“No Dog in the Fight” Analysis Applies to Scope of Subpoenas in the District of Maryland

In Hall v. Baltimore Police Dept., 2025 WL 509130 (D. Md. Feb. 13, 2025)(Austin, J.), the Court set out and applied the principles governing subpoenas and objections to them.

The Court explained the dispute: “Mr. Hall alleges that BPD and three former officers—Donald Licato, Frank Barlow, and John Barrick—concealed exculpatory evidence and coerced false witness testimony during Plaintiff’s 1992 murder trial.”

The Mid-Atlantic Innocence Project (“MAIP”) asserted that its investigation “revealed evidence that Defendants failed to disclose inconsistent witness statements and pressured witnesses….”

A Petition for a Writ of Actual Innocence (“WAI”) was granted and the State later dismissed the case in lieu of a retrial. Id. at*2.

After prevailing on an administrative claim (“OAH”) for compensation in which the ALJ found misconduct by the government, plaintiff Hall sued, alleging violations of State and federal law.

MAIP represented Plaintiff from 2005 through 2023, when the state courts granted Plaintiff’s WAI…. MAIP did not represent Plaintiff in the OAH proceedings…. During its representation and investigation, MAIP employed a four-lawyer team, multiple legal directors, six outside counsel, six investigators, and more than a dozen interns and volunteers…. MAIP’s work included, among other things, obtaining and reviewing court and other public records, identifying and interviewing witnesses, researching legal issues, drafting investigative plans and memoranda, and communicating with Plaintiff and others concerning MAIP’s representation…. Today, MAIP’s files exist in several places, including its own servers, cloud-based networks, and hard copies in various locations.

Id. at *2.

The individual defendants in Hall issued a subpoena to MAIP.  Hall, “on behalf of MAIP,” objected based in part on privilege.

In response, the individual defendants asserted that MAIP failed to produce documents pursuant to a “subpoena seeking documents obtained and created during MAIP’s investigation into Plaintiff’s conviction.”

MAIP joined Mr. Hall’s objection and stated that it would share the documents with Mr. Hall’s counsel for review.  Defendants objected to sharing.  “Plaintiff and MAIP refused to provide a privilege log, and Plaintiff declined Individual Defendants’ offer to pay for a third-party service to scan and label the MAIP File.”  Id.at *3.

Defendants moved to compel and the Court listed the 10 categories of documents held by MAIP. Id. at*3-4.  Three meet and confers followed, and MAIP agreed to produce 4,500 pages.  By the time of the hearing on defendants’ motion to compel, 8,000 pages had been produced.

The subpoena sought approximately 18 years of data (2005 – 2023) and “all records in MAIP’s possession related to its representation of Plaintiff.” Id. at *7.  MAIP is a non-profit entity. Id.

The Court set out the principles governing non-party subpoenas and they are summarized and “cleaned up,” without quotations or citations, below.

As a starting point, the Hall Court noted that the scope of discovery allowed under a subpoena is the same as the scope of discovery allowed under Fed.R.Civ.P. 26.

However, because a subpoena is directed to a non-party, the Hall Court wrote that “courts exercise greater vigilance and scrutiny. Non-party status receives special weight and leads to an even more demanding and sensitive inquiry than the one governing discovery generally.”…  Id. at 4-6 (cleaned up).  It wrote that “discovery from third-parties in particular must, under most circumstances, be closely regulated.”

Quoting the Fourth Circuit, the Hall Court said that “nonparties are strangers to the litigation, and since they have ‘no dog in the fight,’ they have a different set of expectations from the parties themselves. Bystanders should not be drawn into the parties’ dispute without some good reason, even if they have information that falls within the scope of party discovery….”  Id. (emphasis added; cleaned up; citation omitted).

The Hall Court wrote that a subpoena must be quashed or modified if it fails to limit discovery in any one of the following four ways:

• First, the material sought must be relevant to a party’s claim or defense. A subpoena is relevant if it creates any possibility that the material sought may be relevant to the claim or defense of any party.
• Second, the material requested cannot be privileged. Fed. R. Civ. P. 45(d)(3)(A)(iii).
• Third, the discovery requested by a subpoena must be proportional to the needs of the case.  In determining whether discovery is proportional, courts consider the Fed.R.Civ.P. 26(b)(1) factors.
• Fourth, a subpoena cannot subject a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iv). In determining whether undue burden exists, courts must, unlike discovery requests directed at parties, adopt a more demanding variant of the proportionality analysis given that non-parties are strangers to the litigation, have no dog in the fight, and have a different set of expectations than the parties themselves.  The undue burden inquiry should predominantly focus on:

whether the benefits of discovery to the requesting party outweigh the burdens on the recipient and involve consideration of the requesting party’s need for the material, the dollars-and-cents costs associated with a large and demanding document production, whether the material is available to the requesting party from other sources, whether the material sought likely (not just theoretically) has marginal benefit in litigating important issues, and whether the subpoena is overbroad—that is, when it seeks information beyond what the requesting party reasonably requires.

The requesting party bears the burden of establishing relevance and proportionality, while the party resisting discovery bears the burden of demonstrating why discovery should not be permitted, such as privilege or undue burden.

Id. at *4-6 (citations and quotations omitted; cleaned up).[1]

The Hall Court then denied the individual defendants’ motion to compel, in part based on the merits, and in part on mootness. Five categories were mooted by MAIP’s agreement to produce documents.

As to the balance, the Court deemed the remaining categories to be overbroad due to the time period and on proportionality principles. Id. at *7, passim.

Mindful that “[b]ystanders should not be drawn into the parties’ dispute without some good reason, even if they have information that falls within the scope of party discovery,” the Court considers the subpoena to MAIP within the context of not only the allegations but also the representations of what has been provided, what is likely to exist, and any “undue burden” likely to fall on MAIP by complying with Individual Defendants’ demands.

Id. at *7 (citation omitted).  “Here, Individual Defendants ask for, in so many words, the entire MAIP File.”  Id. at *8.

Importantly, as one factor, the Court noted: “[M]uch of the non-privileged material within the scope of the requests may be obtained from other sources.”  Id. at *9.

As to subpoenas generally, please see:

• No Need to Meet and Confer Before Motion to Quash Subpoena in District of AZ (Dec. 19, 2024);
• What “Expenses” Can a Non-Party Recover for Complying With a Discovery Subpoena? (Nov. 27, 2024);
• Who Can Object to a Subpoena? (Oct. 28, 2024);
• What Objections May Be Raised to a Subpoena by a Non-Party? (Oct. 15, 2024);
• Changing the Forum for a Motion to Quash a Subpoena (Mar. 25, 2024); and,
• Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones (Mar. 24, 2022).

See also Alleged “Win-At-All-Costs” Tactics in Defense of Exoneree Lawsuits for Wrongful Conviction Damages (Jun. 23, 2022)(a Bloomberg article states that “a group of nearly 50 Chicago leaders is urging a judge to stop the city from paying millions to lawyers to deny this history when fighting lawsuits by people who did prison time for crimes they didn’t commit.”); M. O’Neill, ‘Win-at-all-costs’ Chicago law firm reaps $7.3M defending Baltimore cops in wrongful convictions (Jun. 23, 2022).

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[1] Please note that much of the foregoing text is a direct quote of the opinion, without quotation marks, and the text has been “cleaned up” and modified for readability.  Citations have been omitted.