American Humanist Association et al v. Maryland-National Capital Park and Planning Commission

Filing 66

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 2/23/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
AMERICAN HUMANIST ASSOCIATION,
et al.

:

v.

:

Civil Action No. DKC 14-0550

:
MARYLAND-NATIONAL CAPITAL PARK
AND PLANNING COMMISSION

:
:

MEMORANDUM OPINION
On
(“AHA”),

February
Steven

(collectively,

Lowe,

Capital

the

Fred

Edwords,
filed

Park

“Defendant”)

American

and

seeking

a

Humanist
and

Bishop

complaint

Planning
a

Association
McNeill

against

Commission

the
(“the

declaratory

judgment,

injunctive relief, and nominal compensatory damages.

(ECF No.

1).

or

2014,

“Plaintiffs”)

Maryland-National
Commission”

25,

The facts alleged in the complaint are set forth in a prior

memorandum opinion.

See American Humanist Ass’n v. Maryland-

National Capital Park and Planning Com’n, 303 F.R.D. 266 (D.Md.
2014).

In short, Plaintiffs allege that Defendant violated the

Establishment Clause of the First Amendment to the United States
Constitution by owning, maintaining, and prominently displaying
the Memorial Peace Cross in Bladensburg, Maryland (“the Peace
Cross”).

On April 25, 2014, eleven prospective amici curiae moved
for

leave

to

appear

jointly

as

amicus

curiae

in

Defendant and to file an amicus curiae memorandum.
11).

support

of

(ECF No.

The following individuals and group sought to participate

as amicus curiae in the case:

Richard Douglas; Kevin Young;

Lori Young; Harry Pitt; Cheryl Pitt; John Dollymore; Christy
Dollymore; Ellen J. McNulty; Lynn Cook; Lawrence Wenzel; Claude
E.

Petrone;

States.
2014,

and

the

Veterans

of

Foreign

Wars

of

the

United

By memorandum opinion and order issued on September 18,

the

undersigned

granted

in

part

the

motion

to

appear

jointly as amicus curiae and for leave to file an amicus curiae
memorandum was granted in part.

(ECF Nos. 46 & 47).

The

proposed amici curiae were permitted to participate as amicus
curiae.

Because no dispositive motions had been filed yet, the

court noted that the proposed memorandum submitted by the amici
curiae would not be considered, but permitted amici to seek
leave

to

file

an

amicus

curiae

memorandum

in

support

of

Defendant if and when dispositive motions are filed.
On

February

8,

2015,

Plaintiffs

served

a

deposition

subpoena on Richard Douglas, one of the amicus curiae who also
is counsel to the amici curiae.

The subpoena, dated February 5,

2015, requires Mr. Douglas to appear to testify at a deposition
on March 2, 2015, and also to produce certain documents at his
deposition.

(See ECF No. 61, at 5-9).
2

On February 17, 2015,

Richard Douglas filed a motion for a protective order on behalf
of

the

amici

subpoena

to

curiae,
testify

requesting
and

for

that

the

court

documents.

quash

the

No.

61).

(ECF

Plaintiffs opposed the motion (ECF No. 62), and Mr. Douglas
replied (ECF No. 63).
In his motion, Mr. Douglas states that amici should not be
forced to provide discovery here.

(ECF No. 61 ¶ 3).

He states

that “enforcement of a subpoena against [amici] in this case
could discourage amici from stepping forward in the future, and
chill a function which can be of tremendous value to the federal
courts.”

(Id. ¶ 4).

He further contends that Plaintiffs have

demanded trial preparation materials blocked from disclosure by
Fed.R.Civ.P. 26(b)(3)(A).

Finally, Mr. Douglas represents that

“[a]mici have little to add beyond the four corners of their
submissions to the Court, which, in accordance with the Court’s
order,

Amici

intend

proceeding.”

to

revise

after

final

briefing

in

this

(Id. ¶ 6).

“Federal Rule of Civil Procedure 45 establishes the rules
for subpoenas served upon individuals and entities that are not
parties

to

Scientific,
Consistent
discover

the

underlying

Inc.,
with

“any

205

Rule

26,

lawsuit.”

F.Supp.2d
Rule

nonprivileged

party’s claim or defense.”

45

matter

United
482,

484

subpoenas
that

is

States
(D.Md.
may

be

relevant

v.

Star

2002).
used
to

to
any

Boykin Anchor Co. Inc. v. Wong, No.
3

5:10-CV-591-FL, 2012 WL 27328, at *2 (E.D.N.C. Jan. 4, 2012).

A

non-party may object to a subpoena by: “fil[ing] a motion to
quash

or

modify

45[d](3)(A),

[or]

the

subpoena

seek[ing]

Fed.R.Civ.P. 26 (c).”

a

pursuant

protective

to

Fed.R.Civ.P.

order

pursuant

to

Star Scientific, Inc., 205 F.Supp.2d at

484.
Plaintiffs state that they identified Mr. Douglas “as a
potential witness in this matter” and are “entitled to explore
the scope of [Mr.] Douglas’s involvement with the [MarylandNational

Capital

Park

and

Planning

Commission]

and

his

communications with the Commission and others concerning this
matter.”

(ECF No. 62 ¶ 2).

Plaintiffs attach as exhibits to

their opposition to the motion for a protective order emails
from Mr. Douglas to defense counsel regarding his intent to file
a motion for leave to file an amicus memorandum.
62-1).

In addition to requiring Mr. Douglas to testify at a

deposition
produce

(See ECF No.

on

the

March

2,

following

2015,

the

information:

subpoena
(1)

instructs

documents

him

to

reflecting

communication with Defendant, the Veterans of Foreign Wars of
the United States, the American Legion, or the American Legion
Post 131 of Colman Manor; (2) documents relating to retainer
agreements or non-privileged communication with the other amici;
(3) documents that refers to the Bladensburg Cross, Plaintiffs,
atheism, or humanism; and (4) all documents that support the
4

factual assertions in the motion for leave to file an amicus
brief.

(ECF No. 61, at 8).

It is wholly unclear why live questioning of Mr. Douglas
about his communications with Defendant is necessary or relevant
to this First Amendment case concerning the Peace Cross.
fact

that

regarding

Mr.
his

Douglas

intended

communicated

participation

with
in

defense

this

case

The

counsel

as

amicus

curiae has little, if any, bearing to the parties’ claims or
defenses in this action.
of

the

documents

Plaintiffs also do not explain how any

identified

above

that

they

seek

Douglas relate to the parties’ claims or defenses.

from

Mr.

Based on the

foregoing, the motion for protective order will be granted and
the

deposition

subpoena

issued

to

Richard

Douglas

will

be

quashed.1
/s/
DEBORAH K. CHASANOW
United States District Judge

1

Plaintiffs’ request that Mr. Douglas compensate them for
having to oppose the motion for a protective order will be
denied.
5