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WASHINGTON-Maryland’s highest court recently stepped into a long-running battle over attorney fees by agreeing to review a challenge to a state subpoena for production of a civil rights lawyer’s personnel records and all e-mail and other electronic information stored on the lawyer’s work computer. In January, the American Civil Liberties Union (ACLU) of Maryland and the Maryland Green Party, backed by a host of civil rights and legal groups, had asked the intermediate Maryland Court of Special Appeals to quash the subpoena. They charged that the subpoena violated attorney-client privilege and work-product protections as well as privacy rights. But on Feb. 7, the Maryland Court of Appeals, the state’s high court, acting on its own, granted review. Maryland Green Party v. Maryland Board of Elections, No. 136. The $500,000 fee fight stems from a ballot-access suit brought by the Green Party against the state Board of Elections in September 2000. The ballot battle ended in 2003 in the Green Party’s favor with a ruling by the Maryland Court of Appeals. The state appellate court then held that the Green Party, as the prevailing plaintiff, was entitled to attorney fees. One of the Green Party’s lead attorneys in the ballot-access case was Mark Miller, an Ohio-licensed lawyer and a librarian at Montgomery College, a community college in Takoma Park, Md. Last spring, the Board of Elections subpoenaed the college-which is not a party to the case-for Miller’s job application, time sheets and wage records. The subpoena also demands production of all e-mail and other electronic information stored on the lawyer’s password-protected work computer, according to the ACLU, including privileged communications between Miller and the Green Party and confidential documents prepared as part of the litigation. The Board of Elections has argued the attorney-client privilege was waived when Miller used his government-owned work computer for e-mail communication with the Green Party. That use was authorized by his employer, the college. Raquel Guillory, a spokeswoman for the Maryland Office of the Attorney General, said the subpoena was not overbroad and was necessary “to determine the accuracy” of the fees sought in the case. But ACLU Cooperating Counsel Creighton R. Magid of the Washington office of Dorsey & Whitney said, “The state’s action offends deeply enshrined American principles of privacy and attorney-client privilege.” Deborah A. Jeon, legal director of the ACLU of Maryland, added, “There also is this question of whether third-party discovery should be permitted in the context of attorney fee litigation and whether permitting discovery of this scope would undermine enforcement of civil rights laws because lawyers wouldn’t want to take cases and private plaintiffs would be less likely to bring cases.”

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