United States District Court, D. Maryland
O. JOHN BENISEK et al.., Plaintiffs
LINDA H. LAMONE et al.., Defendants
MEMORANDUM AND ORDER
K. Bredar United States District Judge
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.)
pending before the Court are two ripe motions related to
• 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).
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.
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
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
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' ...