Case 1:13-cv JKB Document 111 Filed 01/04/17 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

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1 Case 1:13-cv JKB Document 111 Filed 01/04/17 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND O. John Benisek, et al., Plaintiffs, vs. Linda H. Lamone, et al., Defendants. Case No. 13-cv-3233 Three-Judge Court PLAINTIFFS MOTION TO COMPEL NON-PARTIES JEANNE D. HITCHCOCK, THOMAS V. MIKE MILLER JR., MICHAEL E. BUSCH, AND RICHARD STEWART TO TESTIFY AT DEPOSITION, AND TO COMPEL NON-PARTIES THOMAS V. MIKE MILLER JR., MICHAEL E. BUSCH, AND RICHARD S. MADALENO JR. TO PRODUCE DOCUMENTS Plaintiffs O. John Benisek, Jeremiah DeWolf, Sharon Strine, Charles W. Eyler, Alonnie L. Ropp, Edmund Cueman, and Kat O Connor, pursuant to Rule 45(g) of the Federal Rules of Civil Procedure and Local Rules and 104.8, hereby move this Court for an order compelling non-parties Jeanne D. Hitchcock, Thomas V. Miller Jr., Michael E. Busch, and Richard Stewart to attend their depositions and testify without resting on any assertion of legislative privilege. Plaintiffs move further for an order compelling Mr. Miller, Mr. Busch, and Richard S. Madaleno Jr. to produce documents in response to Plaintiffs subpoenas without resting on any assertion of legislative privilege. Plaintiffs submit the attached memorandum in support of this motion. 1

2 Case 1:13-cv JKB Document 111 Filed 01/04/17 Page 2 of 3 Dated: January 3, 2017 Respectfully submitted, /s/ Michael B. Kimberly Michael B. Kimberly, Bar No mkimberly@mayerbrown.com Paul W. Hughes, Bar No Stephen M. Medlock, pro hac vice E. Brantley Webb, pro hac vice Mayer Brown LLP 1999 K Street NW Washington, D.C (202) (office) (202) (facsimile) 2

3 Case 1:13-cv JKB Document 111 Filed 01/04/17 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on this 3 rd day of January 2017, a copy of the foregoing Motion to Compel and the attached Memorandum of Law were filed in the United States District Court for the District of Maryland, electronically served upon all counsel of record through the Court s CM/ECF system, and served via electronic mail and first class mail upon counsel for non-parties Jeanne D. Hitchcock, Thomas V. Miller Jr., Michael E. Busch, Richard Stewart, and Richard S. Madaleno Jr. /s/ Stephen M. Medlock Michael B. Kimberly, Bar No mkimberly@mayerbrown.com Paul W. Hughes, Bar No Stephen M. Medlock, pro hac vice E. Brantley Webb, pro hac vice Mayer Brown LLP 1999 K Street NW Washington, D.C (202) (office) (202) (facsimile) 3

4 Case 1:13-cv JKB Document Filed 01/04/17 Page 1 of 33 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND O. John Benisek, et al., Plaintiffs, vs. Case No. 13-cv-3233 Three-Judge Court Linda H. Lamone, et al., Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL NON-PARTIES JEANNE D. HITCHCOCK, THOMAS V. MIKE MILLER JR., MICHAEL E. BUSCH, AND RICHARD STEWART TO TESTIFY AT DEPOSITION, AND TO COMPEL NON-PARTIES THOMAS V. MIKE MILLER JR., MICHAEL E. BUSCH, AND RICHARD S. MADALENO JR. TO PRODUCE DOCUMENTS Michael B. Kimberly, Bar No Paul W. Hughes, Bar No Stephen M. Medlock, pro hac vice E. Brantley Webb, pro hac vice Mayer Brown LLP 1999 K Street NW Washington, D.C (202) (office) (202) (facsimile)

5 Case 1:13-cv JKB Document Filed 01/04/17 Page 2 of 33 TABLE OF CONTENTS Introduction... 1 Background... 3 A. The key roles in drawing the lines of the Sixth District... 3 B. Senator Madaleno s speech concerning legislative intent... 5 C. Plaintiffs document and deposition subpoenas and the GRAC members responses... 6 Argument I. The state legislative privilege provides no basis for refusing to sit for depositions or produce documents in this case II. A. State legislative privilege cannot be invoked on a blanket basis in cases like this one B. The five-factor balancing test clearly favors disclosure Even if the privilege were available here, the assertion of privilege is wholly unsupported by facts or evidence III. Senator Madaleno has waived the privilege, to the extent he can assert it at all Conclusion Certificate of Conference i

6 Case 1:13-cv JKB Document Filed 01/04/17 Page 3 of 33 Cases TABLE OF AUTHORITIES Page(s) A Helping Hand, LLC v. Baltimore Cnty., Md., 295 F. Supp. 2d 585 (D. Md. 2003) Baldus v. Members of the Wis. Gov t Accountability Bd., 2011 WL (E.D. Wis. 2011)... 15, 17, 22 Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7 (D.D.C. 2004) Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323 (E.D. Va. 2015)... passim Carver v. Foerster, 102 F.3d 96 (3d Cir. 1996) Chase v. Peay, 286 F. Supp. 2d 523 (D. Md. 2003) Comm. for a Fair & Balanced Map, 2011 WL , at *8 (N.D. Ill. 2011)... 17, 21 EEOC v. Wash. Suburban Sanitary Comm n, 631 F.3d 174 (4th Cir. 2011) EEOC v. Wash. Suburban Sanitary Comm n, 666 F. Supp. 2d 526 (D. Md. 2009), aff d 631 F.3d 174 (4th Cir. 2011) Elrod v. Burns, 427 U.S. 347 (1976) Favors v. Cuomo, 285 F.R.D. 187 (E.D.N.Y. 2012)... passim Harris v. Arizona Indep. Redistricting Comm n, 993 F. Supp. 2d 1042 (D. Ariz. 2014), aff d 136 S. Ct (2016) Herbalife Int l, Inc. v. St. Paul Fire & Marine Ins. Co., 2006 WL (N.D.W. Va. 2006) Kelly v. United States, 281 F.R.D. 270 (E.D.N.C. 2012) ii

7 Case 1:13-cv JKB Document Filed 01/04/17 Page 4 of 33 Cases continued Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292 (D. Md. 1992)... passim Mezu v. Morgan State U., 269 F.R.D. 565 (D. Md. 2010)... 24, 26 Mitchell v. Glendenning, No. WMN (D. Md. June 4, 2002) Nashville Student Organizing Comm. v. Hargett, 123 F. Supp. 3d 967 (M.D. Tenn. 2015) NLRB v. Interbake Foods, LLC, 637 F.3d 492 (4th Cir. 2011)... 16, 24 Owen v. City of Independence, 445 U.S. 622 (1980)... 14, 21 Page v. Va. State Bd. of Elections, 15 F. Supp. 3d 657 (E.D. Va. 2014)... passim Perez v. Perry, 2014 WL (W.D. Tex. 2014)... 13, 15, 24, 26 Reynolds v. Sims, 377 U.S. 533 (1964)... 1, 19 RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741 (E.D. Va. 2007) Rodriguez v. Pataki, 280 F. Supp. 2d 89 (S.D.N.Y. 2003) Ruran v. Beth El Temple of W. Hartford, Inc., 226 F.R.D. 165 (D. Conn. 2005)... 24, 26 S.C. Educ. Ass n v. Campbell, 883 F.2d 1251 (4th Cir.1989) Shapiro v. McManus, ---F. Supp. 3d---, 2016 WL (D. Md. 2016)... passim Smith v. Town of Clarkton, N.C., 682 F.2d 1055 (4th Cir. 1982) Trammel v. United States, 445 U.S. 40 (1980) iii

8 Case 1:13-cv JKB Document Filed 01/04/17 Page 5 of 33 Cases continued Trombetta v. Bd. of Educ., Proviso Twp. High Sch. Dist. 209, 2004 WL (N.D. Ill. 2004)... 26, 27 United States v. Gillock, 445 U.S. 360 (1980)... 13, 14, 22 United States v. Irvin, 127 F.R.D. 169 (C.D. Cal. 1989) United States v. O Brien, 391 U.S. 367 (1968) Veasey v. Perry, 2014 WL (S.D. Tex. 2014), aff d in part and rev d in part, 796 F.3d 487 (5th Cir. 2015)... 15, 19 Vieth v. Jubelirer, 541 U.S. 267 (2004) Other Authorities Fed. R. Civ. P. 45(d)(2)(B)(i) Fed. R. Civ. P. 45(e)(2)(A)... 23, 26 Fed. R. Civ. P. 45(g) Legislative Privilege, 26A Fed. Prac. & Proc. Evid (1st ed.) Md. Rule of Prof. Conduct 4.2(c)... 8 iv

9 Case 1:13-cv JKB Document Filed 01/04/17 Page 6 of 33 INTRODUCTION Plaintiffs allege that the State of Maryland through the Democrat-controlled Governor s Redistricting Advisory Committee (GRAC), the Democrat-controlled General Assembly, and the then-democrat-controlled governor s office retaliated against Republicans living in the former Sixth Congressional District by reason of their political associations and voting histories. These state agencies and officials gerrymandered the Sixth District by moving into the district tens of thousands of Democratic voters and out of the district tens of thousands of Republican voters, all with the specific intent and purpose of changing the outcome of future congressional elections in the Sixth District under the 2011 redistricting plan (the Plan). In its opinion denying the State s motion to dismiss, the Court described what Plaintiffs must prove to establish their claim. They must: prove that the State used data reflecting citizen s voting history... for the purpose of making it harder for a particular group of voters to achieve electoral success because of the views they had previously expressed ; produce objective evidence, either direct or circumstantial, that the legislature specifically intended to burden the representational rights of certain citizens because of how they had voted in the past and the political party with which they had affiliated ; and show that the vote dilution brought about by the redistricting legislation was sufficiently serious to produce a demonstrable and concrete adverse effect on a group of voters right to have an equally effective voice in the election of a representative. Shapiro v. McManus, ---F. Supp. 3d---, 2016 WL , at *10-11 (D. Md. 2016) (quoting Reynolds v. Sims, 377 U.S. 533, 565 (1964)). To that end, we served four members of the GRAC Jeanne Hitchcok, Maryland State Senator Thomas Miller, Maryland House of Delegates Speaker Michael Busch, and Mr. Richard Stewart with 1

10 Case 1:13-cv JKB Document Filed 01/04/17 Page 7 of 33 deposition subpoenas; and the same individuals and Senator Richard Madaleno, Jr., with document subpoenas. In response to these subpoenas, the Maryland Office of Attorney General (OAG) has asserted that no past or present lawmaker may be required to appear for deposition, much less to answer any of our questions on the merits. Indeed, in the OAG s view, no current or former state official involved in the drafting of the Plan can be compelled in this federal civil rights lawsuit to answer any question or produce any document concerning legislative intent or the legislative process at all. These assertions of legislative privilege lack all merit. First, the case law is clear that state officials cannot duck their federal constitutional obligations by hiding behind claims of state legislative privilege. That conclusion is especially apparent in federal lawsuits of broad public importance like this one, particularly given that the subpoena targets are not themselves named as defendants and therefore face no threat of personal liability. Courts frequently face claims of privilege in circumstances like these, and relying on a settled balancing test, nearly always reject them. The Court should do so here. Second, even supposing that the privilege were available to the former members of the GRAC and Senator Madaleno in this lawsuit, these individuals have asserted the privilege conclusorily, without offering a single statement of fact or article of evidence to support their objections. Yet they carry the burden of proving that the privilege applies. That have failed entirely to meet that burden. Third, the legislative privilege is unavailable to the extent that it has been waived. As relevant here, Senator Madaleno openly waived any legislative privilege he might have had with respect to legislative intent when he gave a public speech on 2

11 Case 1:13-cv JKB Document Filed 01/04/17 Page 8 of 33 exactly that topic. He accordingly cannot withhold responsive documents concerning legislative intent on that basis. For these reasons and all of those laid out more fully below, the Court should enter an order compelling Ms. Hitchcock, Senator Miller, Speaker Busch, and Mr. Stewart to testify at a deposition and answer questions concerning legislative intent without regard for assertion of legislative privilege; and compelling Senator Miller, Speaker Busch, and Senator Madaleno to produce responsive documents, again without regard for any assertion of legislative privilege. BACKGROUND A. The key roles in drawing the lines of the Sixth District The GRAC members played a key role in drafting and enacting the Plan. The committee comprised two sitting legislators (Speaker Busch and Senator Miller) and three individuals appointed by Governor O Malley. See ECF No One of the appointees, Jeanne Hitchcock, was a close advisor to Governor O Malley. See id. 19. At the time that she was appointed, Hitchcock served as Governor O Malley s Appointments Secretary. Id. She had previously served as Deputy Mayor of Baltimore when Governor O Malley was the Mayor of Baltimore. Id. Hitchcock served as the chair of the GRAC. ECF No The GRAC members received a steady stream of information from Maryland state agencies, high-level staffers, and members of the General Assembly. The GRAC also relied for its work on staffers from the governor s office, Department of Legislative Services (DLS), Department of Planning (DOP), and the General Assembly. The following staffers assisted the GRAC and had access to the proposed 2011 congressional map before it was released to the public: 3

12 Case 1:13-cv JKB Document Filed 01/04/17 Page 9 of 33 Patrick Murray, a legislative aide to Senator Miller; Yaakov Weissman, a legislative aide to Senator Miller; Jeremy Baker, a legislative aide to Speaker Busch; Joseph Bryce, an aide to Governor O Malley; John McDonough, the Maryland Secretary of State; Michelle Davis, a DLS Senior Policy Analyst; and Karl Aro, the former DLS Executive Director. Ex. A at Interrog. Resp. 1. DOP, the governor s office, the GRAC, and staffers working for Speaker Busch and Senator Miller worked closely with one another on the drafting of the Plan. On July 5, 2011, a day after the GRAC was formed by Governor O Malley, Hitchcock ed meeting materials to GRAC members, an aide to Governor O Malley, and Richard Hall, the Secretary of DOP. Ex. B at 2. The same day, Hitchcock mailed a GRAC meeting agenda to GRAC members, an aide to Governor O Malley, and Secretary Hall. Id. at 3. Similarly, on July 7, 2011, John Bryce, an aide to Governor O Malley sent a proposed schedule for public meetings regarding the 2011 congressional map to members of the GRAC. The recipients of this included: John Favazza, a Chief of Staff to Speaker Busch; Kristin Jones, a Chief of Staff to Speaker Busch; Victoria Gruber, a staffer to Senator Miller; Patrick Murray, a legislative aide to Senator Miller; Alexandra Hughes, a staffer to Speaker Busch; Jeremy Baker, a senior advisor to Speaker Busch; 4

13 Case 1:13-cv JKB Document Filed 01/04/17 Page 10 of 33 Nancy Earnest, an assistant to Speaker Busch; Joy Walker, an assistant to Senator Miller; and John McDonough, Governor O Malley s Secretary of State. Id. at 4. A week later, Bryce sent an updated schedule to members of the GRAC, the same staffers to Speaker Busch and Senator Miller, and the following individuals: Richard Hall, the DOP Secretary; Raquel Guillory, the Director of Communications for Governor O Malley; Karl Aro, the DOP Executive Director; Matt Gallagher, the governor s chief of staff; Rick Abbruzzese, the governor s Director of Public Affairs; and John McDonough, the Maryland Secretary of State. Id. at 5. The map generated through this process of staff and information exchange is the very map that Plaintiffs now seek to enjoin Defendants from enforcing. B. Senator Madaleno s speech concerning legislative intent Shortly before the Plan was enacted, Senator Madaleno gave a recorded speech in which he addressed the specific intent behind that Plan s drafting. See Joint Stips. (ECF No. 104) 40, & Exs. 7-9 (available online at He said, specifically: What you see going on elsewhere is clearly in other states that are Republican controlled they are drawing maps to try to take out Democrats, so I think there is pressure on saying look, if they are playing that game elsewhere, then in states like Maryland where democrats control we ve got to do the opposite. Joint Stips. (ECF No. 104) 40(a). This is a conflict between, what you could say, the heart and the mind of the Democratic party. The heart is Frank Kratovil had that seat [the 1st District] before, Frank Kratovil won before, he made hard votes on behalf of Barack 5

14 Case 1:13-cv JKB Document Filed 01/04/17 Page 11 of 33 Obama, we should find a way to reward our friend Frank Kratovil. The head is telling you, Look, western Maryland, a new district focused toward western Maryland is one that you could actually pick up easier Do you reach out and help your good old friend Frank Kratovil, or do you go for where, in fact, you probably have a better chance at a pick up. Id. 40(b). If you go with a competitive western Maryland district, the way that works is clearly that district comes further into Montgomery county, substantially into Montgomery county. Id. 40(c). I think trying to achieve both makes it a little more difficult for everyone trying to draw the maps. But you re dealing with one of the things that s interesting is you re dealing with people like a Mike Miller or some of the staff of the legislature who have done this several cycles, so it s not like they are a bunch of people experimenting for the first time on how to do this. Id. 40(d). The parties have stipulated to the authenticity of the videos depicting Senator Madaleno s speech. See Joint Stips. (ECF No. 104), at 1 & C. Plaintiffs document and deposition subpoenas and the GRAC members responses As the Court has explained, a plaintiff bringing a political gerrymandering claim under the First Amendment must allege that those responsible for the map redrew the lines of his district with the specific intent to impose a burden on him and similarly situated citizens because of how they voted or the political party with which they were affiliated. Shapiro, 2016 WL , at *10 (emphasis omitted). Demonstrating the required intent requires a plaintiff to rely on objective evidence to prove that, in redrawing a district s boundaries, the legislature and its mapmakers were motivated by a specific intent to burden the supporters of a particular political party. Id. at *11. Plaintiffs here must show, in other words, that the legislature specifically intended to burden the representational rights of Republican voters in the former Sixth District because of how they had voted in the past and the political party with which they had affiliated. Id. 6

15 Case 1:13-cv JKB Document Filed 01/04/17 Page 12 of 33 To meet this burden, Plaintiffs served deposition subpoenas on the four Democrat-appointed members of the GRAC: Ms. Hitchcock, Senator Miller, Speaker Busch, and Mr. Stewart. See Exs. G-J. We also served document subpoenas on the same four individuals as well as Senator Richard Madaleno, Jr. See Exs. C-F. 1. With respect to the deposition subpoenas, Plaintiffs intend to question these four members of the GRAC regarding (among other things) their intent and motivations for drawing the lines of the Sixth Congressional District as they did, the data that they used and how they used it, and the vote dilution that resulted from the Plan as enacted. In an dated December 16, 2016, counsel for Defendants (the same counsel in the Office of the Attorney General who represent Defendants in this case) stated that their intent was to move to quash subpoenas served on members of the GRAC because the individuals you seek to depose cannot be compelled to testify in this matter on the basis of state legislative privilege. Ex. L at 1. On December 20 and 21, Plaintiffs met and conferred with counsel for the proposed deponents (and Defendants) to discuss, among other things, the deposition subpoenas served on the GRAC members. During that conference, and in subsequent correspondence, counsel for the proposed deponents again asserted that the members of the GRAC will refuse to sit for depositions on the basis of a blanket assertion of state legislative privilege, and that the their counsel intended to seek protective orders quashing those subpoenas on the grounds of legislative privilege. Ex. M at 1. At the same time, the OAG has obstructed our efforts to speak informally with any current legislators, asserting that all sitting legislators are represented by the OAG in connection with this matter and that they therefore cannot be contacted 7

16 Case 1:13-cv JKB Document Filed 01/04/17 Page 13 of 33 despite Plaintiffs First Amendment right to petition their lawmakers for redress of their grievances. See Md. Rule of Prof. Conduct 4.2(c). Most recently, counsel for Defendants have stated that they will seek a protective order from this Court if we make any attempt to contact sitting legislators on an ex parte basis and informed us that they will not consent to our interview of such legislators unless several lawyers from the OAG are present and the OAG lawyers are permitted to invoke the legislative privilege on absent parties behalves. In addition, the OAG has refused to agree to allow these interviews go forward unless Plaintiffs are limited to five interviews and the interviews are not transcribed. See Ex. R at As for the document requests, we served third-party document subpoenas seeking (among other things): All external communications relating to the planning or drafting of Maryland s 2011 congressional redistricting plan with... (a) the Governor; (b) Maryland House Redistricting Committee; (c) Maryland Senate Redistricting Committee; (d) Any current or former member of the Maryland General Assembly, including their staff or agents; (e) Any current or former member of the United States Congress, including their staff or agents; (f) Any current or former officer, member of leadership, or staff member of the Democratic National Committee, including their staff or agents; (g) Any current or former officer, member of leadership, or staff member of the Democratic Congressional Campaign Committee, including their staff or agents; or (h) Any current or former officer, member of leadership, or staff member of the Maryland Democratic Party. See Exs. C, D, E, and F at Req. 1. All external Communications between or among You and third parties (including consultants, experts, constituents, and members of the press) related in any way to Maryland s 2011 congressional redistricting process, its goals, or its results during the Relevant Time Period. See Exs. C, D, E, and F at Req. 2. All interim or draft maps or reports related to Maryland s 2011 congressional redistricting plan, whether electronic or in hard copy, provided to You by any third party or by You to any third part during the Relevant Time period. See Exs. C, D, E, and F at Req. 3. 8

17 Case 1:13-cv JKB Document Filed 01/04/17 Page 14 of 33 The four democratic members of the GRAC responded to our requests for documents in different ways. By letter dated December 19, 2016, counsel for Hitchcock stated that she was unable to locate any electronic or hard copy documents responsive to the subpoena. See Ex. K. Among what was surely a voluminous exchange of documents and communications concerning the 2011 redistricting, Hitchcock (the Chair of the GRAC) found not one single responsive communication or other document. In the same letter, counsel for Stewart produced eleven pages of s (and later six attachments) and stated that Stewart was withholding one document on the basis of attorney-client privilege. Id. Again, among all the s, letters, and other documents shared in the course of drafting the Plan, Stewart found just eleven pages of s. Neither Hitchcock nor Stewart invoked the state legislative privilege as a basis for refusing to produce documents. Senator Miller, Speaker Busch, and Senator Madaleno responded differently. See Ex. N. While they produced a limited number of documents collectively, fewer than 150 pages in all they asserted legislative privilege as a basis for withholding 30 responsive documents. See Exs. O-Q. In addition to serving three privilege logs, counsel for the legislators explained in her cover letter that Plaintiffs seek, through the subpoenas, to invade individual General Assembly members deliberations over the drafting of legislation by seeking documents compiled by legislators, or their close aides at their direction, to produce the legislation. Ex. N at 1. Accordingly, legislative privilege applies because the members activities and contribution to any draft maps, reports, or other materials that resulted in Senate Bill l are legislative in nature. Id. Plaintiffs now move to compel. 9

18 Case 1:13-cv JKB Document Filed 01/04/17 Page 15 of 33 ARGUMENT A court may hold in contempt a person who, having been served, fails without adequate excuse to obey [a] subpoena or order related to it. Fed. R. Civ. P. 45(g). Likewise, when an individual refuses to produce documents in response to a subpoena the serving party move the court... for an order compelling production or inspection. Fed. R. Civ. P. 45(d)(2)(B)(i). In this case, the subpoenas served on the GRAC members and Senator Madaleno are valid, enforceable, and properly served, complying in all respects with the requirements of Rule 45. Yet the subpoena targets privilege objections are not an adequate excuse for avoiding the subpoenas. Courts routinely deny claims of state legislative privilege in federal constitutional cases like this one, challenging redistricting practices. Little wonder why: The purpose of the privilege is not served in the context of federal lawsuits to vindicate important constitutional rights where the relief requested is injunctive and those asserting the privilege are not named defendants. Courts have thus consistently recognized that state officials cannot hide behind state legislative privilege to avoid federal judicial scrutiny into unconstitutional legislative motive. This Court should hold the same. I. THE STATE LEGISLATIVE PRIVILEGE PROVIDES NO BASIS FOR REFUSING TO SIT FOR DEPOSITIONS OR PRODUCE DOCUMENTS IN THIS CASE In response to every subpoena ad testificandum that we have served, the OAG has made sweeping assertions of state legislative privilege that, if upheld, would effectively insulate GRAC members and other state officials from having to answer at all the very serious federal constitutional claims alleged in the complaint. It has also asserted privilege with respect to more than one quarter of the (suspiciously few) 10

19 Case 1:13-cv JKB Document Filed 01/04/17 Page 16 of 33 responsive documents it has found in the possession of the Democratic members of the GRAC and Senator Madaleno. This is not the first time that Maryland state officials have asserted privilege in such a way nor, if the Court grants our motion to compel, would it be the first time this Court had rejected it. In Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292 (D. Md. 1992), members of the GRAC (including Senator Miller) asserted legislative privilege as a blanket basis to avoid producing documents and answering questions concerning the legislature s motives for drawing of the lines of 1991 map. Denying their assertion of privilege, this Court sitting then, as now, as a panel of three judges explained that in the special context of redistricting, the doctrine of legislative privilege does not prohibit judicial inquiry into legislative motive where the challenged legislative action is alleged to have violated an overriding, free-standing public policy. Id. at 304. On the contrary, judicial inquiry into legislative motive is appropriate where the very nature of the constitutional question requires an inquiry into legislative purpose. Id. (quoting S.C. Educ. Ass n v. Campbell, 883 F.2d 1251, 1259 (4th Cir.1989), in turn quoting United States v. O Brien, 391 U.S. 367, 383 n.30 (1968)). That is the case here. The Court has held that Plaintiffs claims which turn on questions of legislative motive and purpose are justiciable and that their allegations are plausible. Shapiro, 2016 WL , at *1. The Court should reject the assertion of privilege here, for two reasons. First, the state legislative privilege a creature of federal common law necessarily yields in cases involving important federal constitutional rights, where the state legislators do not themselves face personal liability. That is particularly apparent under the five-factor balancing test that applies in qualified-privilege cases like this 11

20 Case 1:13-cv JKB Document Filed 01/04/17 Page 17 of 33 one: Among other things, the evidence sought goes to the heart of Plaintiffs claims, and state officials played an essential role in the very serious constitutional violations alleged in the complaint. Second, the GRAC members have not properly supported their assertion of the state legislative privilege, even to the extent that it might apply. With respect to both documents and testimony, the members of the GRAC bear the burden of proving the availability of the privilege. Yet they have not offered any assertion of fact, much less article of evidence, supporting their claim of privilege. Beyond that, Senator Madaleno has plainly waived the privilege (such as it is) with respect to the matter of legislative intent. In sum, [t]he promise having been made to hear Plaintiffs complaint, the Court should not tolerate the State s effort to bar virtually all discovery of relevant facts in the name of an inapplicable and unsupported privilege. Schaefer, 144 F.R.D. at 305. A. State legislative privilege cannot be invoked on a blanket basis in cases like this one As an initial matter, the proposed deponents attempt to assert the legislative privilege on a blanket basis and as ground for avoiding sitting for depositions altogether lacks any legal support. To the extent the privilege applies at all, it is a qualified one that must be asserted question-by-question. Testimonial and evidentiary privileges like the state legislative privilege exist against the backdrop of the general principle that all reasonable and reliable measures should be employed to ascertain the truth of a disputed matter. Page v. Va. State Bd. of Elections, 15 F. Supp. 3d 657, 660 (E.D. Va. 2014) (three-judge district court). Privileges are therefore strictly construed and will be deemed to apply only where 12

21 Case 1:13-cv JKB Document Filed 01/04/17 Page 18 of 33 the public good associated with the exclusion of relevant evidence overrides the general principle in favor of admission. Id.; accord, e.g., Perez v. Perry, 2014 WL , at *1 (W.D. Tex. 2014) (citing Trammel v. United States, 445 U.S. 40, 50 (1980)). The public good associated with the state legislative privilege is well understood: Because legislators bear significant responsibility for many of our toughest decisions, the privilege provides legislators with the breathing room necessary to make these choices in the public s interest without fear of undue judicial interference or personal liability. Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323, (E.D. Va. 2015) (three-judge district court; citation omitted). State legislative immunity differs, however, from federal legislative immunity in its source of authority, purposes, and degree of protection. Bethune-Hill, 114 F. Supp. 3d at 333. Unlike the federal privilege, which is grounded in the Constitution s separation of powers, the state legislative privilege is a creature of federal common law only. Id. [F]ederal interference in the state legislative process is [therefore] not on the same constitutional footing with the interference of one branch of the Federal Government in the affairs of a coequal branch (United States v. Gillock, 445 U.S. 360, 370 (1980)) particularly in those areas where... the Supremacy Clause dictates that federal [law prevails] over competing state exercises of power. Bethune-Hill, 114 F. Supp. 3d at 333 (quoting Gillock, 445 U.S. at 370). In other words, the state legislative privilege a product only of federal common law only necessarily yields when a plaintiff seeks evidence to vindicate important public rights [that are themselves] guaranteed by federal law. Id. at 336. The manner in which the state legislative privilege applies in federal litigation depends upon the nature [not only] of the claim [but also of] the defendant. Bethune- 13

22 Case 1:13-cv JKB Document Filed 01/04/17 Page 19 of 33 Hill, 114 F. Supp. 3d at 335. When the person asserting privilege is not himself or herself a defendant in the action, [t]he inhibiting effect [of the threat of liability] is significantly reduced, if not eliminated. Owen v. City of Independence, 445 U.S. 622, 656 (1980). [T]here is, in other words, little to no threat to the public good of legislative independence when a legislator is not threatened with individual liability. Bethune- Hill, 114 F. Supp. 3d at 335. It follows that the privilege is at its apex in the context of civil action[s] brought by... private plaintiff[s] to vindicate private rights against individual lawmakers, where the threat of personal monetary liability will introduce an unwarranted and unconscionable consideration into the decisionmaking process. Bethune-Hill, 114 F. Supp. 3d at (quoting Gillock, 445 U.S. at 372 Owen, 445 U.S. at 655). In such cases, the legislative privilege prevents compelled testimony or documentary disclosure in support of such claims. Id. at 335. But the state legislative privilege is at its nadir in cases like this one, where individual lawmakers are not themselves named as defendants and thus face no threat of personal liability, where the request for relief is injunctive only, and where the privilege stands as a barrier to the vindication of important federal interests and insulates against effective redress of public rights. Bethune-Hill, 114 F. Supp. 3d at 334. Simply put, in federal constitutional redistricting cases, [t]he argument that legislative privilege is an impenetrable shield that completely insulates any disclosure of documents is not tenable. Id. at 336 (quoting Page, 15 F. Supp. 3d at 665, in turn quoting EEOC v. Wash. Suburban Sanitary Comm n, 666 F. Supp. 2d 526, 552 (D. Md. 2009), aff d 631 F.3d 174 (4th Cir. 2011))). 14

23 Case 1:13-cv JKB Document Filed 01/04/17 Page 20 of 33 Unsurprisingly, therefore, there is a litany of recent federal decisions in which, in cases involving federal constitutional challenges premised on the right to vote, federal courts have found that the [state legislative] privilege did not (at least in part) shield state legislators from producing responsive records or testifying at deposition. Nashville Student Organizing Comm. v. Hargett, 123 F. Supp. 3d 967, 969 (M.D. Tenn. 2015) (citing Rodriguez v. Pataki, 280 F. Supp. 2d 89, (S.D.N.Y. 2003); Favors v. Cuomo, 285 F.R.D. 187, 214 (E.D.N.Y. 2012) (three-judge district court); Perez, 2014 WL , at *1; Veasey v. Perry, 2014 WL , at *1 (S.D. Tex. 2014), aff d in part and rev d in part, 796 F.3d 487 (5th Cir. 2015); Bethune-Hill, 114 F. Supp. 3d at 337; Baldus v. Members of the Wis. Gov t Accountability Bd., 2011 WL , at *2 (E.D. Wis. 2011); Page, 15 F. Supp. 3d at 666). 1 This Court should follow these other courts and hold that the state legislative privilege, a judicially crafted evidentiary privilege based on federal common law, does not trump the need for direct evidence that is highly relevant to the adjudication of public rights guaranteed by... the [federal] Constitution, especially where no threat to legislative immunity itself is presented. Bethune-Hill, 114 F. Supp. 3d at The OAG argued at the December conference and in our letter exchanges that Mitchell v. Glendenning, No. WMN (D. Md. June 4, 2002) (ECF No. 11), supports a contrary conclusion. But unpublished opinions are not persuasive authority where (as here) they are against the clear weight of current published authority. Chase v. Peay, 286 F. Supp. 2d 523, 528 n.8 (D. Md. 2003). Regardless, the court in Mitchell upheld the assertion of privilege because the plaintiff s claim there did not require proof of legislative motive. Mitchell, slip op. at 6. That is not the case here. See Shapiro, 2016 WL , at *11. And once again, [t]he doctrine of legislative immunity does not prohibit judicial inquiry into legislative motive where the challenged legislative action is alleged to have violated an overriding, free-standing public policy. Schaeffer, 144 F.R.D. at

24 Case 1:13-cv JKB Document Filed 01/04/17 Page 21 of 33 B. The five-factor balancing test clearly favors disclosure Recognizing that the state legislative privilege cannot be invoked in the absolute and blanket fashion asserted by the proposed deponents here, [m]ost courts that have conducted [a] qualified privilege analysis in the redistricting context. Bethune-Hill, 114 F. Supp. 3d at 337. In particular, they have employed a five-factor balancing test imported from deliberative process privilege case law. Id. This five-factor test, which applies in a qualified manner to individual topics and documents, examines (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the seriousness of the litigation and the issues involved; (iv) the role of government in the litigation; and (v) the purposes of the privilege. Id. at (quoting Page, 15 F. Supp. 3d at 666). And, again, the party asserting privilege has the burden of demonstrating its applicability (NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501 (4th Cir. 2011)) and thus the burden of satisfying the balancing test. Here, the facts do not come close to overcoming the presumption of disclosure of the testimony and evidence that Plaintiffs seek: the evidence and testimony sought is highly relevant; no other evidence would be as probative of unlawful motive as the evidence sought; the federal constitutional issues in this litigation are of the utmost seriousness; the members of the GRAC played a direct, central, and essential role in the constitutional violations here; and compelling disclosure of the evidence and testimony sought will not conflict with the purposes of the privilege. The motion to compel accordingly should be granted. 1. The evidence sought is highly relevant to Plaintiffs claims. Plaintiffs allege that the State redrew the boundaries of the Sixth District for the specific purpose of retaliating against Plaintiffs and other Republicans by reason of their 16

25 Case 1:13-cv JKB Document Filed 01/04/17 Page 22 of 33 political affiliations or voting histories. In approving our theory of constitutional injury at the 12(b)(6) stage, the Court held that Plaintiffs must show that the legislature specifically intended to burden the representational rights of certain citizens by reason of their political affiliations and voting histories. Shapiro, 2016 WL , at *11; see also Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring in the judgment) (noting that this First Amendment theory requires proof that an apportionment has the purpose and effect of burdening a group of voters representational rights ) (emphasis added). Thus, testimonial and documentary evidence regarding the intent and motive of the GRAC members and legislators who drafted and approved the Plan goes to the very heart of this case. Cf. Page, 15 F. Supp. 3d at 666 (noting that in redistricting cases, [t]he subjective decision-making process of the legislature is at the core of the claim); Baldus v. Brennan, 2011 WL , at *1 (E.D. Wis. 2011) ( proof of a legislative body s discriminatory intent is relevant and extremely important as direct evidence in redistricting cases). This is not a case where the government s decision-making process [may be] swept up unnecessarily into the public domain as part of a dispute only tangentially related to legislative motive. Bethune-Hill, 114 F. Supp. 3d at 339 (alterations omitted) (quoting Comm. for a Fair & Balanced Map, 2011 WL , at *8 (N.D. Ill. 2011)). Nor is this a case where compulsory process is sought in aid of an action seeking damages against an individual state official or agency. See EEOC v. Wash. Suburban Sanitary Comm n, 631 F.3d 174, (4th Cir. 2011). Rather, this is a case where the decisionmaking process is the case. Bethune-Hill, 114 F. Supp. 3d at 339. (internal quotation marks omitted) (emphasis added). As in similar redistricting suits, what 17

26 Case 1:13-cv JKB Document Filed 01/04/17 Page 23 of 33 motivated the [General Assembly]... is at the heart of this litigation and evidence bearing on what justifies [its actions] is [therefore] highly relevant. Harris v. Arizona Indep. Redistricting Comm n, 993 F. Supp. 2d 1042, 1070 (D. Ariz. 2014), aff d 136 S. Ct (2016). The State hardly could contend otherwise. 2. No other testimony or evidence would be as probative of unlawful motive as the GRAC members deposition testimony. Although Plaintiffs will rely on various types of evidence (including the voter data used to draw the 2011 district map, election returns, public statements made by legislators, demographic evidence, and expert testimony), there is no question that the testimony and documentary evidence sought here is critical to Plaintiffs case. It goes without saying that government officials seldom, if ever, announce on the record that they are pursuing a particular course of action because of [a] desire to discriminate. Smith, 682 F.2d at Given that officials and legislators are typically careful to keep intimations of discriminatory motive out of public view (see Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1064 (4th Cir. 1982)), it is vital that Plaintiffs be allowed to question these officials regarding their intentions and review all of their responsive communications and other documents regardless of whether circumstantial evidence going to the issue of motive is also available. After all, [i]n the event that plaintiffs claims have merit, and that the commissioners were motivated by an impermissible purpose, the commissioners would likely have kept out of the public record evidence making that purpose apparent. Harris, 993 F. Supp. 2d at Several courts accordingly have held in redistricting cases that the second balancing factor favors testimony and disclosure even when there already some evidence of motive in the public record. See Favors v. Cuomo, 285 F.R.D. 187,

27 Case 1:13-cv JKB Document Filed 01/04/17 Page 24 of 33 (E.D.N.Y. 2012) (noting that although plaintiffs had access to substantial public information, including maps, analyses, data, and memoranda, such evidence may provide only part of the story and the second factor thus militate[d] in favor of disclosure ). These courts have recognized that redistricting plaintiffs need not confine their proof to circumstantial evidence because [t]he real proof is what was in the contemporaneous record in the redistricting process. ) Bethune-Hill, 114 F. Supp. 3d at 341 (internal quotation marks omitted); accord, e.g., Veasey, 2014 WL , at *3. Just so here. 3. The federal constitutional issues in this litigation are of the utmost seriousness. There can be no doubt that the seriousness of the federal constitutional issues at stake in this case demands disclosure. Plaintiffs and other Republicans in the Sixth District had been able to elect a candidate of their choice to the House of Representatives for two decades, until Democrats on the GRAC and in the General Assembly chose to redraw the district s boundaries with an eye to Plaintiffs and other Marylanders voting histories and party affiliations, and with the express purpose of ensuring that they would no longer be able to elect their chosen candidates. That kind of politically motivated retaliation is cause for great concern. The right to vote, the Supreme Court has held time and again, is a fundamental matter in a free and democratic society. Reynolds, 377 U.S. at 561. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. Id. at Any attempt to deprive a citizen of the right to an equally effective voice in the election of members of his state legislature is illegal. Id. at

28 Case 1:13-cv JKB Document Filed 01/04/17 Page 25 of 33 Government actions singling out individuals or groups and imposing burdens on them because of conduct protected by the First Amendment are equally illegal. [P]olitical belief and association constitute the core of those activities protected by the First Amendment, Elrod v. Burns, 427 U.S. 347, 356 (1976), and government actions that punish members of a particular political group are accordingly inimical to the process which undergirds our system of government and... at war with the deeper traditions of democracy embodied in the First Amendment. Id. at 357 (internal quotation marks omitted). Discriminatory political gerrymandering implicates both of these fundamental constitutional concerns. By depriving members of the disadvantaged group of the opportunity to elect candidates of their choice, such gerrymandering strips away their foundational right [to] meaningful representation in government. Bethune-Hill, 114 F. Supp. 3d at 341. And by subjecting voters to differential burdens based on their political affiliation, it erodes the principles of freedom of thought and belief that form the essence of the First Amendment. Plaintiffs allegations of political gerrymandering here are thus undoubtedly serious, which means that this third factor weighs heavily in favor of disclosure. Id. 4. The GRAC members and other members of the General Assembly played a direct, central, and essential role in the constitutional violations here. Officials on the GRAC and in the General Assembly and governor s office were directly responsible for drafting and approving the Plan. ECF No. 104 at 22-28, In these circumstances, where the legislature s subjective decision-making [is] at the core of the plaintiffs claims, the legislature s direct role in the litigation supports overcoming the privilege and disclosing evidence going to the legislature s 20

29 Case 1:13-cv JKB Document Filed 01/04/17 Page 26 of 33 intent in approving the plan. See Bethune-Hill, 114 F. Supp. 3d at 341 (quoting Favors, 285 F.R.D. at 220); see also, e.g., Comm. for a Fair & Balanced Map, 2011 WL , at *8 (explaining that because the legislators role in the allegedly unlawful conduct is direct, and the legislators actions were the very actions under scrutiny, this factor favored disclosure). 5. Compelling disclosure of the evidence sought will not conflict with the purposes of the privilege. The final factor, which looks to the purposes of the privilege, likewise favors granting the motion. Some courts applying this fifth factor have spoken of an anti- distraction purpose for the privilege that guards legislators from the burdens of compulsory process. Bethune-Hill, 114 F. Supp. 3d at 341. Any such concern about distraction here is minimal. Having to appear for a deposition the imposition of a single day at most is not a serious burden for the GRAC members or legislators, many of whom have separate jobs as it is. Nor is there any evidence that searching for and producing documents is a serious burden indeed, Senator Miller, Speaker Busch, and Senator Madaleno have already done so and produced privilege logs. See Exs. O-Q. No conceivable additional burden could be imposed by production of the documents, instead. Similarly, any concern here about legislative independence is minor at best. Numerous courts have recognized that where legislators are not themselves defendants, the threat to legislative independence is minimal or nonexistent. See, e.g., Bethune-Hill, 114 F. Supp. 3d at 342 ( [T]he threat to [the legislative-independence] interest is substantially lowered when individual legislators are not subject to liability. ); see also Owen, 445 U.S. at 656 (noting that the threat is significantly reduced, if not eliminated,... when the threat of personal liability is removed ); 21

30 Case 1:13-cv JKB Document Filed 01/04/17 Page 27 of 33 Gillock, 445 U.S. at 372 (suggesting that legislative independence is only implicated in a civil action brought by a private plaintiff to vindicate private rights ). Nor would sitting for a deposition impede legislative deliberations, as other courts have consistently held. In fact, the occasional instance in which disclosure may be ordered in a civil context will [not] add measurably to the inhibitions already attending legislative deliberations. United States v. Irvin, 127 F.R.D. 169, 174 (C.D. Cal. 1989). And even if there were some minimal impact on the exercise of his legislative function, it would easily be offset by the impair[ment of] the legitimate interest of the Federal Government to see federal constitutional rights vindicated. Gillock, 445 U.S. at 373; see also Baldus, 2011 WL , at *2 ( Allowing the plaintiffs access to these items may have some minimal future chilling effect on the Legislature, but that fact is outweighed by the highly relevant and potentially unique nature of the evidence. ). For better or worse, lawsuits concerning constitutional matters such as equal protection, the First Amendment, and substantive due process all require judicial inquiry of the legislator s motive. Carver v. Foerster, 102 F.3d 96, 104 (3d Cir. 1996). In such cases, the balance of interests calls for the legislative privilege to yield. Bethune-Hill, 114 F. Supp. 3d at 343. In sum, none of the factors relied on by courts in assessing legislative-privilege claims supports recognizing the privilege here. On the contrary, each factor makes clear that the privilege does not apply. In this context,... the balance of interests calls for the legislative privilege to yield. Bethune-Hill, 114 F. Supp. 3d at 343. Because the GRAC members have made no effort at all to carry their burden to prove otherwise, this Court should order the GRAC members to sit for their depositions and produce responsive documents. 22

31 Case 1:13-cv JKB Document Filed 01/04/17 Page 28 of 33 II. EVEN IF THE PRIVILEGE WERE AVAILABLE HERE, THE ASSERTION OF PRIVILEGE IS WHOLLY UNSUPPORTED BY FACTS OR EVIDENCE Even if there were a basis in the abstract for asserting legislative privilege here (there is not), the subpoena targets have failed to support the privilege properly. Once again, any individual asserting the privilege has the burden of proving the preliminary facts of the privilege. Bethune-Hill, 114 F. Supp. 3d at 344 (quoting Legislative Privilege, 26A Fed. Prac. & Proc. Evid (1st ed.)). That means that it is insufficient to offer up [a] conclusory assertion of privilege without more. Page, 15 F. Supp. 3d at 661. On the contrary, the proponent of a privilege must demonstrate specific facts showing that the [documents or deposition answers] were privileged. Bethune-Hill, 114 F. Supp. 3d at 344 (quoting RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 751 (E.D. Va. 2007)). That is an unavoidable requirement, given both that the privilege may be waived (Schaefer, 144 F.R.D. at 298), and that it applies only to the integral steps of the legislative process, not to post-enactment issues, documents, or communications (Bethune-Hill, 114 F. Supp. 3d at ). Against this background, one does not prove entitlement to legislative (or, indeed, any) privilege simply by asserting it. Id. Quite the contrary, the privilege must be proved. Id. Yet the subpoena targets have done none of this. They have instead offered only naked assertions of privilege, lacking factual development. In no respect is that more apparent than with the OAG s conclusory assertion of privilege concerning the deposition subpoenas. But even with respect to the document subpoenas, the three privilege logs served by Senator Miller, Speaker Busch, and Senator Madaleno are notably deficient. Federal Rule of Civil Procedure 45(e)(2)(A) states expressly that [a] person withholding subpoenaed information under a claim that it is privileged... must... 23

32 Case 1:13-cv JKB Document Filed 01/04/17 Page 29 of 33 describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged, will enable the parties to assess the claim. Courts take this obligation seriously. When a party relies on a privilege log to assert [a] privilege[], the log must as to each document set forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed. Kelly v. United States, 281 F.R.D. 270, 277 (E.D.N.C. 2012) (citing NLRB v. Interbake Foods, LLC, 637 F.3d 492, (4th Cir. 2011)). In this case, that means establishing facts sufficient to show, at a bare minimum, that (1) the withheld documents and communications concern legislative purpose and intent; (2) the subject matter of the documents and communications concern integral steps of the legislative process; (3) the withheld documents and communications concern matters as to which the privilege has not been waived; and (4) the relevant individual has actually asserted the privilege. See generally Bethune-Hill, 114 F. Supp. 3d at ; Favors, 285 F.R.D. at ; Schaefer, 144 F.R.D. at 298; Perez, 2014 WL , at *2. Crucially, the production of an inadequate privilege log may constitute waiver of any asserted privileges. Mezu v. Morgan State U., 269 F.R.D. 565, 577 (D. Md. 2010) (quoting Herbalife Int l, Inc. v. St. Paul Fire & Marine Ins. Co., 2006 WL , at *4 (N.D.W. Va. 2006), and citing Ruran v. Beth El Temple of W. Hartford, Inc., 226 F.R.D. 165, (D. Conn. 2005), and Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7, (D.D.C. 2004)). Here, the privilege logs for Senator Miller, Speaker Busch, and Senator Madaleno have failed to perfect [their] privilege claim, Mezu, 269 F.R.D. at 577 (citing Ruran, 226 F.R.D. at ), with respect to each withheld document. In most 24

33 Case 1:13-cv JKB Document Filed 01/04/17 Page 30 of 33 cases, the individuals sending or receiving the communications or documents are unidentified; individuals other than the subpoena targets are identified ambiguously as staff, delegates, or not identified at all. See Ex. O at Doc. Nos. 1-11; Ex. P at Doc. Nos. 1-9; Ex. Q at Doc. Nos. 2-4, 10. As a consequence, it is impossible to evaluate potential waivers of the privilege by those other parties. What is more, only general dates are given in several cases (e.g., 2011 or October 2011 ), making it impossible to evaluate whether the communications or documents were in fact integral to the legislative process. See Ex. O at Doc. Nos. 1-2, 11; Ex. Q at Doc. No. 10. And at other times still, the privilege logs assert ambiguously that the withheld documents may have been used by the subpoena target in legislative deliberations. See Ex. O at Doc. No. 10; Ex. Q at Doc. No. 10. That of course opens the possibility that they were not. Most fundamentally, neither the privilege logs nor the letter that accompanied them establishes that the lawmakers themselves actually asserted the legislative privilege. That is no mere technicality. It is well settled that the legislative privilege is a personal one and may be waived or asserted by each individual legislator. Favors, 285 F.R.D. at 211 (quoting Schaefer, 144 F.R.D. at 298). It follows, then, that [a third party] cannot assert or waive the privilege on behalf of [a] legislator who holds the privilege. Id. (citing A Helping Hand, LLC v. Baltimore Cnty., Md., 295 F. Supp. 2d 585, 590 (D. Md. 2003)). Yet that is precisely what the OAG purports to do here: it asserts the privilege for the former members of the GRAC and Senator Madaleno on their behalves. That, it may not do it must instead show that they have each individually asserted the privilege. Because the claims of privilege (such as they are) are not supported by the necessary facts or evidence, the third-party subpoena targets have failed to perfect 25

34 Case 1:13-cv JKB Document Filed 01/04/17 Page 31 of 33 privilege claim. Mezu, 269 F.R.D. at 577 (citing Ruran, 226 F.R.D. at ). As to the deposition subpoenas, the proposed deponents offer nothing at all; as for the document subpoenas, the subpoena targets offer only terse assertions of privilege that [do] not constitute a particularized justification for asserting privilege and are therefore insufficient to establish any privilege. Id. They have therefore violated Fed. R. Civ. P. 45(e)(2)(A) and failed to carry their burden of proving applicability of the privilege. The motion to compel should be granted for that reason alone. III. SENATOR MADALENO HAS WAIVED THE PRIVILEGE, TO THE EXTENT HE CAN ASSERT IT AT ALL There is yet an additional reason to reject Senator Madaleno s assertion of privilege with respect to the requested documents: He cannot get around his express waiver. Plainly put, the legislative privilege is waived if the purported legislator testifies, at a deposition or otherwise, on supposedly privileged matters. Favors, 285 F.R.D. at 212 (quoting Trombetta, 2004 WL , at *5). Crucially, the waiver of the privilege need not be explicit and unequivocal, and may occur either in the course of the litigation when a party testifies as to otherwise privileged matters, or when purportedly privileged communications are shared with outsiders. Favors, 285 F.R.D. at (internal citations omitted; citing Trombetta v. Bd. of Educ., Proviso Twp. High Sch. Dist. 209, 2004 WL , at *5 (N.D. Ill. 2004)). Thus, [t]o the extent... that any legislator, legislative aide, or staff member had conversations or communications with any outsider (e.g. party representatives, non-legislators, or nonlegislative staff), any privilege is waived as to the contents of those specific communications. Perez, 2014 WL , at *2. As relevant here, Senator Madaleno made statements to the press regarding supposedly privileged matters (Favors, 285 F.R.D. at 212 (internal quotation marks 26

35 Case 1:13-cv JKB Document Filed 01/04/17 Page 32 of 33 omitted)), including the purpose of and intent behind the Plan. See supra at 5-6; see also Joint Stips. (ECF No. 104) 40, & Exs Senator Madaleno s statements to third-party constituents and members of the press concerning the purpose of the redistricting map constitute a waiver of any legislative privilege as to that subject matter. See, e.g., Favors, 285 F.R.D. at 212; Trombetta, 2004 WL , at *5. Responsive documents concerning legislative purpose and intent in the possession of Senator Madaleno are therefore discoverable. Senator Madaleno should not be allowed to describe the legislature s intent for his own purposes in public speeches on the one hand, while avoiding discovery of evidence impeaching or corroborating those statements, on the other. CONCLUSION For the foregoing reasons, Plaintiffs motion to compel should be granted. The Court should enter an order compelling Ms. Hitchcock, Senator Miller, Speaker Busch, and Mr. Stewart to testify at a deposition without resting on an assertion of legislative privilege. And it should order Senator Miller, Speaker Busch, and Senator Madaleno to produce all responsive documents regardless of any invocation of legislative privilege. Dated: January 3, 2017 Respectfully submitted, /s/ Michael B. Kimberly Michael B. Kimberly, Bar No mkimberly@mayerbrown.com Paul W. Hughes, Bar No Stephen M. Medlock, pro hac vice E. Brantley Webb, pro hac vice Mayer Brown LLP 1999 K Street NW Washington, D.C (202) (office) (202) (facsimile) 27

36 Case 1:13-cv JKB Document Filed 01/04/17 Page 33 of 33 CERTIFICATE OF CONFERENCE Pursuant to Local Rules and 104.8, I hereby certify that on December 20 and 21, 2016 counsel for Jeanne Hitchcock, Thomas Miller, Michael Busch, and Richard Stewart (Jennifer Katz and Sarah Rice) and counsel for Plaintiffs (Michael Kimberly, Stephen Medlock, Brantley Webb, and Micah Stein) met and conferred via telephone regarding the subpoenas ad testificandum served on Ms. Hitchcock, Senator Miller, Speaker Busch, and Mr. Stewart. I further certify that on January 3, 2017, counsel for Plaintiffs (Stephen Medlock) met and conferred via telephone with counsel for Senator Miller, Speaker Busch, and Senator Madaleno (Sandra Brantley) concerning their responses to the document subpoenas. The sole issue requiring resolution by the Court in this motion is the assertion of legislative privilege. /s/ Stephen M. Medlock Stephen M. Medlock, pro hac vice Mayer Brown LLP 1999 K Street NW Washington, D.C (202) (office) (202) (facsimile) 28

37 Case 1:13-cv JKB Document Filed 01/04/17 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND O. John Benisek, et al., Plaintiffs, vs. Case No. 13-cv-3233 Three-Judge Court Linda H. Lamone, et al., Defendants. APPENDIX OF EXHIBITS TO MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL NON-PARTIES JEANNE D. HITCHCOCK, THOMAS V. MIKE MILLER JR., MICHAEL E. BUSCH, AND RICHARD STEWART TO TESTIFY AT DEPOSITION, AND TO COMPEL NON- PARTIES THOMAS V. MIKE MILLER JR., MICHAEL E. BUSCH, AND RICHARD S. MADALENO JR. TO PRODUCE DOCUMENTS 1

38 Case 1:13-cv JKB Document Filed 01/04/17 Page 2 of 3 Exhibit A B C D E F G H I J K L M N Contents Defendants Responses to Plaintiffs First Set of Interrogatories Documents produced by Richard Stewart in response to Plaintiffs document subpoena Plaintiffs document subpoena to Jeanne D. Hitchcock, dated December 2, 2016 Plaintiffs document subpoena to Richard Stewart, dated December 2, 2016 Plaintiffs document subpoena to Michael E. Busch, dated December 2, 2016 Plaintiffs document subpoena to Thomas V. Miller, Jr., dated December 2, 2016 Plaintiffs deposition subpoena to Jeanne D. Hitchcock, dated December 16, 2016 Plaintiffs deposition subpoena to Michael E. Busch, dated December 16, 2016 Plaintiffs deposition subpoena to Richard Stewart, dated December 16, 2016 Plaintiffs deposition subpoena to Thomas V. Miller, Jr., dated December 16, 2016 December 19, 2016 letter from Sarah W. Rice, Esq. to Stephen Medlock, Esq. regarding document subpoenas to Governor Martin O Malley, Jeanne Hitchcock, and Richard Stewart December 16, from Jennifer Katz, Esq. to Stephen Medlock, Esq. asserting privilege with respect to all current and former legislators and state employees December 23, 2016 letter from Sarah W. Rice, Esq. to Stephen Medlock, Esq. regarding December discovery conference December 30, 2016 letter from Sandra Benson Brantley, Esq. to Stephen Medlock, Esq. regarding responses to document subpoenas from Senate President Miller, Speaker Busch, and 2

39 Case 1:13-cv JKB Document Filed 01/04/17 Page 3 of 3 Senator Madaleno O P Q R S Privilege log for Speaker Michael E. Busch Privilege log for Senator Richard Madaleno Privilege log for Senate President Thomas V. Miller, Jr. January 3, 2017 letter from Jennifer Katz, Esq. to Stephen Medlock, Esq. denying request for joint interview of current and former legislators and state employees Plaintiffs document subpoena to Richard Madaleno, dated December 13, 2016 Dated: January 3, 2017 Respectfully submitted, /s/ Michael B. Kimberly Michael B. Kimberly, Bar No mkimberly@mayerbrown.com Paul W. Hughes, Bar No Stephen M. Medlock, pro hac vice E. Brantley Webb, pro hac vice Mayer Brown LLP 1999 K Street NW Washington, D.C (202) (office) (202) (facsimile) 3

40 Case 1:13-cv JKB Document Filed 01/04/17 Page 1 of 13 EXHIBIT A

41 Case 1:13-cv JKB Document Filed 01/04/17 Page 2 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND O. JOHN BENISEK, et al., Plaintiffs, v. LINDA H. LAMONE, et al., Defendants. * * * * * * Case No. 13-cv-3233 * * * * * * * * * * * * * * * * * * * * DEFENDANTS RESPONSES TO PLAINTIFFS FIRST SET OF INTERROGATORIES Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Defendants Linda H. Lamone and David J. McManus, Jr., state as follows for their responses and objections to Plaintiffs interrogatories: PRELIMINARY STATEMENT The Information supplied in these answers is not based solely on the knowledge of the executing parties, but also includes the knowledge of their agents, representatives, and attorneys, unless privileged. The language, word usage and sentence structure is that of the attorney assisting in the preparation of these Answers and does not purport to be the precise language of the executing party. The Defendants have not yet completed discovery or gathering of facts and documents relating to this action and therefore reserve the right to revise, correct, add to, supplement, and clarify the responses set forth below.

42 Case 1:13-cv JKB Document Filed 01/04/17 Page 3 of 13 Each response to the Plaintiffs First Set of Interrogatories is made subject to these preliminary statements and objections. By responding to an interrogatory in as complete a manner as possible subject to the stated objections, Defendants do not in any way waive any applicable objection or the right to seek appropriate protection orders, if necessary. GENERAL OBJECTIONS 1. As to the Interrogatories generally, and as to each and every interrogatory individually, Defendants object to the extent that they request information protected by the attorney-client privilege, the work product doctrine, the deliberative or executive privilege, legislative privilege, or that is otherwise privileged, protected, or exempt from discovery. 2. Defendants object to these requests to the extent that they request information already within the possession and control of Plaintiffs and/or their counsel, on the grounds that such requests are duplicative and unduly burdensome. 3. Defendants object to these requests to the extent that they are overbroad, oppressive, duplicative, or cumulative. 4. Defendants object to these requests to the extent that they are vague, ambiguous, fail to specify with reasonable particularity the information sought, or otherwise are incomprehensible. 5. The Defendant objects to these requests to the extent they seek material that is not relevant to the subject matter involved in this action or is beyond the scope of 2

43 Case 1:13-cv JKB Document Filed 01/04/17 Page 4 of 13 what is required to be provided by the Federal Rules of Civil Procedure, the local rules of this Court, or the Orders of the Court in this matter. 6. Defendants object to these requests to the extent that they require the Defendants to make legal conclusions and/or presuppose legal conclusions or assume the truth of matters that are disputed. 7. Defendants object to these requests to the extent that the information sought is a matter of public record and is equally accessible and available to Plaintiffs, on the grounds that compiling such information would impose an unreasonable burden and expense upon the Defendants and constitute attorney work product. 8. In addition to these General Objections, Defendants also state, where appropriate, specific objections to individual requests. By setting forth such specific objections, the Defendants neither intends to, nor does, limit or restrict or waive the General Objections, which shall be deemed incorporated in each of the responses to the specific requests. Without waiving, subject to, and notwithstanding these General Objections, Defendants provide the following: SPECIFIC OBJECTIONS AND ANSWERS INTERROGATORY NO. 1: Identify all persons and entities who reviewed or had access to the final or any interim or alternative drafts of the Proposed Congressional Plan, other than the members of the GRAC, members of the General Assembly, and the 3

44 Case 1:13-cv JKB Document Filed 01/04/17 Page 5 of 13 Governor prior to the final draft of the Proposed Congressional Plan being made available to the general public. ANSWER TO INTERROGATORY NO. 1: The Defendants object to this interrogatory on the grounds that it is vague, overly broad, and unduly burdensome. Without waiving these objections, the Defendants believe, as of the date of this answer, that the following persons reviewed or had access to the final or any interim or alternative drafts of the Proposed Congressional Plan prior to the final draft of the Proposed Congressional Plan being made available to the general public: 1. Patrick Murray, former legislative aide to Senate President Thomas v. Mike Miller. 2. Yaakov Weissman, legislative aide to Senate President Thomas v. Mike Miller. 3. Jeremy Baker, legislative aide to House Speaker Michael E. Busch. 4. Joseph Bryce, aide to former Governor Martin O Malley. 5. John McDonough, former Secretary of State in the administration of former Governor Martin O Malley 6. Hon. Daniel Friedman, former Assistant Attorney General serving as Counsel to the General Assembly. 7. Michele Davis, Senior Policy Analyst, Department of Legislative Services. 8. Karl Arro, former Executive Director, Department of Legislative Services. 9. Bruce E. Cain, Ph.D., Professor, Stanford University, Y2E2 Building, Room Via Ortega, Stanford, CA , (650) , consultant hired in anticipation of litigation by the Office of the Attorney General. With the exception of Bruce E. Cain, whose contact information is provided, all identified persons are represented by the Office of the Attorney General in connection with this matter, and all correspondence should be directed to undersigned counsel. 4

45 Case 1:13-cv JKB Document Filed 01/04/17 Page 6 of 13 INTERROGATORY NO. 2: If you contend that the General Assembly of Maryland, the GRAC, and/or the Governor did not intend to burden the representational rights of certain citizens and/or to dilute the voting strength of certain citizens because of how they voted in the past or because of the political party with which they had affiliated, state the factual basis for your contention and identify all facts, documents, and communications related to your contention. ANSWER TO INTERROGATORY NO. 2: The Defendants object to this interrogatory on the grounds that it is a premature contention interrogatory and it requests all facts, documents, and communications concerning defenses to matters alleged in the second amended complaint when discovery has not concluded. See Fed. R. Civ. P. 33(a)(2). The Defendants further object because the interrogatory calls for statements of subjective intent of legislators acting within their legislative capacities in enacting legislation, which is information protected by legislative privilege. The Defendants additionally object because the interrogatory is vague and not reasonably particular, as there is no definition of certain citizens or representational rights. Without waiving any objections, the Defendants state that each district in the Proposed Congressional Plan achieved precise mathematical equality of population consistent with the No Representation Without Population Act, except for District Eight, which has one fewer person. Therefore, the vote of each citizen of Maryland has equal strength as the vote of each other citizen in Congressional elections under the current plan. INTERROGATORY NO. 3: If you contend that the General Assembly of Maryland, the GRAC, and/or the Governor did not use and/or was not influenced by data 5

46 Case 1:13-cv JKB Document Filed 01/04/17 Page 7 of 13 reflecting prior voting patterns, voter history, or party affiliation in deciding where to draw the lines of the Sixth Congressional District under the Proposed Congressional Plan, state the factual basis for your contention and identify all facts, documents and communications related to your contention. ANSWER TO INTERROGATORY NO. 3: The Defendants object to this interrogatory on the grounds that it is a premature contention interrogatory and it requests all facts, documents, and communications concerning defenses to matters alleged in the second amended complaint when discovery has not concluded. See Fed. R. Civ. P. 33(a)(2). INTERROGATORY NO. 4: If you contend that the General Assembly s, the GRAC s, and/or the Governor s consideration of data reflecting prior voting patterns, voter history, or party affiliation did not affect the drawing of the lines of the Sixth Congressional District in such a way that such consideration altered the outcome of the congressional elections in the Sixth Congressional District after 2011, state the factual basis for your contention and identify all facts, documents and communications related to your contention. ANSWER TO INTERROGATORY NO. 4: The Defendants object to this interrogatory on the grounds that it is a premature contention interrogatory and it requests all facts, documents, and communications concerning defenses to matters alleged in the second amended complaint when discovery has not concluded. See Fed. R. Civ. P. 33(a)(2). 6

47 Case 1:13-cv JKB Document Filed 01/04/17 Page 8 of 13 INTERROGATORY NO. 5: If you contend that there are any justifications for the boundaries of the Sixth Congressional District (such as respect for communities of interest), state the factual basis for all such justifications and identify all facts, documents, and communications supporting all such justifications. ANSWER TO INTERROGATORY NO. 5: The Defendants object to this interrogatory on the grounds that it is a premature contention interrogatory and it requests all facts, documents, and communications concerning defenses to matters alleged in the second amended complaint when discovery has not concluded. See Fed. R. Civ. P. 33(a)(2). Without waiving those objections, the Defendants identify documents produced to the Plaintiffs with the Joint Stipulations and in response to Plaintiffs First Request for Production of Documents. INTERROGATORY NO. 6: Identify all Persons who were involved in planning, developing, drawing, and/or approving the Proposed Congressional Plan and any alternative plans not adopted. For each Person identified, state that Person s involvement with respect to the Proposed Congressional Plan. ANSWER TO INTERROGATORY NO. 6: The Defendants object to this interrogatory on the grounds that it is vague, overly broad, and unduly burdensome. Without waiving these objections, the Defendants believe that, in addition to the members of the GRAC and the Governor, the following persons were involved in planning, developing, drawing, and/or approving the Proposed Congressional Plan and any alternative drafts: 7

48 Case 1:13-cv JKB Document Filed 01/04/17 Page 9 of Patrick Murray, in his capacity as legislative aide to Senate President Thomas v. Mike Miller, was involved in developing and drawing the Proposed Congressional Plan. 2. Yaakov Weissman, in his capacity as legislative aide to Senate President Thomas v. Mike Miller, was involved in developing and drawing the Proposed Congressional Plan. 3. Jeremy Baker, in his capacity as legislative aide to House Speaker Michael E. Busch, was involved in developing and drawing the Proposed Congressional Plan. 4. Joseph Bryce, in his capacity as aide to former Governor Martin O Malley, was involved in developing and drawing the Proposed Congressional Plan. 5. John McDonough, in his capacity as a high-ranking member of Governor O Malley s administration and at the request of the Governor, was involved in developing and drawing the Proposed Congressional Plan. All identified persons are represented by the Office of the Attorney General in connection with this matter, and all correspondence should be directed to undersigned counsel. To the extent this Interrogatory seeks information concerning third-party alternative plans, the Defendants object on the ground that the request is not relevant to the Plaintiffs claims and thus exceeds the scope of discovery. Fed. Rule Civ. P. 26(b)(1). Without waiving this objection, the Defendants identify the third-party plans submitted to the GRAC already provided to the Plaintiffs at Bates range MCM , and additional documents concerning third-party plans produced in response to Plaintiffs First Request for Production of Documents. INTERROGATORY NO. 7: Identify all experts, consultants, and/or other third parties with whom You, the GRAC, the Governor, or members of the Maryland General Assembly communicated during the planning, development, and/or preparation of the Proposed Congressional Plan and/or any alternative congressional plans not adopted. For 8

49 Case 1:13-cv JKB Document Filed 01/04/17 Page 10 of 13 each expert, consultant, or other third party, state the time period of the Person s involvement. ANSWER TO INTERROGATORY NO. 7: The Defendants object to this interrogatory on the grounds that it is vague, overly broad, not reasonably particular, and unduly burdensome. Without waiving these objections, and to the extent Interrogatory No. 7 intends to identify persons with whom communications were had specifically concerning the drafting of the Proposed Congressional Plan and/or any alternative drafts, the Defendants cannot identify any experts, consultants, and/or third parties because the Defendants, having made reasonable inquiries, believe that no such communications took place. To the extent this Interrogatory seeks information concerning third-party alternative plans submitted to the GRAC that were not adopted, the Defendants object on the ground that the request is not relevant to the Plaintiffs claims and thus exceeds the scope of discovery. Fed. Rule Civ. P. 26(b)(1). INTERROGATORY NO. 8: If you contend that Plaintiffs complaint is barred, in whole or part, by the doctrine of laches, state the factual basis for your laches defense and identify all facts, documents, and communications related to your laches defense. ANSWER TO INTERROGTORY NO. 8: The Defendants object to this interrogatory on the grounds that it is a premature contention interrogatory and it requests all facts, documents, and communications concerning defenses to matters alleged in the second amended complaint when discovery has not concluded. See Fed. R. 9

50 Case 1:13-cv JKB Document Filed 01/04/17 Page 11 of 13 Civ. P. 33(a)(2). Without waiving those objections, the Defendants identify all of the Plaintiffs pleadings filed in this lawsuit. INTERROGATORY NO. 9: If you contend that Plaintiffs complaint is barred, in whole or part, by the doctrine of waiver, state the factual basis for your waiver defense and identify all facts, documents, and communications related to your waiver defense. ANSWER TO INTERROGTORY NO. 9: The Defendants object to this interrogatory on the grounds that it is a premature contention interrogatory and it requests all facts, documents, and communications concerning defenses to matters alleged in the second amended complaint when discovery has not concluded. See Fed. R. Civ. P. 33(a)(2). Without waiving those objections, the Defendants identify all of the Plaintiffs pleadings filed in this lawsuit. INTERROGATORY NO. 10: If you contend that Plaintiffs complaint is barred, in whole or part, by the doctrine of estoppel, state the factual basis for your estoppel defense and identify all facts, documents, and communications related to your estoppel defense. ANSWER TO INTERROGTORY NO. 10: The Defendants object to this interrogatory on the grounds that it is a premature contention interrogatory and it requests all facts, documents, and communications concerning defenses to matters alleged in the second amended complaint when discovery has not concluded. See Fed. R. Civ. P. 33(a)(2). Without waiving those objections, the Defendants identify all of the Plaintiffs pleadings filed in this lawsuit. 10

51 Case 1:13-cv JKB Document Filed 01/04/17 Page 12 of 13 INTERROGATORY NO. 11: Describe all facts, documents, and communications supporting the October 4, 2011 statement made by GRAC Chair Jeanne Hitchcock: The map we are submitting today conforms with State and federal law and incorporates the 331 comments we received from the public during our 12 regional hearings around the State. ANSWER TO INTERROGTORY NO. 11: The Defendants object to this interrogatory on the grounds that it is premature and requests all facts, documents, and communications when discovery has not concluded. Without waiving those objections, the Defendants identify documents provided to the Plaintiffs during the joint stipulations at Bates ranges MCM and MCM , and the documents responsive to Plaintiffs sixth request for production of documents. INTERROGATORY NO. 12: Describe all facts, documents, and communications supporting the statement in the PowerPoint presentation prepared by the GRAC to accompany its recommended plan: Congressional Districts 6 and 8 are drawn to reflect the North-South connections between Montgomery County, the I-270 Corridor, and western portions of the State. ANSWER TO INTERROGTORY NO. 12: The Defendants object to this interrogatory on the grounds that it is premature and requests all facts, documents, and communications when discovery has not concluded. Without waiving those objections, the Defendants identify documents provided to the Plaintiffs during the joint stipulations at Bates ranges MCM , MCM , MCM , MCM

52 Case 1:13-cv JKB Document Filed 01/04/17 Page 13 of 13 INTERROGATORY NO. 13: Describe all facts, documents, and communications supporting the statement in the PowerPoint presentation prepared by the GRAC to accompany its recommended plan: Public testimony in this region expressed a desire to have a Congressional map that better reflects patterns in this region the growth in Southern Maryland from Prince George s County, and the growth of the suburbs along the I-270 Corridor. ANSWER TO INTERROGTORY NO. 13: The Defendants object to this interrogatory on the grounds that it is premature and requests all facts, documents, and communications when discovery has not concluded. Without waiving those objections, the Defendants identify documents provided to the Plaintiffs during the joint stipulations at Bates ranges MCM , MCM , MCM , MCM BRIAN E. FROSH Attorney General of Maryland /s/ Jennifer L. Katz JENNIFER L. KATZ (Bar No ) SARAH W. RICE (Bar No ) JEFFREY L. DARSIE (Bar No ) Assistant Attorneys General Office of the Attorney General 200 St. Paul Place, 20th Floor Baltimore, Maryland (410) (tel.); (410) (fax) jkatz@oag.state.md.us Dated: December 19, 2016 Attorneys for Defendants 12

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112 Case 1:13-cv JKB Document Filed 01/04/17 Page 2 of 4 Medlock, Stephen M. From: Katz, Jennifer [jkatz@oag.state.md.us] Sent: Friday, December 16, :17 PM To: Medlock, Stephen M. Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, Sarah Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Steve, Thank you for your . We continue to think it is premature to agree to 5 more depositions at this time, given the likelihood that a number of the individuals you seek to depose cannot be compelled to testify in this matter. We would move to quash subpoenas served on members of the GRAC, as well as current or former members of the Maryland General Assembly who seek to assert the testimonial privilege. Thus, we continue to believe that 10 depositions is sufficient. We are open to reexamining our position should the Court not grant those motions to quash, but would anticipate seeking to extend the discovery period to accommodate any increased discovery upon which we may agree. I note that you say you originally thought you might be able to obtain through informal discovery information you now intend to seek through deposition. To the extent you use the term informal discovery in its standard use i.e., the counsel-facilitated exchange of information without resort to formal discovery mechanisms you have not proposed any such mechanism, nor have we rejected it. What we objected to ex parte contact with represented parties is not informal discovery. If you would like to discuss mechanisms other than depositions to obtain information that is properly subject to discovery, whether formal or informal, please let us know. Best, Jennifer Jennifer Katz Assistant Attorney General, Civil Division jkatz@oag.state.md.us (410) From: Medlock, Stephen M. [mailto:smedlock@mayerbrown.com] Sent: Friday, December 16, :27 AM To: Katz, Jennifer <jkatz@oag.state.md.us> Cc: Webb, Brantley <BWebb@mayerbrown.com>; Kimberly, Michael B. <MKimberly@mayerbrown.com>; Darsie, Jeffrey <jdarsie@oag.state.md.us>; Hughes, Paul W. <PHughes@mayerbrown.com>; Rice, Sarah <srice@oag.state.md.us> Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Jennifer: We do not believe that Plaintiffs have to disclose precisely who they plan to depose in order to agree on a relatively small extension in the number of deponents. Nevertheless, in order to reach an agreement on this matter, we will provide you with additional information regarding who Plaintiffs plan to depose. At this juncture, Plaintiffs plan to depose 5 GRAC members, the Defendants 30(b)(6) representative, at least 5 current or former members of the Maryland General Assembly, and at least one member of the Department of Legislative Services. In addition, we may depose at least one official in the Maryland Democratic Party and one of Maryland s U.S. Congressional representatives. In many cases, we would have sought information from these individuals through informal discovery. However, given our recent exchange of correspondence, Plaintiffs are not now seeking this informal discovery. 1

113 Case 1:13-cv JKB Document Filed 01/04/17 Page 3 of 4 As you noted, the discovery window in this matter is fairly tight. Please let us know by close of business today if you will agree to increase the number of fact witness depositions in this matter from 10 per side to 15 per side. Regards, Steve Stephen M. Medlock Mayer Brown LLP 1999 K Street NW Washington, DC T: (202) F: (202) smedlock@mayerbrown.com From: Katz, Jennifer [mailto:jkatz@oag.state.md.us] Sent: Wednesday, December 14, :57 PM To: Medlock, Stephen M. Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, Sarah Subject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Steve, please see the forwarded . I am working from home today and somehow managed to send this to everyone but you. Best, Jennifer From: Katz, Jennifer Sent: Wednesday, December 14, :52:20 PM To: Katz; Jennifer Cc: Webb; Brantley; Kimberly; Michael B.; Darsie; Jeffrey; Hughes; Paul W.; Rice; Sarah Subject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Steve, We think that the 10 depositions you originally proposed, and to which we agreed, is more than enough given the subject matter of the litigation and, given the very tight discovery schedule, we are not inclined to agree to more at this time. You have not identified a list of who you intend to depose, but we assume that you may seek to depose members of the GRAC and others who are protected by legislative privilege and cannot be compelled to testify in this matter. Thus, we continue to believe that 10 depositions is more than adequate. Further, when we agreed to the 10 depositions per side, we did not understand that agreement to be conditioned on your ability to seek pre-discovery from current and former state officials represented by the Attorney General's Office. If you want to provide us with a list of who you seek to depose, we can further discuss your request, and try to reach an agreement. Best, Jennifer On Dec 13, :41 PM, "Medlock, Stephen M." <SMedlock@mayerbrown.com> wrote: 2

114 Jennifer: Case 1:13-cv JKB Document Filed 01/04/17 Page 4 of 4 When we initially agreed to 10 depositions per side in the joint discovery plan, we believed that we would be able to conduct informal discovery with current and former delegates and senators who were not represented in this matter. Following on our recent exchange of letters, however, we must now resort to command discovery. Accordingly, we propose raising the number of depositions per side from 10 to 15. By Friday, can you please let us know whether you will consent to this mutual increase in the number of depositions? Regards, Steve Stephen M. Medlock Associate Mayer Brown LLP 1999 K Street NW Washington, DC T: (202) F: (202) smedlock@mayerbrown.com This and any files transmitted with it are intended solely for the use of the individual or entity to whom they are addressed. If you have received this in error please notify the system manager. If you are not the named addressee you should not disseminate, distribute or copy this . 3

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116 Case 1:13-cv JKB Document Filed 01/04/17 Page 2 of 7 BRIAN E. FROSH Attorney General ELIZABETH F. HARRIS Chief Deputy Attorney General FACSIMILE NO. STATE OF MARYLAND OFFICE OF THE ATTORNEY GENERAL DONNA HILL STATON Deputy Attorney General CAROLYN QUATTROCKI Deputy Attorney General WRITER S DIRECT DIAL NO. (410) (410) srice@oag.state.md.us Via to counsel of record December 23, 2016 Stephen M. Medlock Mayer Brown LLP 1999 K Street, N.W. Washington, DC Re: Benisek v. McManus Mr. Medlock, This letter responds to your letter of December 22, 2016, in which you memorialized our telephone conference that was held on December 20 and 21, This letter provides clarifying information in response to certain statements and corrects certain incorrect statements contained in the December 22 letter. First, your letter sets forth your understanding that Ms. Katz and I have accepted service of deposition subpoenas on behalf of Senator Miller and Speaker Busch. Federal Rule of Civil Procedure 4(j)(2)(B) provides that service of process on state entities is to be made in accordance with governing state law. Under Maryland Rule 2-124(k), service of compulsory process on State officials is to be made on the Attorney General or his or her designee. The Attorney General has designated Assistant Attorneys General within the Civil Division of the Office of the Attorney General as authorized to accept compulsory process on State officials. Ms. Katz and I, in addition to being counsel to the defendant officials of the State Board of Elections in this case, are Assistant Attorneys General in the Office s Civil Division. Accordingly, we are authorized by statute and the designation of the Attorney General to accept service of these subpoenas. We forwarded the subpoenas to the Assistant Attorneys General who represent President Miller and Speaker Busch, Sandra Brantley and Kathryn Rowe. You have accurately stated that the GRAC members who have been subpoenaed for deposition in this matter intend to seek protective orders quashing those subpoenas on grounds of legislative privilege. 200 Saint Paul Place Baltimore, Maryland, Main Office (410) Main Office Toll Free (888) Consumer Complaints and Inquiries (410) Health Advocacy Unit/Billing Complaints (410) Health Advocacy Unit Toll Free (877) Homebuilders Division Toll Free (877) Telephone for Deaf (410)

117 Case 1:13-cv JKB Document Filed 01/04/17 Page 3 of 7 Stephen M. Medlock December 23, 2016 Page 2 Second, your letter misstates several aspects of our conversation concerning preservation of documents, as follows: a. Your letter sets forth your understanding that Ms. Katz and I have not been able to locate a copy of any document preservation notice provided to relevant individuals or state agencies regarding the 2011 Congressional Plan. On the contrary, we informed you that we had located a preservation notice sent by then- Assistant Attorney General Daniel Friedman, counsel to the General Assembly, in response to litigation that was commenced against Governor O Malley in October 2011 concerning the 2011 congressional redistricting. b. Your letter states that Ms. Katz and I stated that, as part of the normal course of business, all state accounts, including those used by members of the GRAC, are subject to an auto-delete provision that automatically deletes all s within 60 to 90 days of receipt unless the user takes some step to manually archive them, such as saving particular s or a.pst file to the desktop. Thus, s in the possession or custody of the Governor, the Governor s office, state legislators, and state agencies related to the 2011 Congressional Plan were deleted. During the telephone conference, we explained the general status of in many executive branch agencies of Maryland State government. We have no specific knowledge whether s in the possession or custody of the Governor, the Governor s office, state legislators, and state agencies related to the 2011 Congressional Plan were deleted. We know that not all such s were deleted; many have been produced to you. With respect to the State Board of Elections, not only were no responsive communications found, but the agency believes there to have never been any such communications. In any event, Defendants will supplement their discovery responses consistent with the federal rules to the extent any responsive communications are located. c. Your letter sets forth that Ms. Katz and I stated that s for different state agencies are stored on multiple systems and servers. You were not aware of the number of servers and systems that may contain electronically stored information responsive to Plaintiffs RFPs. However, each of the state systems all have litigation hold modes that will suspend the regular course deletion of s for particular users. This litigation hold mode capability was not activated with respect to this case or with respect to s concerning the 2011 Congressional Plan.

118 Case 1:13-cv JKB Document Filed 01/04/17 Page 4 of 7 Stephen M. Medlock December 23, 2016 Page 3 We are not aware of the number of servers and systems that may contain electronically stored information sought by Plaintiff s RFP 1 and 2 only to the extent that such RFPs sought All such s. As noted in our objection, we do not believe that it is properly within the scope of discovery outlined in Fed. R. Civ. P. 26(b)(1) to request communications statewide. Therefore, while we have given you this general information to help you understand what may or may not be available through non-party subpoenas or other avenues, our systematic survey of availability is limited to the State Board of Elections. Any electronically stored information in the form of at State Board of Elections resides within the Google mail system and servers unless preserved by an individual custodian in another form. Again, it is our general understanding that in state government, across systems there are litigation hold functions and this is what we expressed in our teleconference. We further expressed that we had no knowledge whether or when any litigation hold policies had been activated specific to automatic retention with respect to this litigation or the 2011 Congressional Plan statewide. We have since learned that the State Board of Elections migrated from Microsoft Exchange to Gmail on January 19, Our best information, as of the date of this letter, is that there was no litigation hold in place with respect to 2011 congressional redistricting on the date of the migration, which was nearly nine months before this litigation was commenced. d. Your letter states that Ms. Katz and I explained that members of the GRAC typically did not retain hard copies of the documents that were distributed at GRAC meetings. These documents were collected at the end of the meetings. You believe that some of these documents, such as meeting agendas, have been destroyed, while other documents, such as informational binders, are in the possession of the Department of Planning. To the extent that you have not already done so, by December 30, please produce all binders and paper documents that were distributed at GRAC meetings that are responsive to Plaintiffs first set of requests for production. At the outset, counsel for Defendants have no knowledge that any documents distributed at GRAC meetings and retained by the Department of Planning have been destroyed. As a courtesy to Plaintiffs during the joint stipulations process and formal discovery, we have coordinated with colleagues who represent the Department of Planning to produce copies of approximately 3,000 pages of hard copy documents retained by the Department of Planning and over 550 electronic files of documents retained by the Department of Planning relating to the 2011 congressional redistricting. Further, due to pre-planned family vacations and school closures between the date of your letter and December 30, your request that Defendants produce additional documents within the possession of the

119 Case 1:13-cv JKB Document Filed 01/04/17 Page 5 of 7 Stephen M. Medlock December 23, 2016 Page 4 Department of Planning by December 30 is not feasible. Counsel for the Defendants will have to arrange with counsel for the Department of Planning to obtain, review, and copy any such documents. Accordingly, the Defendants will provide these documents, as a continuing courtesy to Plaintiffs, by close of business on January 13, Third, regarding the Defendants responses to Plaintiffs First Set of Requests for Admission, your letter states that Ms. Katz and I confirmed that Defendants basis of knowledge in responding to the Requests for Admission was limited to certain documents. We made no such confirmation. To the extent necessary and appropriate under the federal rules, we will provide further information about our reasonable inquiries when we supplement the responses, as we have agreed to do, on January 13, Fourth, with regard to data collection, I have by letter dated December 22, 2016, explained to you the burdensome nature of searching Governor O Malley s files in the State Archives. In that letter, I explained that the State Board of Elections does not have possession, custody, or control of the materials that Governor O Malley gifted to the State Archives upon departure from office. I further explained, as the archivist had informed you in response to your public information act request, that the accessioning process of the State Archives has not been completed with respect to the former Governor O Malley papers. This means that the files have not been sorted into public and non-public files to which access restrictions would attach. There are 592 cubic feet of materials, which, at an estimated 3,000 to 5,000 pages per cubic foot, ranges from 1,776,000 to 2,960,000 pages of material. Some of this material is organized by date and some is not. The boxes were not transmitted to Archives with individual-level custodian information. The procedure to access material not yet accessioned by the Archives is burdensome. I further explained to you that Archives treats requests for material from state agencies in the same manner as requests from the public, unless the records are the agency s own records needed for conduct of regular business. The Archives search and copy fees would apply to a state agency. The Assistant Attorneys General involved in such a search would be representing the Archives and the former Governor, not the requesting agency. Fifth, your letter misstates that Ms. Katz and I informed you that Jeanne Hitchcock and James King deleted s. With regard to Jeanne Hitchcock, the Office of the Attorney General assisted Ms. Hitchcock in responding to the subpoena served on her in connection with this matter. Ms. Hitchcock searched for hard copy and electronic documents and found none. Counsel for Defendants have no information that Ms. Hitchcock deleted s and made no such assertion to you. Rather, we explained to you that Ms. Hitchcock sent and received s over her State government address when she served on the GRAC and that she no longer has access to those s.

120 Case 1:13-cv JKB Document Filed 01/04/17 Page 6 of 7 Stephen M. Medlock December 23, 2016 Page 5 With regard to James King, counsel for Defendants never made the assertion that he deleted s. Mr. King is represented by the Office of the Attorney General in connection with this matter. Although he has not been served with a subpoena in this matter, as a courtesy to Plaintiffs, Mr. King had searched for hard copy and electronic documents pertaining to or related to his service on the GRAC. He was unable to locate any such documents. As a continuing courtesy to Plaintiffs, Ms. Katz and I requested that Ms. Hitchcock, Mr. King, and Richard Stewart conduct additional searches using the Plaintiffs First Set of RFPs as a guide. Ms. Katz and I reiterate our position that we are engaging in this practice as a courtesy to Plaintiffs and to obviate the need for additional non-party discovery. Further, to the extent that the former GRAC members maintained copies of records pertaining to their service on the GRAC that are not otherwise protected by privilege, we believe those records would be publicly available. We sought to locate any such documents and provide those that were not protected by privilege in our continued effort to help expedite non-party discovery as a courtesy to Plaintiffs. As of the date of this letter, Mr. King has located two potentially responsive s. The Office of the Attorney General will review these s for privilege and provide any that are not protected by privilege to Plaintiffs by January 6, Again, the Office will undertake these efforts as a courtesy to Plaintiffs. Further, counsel for Defendants had provided Plaintiffs first set of discovery requests to Ms. Brantley and Ms. Rowe, counsel to President Miller and Speaker Busch. We understand that you have been in contact with Ms. Brantley and Ms. Rowe concerning the document subpoenas served on President Miller and Speaker Busch and have agreed to a response date of December 30, Again, as a courtesy to Plaintiffs, the Defendants requested any documents responsive to the discovery requests and in the possession of Speaker Busch and President Miller, and the Defendants were denied access to any such documents. Given your insistence that any such courtesy extended to the Plaintiffs is an admission that the Defendant officials of the State Board of Elections maintain control over documents in the possession, custody, or control of independent State agencies, members of the General Assembly, former GRAC members, or other former State officials or employees, and your stated intention to use this courtesy as a rationale for seeking relief from the Court, counsel for Defendants believe that we can no longer extend such courtesy on behalf of the Defendants without prejudicing them. As Ms. Katz and I explained in our telephone conference with you on October 6, 2016, this courtesy arose out of our willingness to engage in informal discovery mechanisms to limit or eliminate the need for third-party subpoenas and to expedite any third-party subpoena requests to other potential fact-witness State agencies and officials through coordination with colleagues within the Office of the

121 Case 1:13-cv JKB Document Filed 01/04/17 Page 7 of 7 Stephen M. Medlock December 23, 2016 Page 6 Attorney General. During that call, we explained that the Maryland Office of the Attorney General, unlike the offices in some other states, provides representation to all State entities and State officials and employees. The scope of this representation is set forth by statute in Md. Code Ann., State Gov t Toward those stated ends, Ms. Katz and I spent many hours working with our colleagues in the Attorney General s Office to locate, review, and produce documents during the joint stipulations process and have continued that courtesy during formal discovery, in a concerted and we had hoped cooperative attempt to expedite discovery in this case, based largely on Plaintiffs counsels insistence that this litigation move as swiftly as possible. Ms. Katz and I have provided you with substantial detail of the extent of these efforts to allow you to pursue additional material relevant to your claims through formal party and non-party discovery. Further, Ms. Katz and I have offered to engage in informal discovery with you even after we learned that you had made ex parte contact with persons represented by counsel in connection with this matter. Ms. Katz and I find it quite unfortunate and unreasonable that you have stated your intention to use that courtesy as a sword against the Defendant officials of the State Board of Elections by seeking some unstated relief from the Court. Finally, given your admission during the December 21 telephone conference that during the joint stipulations process, completed in mid-november, you formed the belief that President Miller, Speaker Busch, and the other GRAC members were represented by the Office of the Attorney General in connection with this matter, we now believe that you misrepresented yourself in your letters of December 6 and 9, in which you disclaimed any knowledge of this representation. We now view as essential to avoid unfair prejudice to the Defendants disclosure of all contacts you had with these persons, other members of the General Assembly all of whom are represented by the Office in connection with this matter, and any other current or former State officials who are represented by the Office in their official capacity in connection with this matter, and any notes or other tangible item created as a result. Best, /s/ Sarah W. Rice Sarah W. Rice Assistant Attorney General

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123 Case 1:13-cv JKB Document Filed 01/04/17 Page 2 of 3 Bnr, E. Fnosn Sexonn BBNsoN Bn Nrrev ATTONEY GENER,AL COUNSEL TO THE GENERAL ÀSSEMBLY Errze :rn F, Hennrs CHIEF DEPUTY ATTONEY GENERAL Canorvx A. Querrnocxr DEPUTY ATTORNEY GENEML Do e Hrrr SmroN DEPUry ATTORNEY GENEML THE,{ITORNEY GENERAL OF MARYLAND OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY Knrr nvn M, Rorve DEPUTY COUNSEL Jenrruv M. McCov ASSISTANT ÄTTORNEY GENERÂL D.ryro'Wi Sr vppn ASSISTANT ATTORNEY GEN ERAL December 30,20L6 Stephen M, Medlock Mayer Brown, LLP 1999 K Street, NW Washington, DC Re: Benisek v. Lamone, No. JKB (D. Md.) Dear Mr. Medlock: Ënclosed are docurnents n response to the subpoenas served on Senate PresidentThomas V, Mike Miller, Jr., Speaker of the House Michael E. Busch, and Senator Richard S. Madaleno, Jr. You also served a subpoena on Delegate Curt Anderson. He has no materials responsive to the subpoena. We have also enclosed a privilege log each for President Miller, Speaker Busch, and Senator Madaleno, indicating that some documents and information have been withheld because they are protected under either the attorney-client privilege or the legislative privilege. The Fourth Circuit recognizes that "Ilegislative privilege clearly falls within the category of accepted privileges." E,E.O.C, v. Washington Suburban Sanitary Comm'n,631 F.3d I74,180 (4th Cir.2OL1) (hereinafter "yyssc") (citing Burtnick v. McLean, 76 F.3d 611, 613 (4th Cir, 1996)).In Burtnick, the court announced that "[t]he existence of testimonial privilege is the prevailing law" in the Fourth Circuit. 76 F.3d at 613, Plaintiffs seek, through the subpoenas, to invade individual General Assembly members' deliberations over the drafting of legislation by seeking documents compiled by legislators, or their close aides at their direction, to produce the legislation, Accordingly, legislative privilege applies because the members' activities and contribution to any draft maps, reports, or other materials that resulted in Senate Bill l are legislative in nature, The Fourth Circuit declared in WSSC that if the parties "sought to compel information from legislative actors about their legislative activities, they would not need to comply," WSSC,631 F.3d at 181. Moreover, "[ê] litigant does not have to name members or their staffs as parties to a suit in order to distract them fr:om their legislative work. Discovery procedures can prove just as intrusive," Id. See also North Carolina State Conf. v. McCrory, s w L :::.::: i;l lll:l ;.1i1:li: ::::::::-:ïm u n ca'[' n s 4to oo. 3or-97o-56oo. r*.4ro or. rw 4ro r ' 3or-97o-t4or

124 Case 1:13-cv JKB Document Filed 01/04/17 Page 3 of 3 Stephen M. Medlock December 30, 2016 Page 2 between legislators or legislators and staff and also declining to order a privilege log because to do so would "undermine the very purpose and function of legislative privilege, unduly intruding into legislative affairs and imposing significant burdens on the legislative process"). Thus, any effort to compel information about the legislative activity of those engaging in the legislative activity should be rejected, A final note about the maps on the enclosed CD, which are in response to Question 3. The maps labeled Option 1, Option 2, Option 3 and Option 4, were, upon his best information and belief, generated by the personal legislative aide of President Miller, As the events took place more than five years ago, President Miller's aide could not accurately recall whether those maps were provided to any third party.to the extent that the maps are protected by legislative privilege, President Miller waives privilege to the maps. Sincerely, Sandra Be nson Brant ey Counsel to the General Assembly

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126 Case 1:13-cv JKB Document Filed 01/04/17 Page 2 of 3 Benisek v. Lamone Privilege Log for Speaker Michael E. Busch Document No. Date Description Reason for Withholding 1 October from Speaker s staff to staff Legislative Privilege 2011 of Speaker, President and Governor re scheduling 2 October from Speaker s staff to DLS Legislative Privilege 2011 staff re Special Session 3 3/25/2011 from Delegate to staff and Legislative Privilege Speaker s staff re constituent request 4 8/1/2011 from DLS staff to Speaker s Legislative Privilege Deliberative staff re research request 5 10/17/2011 from President s staff to staff of Speaker, President and Governor re plan submitted by Rep. Edwards Process Legislative Privilege Deliberative Process 6 10/24/2011 from County staff to Speaker s staff for information on Congressional Districts in County 7 7/6/2011 Speaker s Staff to President s staff re plan 8 9/15/2011 Speaker s staff to Delegate on Congressional plan 9 10/7/2011 Delegate to Speaker s staff on Congressional plan 10 10/17/2011 Spreadsheet prepared by the President s staff as part of his job duties in preparing drafts of SB1 containing plan summaries of congressional districts which may have been used by the President s and Speakers s staff in preparing and analyzing draft and proposed legislation in the special session Spreadsheet containing plan summaries of congressional districts, which may have been used by President Miller's and Speaker Busch's personal legislative staff and Governor s staff while they were performing their job duties in preparing drafts of SB1 for consideration. Legislative Privilege Legislative Privilege Deliberative Process Legislative Privilege Deliberative Process Legislative Privilege Deliberative Process Legislative Privilege Deliberative Process Legislative Privilege Deliberative Process

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129 Case 1:13-cv JKB Document Filed 01/04/17 Page 2 of 2 Benisek v. Lamone Privilege Log for Senator Richard S. Madaleno, Jr. Document No. Date Description Reason for Withholding 1 8/ to Senator Madaleno re proposed meeting about congressional redistricting plan 2 9/15/2011 Redacted portion of chain containing from David Churchill in which Senator Madaleno and his aide discuss the 3 9/28/2011 s between Senator Madaleno and his aide concerning letter from constituent 4 10/4/2011 between a Delegate and Senator Madaleno on proposed map 5 10/4/2011 relating to Congressional redistricting plan 6 10/5/2011 relating to Congressional redistricting plan 7 10/10/2011 between a Delegate and Senator Madaleno on proposed map 8 10/11/2011 between Senator Madaleno and a Delegate on proposed map 9 10/6/2011 Redacted portion of chain containing from Brian Brooks in which Senator Madaleno and his aide discuss the Legislative privilege deliberative process Legislative privilege Legislative privilege Legislative privilege deliberative process Legislative privilege deliberative process Legislative privilege deliberative process Legislative privilege deliberative process Legislative privilege deliberative process Legislative privilege deliberative process

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131 Case 1:13-cv JKB Document Filed 01/04/17 Page 2 of 2 Benisek v. Lamone Privilege Log for Senator Thomas V. Mike Miller, Jr. Document No. Date Description Reason for Withholding 1 4/25/11 from one member of the Attorney Client Privilege President s staff to another forwarding from Dan Friedman concerning Martin case. 2 10/13/11 from President Miller to members of Senate and Staff about Special Session 3 10/14/11 from President Miller to members of Senate and Staff about Special Session 4 10/20/11 from Planning Staff to GRAC members and staff and Secretary of State about equivalency files 5 10/31/11 from Dan Friedman, Assistant Attorney General to GRAC members, staff, and other Assistant Attorneys General re litigation Legislative Privilege Deliberative Process Legislative Privilege Deliberative Process Legislative Privilege Attorney Client Privilege 6 11/10/11 Same as above Attorney Client Privilege 7 11/18/11 Same as above Attorney Client Privilege 8 11/21/11 Same as above Attorney Client Privilege 9 11/29/11 Same as above Attorney Client Privilege Data compiled from internal and external sources, which may have been used by President Miller's and Speaker Busch s personal legislative staff while they were performing their job duties in preparing plan drafts for consideration. Legislative Privilege Deliberative Process

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133 Medlock, Stephen M. Case 1:13-cv JKB Document Filed 01/04/17 Page 2 of 7 From: Sent: To: Cc: Subject: Katz, Jennifer [jkatz@oag.state.md.us] Tuesday, January 03, :01 PM Medlock, Stephen M.; Kimberly, Michael B.; Hughes, Paul W.; Webb, Brantley Rice, Sarah RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Steve, We do not agree to your modifications. If you reject the terms we have offered, we reiterate our demand that you do not engage in any ex parte contact with represented persons to conduct what you have termed informal discovery in this case, by which we understand you are not seeking to speak with State officials in order to redress your clients grievances. You may contact counsel to the General Assembly, AAGs Sandra Brantley and Kathryn Rowe, at (410) , who will communicate your requests to speak with their clients. Assistant Attorney General Meghan Casey is representing former Governor O Malley and his former staffers concerning this litigation. She can be reached at (410) or mcasey@oag.state.md.us. Best, Jennifer Jennifer Katz Assistant Attorney General, Civil Division Office of the Attorney General 200 Saint Paul Place, 20 th Floor Baltimore, Maryland jkatz@oag.state.md.us (410) From: Medlock, Stephen M. [mailto:smedlock@mayerbrown.com] Sent: Tuesday, January 03, :43 AM To: Katz, Jennifer <jkatz@oag.state.md.us>; Kimberly, Michael B. <MKimberly@mayerbrown.com>; Hughes, Paul W. <PHughes@mayerbrown.com>; Webb, Brantley <BWebb@mayerbrown.com> Cc: Rice, Sarah <srice@oag.state.md.us> Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Jennifer: Thanks for your reply. We are willing to agree to your conditions, but with the following modifications: 1) We don t think it s appropriate to place artificial limits on the number of interviews that can be conducted; if a legislator wants to speak with us, we should be allowed to speak with him or her. 2) We propose that we start by sending a list of 10 current and former legislators, legislative staff members, or staffers in the Governor s office whom we would like to interview. 3) Counsel to the General Assembly will initiate contact with those legislators, explaining that plaintiffs counsel would like to interview them in connection with pending litigation concerning the 2011 congressional redistricting legislation. 1

134 Case 1:13-cv JKB Document Filed 01/04/17 Page 3 of 7 4) If those individuals make themselves available for an interview, the parties will jointly interview them (each side having equal time to ask questions) in the presence of counsel to the General Assembly. While counsel for the General Assembly may advise individuals of their right to assert privilege in appropriate circumstances, counsel may not assert the privilege on anyone s behalf. 5) Plaintiffs may, at their own expense, arrange for the telephone interview to be transcribed by a court reporter. 6) And the parties will jointly collaborate on drafting an affidavit from the individual interviewed in the event the individual expresses a willingness to sign an affidavit. If you agree to these terms, we propose that the parties submit a joint amended scheduling order to the Court that contains these parameters, so that the Court is apprised that these interviews will take place. Regards, Steve Stephen M. Medlock Mayer Brown LLP 1999 K Street NW Washington, DC T: (202) F: (202) smedlock@mayerbrown.com From: Katz, Jennifer [mailto:jkatz@oag.state.md.us] Sent: Friday, December 30, :38 AM To: Medlock, Stephen M.; Kimberly, Michael B.; Hughes, Paul W.; Webb, Brantley Cc: Rice, Sarah Subject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Steve, Good morning. We have considered your proposal concerning informal discovery. As I initially stated, any interviews with current or former legislators regarding the subject matter of this lawsuit will need to be coordinated through counsel to the General Assembly, Assistant Attorneys General Sandra Brantley and Kathryn Rowe. Accordingly, we sent your proposal to Ms. Brantley and Ms. Rowe. Based on their concerns about adequately protecting their clients' privileges, we propose the following. (1) The plaintiffs send a list of 5 current or former legislators they would like to interview to counsel to the General Assembly; (2) counsel to the General Assembly will initiate contact with those legislators, explaining that plaintiffs' counsel would like to interview them in connection with pending litigation concerning the 2011 congressional redistricting legislation; (3) if those legislators make themselves available for an interview, the parties will jointly interview them (each side having equal time to ask questions) in the presence of counsel to the General Assembly; (4) counsel to the General Assembly may raise any objections necessary to protect the member's legislative privilege, if not waived, and to protect privileges of any other General Assembly member; and (4) the parties will jointly collaborate on drafting an affidavit from the current or former legislator in the event the legislator expresses a willingness to sign an affidavit. Best, Jennifer Jennifer Katz Assistant Attorney General 2

135 Case 1:13-cv JKB Document Filed 01/04/17 Page 4 of 7 From: Medlock, Stephen M. <SMedlock@mayerbrown.com> Sent: Thursday, December 22, :13 PM To: Katz, Jennifer Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, Sarah Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Jennifer: At this point, we anticipate that we would want to conduct approximately 10 such interviews. Regards, Steve Stephen M. Medlock Mayer Brown LLP 1999 K Street NW Washington, DC T: (202) F: (202) smedlock@mayerbrown.com From: Katz, Jennifer [mailto:jkatz@oag.state.md.us] Sent: Thursday, December 22, :49 PM To: Medlock, Stephen M. Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, Sarah Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Thank you, Steve. So that we can provide a response by December 27, will you provide us with an estimation of the number of current or former legislators with whom you would seek to hold informal, telephone interviews. We will also need to coordinate with the Assistant Attorneys General who represent General Assembly members. Best, Jennifer Jennifer Katz Assistant Attorney General, Civil Division Office of the Attorney General 200 Saint Paul Place, 20 th Floor Baltimore, Maryland jkatz@oag.state.md.us (410) From: Medlock, Stephen M. [mailto:smedlock@mayerbrown.com] Sent: Thursday, December 22, :13 AM To: Katz, Jennifer <jkatz@oag.state.md.us> Cc: Webb, Brantley <BWebb@mayerbrown.com>; Kimberly, Michael B. <MKimberly@mayerbrown.com>; Darsie, Jeffrey <jdarsie@oag.state.md.us>; Hughes, Paul W. <PHughes@mayerbrown.com>; Rice, Sarah <srice@oag.state.md.us> Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Jenifer and Sarah: 3

136 We have given some thought to your offer to engage in non-ex parte, informal discovery. To that end, here is our proposal: (1) the parties can jointly reach out to current or former legislators to hold informal, telephone interviews, (2) if those individuals make themselves available for an interview, the parties will jointly interview them (each side having equal time to ask questions), and (3) the parties will jointly collaborate on drafting an affidavit from the current or former legislator. Of course, Plaintiffs reserve their right to depose current and former legislators and other current and former state officials, but we believe that this may obviate the need for enlarging the number of depositions. Please let us know if you agree with this proposal by December 27, so that we can jointly begin reaching out to current and former legislators that we would like to informally interview. Regards, Steve Stephen M. Medlock Case 1:13-cv JKB Document Filed 01/04/17 Page 5 of 7 Mayer Brown LLP 1999 K Street NW Washington, DC T: (202) F: (202) smedlock@mayerbrown.com From: Katz, Jennifer [mailto:jkatz@oag.state.md.us] Sent: Friday, December 16, :17 PM To: Medlock, Stephen M. Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, Sarah Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Steve, Thank you for your . We continue to think it is premature to agree to 5 more depositions at this time, given the likelihood that a number of the individuals you seek to depose cannot be compelled to testify in this matter. We would move to quash subpoenas served on members of the GRAC, as well as current or former members of the Maryland General Assembly who seek to assert the testimonial privilege. Thus, we continue to believe that 10 depositions is sufficient. We are open to reexamining our position should the Court not grant those motions to quash, but would anticipate seeking to extend the discovery period to accommodate any increased discovery upon which we may agree. I note that you say you originally thought you might be able to obtain through informal discovery information you now intend to seek through deposition. To the extent you use the term informal discovery in its standard use i.e., the counsel-facilitated exchange of information without resort to formal discovery mechanisms you have not proposed any such mechanism, nor have we rejected it. What we objected to ex parte contact with represented parties is not informal discovery. If you would like to discuss mechanisms other than depositions to obtain information that is properly subject to discovery, whether formal or informal, please let us know. Best, Jennifer Jennifer Katz Assistant Attorney General, Civil Division jkatz@oag.state.md.us (410)

137 Case 1:13-cv JKB Document Filed 01/04/17 Page 6 of 7 From: Medlock, Stephen M. [mailto:smedlock@mayerbrown.com] Sent: Friday, December 16, :27 AM To: Katz, Jennifer <jkatz@oag.state.md.us> Cc: Webb, Brantley <BWebb@mayerbrown.com>; Kimberly, Michael B. <MKimberly@mayerbrown.com>; Darsie, Jeffrey <jdarsie@oag.state.md.us>; Hughes, Paul W. <PHughes@mayerbrown.com>; Rice, Sarah <srice@oag.state.md.us> Subject: RE: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Jennifer: We do not believe that Plaintiffs have to disclose precisely who they plan to depose in order to agree on a relatively small extension in the number of deponents. Nevertheless, in order to reach an agreement on this matter, we will provide you with additional information regarding who Plaintiffs plan to depose. At this juncture, Plaintiffs plan to depose 5 GRAC members, the Defendants 30(b)(6) representative, at least 5 current or former members of the Maryland General Assembly, and at least one member of the Department of Legislative Services. In addition, we may depose at least one official in the Maryland Democratic Party and one of Maryland s U.S. Congressional representatives. In many cases, we would have sought information from these individuals through informal discovery. However, given our recent exchange of correspondence, Plaintiffs are not now seeking this informal discovery. As you noted, the discovery window in this matter is fairly tight. Please let us know by close of business today if you will agree to increase the number of fact witness depositions in this matter from 10 per side to 15 per side. Regards, Steve Stephen M. Medlock Mayer Brown LLP 1999 K Street NW Washington, DC T: (202) F: (202) smedlock@mayerbrown.com From: Katz, Jennifer [mailto:jkatz@oag.state.md.us] Sent: Wednesday, December 14, :57 PM To: Medlock, Stephen M. Cc: Webb, Brantley; Kimberly, Michael B.; Darsie, Jeffrey; Hughes, Paul W.; Rice, Sarah Subject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] Steve, please see the forwarded . I am working from home today and somehow managed to send this to everyone but you. Best, Jennifer From: Katz, Jennifer Sent: Wednesday, December 14, :52:20 PM To: Katz; Jennifer Cc: Webb; Brantley; Kimberly; Michael B.; Darsie; Jeffrey; Hughes; Paul W.; Rice; Sarah Subject: Re: Benisek v. Lamone (D. Md.): Depositions [MB-AME.FID ] 5

138 Steve, Case 1:13-cv JKB Document Filed 01/04/17 Page 7 of 7 We think that the 10 depositions you originally proposed, and to which we agreed, is more than enough given the subject matter of the litigation and, given the very tight discovery schedule, we are not inclined to agree to more at this time. You have not identified a list of who you intend to depose, but we assume that you may seek to depose members of the GRAC and others who are protected by legislative privilege and cannot be compelled to testify in this matter. Thus, we continue to believe that 10 depositions is more than adequate. Further, when we agreed to the 10 depositions per side, we did not understand that agreement to be conditioned on your ability to seek pre-discovery from current and former state officials represented by the Attorney General's Office. If you want to provide us with a list of who you seek to depose, we can further discuss your request, and try to reach an agreement. Best, Jennifer On Dec 13, :41 PM, "Medlock, Stephen M." <SMedlock@mayerbrown.com> wrote: Jennifer: When we initially agreed to 10 depositions per side in the joint discovery plan, we believed that we would be able to conduct informal discovery with current and former delegates and senators who were not represented in this matter. Following on our recent exchange of letters, however, we must now resort to command discovery. Accordingly, we propose raising the number of depositions per side from 10 to 15. By Friday, can you please let us know whether you will consent to this mutual increase in the number of depositions? Regards, Steve Stephen M. Medlock Associate Mayer Brown LLP 1999 K Street NW Washington, DC T: (202) F: (202) smedlock@mayerbrown.com This and any files transmitted with it are intended solely for the use of the individual or entity to whom they are addressed. If you have received this in error please notify the system manager. If you are not the named addressee you should not disseminate, distribute or copy this . 6

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