Fether v. Frederick County, Maryland et al

Filing 66

MEMORANDUM. Signed by Magistrate Judge Susan K. Gauvey on 3/19/14. (dass, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
SUSAN K. GAUVEY
U.S. MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[e-mail]
[phone]
[phone] - Fax

March 19, 2014
Peter C. Grenier, Esq.
William R. Cowden, Esq.
Bode and Grenier, LLP
1150 Connecticut Avenue, N.W., Suite 900
Washington, DC 20036
Daniel Karp, Esq.
Victoria M. Shearer, Esq.
Karpinski, Colaresi and Karp, PA
120 E. Baltimore Street, Suite 1850
Baltimore, MD 21202
Roger L. Wolfe, Jr., Esq.
Office of the Attorney General
Civil Division
200 St. Paul Place, 20th Floor
Baltimore, MD 21202
Re:

Fether v. Frederick County, Maryland, et al.
Civil No. CCB-12-1674

Dear Counsel:
This is a civil rights action against Frederick County and
various employees of the county arising out of the death of
Justin Lihvarchik while in the custody of the Frederick County
Detention Center.

The Plaintiff charges deliberate indifference

on the part of Defendants, resulting in the preventable suicide
of Mr. Lihvarchik.

Discovery is ongoing.
1

Pending before the

Court

is

Frederick

Office”),

Captain

County

Troy

Sheriff’s

Barrick,

Office’s

custodian

of

(“Sheriff’s
record,

and

Frederick County Adult Detention Center’s (“Detention Center”),
Lieutenant Steven Jamison, custodian of record, (collectively
“Third Parties”) motion to strike improperly filed confidential
documents and motion for confidentiality order (ECF No. 55).
Briefing is complete.

No hearing is necessary.

105.6 (D. Md. 2011).

Local Rule

For the reasons set forth herein, the

motion to strike is GRANTED and the motion for confidentiality
order is GRANTED.

I.

History of Discovery Dispute
The

present

dispute

arose

out

Plaintiff on the Third Parties.

of

subpoenas

served

by

The Third Parties initially

produced some of the requested documents and later, pursuant to
this Court’s letter order dated November 22, 2013 (ECF No. 45),
were ordered to produce the remainder of the records sought in
the

subpoenas.

telephonic

On

hearing

December
to

4,

address

2013,

this

production

Court

of

the

held

a

subject

documents as well as the Third Parties’ request for entry of a
confidentiality order governing the Third Parties’ supplemental
document

production.

Pursuant

to

that

hearing,

this

Court

ordered the parties to meet and confer regarding the parameters
of a reasonable confidentiality order.

2

According to letters of

counsel, dated December 24, 2013 (ECF No. 52) and January 12,
2014 (ECF No. 53), the parties have reached an impasse as to the
parameters

of

a

confidentiality

order

governing

the

Third

Parties’ supplemental document production.
The
Frederick

subject

of

County

the

present

Internal

motion

Affairs

is:

(1)

whether

investigative

the

report,

submitted as “Exhibit 3” to Plaintiff’s January 12, 2014 letter,
was

improperly

filed

as

an

exhibit

to

Plaintiff’s

unsealed

correspondence; and (2) the parties’ request for entry of a
confidentiality

order

governing

Third

Parties’

supplemental

document production.

II.

Discussion

A. Motion for Confidentiality Order
The Court first addresses Third Parties’ motion for entry
of confidentiality order.

According to the letters of counsel,

dated December 24, 2013, and January 12, 2014, (ECF Nos. 52,
53),

the

parties

agree

that

they

have

reached

an

impasse

regarding the parameters of a confidentiality order governing
Third Parties’ supplemental document production.

As such, the

parties now seek this Court’s intervention and ask the Court for
entry of a reasonable confidentiality order.
No. 57).

(ECF No 55; ECF

Both parties have submitted proposed orders.

55-1; ECF No. 57-1).

3

(ECF NO.

Central

to

the

parties’

dispute

proposed confidentiality order.
assert

that

the

internal

is

the

scope

of

the

Specifically, the Third Parties
affairs

investigation

reports,

submitted pursuant to the supplemental document production, are
confidential in their entirety.

(ECF No. 55, 4).

Conversely,

Plaintiff asserts that only specific information within those
documents, such as information concerning suicide threats and
suicide attempts by third parties and law enforcement officers’
birthdates, social security numbers, home addresses, and medical
records, are confidential and can be redacted without sealing
the investigation reports in their entirety.
Third

Parties’

counsel

points

to

(ECF No. 57, 3).
Montgomery

County,

Maryland v. Shropshire, 23 A.3d 205 (Md. 2011) and Fields v.
State, 69 A.3d 1104 (Md. 2013) to argue that internal affairs
investigation reports are treated as confidential in the State
of Maryland.

(ECF No. 55, 4).

Those cases interpreted the

Maryland Public Information Act (“MPIA”), Md. Code Ann., State
Gov’t

§

records.”
1113.

10-616(i),

which

prohibits

disclosure

of

“personnel

Shropshire, 23 A.3d at 215-16; Fields, 69 A.3d at

In Shropshire, the Maryland Court of Appeals held that

records of internal affairs investigations constitute “personnel
records,” within the meaning of MPIA § 10-616(i), because such
investigations examine allegations of administrative misconduct,
that if true, would result in disciplinary action.
4

23 A.3d at

215-16
hiring,

(defining

“personnel

discipline,

records”

promotion,

involving an employee’s status).

as

“those

dismissal,

or

relating
any

to

matter

As a result, internal affairs

investigative records are exempt from disclosure.1

Id.

This

Court made clear, however, in Martin v. Conner, 287 F.R.D. 348
(D. Md. 2012), that discovery in federal courts is governed by
federal

law

and

this

Court

determines

whether

a

party

is

entitled to production of police investigative files following
the well-reasoned approach espoused in King v. Conde, 121 F.R.D.
180, 198 (E.D.N.Y. 1988).

As such, State privacy laws are but

one factor that this Court shall consider when deciding whether
a

party

is

entitled

to

production

of

investigative

records.

Conner, 287 F.R.D. at 356-57.

Moreover, this Court has already

determined

Parties’

that

the

Third

production is merited in this case.

supplemental

document

(ECF No. 45).

The Court does, however, acknowledge the Maryland public
policy disfavoring the use of internal affairs records in its

1

Plaintiff cites Maryland Department of State Police v. Maryland State
Conference of NAACP Branches, 59 A.3d 1037 (Md. 2013) arguing that Maryland
law holds that once a record has been appropriately redacted to remove all
information connecting the record to an “individual,” the record is no longer
a “personnel record.”
In NAACP Branches, however, the plaintiffs’ sought
statistical information and thus all information connecting the records to
“individuals” was redacted.
59 A.3d at 1046.
Here, conversely, the
personnel records specifically reference acts taking by named Defendants and
Plaintiffs have not suggested redaction of all information connecting the
records to those or any individuals, in particular Plaintiffs do not suggest
redacting Defendants’ names.
See NAACP Branches, 59 A.3d at 1045
(distinguishing Shropshire and acknowledging that if the records sought were
internal affairs investigation records into the conduct of individual
officers, the records would be barred from disclosure under MPIA §
10-616(i)).

5

determination of the appropriate scope of the confidentiality
order.

Plaintiff

asserts

that

Third

Parties

overstate

the

confidentiality of the internal affairs records and argue that
Maryland public policy strongly favors public disclosure of all
judicial records and documents.
Court

agrees

with

(ECF No. 57, 4-5).

Plaintiff’s

assertions

While the

regarding

public

records and information concerning the operation of government,
the Maryland General Assembly, pursuant to MPIA § 10-616(i), and
the

Maryland

that

even

disclosure of personnel records is strongly disfavored.

The

Maryland

Court

Court

of

of

Appeals

Appeals

has

have

made

defined

clear

“personnel

records,”

records which are exempt from disclosure under MPIA § 10-616(i),
as “those relating to hiring, discipline, promotion, dismissal,
or any matter involving an employee’s status.”
A.3d at 215.

Shropshire, 23

The internal affairs investigative reports at

issue here fall within that category.

As such, the Court finds

that these records should be deemed as confidential for purposes
of

the

Court’s

confidentiality

order.

While

Plaintiff

is

entitled to use of these internal affairs investigative records,
this Court finds that the documents do warrant protection under
the confidentiality order.
The parties also dispute the scope of Plaintiff’s use of
the internal affairs investigative records produced pursuant to
the

Third

Parties’

supplemental
6

document

production.

In

particular, the parties disagree on whether Plaintiff may use
the records “in other litigation involving one or more of the
same defendants and concerning the deaths of William John Hanlin
and Valerie Ann Miller while in custody at the Frederick County
Adult

Detention

Center

(hereinafter:

“the

Similar

Lawsuits”)

that presently is being conducted by the same attorneys involved
in this litigation.”

(ECF No. 57-1, Attach. 1).

The Court

finds Plaintiff’s inclusion of “the Similar Lawsuits” in her
proposed confidentiality order to be inappropriate.

This Court

will not extend the confidentiality order in this case to cover
potentially

discoverable

lawsuits.

The

Court

material

has

in

determined

two

wholly

independent

that

disclosure

of

police investigative records is appropriate in this case.

the
(ECF

No. 45). If, however, Plaintiff seeks discovery of the same
records in connection with separate lawsuits, Plaintiff will be
required to demonstrate, in the context of those lawsuits, that
the records are relevant and discoverable.
Having addressed the disputed provisions of the parties’
respective proposed confidentiality orders, the Court finds that
entry of a reasonable confidentiality order is appropriate.

The

parameters of such an order are delineated in a separate order
of this Court.
B. Motion to Strike

7

Plaintiff’s January 12, 2014, correspondence (ECF No. 53)
attached, as “Exhibit 3,” a Frederick County Internal Affairs
investigative

report

produced

pursuant

supplemental document production.

to

the

Third

Parties’

The Third Parties filed the

present motion seeking to strike Plaintiff’s “Exhibit 3” from
the

record

arguing

confidential

and

the

should

confidentiality Order.

information
be

contained

protected

by

(ECF No. 55, 3-4).

therein

this

is

Court’s

The Court agrees.

The internal affairs investigative records produced pursuant to
the

Third

Parties’

supplemental

document

production

are

confidential in nature and shall be covered by this Court’s
confidentiality order.

Accordingly, any such records filed with

this Court are to be filed under seal.
(ECF

No.

53-3)

correspondence,
record.

III.

and

was

attached

therefore,

to

shall

Plaintiff’s “Exhibit 3”
Plaintiff’s
be

stricken

unsealed
from

the

A separate order shall issue.

Conclusion
For

the

foregoing

reasons,

the

Court

finds

that

a

confidentiality order governing the Third Parties’ supplemental
document production is warranted, the parameters of which shall
are detailed in an order accompanying this memorandum.

Further,

“Exhibit 3” of Plaintiff’s January 12, 2014 correspondence (ECF

8

No. 53-3) is deemed confidential and shall be stricken from the
record.

A separate order shall issue.

____________/s/_________________
Susan K. Gauvey
United States Magistrate Judge

9