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Clayland Farm Enterprises, LLC v. Talbot County

United States District Court, D. Maryland

October 1, 2018

CLAYLAND FARM ENTERPRISES, LLC, Plaintiff,
v.
TALBOT COUNTY, MARYLAND, et al, Defendants.

          MEMORANDUM OPINION

          J. MARK COULSON UNITED STATES MAGISTRATE JUDGE.

         This 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), [1] Plaintiffs responded on September 12, 2018 (ECF No. 141), and Defendants replied on September 26, 2018. (ECF No. 142).

         For the reasons set forth below, Defendant's Motion for Protective Order is GRANTED IN PART and DENIED IN PART.

         I. DISCUSSION

         The 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.

         The 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.

         A. The Burden of Demonstrating Legislative Privilege

         Under 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.

         Clayland, 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 legislative privilege.

         B. Absolute Legislative Privilege Applies

         Legislative 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 manner.” Id.

         The 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.”).

         On the 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.

         Clayland 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.

         C. The Working Group's Activities Were Legislative and Legitimate

         Clayland 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 ...


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