Backus et al v. State of South Carolina, The et al
ORDER granting 79 Motion to Quash; granting 79 Motion for Protective Order; granting 85 Motion to Quash; granting 85 Motion for Protective Order Signed by Honorable Patrick Michael Duffy on 2/8/2012.(jlin, ) (Main Document 103 replaced on 2/8/2012) (asni, ). Modified to replace document at the request of chambers on 2/8/2012 (asni, ).
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
VANDROTH BACKUS, WILLIE
HARRISON BROWN, CHARLESANN )
BUTTONE, BOOKER MANIGAULT, )
EDWARD MCKNIGHT, MOSES MIMS,)
JR, ROOSEVELT WALLACE, and
WILLIAM G. WILDER, on behalf of
themselves and all other similarly situated )
SENATOR DICK ELLIOTT
THE STATE OF SOUTH CAROLINA, )
NIKKI R. HALEY, in her capacity as
Governor, KEN ARD, in his capacity as
Lieutenant Governor, GLENN F.
MCCONNELL, in his capacity as
President Pro Tempore of the Senate and
Chairman of the Senate Judiciary
Committee, ROBERT W. HARRELL, JR, )
in his capacity as Speaker of the House of )
Representatives, JAMES H. HARRISON, )
in his capacity as Chairman of the House of )
Representatives’ Judiciary Committee,
ALAN D. CLEMMONS, in his capacity as )
Chairman of the House of Representatives’ )
Elections Law Subcommittee, MARCI
ANDINO, in her capacity as Executive
Director of the Election Commission,
JOHN H. HUDGENS, III, Chairman,
NICOLE S. WHITE, MARILYN
BOWERS, MARK BENSON, and
THOMAS WARING, in their capacity as )
Commissioners of the Elections
Case No.: 3:11-cv-03120-HFF-MBS-PMD
For the reasons set forth in Defendant McConnell’s Motion to Quash and for a Limited
Protective Order and Accompanying Memorandum of Points and Authorities, this Court hereby
GRANTS Defendants McConnell and Harrell’s motions. Deposition topics 5, 12, and 14, which
relate to the drafting of the redistricting plans, are quashed. Deposition topic 13, which concerns
communications involving legislators and their legislative agents, is also quashed. Additionally,
deposition topics 7 and 16 are quashed to the extent the questions involve communications
between the Senate or the House and “private consultants or experts.”
With respect to the remaining topics in Plaintiffs’ Notice of Deposition, this Order
prohibits Plaintiffs from inquiring into any matters protected by legislative privilege. That
means Plaintiffs are prohibited from asking any questions concerning communications or
deliberations involving legislators or their agents regarding their motives in enacting legislation.
See Alexander v. Holden, 66 F3d. 62, 68 n.4 (4th Cir. 1995) (“In Berkley, we suggested that
council members may be privileged from testifying in federal district court regarding their
motives in enacting legislation . . . .”) (citing Berkley v. Common Council of City of Charleston,
63 F.3d 295, 303 n. 9 (4th Cir. 1995).
In their response, Plaintiffs argue that Defendants have waived any objection based on
attorney client privilege or work product doctrine.
The Court disagrees that those privileges
have been waived.
Subsequent to their response, the Court received a letter from Plaintiffs’ counsel
explaining that Plaintiffs anticipate opposing counsel may object to some or all of the questions
put to the witnesses they are deposing on February 9, 2012 by asserting attorney-client privilege
or work product doctrine. Plaintiffs’ request that the Court designate a member of the panel to
be available to speak via telephone to rule on any objection that may arise. The Court denies that
request. This Order is sufficient guidance for the depositions. Any other disputes will be
resolved by motion after the depositions.
It is SO ORDERED.
February 8, 2011