State of Maryland Withdraws Subpoena for Lawyer’s Computer and Personnel Records

ACLU Calls it Victory for Civil Rights

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

ANNAPOLIS, MD – In a move hailed as a victory by the American Civil Liberties Union of Maryland, Attorney General Douglas Gansler is withdrawing a subpoena demanding production of a civil rights lawyer’s computer hard drive and personnel records. This is the latest development in a long-running voting rights dispute between the Maryland Green Party and the State Board of Elections.

“This a victory for every Marylander who cares about our court system’s respect for the rights of those who stand up to challenge civil rights violations,” said ACLU of Maryland Legal Director Deborah A. Jeon. “We view this turnabout by the state as a clear acknowledgement by the Attorney General of the impropriety of the subpoena.”

In January, the ACLU of Maryland asked the state appeals court to quash the subpoena, which had been served upon the lawyer’s employer, Montgomery College. Shortly thereafter, the court of appeals took the matter up for review.

The controversy arose in a voting rights case in which the Maryland Green Party successfully challenged the constitutionality of state election laws and practices that denied a Green Party candidate a place on the ballot during the 2000 Congressional elections. The merits of the dispute have been settled since 2003, when Maryland’s highest court ruled in favor of the Green Party. The courts also have squarely decided that the state is required to pay the Green Party’s legal fees under civil rights laws. But the litigation has dragged on for years as Maryland has sought to delay or avoid payment of those fees – engaging in what Supreme Court Justice William Brennan once called “one of the least socially productive types of litigation imaginable.”

The subpoena was served in spring 2006 upon the employer of one of the Green Party’s lawyers, even though the employer is not a party to the case. It demanded production of the lawyer’s job application and his wage, attendance, and leave records. More importantly, the subpoena sought all email and other electronic information stored on the lawyer’s password-protected work computer, including privileged communications between the lawyer and the Green Party and confidential documents prepared as part of the litigation.

In its appeal, the ACLU argued that enforcement of the subpoena would have undermined both the attorney-client privilege and the work product doctrine – two of the oldest and most fundamental protections clients and their lawyers have under the law. The ACLU also argued that the subpoena would discourage private parties and lawyers from taking up civil rights causes, for fear that their success in doing so would expose them to unreasonable government intrusions upon their privacy.

Numerous civil rights and legal groups joined the ACLU as “friends-of-the-court” supporting the effort to quash the subpoena because of its potential to undermine enforcement of civil rights law. Led by the Public Justice Center, those groups include: 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.

Counsel in the case include Frank Dunbaugh and Mark Miller, original counsel for the Green Party; Creighton R. Magid and Beth Forsythe of Dorsey & Whitney; C. Christopher Brown of Brown, Goldstein & Levy; and Jeon and David Rocah of the ACLU of Maryland. Suzanne Sangree at the Public Justice Center organized participants filing the friend-of-the-court brief.