSA T4132-
11606/19/2008-
07/07/2008
Box 8 Governor's General Constituent Letters MDSA T4132-
11707/08/2008-
07/28/2008
Box 9 Governor's General Constituent Letters MDSA T4132-
11807/29/2008-
08/15/2008
Box 10 Governor's General Constituent Letters MDSA T4132-
11908/18/2008-
09/10/2008
Box 11 Governor's General Constituent Letters MDSA T4132-
12009/11/2008-
09/25/2008
Box 12 Governor's General Constituent Letters MDSA T4132-
121
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 121 of 171
09/26/2008-
10/09/2008
Box 13 Governor's General Constituent Letters MDSA T4132-
12210/10/2008-
10/31/2008
Box 14 Governor's General Constituent Letters MDSA T4132-
12311/01/2008-
11/14/2008
Box 15 Governor's General Constituent Letters MDSA T4132-
12403/2008-
06/2008
Box 16 Governor's Hot Mail MDSA T4132-
12503/2008-
06/2008
Box 17 Governor's Hot Mail MDSA T4132-
12607/2008-
11/2008
Box 18 Governor's Hot Mail MDSA T4132-
12707/2008-
11/2008
Box 19 Governor's Hot Mail MDSA T4132-
12807/2008-
11/2008
Box 20 Governor's Hot Mail MDSA T4132-
12905/2008-
10/2008
Box 21 Governor's General Constituent Letters MDSA T4132-
13005/2008-
10/2008
Box 22 Governor's General Constituent Letters MDSA T4132-
1312007 Box 23 Governor's Constituent Proclamations MDSA T4132-
1322007 Box 24 Governor's Constituent Proclamations MDSA T4132-
1332007 Box 25 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
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 122 of 171
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
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-
159
04/2008-
05/2008
Box 2 Briefing Book Materials
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-
160
06/2008-
07/2008
Box 3 Briefing Book Materials
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-
161
07/2008-
09/2008
Box 4 Briefing Book Materials
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-
162
09/2008-
10/2008
Box 5 Briefing Book Materials
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-
163
11/2008 Box 6 Briefing Book Materials
NOTE: box returned to Governor's Office 5458-51-3811
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
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-
167
01/2008-
02/2008
Box 10 Governor's Briefing Books contents pt. 1
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-
168
01/2008-
02/2008
Box 11 Governor's Briefing Books contents pt. 2
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-
169
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 123 of 171
04/2007-
06/2007
Box 12 Governor's Briefing Books
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-
170
05/2007-
06/2007
Box 13 Governor's Briefing Books
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-
171
11/2007-
12/2007
Box 14 Governor's Briefing Books
NOTE: box returned to Governor's Office 5458-51-3811
MDSA T4132-
172
01/2007-
02/2007
Box 1 Invitations MDSA T4132-
17304/2008 Box 2 Invitations MDSA T4132-
17405/2008 Box 3 Invitations MDSA T4132-
17503/2008-
08/2008
Box 4 Invitations MDSA T4132-
17609/2008 Box 5 Invitations MDSA T4132-
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
Box 2 Scheduling/PR: Citations, Proclamations MDSA T4132-
18606/2008-
08/2008
Box 3 Scheduling/PR: Citations, Proclamations MDSA T4132-
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
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 124 of 171
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
Box 1 Invitations MDSA T4132-
20210/2001-
10/30/2009
Box 2 Invitations MDSA T4132-
20311/2001-
11/30/2009
Box 3 Invitations MDSA T4132-
20409/2001-
09/30/2009
Box 4 Invitations MDSA T4132-
20503/2009-
04/2009
Box 5 Invitations MDSA T4132-
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
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 125 of 171
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
Box 2 Governor's General Correspondence MDSA T4132-
22702/10/2009-
02/26/2009
Box 3 Governor's General Correspondence MDSA T4132-
22802/27/2009-
03/16/2009
Box 4 Governor's General Correspondence MDSA T4132-
22903/17/2009-
04/08/2009
Box 5 Governor's General Correspondence MDSA T4132-
23004/09/2009-
05/11/2009
Box 6 Governor's General Correspondence MDSA T4132-
23105/12/2009-
06/09/2009
Box 7 Governor's General Correspondence MDSA T4132-
23206/10/2009-
07/08/2009
Box 8 Governor's General Correspondence MDSA T4132-
23307/09/2009-
08/04/2009
Box 9 Governor's General Correspondence MDSA T4132-
23408/04/2009-
08/27/2009
Box 10 Governor's General Correspondence MDSA T4132-
23501/2009-
02/2009
Box 11 Governor's Correspondence-Hot Mail MDSA T4132-
23601/2009-
03/2009
Box 12 Governor's Correspondence-Hot Mail MDSA T4132-
23703/2009-
04/2009
Box 13 Governor's Correspondence-Hot Mail MDSA T4132-
23804/2009-
05/2009
Box 14 Governor's Correspondence-Hot Mail MDSA T4132-
23905/2009-
06/2009
Box 15 Governor's Correspondence-Hot Mail MDSA T4132-
24006/2009-
07/2009
Box 16 Governor's Correspondence-Hot Mail MDSA T4132-
24108/2009-
09/2009
Box 17 Governor's Correspondence-Hot Mail MDSA T4132-
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
Box 2 Hot Mail Correspondence Session 2010 Brooks MDSA T4132-
245
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01/2010-
04/2010
Box 3 Hot Mail Correspondence Session 2010 Brooks MDSA T4132-
24601/2010-
04/2010
Box 4 Hot Mail Correspondence Session 2010 Brooks MDSA T4132-
24701/2010-
04/2010
Box 5 Hot Mail Correspondence Session 2010 Brooks MDSA T4132-
24801/2010-
04/2010
Box 6 Hot Mail Correspondence Session 2010 Brooks MDSA T4132-
24901/2010-
04/2010
Box 7 Hot Mail Correspondence Session 2010 Brooks MDSA T4132-
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
Box 2 General Constituents Correspondence MDSA T4132-
25511/30/2009-
01/04/2010
Box 3 General Constituents Correspondence MDSA T4132-
25601/05/2010-
01/22/2010
Box 4 General Constituents Correspondence MDSA T4132-
25701/25/2010-
02/15/2010
Box 5 General Constituents Correspondence MDSA T4132-
25802/16/2010-
03/12/2010
Box 6 General Constituents Correspondence MDSA T4132-
25903/16/2010-
04/26/2010
Box 7 General Constituents Correspondence MDSA T4132-
26004/27/2010-
06/11/2010
Box 8 General Constituents Correspondence MDSA T4132-
26106/14/2010-
07/19/2010
Box 9 General Constituents Correspondence MDSA T4132-
26207/20/2010-
08/24/2010
Box 10 General Constituents Correspondence MDSA T4132-
26309/29/2010-
10/29/2010
Box 11 General Constituents Correspondence MDSA T4132-
2642010 Box 1 General Constituents Correspondence No Response MDSA T4132-
2652010 Box 2 General Constituents Correspondence No Response MDSA T4132-
2662010 Box 3 General Constituents Correspondence No Response MDSA T4132-
2672010 Box 4 General Constituents Correspondence No Response MDSA T4132-
26805/2008-
01/2009
Box 1 General Mail MDSA T4132-
26905/2008-
01/2009
Box 2 General Mail MDSA T4132-
27008/2009-
09/2009
Box 3 Invitations and Meeting Requests MDSA T4132-
27101/2010-
05/2010
Box 4 Governors Correspondence-general MDSA T4132-
272
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06/2010-
11/2010
Box 5 Copy Mail MDSA T4132-
27308/25/2010-
10/18/2010
Box 6 General Mail MDSA T4132-
27409/20/2010-
11/20/2010
Box 7 Hot Mail MDSA T4132-
27510/19/2010-
11/03/2010
Box 8 H-8 General MDSA T4132-
27611/04/2010-
12/16/2010
Box 9 H-8 General MDSA T4132-
27711/2020-
01/10/2011
Box 10 Hot Mail MDSA T4132-
27812/17/2010-
01/23/2011
Box 11 H-8 General MDSA T4132-
27901/01/2011-
01/31/2011
Box 12 Hot Mail MDSA T4132-
28001/2011-
03/2011
Box 13 Hot Mail MDSA T4132-
28101/24/2011-
02/20/2011
Box 14 H-8 General MDSA T4132-
28201/2011-
03/2011
Box 15 Copy Mail MDSA T4132-
28302/01/2011-
02/28/2011
Box 16 Hot Mail MDSA T4132-
28402/01/2011-
03/01/2011
Box 17 Hot Mail MDSA T4132-
28502/21/2011-
03/15/2011
Box 18 H-8 General MDSA T4132-
28605/2011-
05/2011
Box 19 General Mail MDSA T4132-
28705/2011 Box 20 Hot Mail MDSA T4132-
28805/2011-
08/2011
Box 21 H-8 General MDSA T4132-
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-
2922010 Box 3 Scheduling 2010- Box 1 (of 3) MDSA T4132-
2932010 Box 4 Scheduling 2010- Box 2 (of 3) MDSA T4132-
2942010 Box 5 Scheduling 2010- Box 3 (of 3) MDSA T4132-
2952011 Box 6 Scheduling 2011- Box 1 (of 2) MDSA T4132-
2962011 Box 7 Scheduling 2011- Box 2 (of 2) MDSA T4132-
2972010-2012 Box 8 Hotmail 2010-2012 MDSA T4132-
298
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2011 Box 9 Hotmail 2011- Box 1 (of 5) MDSA T4132-
2992011 Box 10 Hotmail 2011- Box 2 (of 5) MDSA T4132-
3002011 Box 11 Hotmail 2011- Box 3 (of 5) MDSA T4132-
3012011 Box 12 Hotmail 2011- Box 4 (of 5) MDSA T4132-
3022011 Box 13 Hotmail 2011- Box 5 (of 5) MDSA T4132-
3032012 Box 14 Hotmail 2012- Box 1 (of 2) MDSA T4132-
3042012 Box 15 Hotmail 2012- Box 2 (of 2) MDSA T4132-
30503/16/2011-
03/31/2011
Box 16 General Mail Box 1 (of 22) MDSA T4132-
30604/01/2011-
04/2031
Box 17 General Mail Box 2 (of 22) MDSA T4132-
30705/03/2011-
05/25/2011
Box 18 General Mail Box 3 (of 22) MDSA T4132-
30805/26/2011-
06/27/2011
Box 19 General Mail Box 4 (of 22) MDSA T4132-
30906/28/2011-
07/15/2011
Box 20 General Mail Box 5 (of 22) MDSA T4132-
31007/19/2011-
08/15/2011
Box 21 General Mail Box 6 (of 22) MDSA T4132-
31108/16/2011-
09/12/2011
Box 22 General Mail Box 7 (of 22) MDSA T4132-
31209/13/2011-
10/04/2011
Box 23 General Mail Box 8 (of 22) MDSA T4132-
31310/05/2011-
10/26/2011
Box 24 General Mail Box 9 (of 22) MDSA T4132-
31410/27/2011-
11/14/2011
Box 25 General Mail Box 10 (of 22) MDSA T4132-
31511/15/2011-
12/05/2011
Box 26 General Mail Box 11 (of 22) MDSA T4132-
31612/06/2011-
12/22/2011
Box 27 General Mail Box 12 (of 22) MDSA T4132-
31712/27/2011-
01/12/2012
Box 28 General Mail Box 13 (of 22) MDSA T4132-
31801/13/2012-
01/26/2012
Box 29 General Mail Box 14 (of 22) MDSA T4132-
31901/27/2012-
02/09/2012
Box 30 General Mail Box 15 (of 22) MDSA T4132-
32002/10/2012-
02/23/2012
Box 31 General Mail Box 16 (of 22) MDSA T4132-
32102/24/2012-
03/02/2012
Box 32 General Mail Box 17 (of 22) MDSA T4132-
32203/05/2012-
03/12/2012
Box 33 General Mail Box 18 (of 22) MDSA T4132-
32303/13/2012-
03/23/2012
Box 34 General Mail Box 19 (of 22) MDSA T4132-
324
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03/26/2012-
04/05/2012
Box 35 General Mail Box 20 (of 22) MDSA T4132-
32504/06/2012-
04/19/2012
Box 36 General Mail Box 21 (of 22) MDSA T4132-
32604/20/2012-
05/02/2012
Box 37 General Mail Box 22 (of 22) MDSA T4132-
3272001-
04/2012
Box 38 Form Letters- Box 1 (of 3) MDSA T4132-
3282001-
04/2012
Box 39 Form Letters- Box 2 (of 3) MDSA T4132-
3292001-
04/2012
Box 40 Form Letters- Box 3 (of 3) MDSA T4132-
33008/11/2012-
08/09/2012
Box 1 General Mail MDSA T4132-
33107/10/2012-
07/31/2012
Box 2 General Mail MDSA T4132-
33206/12/2012-
07/09/2012
Box 3 General Mail MDSA T4132-
33305/23/2012-
06/11/2012
Box 4 General Mail MDSA T4132-
33410/24/2012-
11/16/2012
Box 5 General Mail MDSA T4132-
33510/10/2012-
10/23/2012
Box 6 General Mail MDSA T4132-
33609/19/2012-
10/09/2012
Box 7 General Mail MDSA T4132-
33708/30/2012-
09/18/2012
Box 8 General Mail MDSA T4132-
33808/10/2012-
08/29/2012
Box 9 General Mail MDSA T4132-
33902/11/2013-
02/27/2013
Box 10 General Mail MDSA T4132-
34001/24/2013-
02/10/2013
Box 11 General Mail MDSA T4132-
34101/24/2013-
02/10/2013
Box 12 General Mail MDSA T4132-
34201/04/2013-
01/22/2013
Box 13 General Mail MDSA T4132-
34312/11/2012-
01/03/2013
Box 14 General Mail MDSA T4132-
34411/06/2013-
12/10/2012
Box 15 General Mail MDSA T4132-
34511/29/2012-
01/03/2013
Box 16 Hot Mail MDSA T4132-
34610/02/2012-
11/28/2012
Box 17 Hot Mail MDSA T4132-
34708/01/2012-
09/20/2012
Box 18 Hot Mail MDSA T4132-
34805/30/2012-
07/31/2012
Box 19 Hot Mail MDSA T4132-
3492009-2012 Box 20 Hot Mail MDSA T4132-
350
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12/2012-
02/2013
Box 21 Hot Mail MDSA T4132-
35103/01/2012-
03/19/2013
Box 22 General Mail MDSA T4132-
35211/2013-
02/2013
Box 23 Miscellaneous MDSA T4132-
35311/2011-
11/2012
Box 24 Miscellaneous MDSA T4132-
35408/03/2011-
11/20/2012
Box 25 Miscellaneous MDSA T4132-
35505/29/2013-
06/11/2013
Box 26 General Mail MDSA T4132-
35605/09/2013-
05/30/2013
Box 27 General Mail MDSA T4132-
35704/29/2013-
05/31/2013
Box 28 General Mail MDSA T4132-
35804/16/2013-
04/29/2013
Box 29 General Mail MDSA T4132-
35909/23/2013-
10/11/2013
Box 30 General Mail MDSA T4132-
36009/03/2013-
09/10/2013
Box 31 General Mail MDSA T4132-
36107/29/2013-
08/15/2013
Box 32 General Mail MDSA T4132-
36206/26/2013-
07/11/2013
Box 33 General Mail MDSA T4132-
36303/11/2013-
04/02/2013
Box 34 General Mail MDSA T4132-
36404/03/2013-
04/15/2013
Box 35 General Mail MDSA T4132-
36509/11/2013-
09/19/2013
Box 36 General Mail MDSA T4132-
36608/15/2013-
09/2031
Box 37 General Mail MDSA T4132-
36707/11/2013-
07/26/2013
Box 38 General Mail MDSA T4132-
36806/11/2013-
06/25/2013
Box 39 General Mail MDSA T4132-
36901/2013-
05/2013
Box 40 Hot Mail MDSA T4132-
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-
3752013 Box 46 Form Letters MDSA T4132-
376
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2013 Box 47 Form Letters MDSA T4132-
37710/02/2013-
10/08/2013
General Mail MSA T4132-378
10/09/2013-
10/22/2013
General Mail MSA T4132-379
10/23/2013-
10/23/2013
General Mail MSA T4132-380
10/31/2013-
11/04/2013
General Mail MSA T4132-381
11/08/2013-
11/18/2013
General Mail MSA T4132-382
11/19/2013-
11/25/2013
General Mail MSA T4132-383
11/26/2013-
12/03/2013
General Mail MSA T4132-384
12/06/2013-
12/13/2013
General Mail MSA T4132-385
12/16/2013-
12/26/2013
General Mail MSA T4132-386
12/27/2013-
01/06/2014
General Mail MSA T4132-387
01/07/2014-
01/15/2014
General Mail MSA T4132-388
01/16/2014-
01/30/2014
General Mail MSA T4132-389
01/31/2014-
02/10/2014
General Mail MSA T4132-390
02/11/2014-
02/19/2014
General Mail MSA T4132-391
02/20/2014-
03/04/2014
General Mail MSA T4132-392
03/04/2014-
03/10/2014
General Mail MSA T4132-393
03/11/2014-
03/19/2014
General Mail MSA T4132-394
03/20/2014-
03/27/2014
General Mail MSA T4132-395
03/28/2014-
04/07/2014
General Mail MSA T4132-396
04/08/2014-
04/16/2014
General Mail MSA T4132-397
04/17/2014-
04/24/2014
General Mail MSA T4132-398
04/25/2014-
05/07/2014
General Mail MSA T4132-399
05/08/2014-
05/21/2014
General Mail MSA T4132-400
05/27/2014-
06/18/2014
General Mail MSA T4132-401
06/19/2014-
06/27/2014
General Mail MSA T4132-402
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 132 of 171
06/30/2014-
07/14/2014
General Mail MSA T4132-403
07/15/2014-
07/23/2014
General Mail MSA T4132-404
07/24/2014-
08/01/2014
General Mail MSA T4132-405
08/03/2014-
08/13/2014
General Mail MSA T4132-406
08/14/2014-
08/27/2014
General Mail MSA T4132-407
08/28/2014-
09/09/2014
General Mail MSA T4132-408
09/09/2014-
09/18/2014
General Mail MSA T4132-409
09/19/2014-
10/03/2014
General Mail MSA T4132-410
10/06/2014-
10/17/2014
General Mail MSA T4132-411
10/18/2014-
10/31/2014
General Mail MSA T4132-412
2014 Form Letters MSA T4132-413
2014 Form Letters MSA T4132-414
2014 Form Letters MSA T4132-415
2014 Form Letters MSA T4132-416
2014 Form Letters MSA T4132-417
2014 Form Letters MSA T4132-418
2014 Form Letters MSA T4132-419
2014 Form Letters MSA T4132-420
2014 Form Letters MSA T4132-421
2014 Form Letters MSA T4132-422
2014 Form Letters MSA T4132-423
2014 Miscellaneous MSA T4132-424
11/03/2014-
11/19/2014
General Mail MSA T4132-425
11/19/2014-
12/04/2014
General Mail MSA T4132-426
12/05/2014-
12/18/2014
General Mail MSA T4132-427
12/19/2014-
01/05/2015
General Mail MSA T4132-428
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 133 of 171
01/06/2015-
01/13/2015
General Mail MSA T4132-429
09/2014-
12/2014
Lt. Governor Scheduling MSA T4132-430
2014 Hotmail MSA T4132-431
05/22/2014-
05/30/2014
General Mail MSA T4132-432
Governor’s Briefing Book Materials: Read Files MSA T4957-1
Governor’s Briefing Book Materials: Read Files MSA T4957-2
Governor’s Briefing Book Materials: Read Files MSA T4957-3
Governor’s Briefing Book Materials: Read Files MSA T4957-4
Governor’s Briefing Book Materials: Read Files MSA T4957-5
Governor’s Briefing Book Materials: Read Files MSA T4957-6
Governor’s Briefing Book Materials: Read Files MSA T4957-7
Governor’s Briefing Book Materials: Read Files MSA T4957-8
Governor’s Briefing Book Materials: Read Files MSA T4957-9
Governor’s Briefing Book Materials: Read Files MSA T4957-10
Governor’s Briefing Book Materials: Read Files MSA T4957-11
Governor’s Briefing Book Materials: Read Files MSA T4957-12
Governor’s Briefing Book Materials: Executive Briefing Memos and
“State Stat” Memos
MSA T4957-13
Governor’s Briefing Book Materials: Executive Briefing Memos and
“State Stat” Memos
MSA T4957-14
Governor’s Briefing Book Materials: Executive Briefing Memos and
“State Stat” Memos
MSA T4957-15
Governor’s Briefing Book Materials: Executive Briefing Memos and
“State Stat” Memos
MSA T4957-16
Governor’s Briefing Book Materials: Executive Briefing Memos and
“State Stat” Memos
MSA T4957-17
Governor’s Briefing Book Materials: Executive Briefing Memos and
“State Stat” Memos
MSA T4957-18
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-19
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-20
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-21
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-22
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-23
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-24
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-25
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-26
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-27
Governor (Briefing Book Files) T4957
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 134 of 171
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-28
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-29
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-30
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-31
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-32
Governor’s Briefing Book Materials: Briefing Memos to Governor for
Events
MSA T4957-33
Governor’s Briefing Book Materials: Daily Crime Reports and
Federal Priority Briefings
MSA T4957-34
Governor’s Briefing Book Materials: Daily Crime Reports and
Federal Priority Briefings
MSA T4957-35
Governor’s Briefing Book Materials: Daily Crime Reports and
Federal Priority Briefings
MSA T4957-36
Governor’s Briefing Book Materials: Official Reports and Publicly
Available Materials
MSA T4957-37
Governor’s Briefing Book Materials: Official Reports and Publicly
Available Materials
MSA T4957-38
Governor’s Briefing Book Materials: Official Reports and Publicly
Available Materials
MSA T4957-39
Governor’s Briefing Book Materials: Official Reports and Publicly
Available Materials
MSA T4957-40
Governor’s Briefing Book Materials: Official Reports and Publicly
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
2013 Departmental Proposals - LR 84 to LR 148 MDSA T4875-6
9/2013-
5/2014
2014 Departmental Proposals - LR 4 to LR 88 MDSA T4875-7
9/2013-
5/2014
2014 Departmental Proposals - LR 93 to LR 167 MDSA T4875-8
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
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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
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 136 of 171
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
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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
Signed Bills - HB 300 to HB 589 MDSA T857-295
4/2014-
5/2014
Signed Bills - HB 590 to HB 929 MDSA T857-296
4/2014-
5/2014
Signed Bills - HB 932 to HB 1349 MDSA T857-297
4/2014-
5/2014
Signed Bills - HB 1351 to HB 1552 MDSA T857-298
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
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 138 of 171
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
Constellation Energy MSA T4958-20
Pardons & Commutations MSA T4958-21
Pardons & Commutations MSA T4958-22
Original Pardon Decisions MSA T4958-23
Constellation Energy MSA T4958-24
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
Judicial Files MSA T4958-29
Judicial Files MSA T4958-30
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
Vernon Evans File (Death Row Inmate) MSA T4958-34
Vernon Evans File (Death Row Inmate) MSA T4958-35
Vernon Evans File (Death Row Inmate) MSA T4958-36
Vernon Evans File (Death Row Inmate) MSA T4958-37
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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.
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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.”
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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
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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.
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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
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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
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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
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 164 of 171
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,
Case 1:13-cv-03233-JKB Document 125-1 Filed 01/19/17 Page 165 of 171
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.
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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-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
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)
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