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Maryland Restorative Justice Initiative v. Hogan

United States District Court, D. Maryland

October 17, 2018

MARYLAND RESTORATIVE JUSTICE INITIATIVE, et al. Plaintiffs
v.
HOGAN, et al. Defendants.

          MEMORANDUM OPINION

          J. MARK COULSON UNITED STATES MAGISTRATE JUDGE

         This case concerns a challenge to the constitutionality of Maryland's parole system as applied to individuals who received sentences of life imprisonment with parole eligibility for offenses committed as juveniles. The Maryland Restorative Justice Initiative (“MRJI”) filed suit on behalf of Calvin McNeill, Nathaniel Foster, and Kenneth Tucker (collectively, “Plaintiffs”) against four Maryland officials in their official capacities: Governor Larry Hogan; David Blumberg, Chair of the Maryland Parole Commission; Stephen Moyer, Secretary of the Maryland Department of Public Safety and Correctional Services; and Dayena M. Corcoran, Commissioner of the Maryland Division of Correction, (collectively, the “State”).

         This case has been referred to me for resolution of all discovery and related scheduling matters pursuant to 28 U.S.C. § 636 and Local Rule 301. (ECF No. 85). Now pending before the Court is the State's Motion for Protective Order Regarding Confidentiality of Discovery Material (ECF No. 154) and Plaintiffs' Opposition and Conditional Cross Motion Challenging Confidentiality Designation (ECF No. 166). The Court has also considered the State's Reply and Opposition to Plaintiffs' Cross Motion. (ECF No. 168).[1] The issues are briefed and no hearing is necessary. Loc. R. 105.6 (D. Md. 2014).

         The State asks this Court to enter language in a protective order limiting the distribution of three categories of discovery materials that the State has either produced or will produce: (1) materials pertaining to individually named prisoners (absent a signed release from the prisoner); (2) the risk assessment tools and tests that assist in making parole determinations; and (3) personnel records of current and former psychologists who administer the aforementioned tools and tests. (ECF No. 154-1 at 5-7). Specifically, the State proposes provisions in the protective order for those three categories that would, absent leave of court, prevent distribution of such discovery material to a current or former prisoner, including a party (or, in the case of Plaintiff MRJI, a member of a party[2]), effectively making such materials for attorneys' eyes only.

         Plaintiffs do not outright oppose a protective order, but do oppose the State's proposed distribution limitation for the three categories of information. As to the prisoner's records, Plaintiffs argue that the proposed limitation is unjustified, would prevent the party plaintiffs from assisting counsel, and would result in the cloaking of whole files even where such files contain non-confidential information. (ECF No. 166 at 3-4). As the the other two categories, Plaintiffs argue that copyright law and the concern for personnel records are insufficient reasons to restrict distribution. Id. at 6-8. For the reasons detailed below, the State's Motion for Protective Order Regarding Confidentiality of Discovery Material (ECF No. 154) is GRANTED in part and DENIED in part, and Plaintiffs' Cross Motion Challenging Confidentiality Designation (ECF No. 166) is GRANTED in part and DENIED in part.

         I. DISCUSSION

         Federal Rule of Civil Procedure 26(c)(1) empowers the Court, where appropriate, to limit the scope of discovery. The party moving for protection has the burden of establishing that protection is justified. See In re Wilson, 149 F.3d 249, 252 (4th Cir. 1998). Once so established, “the party seeking the materials then must establish that the information is sufficiently necessary and relevant to his case to outweigh the harm of disclosure.” Id. at 252. Nonetheless, this Court is conferred broad discretion “to decide when a protective order is appropriate and what degree of protection is required.” Baron Fin. Corp. v. Natanzon, 240 F.R.D. 200, 202 (D. Md. 2006).

         A. Information In Prisoner “Case Records”

          The parties agree that information relating to specific prisoners includes sensitive and confidential information such as information concerning a prisoner's victims, family, medical and mental health, criminal record, personal identifiers, disciplinary records, gang affiliation, housing, and security. (ECF Nos. 154-1 at 2 and 166 at 8). The parties, however, disagree on the appropriate means of protecting that sensitive information. The State argues limited distribution is appropriate for all documents “contained in the files maintained by the Governor, the Parole Commission, and the Division of Correction.” (ECF No. 154-1 at 2). Plaintiffs argue that such a broad designation will inevitably cause the blanket designation of the whole file and, as an alternative, suggest the designation of narrow categories of confidentiality and/or redaction.

         (ECF No. 166 at 8). In the Court's view, the proper resolution falls somewhere between these two arguments.

         The State asks this Court to include the following language in the order:

Material provided in the course of discovery pertaining to named prisoners and designated as “Confidential” by the Defendants shall not be disclosed to a prisoner or a former prisoner, including a party, or to any other individual identified as a member of the MRJI, who is not the subject of the material designated as confidential. Confidential documents pertaining to a prisoner who is not the subject of the records may be disclosed to a prisoner or former prisoner, including a party, or to another individual identified as a member of the MRJI, with leave of court or with a release signed by the prisoner who is the subject of the record.

(ECF No. 154-1 at 6) (emphasis added). The State argues that such limited distribution will sufficiently protect prisoner's privacy rights, preserve prison security, and safeguard the public. (ECF Nos. 154-1 at 6 and 168 at 4-5). Additionally, the State contends that the Plaintiffs' ability to acquire releases from the prisoner alleviates any burdens caused by the limited production. Id. For example, the prisoner members of MRJI could presumably execute releases sharing their records with each other.

         A main justification offered by the State for its proposed distribution restriction is that under Maryland law, the Division of Correction is required to compile and maintain a “case record” of each inmate containing: (1) a description and photograph of the inmate; (2) family history; (3) any previous record of the inmate; (4) a summary of the facts of each case for which the inmate is serving a sentence; and (6) the results of the physical, mental, and educational examination of the inmate required under state law. See Md. Corr. Servs. Code Ann., §§ 3-601(a) and (c). The State further points out that the contents of a prisoner's “case record” are confidential. (ECF Nos. 154-1 at 2-3 & 168 at 4-5); See Md. Code Ann., Corr. Servs. § 3-602; Short v. Bishop, 2016 WL 916429, at *4 (Md. Ct. Spec. App. Mar. 9, 2016). It is not entirely clear to the Court whether this same “case record” would also typically contain the additional items cited by the parties such as victim information, gang affiliations, disciplinary records and housing information or whether such items are maintained in some other record. But for the Court's present purposes, its references to “case record” include not just the statutory definition but ...


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