Archbishop Edwin F. O'Brien et al v. Mayor and City Council Of Baltimore et al

Filing 99

MEMORANDUM AND ORDER re: Objections to Memorandum and Order Entered by Magistrate Judge. Signed by Judge Marvin J. Garbis on 8/13/2015. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GREATER BALTIMORE CENTER
FOR PREGNANCY CONCERNS, INC.

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Plaintiff
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vs.

CIVIL ACTION NO. MJG-10-760
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MAYOR AND CITY COUNCIL OF
BALTIMORE, et al.

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Defendants

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MEMORANDUM AND ORDER RE: OBJECTIONS TO MEMORANDUM AND ORDER
ENTERED BY MAGISTRATE JUDGE
The Court has before it Defendants' Objections to
Memorandum and Order Entered by Magistrate Judge Gesner on June
16, 2015 [ECF No. 95] and the materials submitted relating
thereto.

The Court finds a hearing unnecessary.

Defendants (collectively, "the City") seek to have the
Court set aside certain parts of the Memorandum and Order
entered by Magistrate Judge Gesner on June 16, 2015 ("the June
2015 Order") [ECF No. 94], on the grounds that the "order fails
to direct the Nonparties to answer properly posed deposition
questions and produce relevant documents, [and, therefore,] is
clearly erroneous."

[ECF No. 95] at 1.

In Response, the Non-Parties – Care Net, Heartbeat
International, and National Institute of Family and Life
Advocates – contend that:

First, the City waived its right to file
these objections because, as Judge Gesner
observed, it is actually objecting to her
December 23, 2014, order, which allowed
discovery about locally focused activities
but
not
beyond
that
to
nationwide
activities, and the City failed to timely
object under Fed. R. Civ. P. 72(a); and
Second, the order is not clearly erroneous
or contrary to law under Rule 72, since
these
three
remaining
Non-Parties
have
already produced approximately 1000 pages
and
10
hours
of
discovery
in
three
depositions (the City also took a deposition
and documents from the fourth Non-Party).
[ECF No. 98] at 1.
The City has not filed a Reply.
Rule

72(a)

of

the

Federal

Rules

of

Civil

Procedure provides that:
When a pretrial matter not dispositive of a
party's claim or defense is referred to a
magistrate judge to hear and decide, the
magistrate judge must promptly conduct the
required proceedings and, when appropriate,
issue a written order stating the decision.
A party may serve and file objections to the
order within 14 days after being served with
a copy.
A party may not assign as error a
defect in the order not timely objected to.
The district judge in the case must consider
timely objections and modify or set aside
any part of the order that is clearly
erroneous or is contrary to law.
On December 23, 2014, Judge Gesner issued a Memorandum and
Order ("the December 2014 Order") [ECF No. 77], stating that:
Based upon a review of the entire record in
this case, and for the reasons noted herein
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and on the record during the November 21,
2014 telephone hearing, the undersigned
concludes that the scope of defendants’
Document Requests which are at issue should
be limited solely to information pertaining
to
plaintiff
GBCPC,
movants'
Baltimore
affiliates, or movants' Baltimore members.
To the extent that defendants' Document
Requests
go
beyond
these
geographic
limitations (and, indeed, have a nationwide
reach), those requests are overly broad,
unduly burdensome, and seek discovery well
beyond that contemplated by Federal Rule of
Civil Procedure 26.
Id. at 3-4.

Judge Gesner directed the Non-Parties "to produce

responsive documents to defendants, in a manner consistent with
this Order, within twenty-one (21) days."

Id. at 6.

In the June 2015 Order, Judge Gesner addressed "defendants'
and the non-parties' request for guidance concerning the scope
of discovery contemplated by my [December 2014] Order, as
applied to the subpoena for document requests served upon the
non-parties by defendants."

[ECF No. 94] at 1.

Judge Gesner

stated that "defendants did not timely appeal my [December 2014]
Order, though the instant dispute directly relates to that
December 23, 2014 ruling."

Id. at 1 n.1.

Judge Gesner

concluded the June 2015 Order by stating "for the reasons noted
in my prior Order, . . . I reiterate my December 23, 2014
ruling."

Id. at 2.

The Court agrees with Judge Gesner that the instant
discovery dispute between the City and the Non-Parties relates
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to the substance of the December 2014 Order, and, therefore,
that the City's objections – filed on June 30, 2015, over six
month after the entry of the December 2014 Order – are untimely.
Even if the City's Objections were deemed to be filed
timely, the Court still would overrule the objections.

Rule

72(a) requires district judges to "set aside any part of [a
magistrate judge's nondispositive pretrial] order that is
clearly erroneous or is contrary to law."

"The 'clearly

erroneous' standard applies to factual findings, while legal
conclusions will be rejected if they are 'contrary to law.'"
Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, 28 F. Supp. 3d
465, 479 (D. Md. 2014).
The parties appear to agree that the applicable standard of
review is clear error.

Regardless of whether the City

challenges the December 2014 and June 2015 Orders on the basis
of factual findings or legal conclusions, the Court adopts Judge
Gesner's Orders as its own.

In the Memorandum and Order Re:

Discovery [ECF No. 71], issued nearly one year ago, the Court
stated that "the Defendants seek a grossly excessive degree of
discovery from the non-party movants" and that "the Defendants
cannot persist in presenting implausible relevance contentions
and cannot seek to impose excessive burdens on the Movants in an

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attempt to obtain the requested discovery."

The Court referred

the discovery dispute to Judge Gesner.
In the December 2014 Order, Judge Gesner agreed with the
Court that the City's document requests were "grossly excessive"
and limited the scope of the documents that the Non-Parties were
required to produce.

See [ECF No. 77].

Judge Gesner stated

that "if after review of the documents produced by movants,
defendants continue to seek to depose a corporate representative
of each movant, defendants may do so with the same limitations
noted herein."

Id. at 6 (emphasis added).

In the June 2015

Order, Judge Gesner reiterated her December 2014 ruling.

See

[ECF No. 94].
The discovery production that the City now seeks to have
the Court impose on the Non-Parties has been addressed by Judge
Genser twice in the past eight months.1

Having reviewed the

record and the City and Non-Parties' recent submissions, the
Court finds no reason to disagree – on a factual or legal basis,
or otherwise – with Judge Gesner's conclusions.
1

The City contends that Judge Gesner's "failure to direct
the Nonparties to respond to [certain] deposition questions
[was] clearly erroneous." [ECF No. 95] at 5. The June 2015
Order does not refer expressly to the request to reopen
depositions, which were taken in February 2015, see [ECF No. 83]
¶ 6. However, Judge Gesner indicated in the June 2015 Order
that she had reviewed "the entire record" and reiterated her
ruling from December 2014, based, in part, on the Non-Parties'
submissions ECF Nos. 87, 91, and 93, all of which referenced the
deposition dispute issue.
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Accordingly:
1.

Defendants' Objections to Memorandum and Order
Entered by Magistrate Judge Gesner on June 16, 2015
[ECF No. 95] are DENIED.

2.

The Memorandum and Order issued by Magistrate Judge
Gesner on December 23, 2014 [ECF No. 77] is ADOPTED
BY THE COURT AS ITS OWN.

3.

The Memorandum and Order issued by Magistrate Judge
Gesner on June 16, 2015 [ECF No. 94] is ADOPTED BY
THE COURT AS ITS OWN.

4.

Plaintiff shall arrange a telephone conference to be
held by September 4, 2015 to discuss the summary
judgment briefing schedule.

SO ORDERED, on Thursday, August 13, 2015.

/s/__________
Marvin J. Garbis
United States District Judge

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