Alabama Education Association et al v. Bentley et al

Filing 159

MEMORANDUM OPINION and ORDER that this court's order directing the Officials to provide full and complete responses to the subpoenas by 2/1/2013, should be interpreted as meaning that the Officials must respond to the subpoenas by 2/1/2013, and that they cannot supplement their assertions of privilege, including of the attorney-client and work product privileges, by the February 1st deadline, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/23/2013. Associated Cases: 5:11-cv-00761-CLS, 5:11-cv-01054-CLS(AHI)

FILED
2013 Jan-23 PM 03:33
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 pleading entitled “Response to Emergency Motion
for Clarification” that was filed by current Alabama Governor Robert J. Bentley and
two defendants: i.e., Marquita Davis, Finance Director of the State of Alabama, and
Thomas L. White, Jr., Comptroller of the State of Alabama.1 Movants address the
order 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 Governor Bentley (collectively, the
1

See doc. no. 151 (Response to Emergency Motion for Clarification). Although movants
style their pleading a “response” to the “Emergency Motion for Clarification” that was filed by
Speaker Hubbard, President Pro Tempore Marsh, and the “Bice Defendants,” the pleading seeks
“clarification” of several other discovery-related issues. Accordingly, even though some of the
issues in the pleading overlap with the issues in the original “Emergency Motion,” this court
discusses the pleading separately.

“Officials”), and directing the Officials to “provide full and complete responses to the
subpoenas . . . on or before Friday, February 1, 2013.”2
I. DISCUSSION
The following statements from the memorandum opinion entered by this court
on January 22, 2013, addressing, among other motions, the “Emergency Motion for
Clarification” filed by Speaker Hubbard, President Pro Tempore Marsh, and the
“Bice Defendants,”3 are relevant to the disposition of the issues raised in the present
pleading:
Fundamentally, the order overruling the Officials’ motions to
quash observed that neither executive nor legislative deliberative
process privileges are available incases such as this one, in which the
governmental decision-making process is, itself, the subject of the
litigation.4
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
2

Doc. no. 148 (Memorandum Opinion and Order entered Jan. 3, 2012), at 53.

3

See doc. no. 149 (Emergency Motion for Clarification).

4

See doc. no. 148 (Memorandum Opinion and Order entered Jan. 3, 2012), at 36-38.

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description of the documents claimed to be
privileged,” and [3] there must be “precise
and certain reasons for preserving” the
confidentiality of the 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.5
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.6
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.”7 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 that are
necessary to allow a reasoned determination of the legitimacy of the
claimed privileges. This court observed that those requirements were
5

Id. at 40-41 (footnotes omitted).

6

See id. at 42-47.

7

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

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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.8 As plaintiffs observed, the
classic manner of complying with Rule 45(d)(2) is through the creation
of a “privilege log.”9
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.”10 Indeed, “[n]umerous cases have held that improperly asserted
claims of privilege are no claims of privilege at all.”11
Finally, this court held that “when, as here, privileges are asserted
in vague, nonspecific terms, untethered from the requirements discussed
above, the privileges are deemed to have been waived.”12
Doc. no. 148 (Memorandum Opinion and Order entered Jan. 3, 2013), at 2-5.
Movants’ “Response to Emergency Motion for Clarification” asks this court
to do the following:
clarify the scope of discovery available to the Plaintiffs in light of the
pendency of this controversy in multiple State and federal courts and the
pendency of the motion to certify under 28 U.S.C. § 1292(b); . . . clarify
8

Id. at 47-48.

9

See doc. no. 150 (AEA Plaintiffs’ Response to Doc. 149 (“Emergency Motion for
Clarification”)), at 6.
10

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

omitted).
11

Id. at 52 (citations omitted).

12

Id.

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the extent to which the Governor, Davis, and White may supplement
their assertions of privilege to comply with this Court’s procedural
requirements; and . . . clarify whether the Court determines that the State
officials’ assertions of the attorney-client privilege and work product
privilege are waived.13
As grounds for permitting Governor Bentley to supplement his assertions of
privilege by the February 1st deadline for production of documents in response to
plaintiffs’ subpoenas, movants have noted that:
Counsel for AEA, in his response on September 11 to the Governor’s
Motion to Quash (Doc. 129), indicated to the Court that no privilege
logs had been provided. At that moment, the statement was accurate.
However, the Governor, Davis, and White subsequently provided
privilege logs. The Governor advised the Court in his October 9 reply
that he had done so. (Doc. 144).14
Although Governor Bentley indeed supplied a privilege log for plaintiffs’
review, he did not file a copy of the log with this court while it was considering his
motion to quash plaintiffs’ subpoenas.15 Instead, the Governor first submitted the log
for this court’s review as an exhibit to his present “Response to Emergency Motion
for Clarification.”16 Upon consideration, the log does not address the issues raised

13

Doc. no. 151 (Response to Emergency Motion for Clarification), at 8.

14

Id. at 3.

15

See doc. no. 144 (Reply in Support of Motion to Quash Subpoena by Governor Bentley),
at 2 (stating that “[s]ince filing his motion to quash, Governor Bentley has provided to Plaintiffs a
log of documents responsive to their subpoena to him,” without attaching the log under discussion)
(alteration supplied).
16

See doc. no. 151-1 (Response to Emergency Motion for Clarification), Exhibit “A”
(Privilege Log).

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in the order denying the Governor’s motion to quash the subpoenas. First, the
privilege log admittedly was not accompanied by “an affidavit from the Governor
himself.”17 See O’Neill, 619 F.2d at 226 (noting that privilege claims by government
officials must usually be raised by affidavit). Second, the privilege log contained
neither “a specific designation and description of the documents claimed to be
privileged,” nor “precise and certain reasons for preserving” the confidentiality of
the communications. See id. (emphasis supplied).
Specifically, Governor Bentley’s half-page privilege log provided only the
following eight categories of information: “Document Number,” “Date & Time,”
“Sender/Creator,” “Primary Recipient(s),” “Other Recipient(s),” “Document Type,”
corresponding request for production, and asserted privilege(s).18 However, the log
did not explain why the asserted privileges applied. By way of example, the log
designated ten of the fourteen listed documents as protected from disclosure by the
attorney-client privilege, but it did not state that any of the senders or recipients, let
alone all of them, were, in fact, attorneys and clients.19 See South Carolina v. United
States, No. 1:12-cv-00203, slip at 2 (D. D.C. 10 Aug. 2012) (holding that “an
attorney’s ‘advice on political, strategic, or policy issues, valuable as it may [be],
17

Id. at 8.

18

Id., Exhibit “A” (Privilege Log).

19

See id.

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would not be shielded from disclosure by the attorney-client privilege’”) (alteration
supplied (citing In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998) (per curiam)).20
Accordingly, this court’s order directing the Officials to “provide full and
complete responses to the subpoenas . . . on or before Friday, February 1, 2013,”21
should be interpreted as meaning that the Officials must respond to the subpoenas by
February 1, 2013, and that they cannot supplement their assertions of privilege,
including of the attorney-client and work product privileges, by the February 1st
deadline. The order addressed neither the scope of discovery available to plaintiffs,
nor the claims of privilege by Finance Director Davis and Comptroller White.
DONE and ORDERED this 23rd day of January, 2013.

______________________________
United States District Judge

20

See doc. no. 158-1 (Response to Governor Bentley’s Motion for Clarification), Exhibit “1”
(Order in South Carolina v. United States, No. 1:12-cv-00203, slip (D. D.C. 10 Aug. 2012)).
21

Doc. no. 148 (Memorandum Opinion and Order entered Jan. 3, 2012), at 53.

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