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Benisek v. Lamone

United States District Court, D. Maryland

January 31, 2017

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

          MEMORANDUM AND ORDER

          James K. Bredar United States District Judge

         This case challenges the 2011 redistricting of Maryland's congressional districts. It was assigned to a three-judge court, of which the undersigned is a member and for which the undersigned has been designated to handle “all preliminary matters, including scheduling and oversight of discovery, ” subject to review by the full court. (Sched. Ord. 1, Nov. 16, 2016, ECF No. 108.) An order was entered on November 16, 2016, setting a schedule for discovery, including the date of February 10, 2017, for completion of all fact discovery. (Id.)

         Now pending before the Court are two ripe motions related to discovery:

• Plaintiffs' Motion to Compel Non-Parties Jeanne D. Hitchcock, Thomas V. “Mike” Miller Jr., Michael E. Busch, and Richard Stewart to Testify at Deposition, and to Compel Non-Parties Thomas V. “Mike” Miller Jr., Michael E. Busch, and Richard S. Madaleno Jr. to Produce Documents (ECF No. 111), and
• Non-Parties' Motion for Protective Order and to Quash Non-Party Deposition Subpoenas Served on Thomas V. Mike Miller, Jr., Michael E. Busch, Jeanne Hitchcock, and Richard Stewart (ECF Nos. 112 & 114).

         Each of these two motions is effectively the mirror image of the other motion. Accordingly, they will be analyzed as one. Both motions have been briefed (ECF Nos. 119, 120, 123, & 124), and no hearing is required, Local Rule 105.6 (D. Md. 2016). Plaintiffs' motion will be granted, and the Non-Parties' motion will be denied.

         I.

         This memorandum will not repeat all that was said by the Court in its majority opinion when it denied Defendants' motion to dismiss for failure to state a claim for relief. (Op. Aug. 24, 2016, ECF No. 88.) In short, the Court determined the second amended complaint states a claim of violation of Plaintiffs' First Amendment rights by alleging that the 2011 redistricting was undertaken, as to the former Sixth Congressional District, purposefully to dilute the weight of Republicans' votes based upon their voting histories and their party affiliation and that it achieved that purpose. (Op. 38-39.) Applying established principles of First Amendment retaliation cases, the Court distilled the three elements that Plaintiffs will be called upon to prove in this case:

1. Intent - Those responsible for the redistricting map redrew the lines of the Sixth District with the specific intent to impose a burden on Plaintiffs and similarly situated voters because of how they voted or the political party with which they were affiliated.
2. Injury - The burden imposed on Plaintiffs was dilution of their votes to such a degree that it yielded a tangible and concrete adverse effect.
3. Causation - The redistricting of the Sixth District would not have resulted in an adverse effect to Plaintiffs but for the officials' retaliatory motive, that is, to burden Plaintiffs and similarly situated voters by reason of their views.

(Op. 31-32.)

         II.

         It is the first element of specific intent that underlies Plaintiffs' efforts to obtain deposition testimony and/or production of documents from the Non-Parties. In turn, the Non-Parties have resisted Plaintiffs' attempts to delve into the intent of those individuals drawing the contested redistricting map and those legislators ratifying that map, and they have claimed they are justified in doing so because they enjoy legislative privilege. After considering all of the parties' ...


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