PJC In The News

PJC Brief Supports Green Party Fight Against Subpoena

Greens fight subpoena of lawyer’s personnel file

Daily Record
Legal Affairs Editor
January 30, 2007

Backed by a host of civil rights groups, the Maryland Green Party is fighting a subpoena of a lawyer’s personnel records and files on his employer’s computer. The dispute is part of a broader battle over an estimated $500,000 in attorneys’ fees the Green Party is seeking after winning a voting rights lawsuit in 2003. One of the Green Party’s lead attorneys in that case, Mark Miller, is an Ohio-licensed lawyer and a full-time librarian at Montgomery College in Takoma Park. The State Board of Elections has subpoenaed the college for Miller’s time sheets, attendance and wage records as well as “all documents relating to this lawsuit” including “computer files, e-mails, electronic correspondence or other documents” in its possession. “There are critically important privilege and work-product issues at stake here,” said Deborah Jeon, legal director of ACLU of Maryland, which is spearheading the present appeal.

The breadth of the subpoena ensures that protected material will be included, Jeon said. “Additionally,” she said, “the enforcement of civil rights laws would be undermined if lawyers who handle the cases are subjected to such intrusive discovery in the future.” Raquel Guillory, spokeswoman for the Office of the Attorney General, defended the subpoena, noting that the college itself did not oppose it. “We’re talking about a request for about a half-million dollars,” Guillory said. In reviewing the fee petition, she said, the board “sought information about use of the college’s computers, a public resource.” Anne Arundel County Circuit Judge Michael E. Loney denied the Green Party’s motion to quash the subpoena last summer.

Although both sides had asked for a hearing, Loney issued a one-page ruling without a hearing, Jeon said. The sides eventually agreed to stay enforcement pending this appeal, and the ACLU’s lawyers filed the appellate brief on Friday. They were backed by the Public Justice Center as amicus, along with CASA of Maryland Inc., Civil Justice Inc., the Greater Baltimore Christian Legal Society, the Labor Council for Latin American Advancement, the Maryland Disability Law Center, the Maryland Employment Lawyers Association, the National Council of La Raza, the NAACP Legal Defense and Education Fund Inc., the Natural Resources Defense Council Inc. and Public Citizen. The amici are primarily worried about the potential effect of this case on future civil rights litigation, Jeon said. “This is heading toward three years’ litigation over how much these attorneys should be paid for a case they won,” she said. “This is definitely not what Congress intended” when it authorized recovery of attorneys’ fees by prevailing plaintiffs in civil rights litigation. Discovery requests — especially a non-party request of this magnitude — are rare in attorneys’ fees cases, Jeon noted. Generally, prevailing plaintiffs submit their time sheets, rates and explanations, and the other side is free to contest the reasonableness of the request. “I’ve been practicing civil rights law for many years,” she said, “and this is the first one like this I’ve seen.” 2000 challenge The underlying litigation was filed in September 2000, after the State Board of Elections refused to place candidate David Gross on the ballot for Congress in Maryland's First District. Too many of the voters who signed to put Gross on the ballot were from the “inactive” voter list, the board said. While the circuit court upheld the board, the Court of Appeals reversed in 2003, and the Greens sought attorneys’ fees. The circuit court denied that request, finding fees were available only to a party that prevailed under federal law — and the Court of Appeals had decided the case under state law. The Court of Special Appeals reversed that decision in 2005, allowing the fee dispute to proceed. At the time, the fees were approaching $340,000, Jeon said. “We don’t have a tabulation of amount due right now,” she said, but didn’t shirk from the state’s estimate of $500,000. “The fees incurred in litigating the fees could add $200,000 to $250,000,” she said. “There are more lawyers involved now.”

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