United States District Court, D. Maryland
MARK COULSON UNITED STATES MAGISTRATE JUDGE.
case arises out of allegations by Plaintiff Clayland Farm
Enterprises, LLC (“Plaintiff” or
“Clayland”) of certain constitutional violations
committed by Defendants Talbot County, Maryland, et al.
(“Defendants” or “Talbot County” or
the “County”). (ECF No. 1). It has been referred
to me for all discovery and related scheduling. (ECF No. 79).
Since Defendants' original Motion for Protective Order,
(ECF No. 103), various related discovery issues have been
raised by the parties. (ECF Nos. 133-135). On July 18, 2018,
I held a discovery status conference regarding those issues
and addressed many then, and within my Letter Order dated
July 19, 2018. (ECF No. 137). That Letter Order also
requested additional briefing on two remaining and unresolved
issues: (1) the “Ad hoc Working Group” privilege
log entries; and (2) “other miscellaneous privilege log
entries.” (Id.) The Defendants filed
supplemental briefing on August 31, 2018 (ECF No. 140),
Plaintiffs responded on September 12, 2018 (ECF No. 141), and
Defendants replied on September 26, 2018. (ECF No. 142).
reasons set forth below, Defendant's Motion for
Protective Order is GRANTED IN PART and DENIED IN PART.
primary issue at hand is the extent to which the “Ad
Hoc Working Group” (“Working Group”) is
eligible to claim legislative privilege. Clayland argues that
it is entitled to the production of the disputed documents
because: (1) the Defendants failed to adequately assert
legislative privilege; (2) any applicable legislative
privilege would be qualified; (3) the Working Group's
activities were not legislative and illegitimate; and (4)
third party disclosures waived any privilege.
Defendants contend that legislative privilege is appropriate
and therefore the Working Groups documents need not be
produced because: (1) their assertions of the privilege were
adequate; (2) the legislative privilege would be absolute;
(3) the Working Group's activities were legislative and
legitimate; and (4) the third party waiver doctrine does not
apply to legislative privilege.
The Burden of Demonstrating Legislative Privilege
Rule 26, “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case[.]” Fed.R.Civ.P. 26(b)(1). When information is
withheld by claiming privilege, the withholding party must:
“(i) expressly make the claim; and (ii) describe the
nature of the documents, communications, or tangible things
not produced or disclosed--and do so in a manner that,
without revealing information itself privileged or protected,
will enable other parties to assess the claim.”
Id. at 26(b)(5)(A). This process is achieved using
privilege logs, and a sufficient one identifies “each
document withheld, information regarding the nature of the
privilege/protection claimed, the name of the person
making/receiving the communication, the date and place of the
communication, and the document's general subject
matter.” Elat v. Ngoubene, No. CIV.
PWG-11-2931, 2013 WL 4478190, at *4 (D. Md. Aug. 16, 2013)
(citing Discovery Guideline 10.d.; Paul W. Grimm, Charles S.
Fax, & Paul Mark Sandler, Discovery Problems and
Their Solutions, 62-64 (2005)). Despite initial disputes
over whether Defendants needed to provide a privilege log,
one has since been compiled and produced for evaluation.
citing to United States v. Duke Energy, 214 F.R.D.
383 (M.D. N.C. 2003), has asserted since the beginning of
this discovery dispute that the Defendants must produce the
disputed documents because they failed to make a
“specific demonstration of facts” to support the
assertions of privilege. (ECF No. 141 at 2). The process,
however, involves a few more steps. See Elat, 2013
WL 4478190, at *5. First, a privilege is claimed, typically
by use of a privilege log. Id. Second, if the
claimed privilege is challenged the asserting party must
establish an evidentiary basis for the privilege.
Id. And third, if still contested, the dispute may
be submitted to the court for review. Id. Currently,
we are within this third step where the “party
asserting privilege has the burden of demonstrating its
applicability.” N.L.R.B. v. Interbake Foods,
LLC, 637 F.3d 492, 501 (4th Cir. 2011). Before me are
all the motions, correspondence, and briefing concerning the
applicability of legislative privilege. (See ECF
Nos. 103, 106, 111, 126, 127, 133, 134, 140, 141, and 142).
The Court also has before it all of the disputed documents so
that each may be reviewed in camera. Defendants
have, therefore, provided enough of a factual basis to
discern each document's subject matter, the names of
those involved, the creation date and place, and the asserted
privilege. The question now is whether the doctrine of
legislative privilege is applicable under these
circumstances. Thus, I do not find that Defendants facially
failed to make a “specific demonstration of facts,
” and will now proceed in evaluating whether the
Defendants adequately demonstrated the applicability of
Absolute Legislative Privilege Applies
privilege exists to safeguard the legislative immunity
enumerated in the Speech or Debate Clause of the United
States Constitution “and to further encourage the
republican values it promotes.” E.E.O.C. v.
Washington Suburban Sanitary Comm'n, 631 F.3d 174,
181 (4th Cir. 2011). “While the Speech and Debate
Clause by its terms protects only federal officials, the
Supreme Court has developed a similar doctrine of immunity
that shields state, regional, and local officials from civil
liability based on their actions taken ‘in the sphere
of legitimate legislative activity.'” Benisek
v. Lamone, 241 F.Supp.3d 566, 573 (D. Md. 2017) (quoting
to Tenney v. Brandhove, 341 U.S. 367, 376 (1951)).
The common law doctrines of legislative immunity and
privilege are both “motivated by the same policy of
comity, ” and therefore applied “in a parallel
privilege, however, exists in two flavors - qualified and
absolute. Benisek, 241 F.Supp.3d at 572-73.
Legislative privilege is qualified “in federal criminal
cases brought against individual legislators, or where
important federal interests” cause comity to yield.
Bethune-Hill v. Virginia State Bd. of Elections, 114
F.Supp.3d 323, 335 (E.D. Va. 2015) (listing cases); see
also Benisek, 241 F.Supp.3d at 572 (explaining that
legislative privilege is “qualified, not absolute, in a
context such as this redistricting litigation.”).
other hand, absolute legislative privilege is appropriate in
civil suits vindicating private rights. See Bethune,
114 F.Supp.3d at 335; Pulte Home Corp. v. Montgomery
County, Maryland, GJH-14-3955, 2017 WL 2361167, at *3
(D. Md. May 31, 2017) (apply absolute legislative privilege
to dispute over land use and zoning). Absolute legislative
privilege protects against compelled production of documents
and deposition testimony into actions that occurred within
the “sphere of legitimate legislative activity. See
Dombrowski v. Eastland, 387 U.S. 82, 85 (1967);
Pulte, 2017 WL 2361167, at *3. So if a plaintiff is
seeking “information about acts that took place in the
sphere of legitimate legislative activity, the legislative
privilege will act as a bar to the compelled production of
discovery.” Pulte, 2017 WL 2361167, at *3.
argues that “the property interests the County has
violated in the instant case are of a substantial degree
sufficient to qualify any legislative privilege.” (ECF
No. 106 at 13). The Court disagrees. The consequences of a
county governing land use within its jurisdiction do not
implicate an important federal or public interest such as is
found in voter redistricting litigation. Rather, this case
concerns Clayland's use of its land pursuant to Talbot
County's land use laws. These are private rights,
therefore to the extent that legislative privilege applies,
it is absolute.
The Working Group's Activities Were Legislative and
argues that the Working Group is not eligible for legislative
privilege because its activities were administrative or
executive in character. (ECF No. 106 at 6). Further, Clayland
asserts that even if the activities were legislative, the
Working Group is illegitimate because Defendants have not
demonstrated that it was created by the County Council. (ECF
No. 141). In response, the County contends that the ...