Greater Birmingham Ministries et al v. State of Alabama et al

Filing 200

MEMORANDUM OPINION AND ORDER DENYING 161 MOTION to Compel as set out herein. Signed by Judge L Scott Coogler on 7/7/2017. (JLC)

FILED
2017 Jul-07 AM 11:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GREATER BIRMINGHAM
MINISTRIES, et al.,
Plaintiffs,
vs.
JOHN MERRILL, in his official
capacity as the Alabama Secretary of
State,
Defendant.

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2:15-cv-02193-LSC

MEMORANDUM OF OPINION AND ORDER
I.

Introduction
Plaintiffs move this Court for an order compelling Alabama’s Governor, Kay

Ivey, in her official capacity (hereinafter “the Governor”) 1 to produce 223
documents responsive to Plaintiffs’ third-party subpoena plus six documents
responsive to a subpoena issued to a former member of the Governor’s staff. (Doc.
161.) The Governor refused to produce the 223 documents, and directed his staff
On April 10, 2017, Robert Bentley resigned, and then-Lieutenant Governor Kay Ivey
assumed, the Office of Alabama Governor. See Fed. R. Civ. P. 25(d) (allowing automatic
substitution of governmental parties following resignations). However, because the actions that
gave rise to the issues discussed in this Memorandum of Opinion and Order occurred while
Robert Bentley was still the Governor, the Court will use the pronoun “he” and the adjective
“his” in reference to the Governor.
1

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member not to produce the additional six documents, on grounds of relevance,
legislative privilege, the attorney work product doctrine, the deliberative process
privilege, and the common interest doctrine. Having reviewed the submissions by
Plaintiffs and the Governor, and for the reasons discussed herein, the Court finds
that Plaintiffs’ motion to compel is due to be denied.
II.

Background
Plaintiffs, Greater Birmingham Ministries, the Alabama State Conference of

the National Association for the Advancement of Colored People, Giovana
Ambrosio, Debra Silvers, Elizabeth Ware, and Shameka Harris (“Plaintiffs”),
originally sued the State of Alabama (“the State”), the Governor, Steven T.
Marshall in his official capacity as Alabama’s Attorney General (“the Attorney
General”), John Merrill in his official capacity as Alabama’s Secretary of State
(“the Secretary of State”), and Stan Stabler in his official capacity as the Secretary
of the Alabama Law Enforcement Agency (“the ALEA Secretary”), seeking
invalidation of Ala. Code § 17-9-30, or Alabama’s “Photo ID Law,” on grounds
that it violates the Fourteenth Amendment’s Equal Protection Clause, the
Fifteenth Amendment, Section 2 of the Voting Rights Act of 1965 (“VRA”), 52
U.S.C. § 10301, and Section 201 of the VRA, 52 U.S.C. § 10501.

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Plaintiffs originally sought a declaratory judgment and an injunction
enjoining enforcement of the Photo ID Law. In May 2016, however, Plaintiffs
amended their complaint to request that this Court require the State, the
Governor, and the ALEA Secretary to return 31 partially-closed ALEA offices,
where individuals may purchase driver’s licenses and non-driver ID cards, to full
hours of operation. [Doc. 112 ¶ 197.] Plaintiffs alleged that in response to recent
budget cuts required by the Alabama Legislature, the Governor and the ALEA
Secretary significantly reduced the already limited hours of operation of ALEA
offices in 27 largely poor, rural counties. [Doc. 112 ¶ 119.] Plaintiffs further alleged
that on September 30, 2015, the Governor and the ALEA Secretary announced that
ALEA would permanently close 31 part-time ALEA offices issuing driver’s licenses
and non-driver ID cards, including offices in eight of 11 contiguous counties in the
so called “black belt”—a string of counties where nearly half of the 130,000
eligible voters are African American and where the African American poverty rate
is 41 percent. [Id. ¶ 120.] Plaintiffs additionally alleged that in response to public
outcry over the proposed ALEA closures, on October 16, 2015, the Governor
announced that rather than close completely, these 31 locations, which were
previously open one to two days per week, would remain open one day per month.
[Id. ¶ 122.] Plaintiffs alleged that the Legislature and Governor’s decisions to
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drastically decrease ALEA office hours in certain parts of Alabama had a disparate
impact on African Americans, particularly those in the “black belt.” [Id. ¶¶ 103-05,
118-21.] According to Plaintiffs, those decisions guaranteed that, ahead of the 2016
elections, it would be more difficult for black belt voters to obtain ALEA photo IDs,
which are the most commonly known and used form of photo ID. [Id. ¶¶ 103-05.]
Defendants the State, the Governor, the Attorney General, and the ALEA
Secretary argued that they were not proper parties to this case because Plaintiffs
lacked Article III standing to seek relief against them, and they had sovereign
immunity to Plaintiffs’ claims and did not fall within the exception to sovereign
immunity under Ex Parte Young, 209 U.S. 123 (1908). This Court agreed and
dismissed those defendants on March 1, 2017, which left the Secretary of State as
the only remaining defendant in this action. [Docs. 156 & 157.]
Plaintiffs served the Governor with document requests on May 6, 2016,
while he was still a party. The Governor initially produced 2,500 documents,
withholding or redacting 396 documents on the basis of one or more of the
following privileges: deliberative process, legislative, attorney-client, work product,
common interest and joint defense. Plaintiffs challenged the privilege assertions for
320 documents. In addition, counsel for the Governor advised the Governor’s
former consultant Rebekah Mason, also a third-party subpoena recipient, not to
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produce six documents in her possession as to which the Governor asserted
deliberative process privilege (“the Mason documents”), which Plaintiffs also
challenge. During a meet-and-confer process, the Governor’s office withdrew
privilege assertions as to 94 documents, and Plaintiffs withdrew their challenge
with respect to three documents. Plaintiffs moved to compel production of the
remaining 223 documents, plus the six Mason Documents, attaching charts that
reflect, among other things, the Bates number of each document, when each
document was created, and the original description of each document from the
Governor’s privilege log. [Doc. 161-1 & 2.]
III.

Discussion
A.

Discovery from a Non-Party by Subpoena

Federal Rule of Civil Procedure 45 governs discovery from non-parties by
subpoena. If an objection is made, the party serving the subpoena may, upon notice
to the person commanded to produce, seek an order from the Court to compel the
production. Fed. R. Civ. P. 45(c)(2)(B). The scope of permissible discovery under
Fed. R. Civ. P. 45 is that which is set forth in Fed. R. Civ. P. 26(b)(1), which
provides that “Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the
case . . . .” Fed. R. Civ. P. 26(b)(1).
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B.

Relevance

The Court first addresses the Governor’s argument that he need not disclose
these 223 documents (plus the six Mason documents) because even if they are not
found to be privileged, they are not relevant to any party’s claim or defense as
required by Fed. R. Civ. P. 26(b)(1).
As stated previously, Plaintiffs’ complaint alleges that the Photo ID Law
violates the Fourteenth Amendment’s Equal Protection Clause, the Fifteenth
Amendment, and Sections 2 and 201 of the VRA. To succeed on the Equal
Protection and Fifteenth Amendment claims, Plaintiffs must prove that the
Alabama Legislature enacted the Photo ID Law for racially discriminatory reasons.2
To succeed on the VRA Section 2 claim, Plaintiffs need only prove that the Photo
ID Law has a racially discriminatory impact on African-American and Latino
citizens’ ability to vote in Alabama. 3

“Proof of racially discriminatory intent or purpose is required to show a violation of the
Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265
(1977). The same is true for the Fifteenth Amendment. See Thornburg v. Gingles, 478 U.S. 30, 35
(1986) (“to establish a violation . . . of the Fourteenth or Fifteenth Amendments, minority voters
must prove that a contested electoral mechanism was intentionally adopted or maintained by
state officials for a discriminatory purpose”).
2

Although the Supreme Court originally interpreted Section 2 of the VRA to require proof
of a discriminatory purpose, Congress later amended the statute to allow proof of only
discriminatory results. See Gingles, 478 U.S. at 43. However, Section 2 still also forbids
purposeful discrimination.
3

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The parties agree that the vast majority of these 229 documents concern the
Alabama Legislature’s 2015 budget cuts, including the decision to significantly
limit the days and hours that ALEA satellite offices, many of which are located in
Alabama’s “black belt,” would remain open. The fact that these ALEA satellite
offices now have reduced hours may help Plaintiffs make the argument that the
Photo ID law has a discriminatory impact on African-American and Latino
citizens’ ability to vote. This is because Plaintiffs will argue that, at least for
African-American and Latino citizens residing in the “black belt” counties, after
that decision, it is now more difficult to obtain the most commonly-used form of
photo ID, a driver’s license. Accordingly, the fact that the ALEA satellite offices
now have reduced hours is relevant to Plaintiffs’ claims insofar as those claims are
premised on the allegedly disparate impact of the Photo ID Law.
What is not relevant, however, is why the Alabama Legislature and/or the
Governor decided to limit the ALEA satellite office hours. As the Court has said
before, Plaintiffs have not alleged a cause of action challenging the decision to limit
the ALEA office hours. Even if Plaintiffs could show that the ALEA office hours
decision was made for racially discriminatory reasons in 2015, such a showing
would do nothing to help Plaintiffs prove that the Alabama Legislature enacted the
Photo ID Law for racially discriminatory purposes in 2011. Accordingly, the
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Governor may withhold from production all documents that concern his or the
Alabama Legislature’s reasons or motivations behind the 2015 budget cuts
including but not limited to the decision to limit the ALEA satellite office hours.
It appears that virtually all of the documents withheld by the Governor on
the ground of deliberative process privilege concern these topics.4 For example,
many of these documents concern how the Governor’s office should explain or
message to third parties the government’s decisions with respect to the legislative
cuts to the ALEA budget and the resulting ALEA satellite office closures. Indeed,
Plaintiffs have sub-divided these “messaging” documents into four categories. The
first category is comprised of drafts of speeches the Governor made to various civic
groups, and background materials used for those speeches, as well as email
communications among gubernatorial staff pertaining to the content of those
speeches (60 documents). 5 For example, the Governor’s privilege log’s
descriptions include: “Email between communications staff deliberating over
attachment containing draft remarks for Governor’s speech to League of
Municipalities, which addressed the impact of proposed budget cuts, including but

The Governor asserted the deliberative process privilege with respect to 172 documents,
plus the six Mason documents. See doc. 161-1, Exhibit A.
4

5

Plaintiffs label these “D-1” in their chart. [See doc. 161-1 & 182.]

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not limited to the impact on ALEA offices;” 6 “Draft remarks for Governor’s
speech at Dothan Trooper Press Conference, which addressed the Governor’s
proposal to raise taxes and the impact of proposed budget cuts, including but not
limited to the impact on ALEA offices;” 7 and “Draft remarks for Governor’s
speech to Prattville Rotary Club, which addressed the Governor’s proposal to raise
taxes and the impact of proposed budget cuts, including but not limited to the
impact on ALEA offices.” 8 The second category is comprised of drafts of letters or
spoken comments issued by the Governor following meetings with or statements by
third parties such as U.S. Representative Terri Sewell, then-Secretary of State
Hillary Clinton, the Reverend Jesse Jackson, Alabama State Senator Hank Sanders,
and the St. Clair County Commission, as well as email communications among
gubernatorial staff pertaining to the content of those letters and spoken comments
(34 documents). 9 An illustrative example is described by the Governor as “Emails
between Governor’s staff deliberating over response to Representative Sewell on
6

Document Bates numbered 18616.

7

Document Bates numbered 18624.

8

Document Bates numbered 18626.

9

Plaintiffs label these “D-2” in their chart. [See doc. 161-1.] All but four of the documents
in this category were also withheld by the Governor on attorney work product protection
grounds.

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ALEA office hours and Word document with draft response.” 10 The third category
is comprised of drafts of the Governor’s press releases and responses to events
necessitating a gubernatorial statement, including drafts of “talking points”
prepared for the Governor by his staff, as well as email communications among
gubernatorial staff pertaining to the content of such press releases and talking
points (62 documents). 11 An example is described by the Governor as “Email with
draft release addressing budget cut impacts;” 12 The fourth category is comprised of
drafts of the Governor’s social media posts, e.g., his tweets, as well as staff email
communications pertaining to the content of such posts and tweets (9
documents). 13 An illustrative example is described by the Governor as “Draft
tweets for Governor’s twitter account concerning impact of budget cuts, and
specifically mentioning impact on ALEA offices.” 14 Additionally, the six Mason
Documents are email threads withheld by Ms. Mason at the direction of the
Governor’s counsel, which the Governor describes as also pertaining to staff
10

Document Bates numbered 19071.

11

Plaintiffs label these “D-3” in their chart. [See doc. 161-1.]

12

Document Bates numbered 18651.

13

Plaintiffs label these “D-4” in their chart. [See doc. 161-1 & 182.]

14

Document Bates numbered 18823.

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deliberations regarding the Governor’s statements to the public about the budget
cuts.15 An example is an email described as pertaining to the “Governor’s plan to
address the media re: effects of proposed budget cuts.” Finally, there are also seven
additional documents that the Governor withheld on deliberative process privilege
grounds that Plaintiffs concede are protected by the privilege, but they claim that
the privilege is either categorically overridden because they have placed the
government’s misconduct or intent at issue in this litigation or at the least that it
must yield, upon balance, because their need for the information outweighs the
Governor’s reasons for wanting to withhold it. 16 Different from the aforementioned
five categories of “messaging” documents, these seven documents appear to
concern gubernatorial staff deliberations over actual policy formation. But again,
they merely concern the budget cuts and the decision to reduce the ALEA office
hours in 2015. For example, some of the Governor’s descriptions are: “Email
between Governor’s staffers attaching two non-final draft versions of databases
designed to illustrate effects of proposed budget cuts on services within particular

15

Plaintiffs label these “Mason” in their chart. [See doc. 161-1.]

Plaintiffs label these documents “D-5” in their chart and refer to them as “Documents
where Plaintiffs’ challenge concerns only the qualified nature of the privilege.” [See Doc. 161-1.]

16

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districts;”17 “Email with attachment withheld reflecting draft agency deliberations
concerning impact of budget cuts;” 18 and “Email thread discussing deliberation on
proposed driver’s license office hours bill.” 19
Why the Alabama Legislature and the Governor decided to limit the ALEA
office hours and how the Governor’s staff chose to explain or announce that
decision to the public is of no help to Plaintiffs in proving that the Photo ID Law
violates the Equal Protection Clause, Fifteenth Amendment, and Section 2 of the
VRA. Accordingly, any document that purports to concern these topics may be
withheld as irrelevant to this litigation.
C.

Legislative Privilege

The Governor has also withheld 51 documents on the ground of legislative
privilege.20 Many of these documents purport to have some relationship to the
Governor’s role in signing or vetoing legislation. For example, the Governor
described some of the documents in this category as follows: “Email among

17

Document Bates numbered 18525.

18

Document Bates numbered 19068.

19

Document Bates numbered 19909.

See Exhibit B to Plaintiffs’ Motion to Compel. [Doc. 161-2.] Plaintiffs label these
documents with an “L” in their chart.
20

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Governor’s staff concerning status of several bills, including [the Photo ID
Law];”21 “Email with word attachment reflecting draft special order for House
Rules Committee;” 22 “Email between Governor’s staff containing deliberative
content over two attached Word documents setting forth draft memos on potential
impact of budget cuts;” 23 and “Email to Governor’s staff with two Excel
spreadsheets showing pending legislation and Governor’s positions and notes.” 24
This Court previously quashed Plaintiffs’ subpoena duces tecum to various
nonparty Alabama legislators, ruling that the legislative privilege shielded from
disclosure documents pertaining to acts that occurred during the regular legislative
process (such as drafting and debating the Photo ID Law) and documents
pertaining to the motivation for those acts (such as statements and opinions of
legislators). [Doc. 158.] The Eleventh Circuit has held that the legislative privilege
also applies to documents in the possession of a Governor’s office concerning his
or her legislative role in signing or vetoing a bill. See In re Hubbard, 803 F.3d 1298,
1308 (11th Cir. 2015) (“The privilege protects the legislative process itself, and

21

Document Bates numbered 19114.

22

Document Bates numbered 19907.

23

Documents Bates numbered 18565-18567.

24

Document Bates numbered 19024-19025.
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therefore covers both governors’ and legislators’ actions in the proposal,
formulation, and passage of legislation.”). The Court has already rejected the
arguments Plaintiffs make in their attempts to override the Governor’s assertion of
the legislative privilege, and this Court incorporates its previous discussion here.
[See doc. 158 at 6-25.] Accordingly, the legislative privilege applies with respect to
these 51 documents Plaintiffs have sought from the Governor, and they may be
withheld on that ground.
D.

Attorney Work Product Protection

The Governor has also withheld 30 documents on grounds that they
constitute attorney work product. 25 Nearly all of these documents concern the 2015
budget cuts, specifically the ALEA office hours reductions. For example, some of
the documents in this category bear the following descriptions from the Governor’s
privilege log: “Word document with draft of letter from Governor to
Representative Sewell responding to her statements about ALEA office hours and
call for DOJ investigation;”26 “Emails between Governor and staff deliberating
over content of response to statement by Secretary Clinton, in wake of calls for

See Exhibit A to Plaintiffs’ Motion to Compel. [Doc. 161-1.] Plaintiffs label these
documents with a “W” in their chart.

25

26

Document Bates numbered 18600.

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litigation concerning ALEA office hours;” 27 “Email between Governor’s press
staff containing draft deliberations regarding statement about meeting with Rev.
Jesse Jackson in wake of threats of litigation;”28 “Emails between Governor’s staff
reflecting deliberation over proper response to St. Clair County Commission’s
letter concerning office hours;” 29 and “Email between Governor’s staff containing
analysis of proposed efforts by Senator Hank Sanders and other to protest ALEA
office hours.” 30
Although protected from disclosure because they are irrelevant to Plaintiffs’
claims, see Section III.B., supra, this section will explain why these 30 documents
are also protected as attorney work product.
[A] party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party
or its representative (including the other party’s attorney, consultant,
surety, indemnitor, insurer, or agent). But . . . those materials may be
discovered if . . . the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue hardship,
obtain their substantial equivalent by other means.

27

Document Bates numbered 18636.

28

Document Bates numbered 18781.

29

Document Bates numbered 19716-19717.

30

Document Bates numbered 19922-19924.
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Fed. R. Civ. P. 26(b)(3)(A).
The Governor bears the burden of establishing that these documents
constitute attorney work product. See Hinchee, 741 F.3d at 1189. “[T]o be shielded
from discovery the document must be (1) produced by an attorney or her agent and
(2) created in anticipation of litigation.” Adams v. City of Montgomery, 282 F.R.D.
627, 633 (M.D. Ala. 2012), supplemented, No. 10-CV-924, 2012 WL 1952294
(M.D. Ala. May 30, 2012). With regard to the first requirement, attorney work
product protection applies not only to documents prepared by attorneys, but to
those prepared by parties themselves and/or other non-attorney representatives, as
long as the documents are prepared in anticipation of litigation. See United States v.
Nobles, 422 U.S. 225, 254 n.16 (1975). With regard to the second requirement, the
former Fifth Circuit explained that “as long as the primary motivating purpose
behind the creation of the document was to aid in possible future litigation,” it
receives work product protection. United States v. Davis, 636 F.2d 1028, 1040 (5th
Cir. 1981)). 31 Litigation need not necessarily be imminent. See, e.g., United States v.
El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982). See also Osterneck v. E.T. Barwick
Indus. Inc., 82 F.R.D. 81, 87 (N.D. Ga. 1979) (“[T]he test should be whether, in
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
31

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light of the nature of the document and the factual situation in the particular case,
the document can fairly be said to have been prepared or obtained because of the
prospect of litigation.”) (quoting 8 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedures, § 2024 (1970)).
Plaintiffs do not dispute that on or about October 5, 2015, Plaintiffs sent the
Governor’s office a letter threatening “immediate legal action” related to the
subject of the ALEA satellite office closures that had been announced five days
earlier, on September 30, 2015. The Governor further states that during the same
time, a number of elected officials and other public figures echoed Plaintiffs’ calls
for litigation in the press and elsewhere. For example, United States Representative
Terri Sewell publicly asked the United States Department of Justice to investigate
the Photo ID Law; the Reverend Jesse Jackson met with the Governor; and thenpresidential candidate Hillary Clinton publicly criticized the decision to
permanently close the ALEA satellite offices. 32 Thus, the Governor argues that

32

The Governor has directed the Court to news articles stating as much. See, e.g., “Terri
Sewell hosts town hall, says budget cuts should be fought in court,” AL.com, Oct. 15, 2015,
available at http://www.al.com/news/index.ssf/2015/10/terri_sewell_hosts_town_hall_s.html;
“Amid voting rights criticism, Alabama partially backs off controversial plan to close driver
license
offices,”
Washington
Post,
Oct.
17,
2015,
available
at
https://www.washingtonpost.com/news/post-politics/wp/2015/10/17/amid-voting-rightscriticim-alabama-partially-backs-off-controversial-plan-to-close-driver-licenseoffices/?utm_term=.fedac310375a.

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these 30 documents were prepared by his staff “in anticipation of litigation”
because they were prepared after receipt of Plaintiffs’ letter and in a general effort
to ward off litigation once Plaintiffs and others had called for it. 33 Plaintiffs
disagree, arguing that because the Governor did not describe any of these
documents in his privilege log as pertaining to deliberations over the proper
response to their letter, but only as discussions about how to respond to requests
from other public figures, they were not created in anticipation of litigation.
Plaintiffs interpret the attorney work product doctrine too narrowly,
considering the particular facts of this case. Plaintiffs specifically threatened
litigation, while other elected officials announced publicly that the budget cuts and
ALEA office closures should be investigated or “fought in court.” Documents
prepared by the Governor’s staff in the days and weeks following this public outcry,
which considered how the Governor should respond, were prepared “in
anticipation of litigation.”
Plaintiffs also argue that even if they are protected, they have a “substantial
need for the materials to prepare [their] case and cannot, without undue hardship,
obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3). But
33

It is worth noting that within weeks, the Governor announced that rather than close
completely, some of the ALEA satellite offices would in fact remain open one day per month.

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Plaintiffs do not point to any specific reason why they have a substantial need for
these documents and merely state that the “documents are likely to reflect the
collective thinking of the Governor’s office about the effects of the Photo ID Law
and the closures.” [Doc. 161 at 30.] If that were a sufficient reason to overcome the
protection of attorney work product, the doctrine would be diminished
significantly. These 30 documents satisfy the requirements for protection under the
attorney work product doctrine and they may also be withheld on that ground.
IV.

Conclusion
For the foregoing reasons, Plaintiffs’ motion to compel (doc. 161) is hereby

DENIED.
DONE and ORDERED on July 7, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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