Alabama Education Association et al v. Bentley et al

Filing 157

MEMORANDUM OPINION AND ORDER that this court's order denying the Officials' motions to quash should be construed as meaning that movants cannot now submit privilege logs, affidavits, and similar materials supporting their claims of privileg e on the February 1, 2013 deadline for production of documents in response to plaintiffs' subpoenas and the Motions to Stay are DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/22/2013. Associated Cases: 5:11-cv-00761-CLS, 5:11-cv-01054-CLS(AHI) Modified on 1/22/2013 (AHI).

FILED
2013 Jan-22 AM 09:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ALABAMA EDUCATION
ASSOCIATION; et al.,
Plaintiffs,
vs.
ROBERT BENTLEY, in his
official capacity as Governor of the
State of Alabama and President of
the State School Board; et al.,
Defendants.

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Civil Action No. CV-11-S-761-NE

MEMORANDUM OPINION AND ORDER
This opinion addresses the following motions: the “Emergency Motion for
Clarification” filed by Mike Hubbard, Speaker of the Alabama House of
Representatives, Del Marsh, Alabama Senate President Pro Tempore, and the “Bice
Defendants”;1 the “Emergency Motion to Stay by Third-Parties Senator Del Marsh,
Speaker Mike Hubbard, and Defendants Bice, Hill, and Treese”;2 and the “Emergency
Motion to Stay by Former Governor Bob Riley.”3 The motions address the order
1

Doc. no. 149. Former Governor Riley and current Governor Bentley did not join in the
motion for clarification. Instead, Governor Bentley and two other defendants — Marquita Davis,
Finance Director of the State of Alabama, and Thomas L. White, Jr., Comptroller of the State of
Alabama — filed a “response” to the motion. See doc. no. 151 (Response to Emergency Motion for
Clarification). That pleading appears to be a motion addressing other, discovery-related issues.
Accordingly, it will be addressed in a separate order.
2

Doc. no. 153, electronically filed at 4:36 p.m. on Friday, Jan. 18, 2013.

3

Doc. no. 155, electronically filed at 5:07 p.m. on Friday, Jan. 18, 2013.

entered on January 3, 2013, denying motions to quash subpoenas issued by plaintiffs
to Speaker Hubbard, President Pro Tempore Marsh, former Alabama Governor Robert
R. (“Bob”) Riley, and current Alabama Governor Robert J. Bentley (collectively, the
“Officials”), and directing the Officials to “provide full and complete responses to the
subpoenas . . . on or before Friday, February 1, 2013.”4
I. DISCUSSION
Fundamentally, the order overruling the Officials’ motions to quash observed
that neither executive nor legislative deliberative process privileges are available in
cases such as this one, in which the governmental decision-making process is, itself,
the subject of the litigation.5
Even so, this court proceeded to examine the minimum prerequisites for
asserting governmental privilege claims, and concluded that movants had not
complied with any of them.
At least four requirements must be satisfied in order to support a
claim of privilege based upon the doctrines discussed in Part I(H) of this
opinion, supra.
[1] The head of the agency claiming the privilege must
personally review the material, [2] there must be “a specific
designation and description of the documents claimed to be
privileged,” and [3] there must be “precise and certain
reasons for preserving” the confidentiality of the
4

Doc. no. 148, at 53.

5

See doc. no. 148 (Memorandum Opinion and Order entered Jan. 3, 2013), at 36-38.

2

communications. [4] Usually such claims must be raised
by affidavit.
United States v. O’Neill, 619 F.2d 222, 226 (3d Cir. 1980) (alterations
supplied) (quoting A. O. Smith v. Federal Trade Commission, 403 F.
Supp. 1000, 1016 (D. Del. 1975) (other citations omitted)). As will be
seen, the motions before this court do not comply with any of those
requirements.6
This court observed that when, as here, governmental privileges are asserted
only by means of a motion filed by an attorney representing the official upon whom
the subpoena was served — as opposed to an affidavit executed by that official,
attesting that he personally reviewed the documents sought, and providing “a specific
designation and description of the documents claimed to be privileged,” as well as
“precise and certain reasons for preserving” the confidentiality of the communications,
id. — such a procedure is not adequate to validly invoke the privileges.7
This court also observed that the governmental privileges relied upon by
movants are not absolute. “Instead, each is qualified, and subject to a balancing of
interests.”8 Hence, the absolute necessity for supplying specific descriptions of the
documents withheld under a claim of privilege, as well as precise statements of the
reasons for preserving the confidentiality of the communications — considerations

6

Id. at 40-41 (footnotes omitted).

7

See id. at 42-47.

8

Id. at 40. See generally id. at 26-36 (discussing each of the privileges interposed in
opposition to plaintiffs’ subpoenas).

3

that are necessary to allow a reasoned determination of the legitimacy of the claimed
privileges. This court observed that those requirements were mirrored in Federal Rule
of Civil Procedure 45(d)(2), which expressly states that any documents,
communications, or tangible things withheld under a claim of privilege “must” be
described with clarity and specificity in order to enable the opposing parties (and,
implicitly, the court) to assess the validity of the claim.9 As plaintiffs observed, the
classic manner of complying with Rule 45(d)(2) is through the creation of a “privilege
log.”10
This court observed that the Officials’ failure to satisfy the descriptive
requirements stated in United States v. O’Neill, supra, and Rule 45(d)(2) was, alone,
a sufficient basis for denying the motions to quash.: i.e., “broad, undifferentiated
claims of privilege, such as those lodged in the motions before this court, provide
sufficient reason to deny them.”11

Indeed, “[n]umerous cases have held that

improperly asserted claims of privilege are no claims of privilege at all.”12
Finally, this court held that “when, as here, privileges are asserted in vague,
nonspecific terms, untethered from the requirements discussed above, the privileges
9

Id. at 47-48.

10

See doc. no. 150 (AEA Plaintiffs’ Response to Doc. 149 (“Emergency Motion for
Clarification”)), at 6.
11

See doc. no. 148 (Memorandum Opinion and Order entered Jan. 3, 2012), at 49 (citations

omitted).
12

Id. at 52 (citations omitted).

4

are deemed to have been waived.”13
Thus, if movants’ “Emergency Motion” sought only “clarification” of this
court’s prior order, discussion could end here, with a simple statement to the effect
that the opinion and order denying the motions to quash should be construed as
holding that movants cannot now submit privilege logs, affidavits, and similar
materials in support of their overruled privilege claims.
Movants raise other contentions that require discussion, however, as when they
argue that:
In no case cited by the Court were the government respondents ordered
to produce otherwise privileged documents simply because they lost a
motion to quash. See doc. 148 at 51-52. Instead, in every cited case,
compelled production became appropriate only after the respondents
failed to properly claim the privileges at the time commanded for
production. . . . [T]he time commanded for production has not yet come
in this case. By previous order, only a ruling on the motion to quash
would revive the respondents’ “obligations to comply with the contested
subpoenas.” Doc. 115 at 5.14
A.

The Proper Time for Filing Privilege Logs
13

Id.

14

Doc. no. 149 (Emergency Motion for Clarification), at 4-5 (alterations supplied). To the
extent that movants may actually be asking the court to reconsider its prior decision, they have failed
to articulate any reason for the applicability of any subpart of Federal Rule of Civil Procedure 60(b).
Indeed, they seem to base their implicit request for reconsideration upon their disagreement with the
authorities cited in the order denying the Officials’ motions to quash, and upon their interpretation
of an earlier order staying discovery pending a ruling on motions to dismiss. However, “mere
disagreement with the district court’s decision is an inappropriate ground for a motion for
reconsideration: such disagreement should be raised through the appellate process.” United States
v. Ezell, No. 09-0460-WS, 2011 WL 2650870, at *14 (S.D. Ala. July 6, 2011) (internal quotation
marks and citation omitted).

5

Federal Rule of Civil Procedure 45 provides that:
A person commanded to produce documents or tangible things or
to permit inspection may serve on the party or attorney designated in the
subpoena a written objection to inspecting, copying, testing or sampling
any or all of the materials or to inspecting the premises — or to
producing electronically stored information in the form or forms
requested. The objection must be served before the earlier of the time
specified for compliance or 14 days after the subpoena is served.
Fed. R. Civ. P. 45(c)(2)(B) (emphasis supplied).
In addition, Rule 45(d)(2)(A)(ii) mandates that a person withholding
subpoenaed material under a claim of privilege “must . . . describe the nature of the
withheld documents, communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable the parties to assess
the claim.”15 Admittedly, the text of that Rule does not expressly state when the party
claiming a privilege must “describe the nature of the withheld documents” — that is,
when the party must provide a privilege log, affidavits, and similar materials
supporting its claim.16 Moreover, the Eleventh Circuit apparently has not determined
what constitutes timely production of a privilege log.
For such reasons, this court’s prior order did not cite any cases addressing a
specific time limit within which parties claiming a privilege must supply a privilege

15

See doc. no. 148 (Memorandum Opinion and Order entered Jan. 3, 2012), at 48 & n.59.

16

See, e.g., United States v. O’Neill, 619 F.2d 222, 226 (3d Cir. 1980); A. O. Smith v. Federal
Trade Commission, 403 F. Supp. 1000, 1016 (D. Del. 1975).

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log describing the nature of the withheld documents. Instead, this court relied largely
on cases addressing motions to compel the production of documents that had been
filed after the denial of motions to quash. Movants’ “Emergency Motion” challenges
this court’s reliance upon such cases. It is significant to note, however, that movants
themselves cited a case that arose on a motion to compel during briefing on the
motions to quash, and they did so in the context of discussing the proper time to file
a privilege log:
While Plaintiffs recognize the potential applicability of the
deliberative process privilege, they demand that Movants provide a log
of responsive documents. Plaintiffs’ request in this regard is based on
two grounds: (1) the court’s approach in Doe, 788 F. Supp. 2d at 987,
and (2) Fed. R. Civ. P. 45(d)(2). Doc. 105 at 6-8.
....
Regarding the second ground [for requiring movants to file a
privilege log], Movants note that Plaintiffs have cited no authority for
their request in addition to Rule 45(d)(2) itself. Movants are aware of no
Eleventh Circuit case law requiring a privilege log at this stage and under
these circumstances. Movants note that the D.C. Circuit has adopted a
rule that states that the information required by Rule 45(d)(2) must be
provided to the requesting party “within a reasonable time, such that the
claiming party has adequate opportunity to evaluate fully the subpoenaed
documents and the requesting party has ample opportunity to contest that
claim.” Tuite v. Henry, 98 F.3d 1411, 1416 (D.C. Cir. 1996) (emphasis
in original). The claiming party is not required to provide the
information in Rule 45(d)(2) at the time the initial objection is asserted,
i.e., at the time of filing the motion to quash. Id.17
17

Doc. no. 108 (Reply in Support of Motion to Quash Subpoenas Directed to Speaker
Hubbard, President Pro Tempore Marsh, and Former Governor Riley, and to Stay All Discovery

7

Movants’ argument illustrates their awareness that: cases on motions to compel may
apply to rulings on motions to quash; that the parties disputed the proper time to file
a privilege log; and, that the log should have been filed, at the very least, within a
“reasonable time.” Tuite, 98 F.3d at 1416. Indeed, Governor Bentley filed a privilege
log sometime before October 9, 2012, and noted the filing of that log in his reply in
support of the Governor’s motion to quash:18 an action that plainly demonstrated his
understanding of the fact that a privilege log was due before this court ruled on the
motions to quash, because the descriptive information contained in the log would be
relevant to the court’s decision.
While the Eleventh Circuit has not considered the appropriateness of the
“reasonable time” rule promulgated in the Tuite opinion, another court within this
Circuit found that standard “too amorphous to provide practical guidance to litigants.”
Universal City Development Partners, Ltd. v. Ride & Show Engineering, Inc., 230
F.R.D. 688, 698 (M.D. Fla. 2005). That court adopted a test articulated by the Ninth
Circuit in Burlington Northern & Santa Fe Railway Co. v. United States District

Pending Resolution of the Defendants’ Motions to Dismiss by Alabama House of Representatives
Speaker Mike Hubbard, Alabama Senate President Pro Tempore Del Marsh, and the Bice
Defendants), at 3-4 (alteration supplied).
18

See doc. no. 144 (Reply in Support of Motion to Quash Subpoena by Governor Bentley),
at 2 (“Since filing his motion to quash, Governor Bentley has provided to Plaintiffs a log of
documents responsive to their subpoena to him.”); see also doc. no. 151-1 (Response to Emergency
Motion for Clarification), Exhibit “A” (Privilege Log).

8

Court for the District of Montana, 408 F.3d 1142 (9th Cir. 2005),19 as the standard for
assessing the timeliness of a privilege log, as seen in the following extract from the
Universal City opinion:
Although the Eleventh Circuit has not addressed the issue of waiver of
privileges for documents subpoenaed pursuant to Rule 45, the rule itself
requires both that an objection be made to the subpoena and the claim of
privilege must be stated within 14 days of service of the subpoena. Fed.
R. Civ. P. 45(c)(2)(B). See also Tuite v. Henry, 321 U.S. App. D.C. 248,
98 F.3d 1411, 1416 (D.C. Cir. 1996). Failure to serve written objection
to a subpoena within the time specified by Fed. R. Civ. P. 45 typically
waives any objections the party may have. Am. Elec. Power Co., Inc. v.
U.S., 191 F.R.D. 132, 136 (S.D. Ohio 1999) (citing Concord Boat Corp.
v. Brunswick Corp., 169 F.R.D. 44. 48 (S.D. N.Y. 1996); Angell v.
19

The Ninth Circuit’s decision in the Burlington Northern case addressed claims of privilege
lodged in response to a request for production of documents under Federal Rule of Civil Procedure
34. That distinction is not significant for the present analysis, however, except to note that Rule
34(b)(2)(A) requires a response to be filed within 30 days, rather than within the 14-day period
specified in Rule 45(c)(2)(B). The Burlington Northern test rejects a per se rule that the failure to
produce a privilege log within Rule 34’s 30-day time period for filing objections results in waiver
of the privilege. Instead, the Ninth Circuit adopted that Rule’s 30-day requirement (and, by
extension, Rule 45’s 14-day deadline) “as a default guideline.” Even so, the Ninth Circuit opinion
enumerated other factors that might be taken into account on a case-by-case basis:
[U]sing the 30-day period as a default guideline, a district court should make a
case-by-case determination, taking into account the following factors: the degree to
which the objection or assertion of privilege enables the litigant seeking discovery
and the court to evaluate whether each of the withheld documents is privileged
(where providing particulars typically contained in a privilege log is presumptively
sufficient and boilerplate objections are presumptively insufficient); the timeliness
of the objection and accompanying information about the withheld documents
(where service within 30 days, as a default guideline, is sufficient); the magnitude
of the document production; and other particular circumstances of the litigation that
make responding to discovery unusually easy (such as, here, the fact that many of the
same documents were the subject of discovery in an earlier action) or unusually hard.

Burlington Northern, 408 F.3d at 1149 (emphasis supplied).

9

Shawmut Bank Connecticut Nat’l Assoc., 153 F.R.D. 585, 590 (M.D.
N.C.1994).
Not only must a party timely object under Rule 45(c)(2)(B), but
the party must also prepare a privilege log in accordance with Fed. R.
Civ. P. 45(d)(2). Rule 45(d)(2) provides:
When information subject to a subpoena is withheld
on a claim that it is privileged or subject to protection as
trial preparation materials the claim shall be made expressly
and shall be supported by a description of the nature of the
documents, communications, or things not produced that is
sufficient to enable the demanding party to contest the
claim.
Although Rule 45(d)(2) does not contain a specific time limit within
which objecting parties must supply the requisite privilege log, the
Advisory Committee Notes indicate that the purpose of the Rule “is to
provide a party whose discovery is constrained by a claim of privilege
. . . with information sufficient to evaluate such a claim and to resist if
it seems unjustified.”
Although the D.C. Circuit has stated that “common sense and the
purpose of the rule dictate that the ‘subject to’ language of Rule
45(c)(2)(B) does not mandate that the full description required by Rule
45(d)(2) be provided at the time the initial objection is asserted,” this
Court rejects the D.C. Circuit’s suggestion that the log is timely so long
as it is produced within a “reasonable time.” Tuite, 93 F.3d at 1416. Use
of a “reasonable time” standard is too amorphous to provide practical
guidance to litigants and exposes parties to greater chance of
inadvertently waiving privileges.
Because the purpose of Rule 45(d)(2) is the same as Rule
26(b)(5),[20] the Court adopts the test articulated by the 9th Circuit in
20

The language of Federal Rule of Civil Procedure 26(b)(5), which addresses the proper
method for withholding information that would otherwise be discoverable under Rule 26 when the
withholding party contends the withheld materials are subject to a privilege, is virtually identical to
the text of Rule 45(d)(2). Specifically:

10

Burlington Northern for assessing timeliness of a privilege log.
Therefore, the Court uses the 14-day objection period as a default
guideline and makes a case-by-case determination, taking into account
the following factors: the degree to which the objection or assertion of
privilege enables the litigant seeking discovery and the court to evaluate
whether each of the withheld documents is privileged (where providing
particulars typically contained in a privilege log is presumptively
sufficient and boilerplate objections are presumptively insufficient); the
timeliness of the objection and accompanying information about the
withheld documents (where service within 30 days, as a default
guideline, is sufficient); the magnitude of the document production; and
other particular circumstances of the litigation that make responding to
discovery unusually easy (such as, here, the fact that many of the same
documents were the subject of discovery in an earlier action) or
unusually hard.
Universal City, 230 F.R.D. at 697-98 (emphasis and bracketed alteration supplied).
Even if this court were to adopt the “reasonable time” rule promulgated in
Tuite, that would not benefit movants. Speaker Hubbard, President Pro Tempore
Marsh, and the Bice Defendants filed a motion to quash plaintiffs’ subpoenas on June
21, 2012.21 Movants thus had over six months after filing that motion to submit
When a party withholds information otherwise discoverable by claiming that
the information is privileged . . . material, the party must:
(i)

expressly make the claim; and

(ii)

describe the nature of the documents, communications, or tangible things not
produced or disclosed — and do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess
the claim.

Fed. R. Civ. P. 26(b)(5)(A).
21

See doc. no. 104 (Motion to Quash Subpoenas Directed to Speaker Hubbard, President Pro
Tempore Marsh, and Former Governor Riley, and to Stay All Discovery Pending Resolution of the

11

privilege logs and similar documents supporting their claims. After fully briefing the
motions to quash, it defies logic to suggest that movants did not have an adequate
opportunity to evaluate fully the subpoenaed documents. By failing to file privilege
logs before this court ruled on the motions to quash, movants deprived plaintiffs of the
opportunity to contest, and this court of a basis to evaluate, their privilege claims.
Under the standards adopted in Burlington Northern, 408 F.3d at 1149, and
Universal City, 230 F.R.D. at 698, which this court finds more persuasive, movants
have clearly not complied with the default rule setting the cutoff for serving privilege
logs at fourteen days after service of the subpoenas. Further, the Burlington
Northern/Universal City balancing test does not weigh in favor of an extension. First,
the movants asserted privileges in “vague, nonspecific terms”22 that fell far short of
“providing particulars typically contained in a privilege log.” The generality of
movants’ assertions prevented both plaintiffs and this court from assessing whether
the withheld documents were privileged, and whether the magnitude and/or difficulty
of the production weighed against compulsory disclosure. Further, privilege logs
were not submitted within 14 days, or 30 days, or even six months after service of the
subpoenas. Indeed, privilege logs have not been submitted by movants as of the date

Defendants’ Motions to Dismiss by Alabama House of Representatives Speaker Mike Hubbard,
Alabama Senate President Pro Tempore Del Marsh, and the Bice Defendants).
22

Doc. no. 148 (Memorandum Opinion and Order entered Jan. 3, 2013), at 52.

12

of this order.
Finally, this court must address movants’ argument that “the time commanded
for production has not yet come in this case [because,] [b]y previous order, only a
ruling on the motion to quash would revive the respondents’ ‘obligations to comply
with the contested subpoenas.’”23 The stay order entered on July 6, 2012 is not
relevant to the present motion, because that order suspended only the Officials’
obligations to “comply with” the contested subpoenas until this court ruled on the
pending motions to dismiss:
[T]he motion to stay discovery filed by Hubbard, Marsh, and Riley is
GRANTED, and it is ORDERED that all discovery is stayed until this
court enters an order ruling on all pending motions to dismiss. The
motion to quash is held in abeyance, pending resolution of the motions
to dismiss. To be completely clear, it is ORDERED that Hubbard,
Marsh, and Riley are relieved of their obligations to comply with the
contested subpoenas until further order of the court.24
Even if movants interpreted the order staying their obligation to “comply with”
plaintiffs’ subpoenas pending the resolution of the motions to dismiss as suspending
their obligation to file privilege logs until after this court ruled on the motions to
dismiss, this court decided those motions on August 22, 2012, and denied the motions
to quash on January 3, 2013 — i.e., more than four months later.25 Thus, President
23

Doc. no. 149 (Emergency Motion for Clarification), at 5 (alterations supplied) (quoting
doc. no. 115 (Order), at 4).
24

See doc. no. 115 (Order), at 4 (alteration and emphasis supplied).

25

See doc. no. 126 (Memorandum Opinion and Order entered Aug. 22, 2012), and doc. no.

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Pro Tempore Marsh and Speaker Hubbard had ample time during the four-month
interval to file materials supporting their claims of privilege, but they did not do so,
either within a “reasonable time,” or at any other time.
II. CONCLUSION
In sum, neither executive nor legislative deliberative process privileges are
available in cases such as this one, in which the governmental decision-making
process is, itself, the subject of the litigation.26 Even if that were not true, movants
still would have been required to satisfy the minimum prerequisites for invoking
governmental privileges summarized in the quotation from United States v. O’Neill
accompanying note 6, supra.

Movants did not comply with any of those

requirements, however. Consequently, their claims of privilege were waived. See,
e.g., In re Nelson, 131 F.R.D. 161, 165 (D. Neb. 1989); L.H. v. Schwarzenegger, No.
06-2042, 2008 U.S. Dist. LEXIS 86829, at *27 (E.D. Cal. May 14, 2008); In re
McKesson, 264 F.R.D. 595, 602 (N.D. Cal. 2009).
For all of the foregoing reasons, this court’s order denying the Officials’
motions to quash should be construed as meaning that movants cannot now submit
privilege logs, affidavits, and similar materials supporting their claims of privilege on
the February 1, 2013 deadline for production of documents in response to plaintiffs’
148 (Memorandum Opinion and Order entered Jan. 3, 2013).
26

See doc. no. 148 (Memorandum Opinion and Order entered Jan. 3, 2013), at 36-38.

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subpoenas. Further, the motions to stay27 are DENIED.
DONE and ORDERED this 22nd day of January, 2013.

______________________________
United States District Judge

27

Doc. nos. 153 and 155.

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