ACLU of Maryland and Green Party Challenge State Subpoena of Civil Rights Lawyer's Computer and Personnel Records

Affiliate: ACLU of Maryland
January 29, 2007 12:00 am

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BALTIMORE, MD – Contending that a government subpoena demanding production of a civil rights lawyer’s computer hard drive and personnel records violates principles of privacy and attorney-client privilege, the American Civil Liberties Union of Maryland has appealed to the Maryland Court of Special Appeals to quash the subpoena.

The controversy arises 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.

“If enforced, this type of subpoena would seriously undermine enforcement of important civil rights laws,” said ACLU cooperating counsel Creighton R. Magid, of Dorsey & Whitney LLP. “Not only has this proceeding become a colossal waste of taxpayer resources, but enforcement of the subpoena would undermine two of the oldest and most fundamental protections clients and their lawyers have under the law: the attorney-client privilege and the work product doctrine.”

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 demands production of the lawyer’s job application and his wage, attendance, and leave records. More importantly, the subpoena also seeks all e-mail 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.

“What plaintiff in her right mind will come forward to seek justice through the courts if being successful means the party who violated her rights can then search her lawyer’s computer, reading any communications back and forth — even if wholly unrelated to the case?” said ACLU of Maryland Legal Director Deborah A. Jeon.

The merits of the dispute were settled in 2003, when the state’s highest court ruled in favor of the Green Party. The courts decided that the state is required to pay the Green Party’s legal fees under civil rights law, but the litigation has dragged on for years as the state 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.”

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; 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 amicus brief.

The ACLU of Maryland’s brief before the Court of Special Appeals is online at: www.aclu-md.org/aPress/Green_Party_Brief.pdf

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