State Center developer’s attorney slams Md.’s executive privilege claims

Attorneys for a developer battling Maryland in court over the canceled $1.5 billion State Center redevelopment called the state’s assertion of executive privilege for hundreds of documents excessive and overly broad.

Michael Edney, a partner at Norton Rose Fulbright, lead counsel for developer State Center LLC, wants the state and the Maryland Stadium Authority to turn over documents involving the project, including emails. They’re seeking the archive as part of the discovery process to prepare a defense against a lawsuit filed by Maryland.

“The state has claimed executive privilege over 627 documents … the broadest executive privilege claim in modern history,” Edney said.

Retired Judge Dennis Sweeney heard arguments in Baltimore City Circuit Court on motions that the court compel Maryland to turn over documents to the developer’s legal team. Sweeney did not immediately issue a decision following Wednesday’s hearing.

“As much fun as this is, there’s (got to be) some way we can work it out,” Sweeney said.

The legal battle between State Center LLC and Maryland has dragged on for nearly 2 1/2 years with little indication of a potential resolution. Edeny, however, said legal teams are getting close to conducting depositions in the case

The Board of Public Works, which consists of Gov. Larry Hogan, Comptroller Peter Franchot, and Treasurer Nancy Kopp, voted to terminate state leases with the State Center developer in December 2016. Hogan argued the contracts represented capital leases had failed to receive General Assembly approval.

The same day the state filed a lawsuit against State Center LLC, which had filed a notice of breach of contract prior to starting a months-long mediation process that failed. After Maryland sued, State Center LLC filed a countersuit.

Attorneys for the state rebutted Edney’s argument, telling Sweeney the developer’s attorney is inflating the number of documents withheld via executive privilege.

The number of suppressed documents, Assistant Attorney General Adam Snyder argued, is a result of the sheer amount of material available. Efforts to revitalize the dilapidated state office complex in the city’s Madison Park neighborhood date back to 2005.

“It’s not because the state is applying (executive privilege) too broadly, but because there’s a massive amount of documents in this case,” Snyder said.

Many of the documents counted in the 627 total, Snyder said, include email responses and other redundant documents. The real total of what’s being withheld is closer to 200 documents, and only 20 of those, he said, are not being turned over because of executive privilege. The remainder are exempt, according to the state, because of attorney-client privilege.

After the hearing, Jason St. John, a partner at Saul Ewing Arnstein & Lehr, which is representing the state, said that because the documents sought by Edney include factual information doesn’t mean that it’s tantamount to testimony. The documents, he said, are communications between an attorney and client, which are privileged.

The state has failed to demonstrate how allowing the developer’s legal team to review the documents harms state agencies, Edney said, or compromises government security.

“We’re not buying an aircraft carrier,” Edney said.

When Maryland sued State Center LLC after terminating the leases, he argued, the state left itself open to turning these documents over during the discovery process.

“It’s not just a commercial dispute … it’s a commercial dispute the state started,” he said.

Edney also disputed the state’s assertion that certain documents were protected by attorney-client privilege. He’s seeking documentation specific to one attorney in the  attorney general’s office who filed an affidavit that Edney contends amounts to testimony.

“Our request is a narrow one. We’re not coming into court asking to pack dynamite under attorney-client privilege,” he said.