United States District Court, D. Maryland
MARYLAND RESTORATIVE JUSTICE INITIATIVE, et al. Plaintiffs
HOGAN, et al. Defendants.
MARK COULSON UNITED STATES MAGISTRATE JUDGE
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”).
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). The issues are briefed and no hearing is
necessary. Loc. R. 105.6 (D. Md. 2014).
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), effectively making such
materials for attorneys' eyes only.
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.
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).
Information In Prisoner “Case Records”
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
No. 166 at 8). In the Court's view, the proper resolution
falls somewhere between these two arguments.
State asks this Court to include the following language in
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.
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 ...