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Maryland Restorative Justice Initiative v. Hogan

United States District Court, D. Maryland

October 25, 2018

HOGAN, et al. Defendants.


          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 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 was 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 is Plaintiffs' Motion to Compel, complaining of the State's insufficient and incomplete production of documents. (ECF No. 172). The issues are briefed and no hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the reasons stated below, Plaintiffs' Motion to Compel is GRANTED in part and DENIED in part.

         I. Timeframe for Relevant Discovery

         On September 27, 2017, this Court issued a Memorandum Opinion concerning many of the issues before it today, including the timeframe for relevant discovery, attorney-client privilege, and executive privilege. (ECF No. 88). When addressing the Plaintiffs' production requests dating back to 1995 and the State's proposal to produce documents dating back to 2004, this Court explained that:

Even if, for the sake of argument, current policy was influenced by prior administrations, it is the policy itself and its current implementation by these specific defendants that is at issue in this case. By agreeing to provide more than a dozen years of information, the State's position is reasonable and proportional to the needs of the case, and is therefore compliant with the Federal Rules of Civil Procedure.

(Id. at 2).

         The State, however, recently informed Plaintiffs that “any documents in the files of former non-defendant Governors, whether privileged or non-privileged, are irrelevant to the claims and defenses in this action . . . .” and that it will only produce records of the current Governor. (ECF No. 172-8 at 3). In support of its decision, the State points to the changes to the legal landscape caused by Executive Order 01.01.2018.06 (setting the standards the Governor now must apply in considering juvenile lifers for parole). The State also cites the Maryland Court of Appeals' decision in Carter, Bowie, & McCullough v. State, __ Md. __, Nos. 54, 55, & 26, Sept. Term 2017, 2018 WL 4140672 (Aug. 29, 2018) where the Court of Appeals denied a similar constitutional challenge to the State's parole system by individuals receiving life sentences as juveniles, holding that “the laws governing parole of inmates serving life sentences in Maryland, including the parole statute, regulations, and a recent executive order adopted by the Governor, on their face allow a juvenile offender serving a life sentence a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.'” These developments-the State argues-are even more reason to focus on the current system of dealing with parole requests as opposed to what may have occurred under past administrations given the prominence of Governor Hogan's Executive Order in the Maryland Court of Appeals' reasoning. The State also contends-having now reviewed and produced documents for the current administration-that the high burden and expected low yield (due to executive and attorney-client privilege) significantly outweighs the relevance of documents related to past administrations.

         For their part, Plaintiffs argue that the change of heart by the State in limiting the scope of its production amount to a much-delayed objection to discovery more than a year after the fact, constituting a waiver for which no good cause exists. Additionally, Plaintiffs argue that Governor Hogan's Executive Order (and the Court of Appeals' reliance on it) does not justify narrowing the scope of discovery. (ECF No. 172 at 6-7).

         In the Court's view, this dispute cannot be decided simply by employing a waiver analysis. To be sure, a party's prior representation that a certain scope of discovery would govern could constitute a waiver of a later objection to that scope. In such a case, the Court would then engage in a “good faith” analysis to determine whether there has been a sufficient change in circumstance that would excuse such a waiver. Hall v. Sullivan, 231 F.R.D. 468, 473-74 (D. Md. 2005). However, as noted in Mancia v. Mayflower Textile Servcs., regardless of the outcome of this waiver analysis, the Court is tasked with its own obligation to evaluate the benefits and burdens of the requested discovery. 253 F.R.D. 354, 363 (D. Md. 2008). This is consistent with the Court's duty to independently construe, administer, and employ discovery rules “to secure the just, speedy and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1. In completing its obligations of active case management, this Court must always measure discovery against relevance to the claims and defenses and the ever present “yardstick of proportionality.” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 2010) (citing Fed.R.Civ.P. 26(b)(2)(C)). Whether it is pursuant to a party's motion or on its own initiative, this Court “must limit the frequency or extent of discovery” if “the discovery sought is unreasonably cumulative” or “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Fed.R.Civ.P. 26(b)(2)(C)(i)-(iii). In the Court's view, its duties in this regard are ongoing and not discharged through a single static assessment of the case. Rather, the Court is required to reassess the above balancing as a case evolves.

         Following Judge Hollander's ruling on the State's Motion to Dismiss, (ECF No. 65), the two causes of action before the Court are Count 1 - Violation of the Eight Amendment Prohibition Against Cruel and Unusual Punishment and 42 U.S.C. § 1983 against all Defendants, and Count 2 - Violation of Article 25, Md. Decl. of Rights Prohibition Against Cruel or Unusual Punishment against all Defendants. (ECF No. 1). The basis of both are that the State “operate[s] a parole scheme that is indistinguishable from a system of ad hoc executive clemency in which grants of release are exceptionally rare, are governed by no substantive or enforceable standards, ” and that this scheme “as applied to Plaintiffs, has not afforded them a meaningful and realistic opportunity for release.” (ECF No. 1 at ¶¶ 167-69, 174-177). By way of relief, Plaintiffs request that the Court declare the following unconstitutional: (1) the “parole scheme” operated by the State; (2) the law granting the Governor's authority over the parole process; and (3) the denial of Plaintiffs and other juvenile lifers a meaningful and realistic opportunity for release. (Id. at 59-60). Plaintiffs also requests that this Court issue an injunction “immediately to discontinue these practices and take remedial steps to address their past illegal conduct, by granting Plaintiffs, and others represented by the Maryland Restorative Justice Initiative, a meaningful and realistic opportunity to demonstrate their readiness for release.” (Id. at 60-61). In other words, Plaintiffs ask the Court to assess the current “parole scheme” (to include the Governor's role) against the relevant constitutional principles and, if found infirm, order these Defendants to change their practices so as to provide Plaintiffs a meaningful opportunity for release.

         Plaintiffs assert that their case is against the Office of the Governor and that they are entitled to “pursue discovery . . . regardless of who happens to be Governor.” (ECF Nos. 172 at 4 and 181 at 6). As noted above however, this Court previously expressed its skepticism about the relevance of such materials. It would appear to the Court that the only potential basis to look beyond the current administration is to search for a hidden policy or standard practice unwaveringly followed by each successive administration (in uncharacteristically bipartisan fashion) to deny juvenile offenders meaningful opportunities for parole. (ECF No. 84-3 at 13). Such a scenario seems farfetched. But even if such a historical policy was the motivation for the current Defendants, Plaintiffs do not adequately explain why its application by prior administrations would be sufficiently relevant in this case, given that the Complaint is limited to prospective claims for relief focused on current implementation of current policy (as now supplemented by Governor Hogan's Executive Order). In short, Plaintiffs have simply not shown how the theoretical conduct of a former administration would be sufficiently probative of alleged unconstitutional conduct by the current Defendants.

         This is especially so given the low yield and high burden involved with an expanded scope. Plaintiffs have injected their claims into the heart of executive decision making and, unsurprisingly, the State has effectively asserted and defended claims of executive and attorney-client privilege. With this as a guide, the Court suspects that files of past governors, like those of the current administration, will spark numerous disputes over privilege and ultimately yield little to no usable non-privileged information. Moreover, the State has articulated the burdens it will face with detail. To date, the State has spent an estimated 300 hours responding to Plaintiffs' requests, reviewing for responsiveness and privilege, redacting, and preparing privilege logs. (ECF No. 177-8 at 1). This already high estimate does not include any time spent by the Governor's Office of Legal Counsel in collecting and preliminarily reviewing the documents. The State projects that producing the files maintained by Governors Ehrlich and O'Malley would require review of several thousand documents, redaction of privileged information, the preparation of a privilege log, and the assistance of representatives from the prior administrations. The State additionally asserts that if required to search for electronic documents and information from the current timeframe it would, at a minimum, take an additional 500 hours to conduct the electronic searches, compile the thousands to hundreds of thousands of emails, review for responsiveness, stamp, redact, and, if necessary, detail within a privilege log. Lastly, the State asserts that the majority of the responsive documents were generated and maintained by the Governor's Office of Legal Counsel and “would be heavily, if not entirely, redacted.” (ECF No. 177-8).

         While the importance of the issues at hand cannot be overstated, the importance of this expansive discovery as to resolving these issues, in the Court's opinion, is minor at best. Plaintiffs' impassioned arguments on how the time complying with discovery requests is merely a fraction of that Plaintiffs have spent incarcerated it not lost on the Court. (ECF No. 181 at 8). But the question before the Court in deciding a discovery dispute is not freedom or incarceration. Nor is it discovery versus no discovery. Plaintiffs have requested and received vast amounts of information. Over the course of discovery the State has produced at least 248 parole files for inspection, thousands of electronic copies, redacted versions of the lifer files maintained by the Governor, additional files maintained by the Governor on a rolling basis, and another round of document production. (ECF No. 177 at 20). Rather, the most pertinent question is if the burdens of complying with this timeframe outweigh the likely benefit. In light of the burdens articulated by the State and the minimal possibility of discovering any information of any significant relevance to the claims of the Plaintiffs, this Court will narrow the scope ...

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