Fish et al v. Kobach et al
ORDER granting #272 Motion to Compel. Signed by Magistrate Judge James P. O'Hara on 4/17/2017. (amh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEVEN WAYNE FISH, et al.,
Case No. 16-2105-JAR
KRIS KOBACH, in his official capacity
as Secretary of State for the State of Kansas,
This voting-rights case, which challenges the Kansas documentary proof of citizenship
(“DPOC”) law,1 is before the court on plaintiffs’ motion to compel defendant Kansas
Secretary of State Kris Kobach to produce two documents responsive to their Sixth Request
for Production of Documents (ECF No. 272). Defendant objected to producing the
documents on three bases: (1) the Sixth Request is beyond the scope of the limited additional
discovery permitted by the court on plaintiffs’ preemption claim; (2) the information in the
documents, even if responsive to the request, is not relevant to plaintiffs’ preemption claim;
and (3) the documents are protected from production by certain privileges. On April 5, 2017,
the undersigned U.S. Magistrate Judge, James P. O’Hara, issued an order overruling
defendant’s scope objection and ordering defendant to submit the two documents for in
Kan. Stat. Ann. § 25-2309(l) (requiring voter applicants to provide proof of United
States citizenship when they simultaneously apply for or renew a driver’s license).
camera review.2 The undersigned has reviewed the documents and is now prepared to rule
on defendant’s relevance objection and privilege assertions. Because parts of the two
documents are unquestionably relevant, and because defendant has not demonstrated a
privilege protects them from disclosure, plaintiffs’ motion to compel is granted.
Plaintiffs allege the National Voter Registration Act (“NVRA”) preempts Kansas’s
DPOC requirement as applied to the federally mandated voter-registration form that’s a
required part of any driver’s license application or renewal.3 Section 5 of the NVRA
provides the voter-registration form “may require only the minimum amount of information
necessary to . . . enable State election officials to assess the eligibility of the applicant and
to administer voter registration and other parts of the election process.”4 Section 5 further
mandates the form include an attestation, signed under penalty of perjury, that the applicant
meets “each eligibility requirement (including citizenship).”5
In May 2016, the presiding U.S. District Judge, Julie A. Robinson, entered a
preliminary injunction temporarily barring defendant’s enforcement of Kansas’s DPOC
ECF No. 318.
52 U.S.C. § 20504.
52 U.S.C. § 20504(c).
Id. This provision is frequently referred to as the “attestation requirement.”
requirement.6 Judge Robinson found plaintiffs had made a strong showing that the Kansas
DPOC law, as enforced, did not meet § 5’s provision that a voter-registration form require
only the “minimum amount of information necessary” to enable state officials to assess an
applicant’s citizenship (as criteria for voting eligibility).7 Defendant filed an interlocutory
appeal of Judge Robinson’s opinion to the Tenth Circuit Court of Appeals.
On October 19, 2016, the Tenth Circuit affirmed Judge Robinson’s preliminary
injunction ruling and clarified the standards that apply to § 5 claims.8 The Tenth Circuit
ruled that § 5’s attestation requirement
is the presumptive minimum amount of information necessary for state
election officials to carry out their eligibility-assessment and registration
duties. As it pertains to the citizenship requirement, the presumption
ordinarily can be rebutted (i.e., overcome) only by a factual showing that
substantial numbers of noncitizens have successfully registered to vote under
the NVRA’s attestation requirement.9
Thus, the Circuit recognized a presumption under the NVRA that the attestation requirement
satisfies the minimum-information principle, but permitted states to rebut the presumption
by showing that “a substantial number of noncitizens have successfully registered”10
notwithstanding the requirement, such “that attestation falls below the minimum necessary
ECF No. 129.
Id. at 51, 66.
Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016).
Id. at 717.
Id. at 738-39.
to carry out [the state’s] eligibility-assessment and registration duties.”11 The question then
arose as to what happens if a state like Kansas is able to rebut the presumption: Is a DPOC
regime definitively deemed adequate to satisfy the minimum-information principle? In a
footnote (“Footnote 14”), the Tenth Circuit stated that the question remains open, but
suggested that the state likely would have to satisfy a second step by showing “that nothing
less than DPOC is sufficient to meet [the eligibility-assessment and registration] duties.”12
Based on the Tenth Circuit’s opinion, defendant asked the court to reopen discovery13
“for the limited purpose of allowing the State to attempt to rebut [the] newly created
presumption.”14 Judge Robinson granted that request, reasoning, “it is now clear that
Secretary Kobach must rebut a presumption that attestation of citizenship is the minimum
amount of information necessary for Kansas to carry out its assessment of eligibility and its
registration duties, and that he must do so by showing that ‘a substantial number of
noncitizens have successfully registered to vote under the attestation requirement.’”15 Judge
Robinson further stated that if defendant could meet this first step, then “an inquiry ‘into
whether DPOC is the minimum amount of information necessary for Kansas to carry out its
Id. at 738 n.14.
While the interlocutory appeal was pending, discovery had closed under a deadline
set in this court’s March 24, 2016 scheduling order. ECF No. 49.
ECF No. 249 at 6.
ECF No. 254 at 4.
eligibility-assessment and registration duties would . . . be appropriate.’”16
As discussed in the undersigned’s April 5, 2017 order, the court then reopened
discovery on both prongs of the § 5 analysis discussed in Footnote 14 of the Circuit’s
(1) whether a substantial number of noncitizens have successfully registered
to vote in Kansas under the NVRA’s attestation-of-citizenship requirement
(showing that attestation falls below the minimum necessary for Kansas to
carry out its eligibility-assessment and registration duties); and
(2) whether DPOC is the minimum amount of information necessary for
Kansas to carry out its eligibility-assessment and registration duties.17
As part of this limited, reopened discovery, plaintiffs served the Sixth Request, which
seeks “all documents and communications regarding potential amendments or changes to the
National Voter Registration Act affecting how officials may assess the eligibility of a voter
registration applicant.”18 The parties identified two documents arguably responsive to this
request: (1) a draft of a possible future amendment to the NVRA that was created by
Secretary Kobach and shared by him with Garrett Roe, an attorney in the Office of the
Kansas Secretary of State and co-counsel in this case, and Bryan Caskey, head of the
Id. at 4-5 (quoting Fish, 840 F.3d at 750–51).
ECF No. 318 at 6.
ECF No. 273 at 4; ECF No. 273-6 at 2. The request as originally written sought,
“All documents and communications related to draft amendments to the NVRA, including
but not limited to any amendments related to the purported purposes of preventing, deterring
and/or identifying noncitizen registrations and/or attempted registrations, registration fraud,
and/or voter fraud.” ECF No. 273-2. But the request was modified in the course of counsel’s
elections division in the Office of the Kansas Secretary of State (“the draft amendment”); and
(2) a document created by Secretary Kobach to share with then President-elect Trump
referencing a possible amendment to the NVRA, which was photographed by the Associated
Press in late November 2016 as Secretary Kobach was walking into a meeting with Mr.
Trump (“the photographed document”).
As noted above, defendant objected to producing the documents on scope and
relevance grounds, and further asserted the documents are privileged. Specifically, defendant
argues the draft amendment is protected by the attorney-client and deliberative-process
privileges, and the photographed document is protected by the executive privilege. The court
overruled defendant’s scope objection in the April 5, 2017 order. The court now considers
defendant’s relevance objection and privilege claims.
The court set forth the relevance standards it would apply to the instant discovery
dispute, considering the limited scope of reopened discovery, in its earlier order. The court
explained that Fed. R. Civ. P. 26(b)(1) sets broad parameters for discovery and ruled the
court would deem relevant any information that “‘bears on, or . . . reasonably could lead to
other matter that could bear on,’” either of the two prongs of the § 5 analysis determinative
of plaintiffs’ preemption claim.19 The court specifically noted that if a document suggests
ECF No. 318 at 8-10 (quoting Duffy v. Lawrence Mem’l Hosp., No. 14-2256, 2017
WL 495980, at *3 (D. Kan. Feb. 7, 2017), which in turn quoted Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978)).
defendant may have sought to change the eligibility-assessment standards or procedures
mandated by the NVRA or, relatedly, suggested a means other than attestation (such as
DPOC) to assess voter eligibility, the document would be deemed relevant.
information would bear on—or could lead to other information that could bear on—whether
defendant can meet his burden under the NVRA’s current standards of demonstrating that
a substantial number of noncitizens registered to vote in Kansas or whether, instead,
defendant cannot meet that standard so is attempting to change it.20 Similarly, such
information would bear on—or could lead to other information that could bear on—whether
defendant can meet his burden under the Tenth Circuit’s contemplated second-step of
demonstrating DPOC is the least-restrictive method for evaluating voter eligibility, or
whether, again, defendant cannot meet that standard so is attempting to change it.21
The court has conducted an in camera review of the two responsive documents.
Despite defendant’s representations to the contrary,22 the court concludes both documents
Id. at 8-9.
Id. at 9-10.
Defendant stated in his response to the motion to compel that the draft amendment
“does not propose to ‘amend or alter’ an [sic] ‘eligibility-assessment procedures mandated
by the NVRA.’” ECF No. 288 at 18. Defendant also stated “no such document exists” that
shows defendant sought an alternative means of assessing voter qualification by amending
the NVRA. Id. at 17. These statements, most charitably, can be construed as word-play
meant to present a materially inaccurate picture of the documents. After plaintiffs review the
documents to be provided under this order, the court leaves it to them to decide whether to
seek sanctions against defendant in this regard. But whether plaintiffs elect to file a
sanctions motion misses the larger point. As mentioned earlier, Secretary Kobach is both a
defendant and counsel of record, and in the latter capacity is an officer of the court with a
contain exactly the type of information contemplated by the court as relevant. To be clear,
neither of these documents conclusively proves defendant sought to amend the NVRA to
alleviate defendant’s burdens under § 5 as interpreted by the Tenth Circuit in October 2016.
But, at a minimum, both “bear on” (and reasonably could lead to other information bearing
on) that question and, therefore, on whether defendant can meet the current standards that
will be determinative of plaintiffs’ preemption claim in this case. Defendant’s relevance
objection to the Sixth Request therefore is overruled.23
Attorney-Client Privilege Assertion Over the Draft Amendment
Of course, even if relevant, a document need not be produced in discovery if it’s
protected by a privilege.24 Defendant asserts the attorney-client privilege applies to the draft
document showing possible proposed amendments to the NVRA. The document was created
by Secretary Kobach and shared by him only with two members of the Secretary of State’s
Office—Mr. Roe, an attorney in the office and co-counsel in this case, and Mr. Caskey, the
duty of candor and a duty not to assert frivolous arguments. At the risk of stating what
should be obvious, when any lawyer takes an unsupportable position in a simple matter such
as this, it hurts his or her credibility when the court considers arguments on much more
complex and nuanced matters such as attorney-client privilege, deliberative-process
privilege, executive privilege, and indeed, the ultimate issue of whether Kansas’s DPOC law
is preempted by the NVRA.
Because the court deems, at least in part, the photographed document relevant, the
court flatly rejects defendant’s argument that “given the clear irrelevancy of the document
sought, the purpose of the request for production can only be to harass defendant.” ECF No.
288 at 26.
Fed. R. Civ. P. 26(b)(1) limits discovery to “nonprivileged matters.”
head of the office’s elections division.
Because this litigation arises out of a federal statutory scheme, federal law governs
the application of the attorney-client privilege.25 Under federal common law, the essential
elements of the attorney-client privilege are: (1) where legal advice of any kind is sought (2)
from a professional legal advisor in his capacity as such, (3) the communications relating to
that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently
protected (7) from disclosure by himself or by the legal advisor, (8) except if the protection
is waived.26 Although this description suggests that the privilege only operates to protect a
client’s communications to a lawyer, the Tenth Circuit recognizes that a lawyer’s
communication to a client is also protected if it is “related to the rendition of legal services
and advice.”27 “A party claiming the attorney-client privilege must prove its applicability,
which is narrowly construed.”28
The court has reviewed the draft amendment in camera. On its face, the document
Fed. R. Evid. 501; New Jersey v. Sprint Corp., 258 F.R.D. 421, 425 (D. Kan. 2009).
New Jersey v. Sprint, 258 F.R.D. at 425.
Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1370 (10th Cir. 1997) (rejecting
narrower view that only communications that reveal confidences from the client are
protected); see also id. (holding that the Tenth Circuit’s view “protects from forced
disclosure any communication from an attorney to his client when made in the course of
giving legal advice”); C.T. v. Liberal Sch. Dist., Nos. 06-2093, 06-2360, 06-2359, 2008 WL
217203, at *2 (D. Kan. Jan. 25, 2008) (“The privilege also protects advice given by the
lawyer in the course of representing the client.”).
United States v. Merida, 828 F.3d 1203, 1209 (10th Cir. 2016) (quoting Foster v.
Hill, 188 F.3d 1259, 1264 (10th Cir. 1999)).
doesn’t evidence a request for, or the giving of, legal advice. Nor does defendant’s privilege
log indicate the document contains or requests legal advice.29 Turning then to defendant’s
response brief, he doesn’t directly address whether the document contains or seeks legal
advice, but only makes the general statement: “When seeking input on hypothetical, future
draft alterations to the NVRA, which necessarily include input on the legal effect of those
changes, the appropriate individuals would be . . . Garrett Roe, attorney of the Office of the
Kansas Secretary of State, and Bryan Caskey, the head of the Elections Division of the Office
of the Kansas Secretary of State.”30
This statement is insufficient to satisfy defendant’s burden of demonstrating the
document was disclosed for the purpose of imparting, or receiving, legal advice. Giving the
statement its broadest interpretation, defendant could be asserting that Secretary Kobach (as
a client) was seeking legal advice on the legal effect of his draft hypothetical amendments
to the NVRA from Mr. Roe (his attorney) and Mr. Caskey (who is not an attorney). But the
court isn’t required to guess at defendant’s privilege assertions. And even were defendant’s
vague statement read this broadly, defendant doesn’t explain why he was seeking legal
advice from Mr. Caskey, a non-lawyer. Defendant cites caselaw holding that the attorneyclient privilege isn’t waived by the presence of a non-attorney agent of either the client or
See ECF No. 273-4. The privilege-log description of the document states simply,
“Preliminary, non-final, draft language to the National Voter Registration Act shared only
with Brian Caskey and Garrett Roe.”
ECF No. 288 at 23 (emphasis added).
attorney, but defendant makes no argument that Mr. Caskey is an agent of either client or
attorney in this instance. Unlike in High Point SARL v. Sprint Nextel Corp., a case cited by
defendant, he hasn’t asserted the confidential document was shared with a non-attorney for
the purpose of facilitating an attorney’s legal analysis.31 In the end, given the content and
limited context provided for the draft amendment, the court is left with insufficient
information to determine that it is protected by the attorney-client privilege. Defendant
hasn’t satisfied his burden of proving the attorney-client privilege applies, and thus his
objection on that basis is overruled.
Deliberative-Process Privilege Assertion Over the Draft Amendment
Next, defendant argues the draft amendment is protected by the deliberative-process
privilege. The deliberative-process privilege shields from production “documents reflecting
advisory opinions, recommendations and deliberations compromising part of a process by
which governmental decisions and policies are formulated” by federal government
agencies.32 Defendant notes the deliberative-process privilege has been codified at 5 U.S.C.
§ 552(b)(5), as an exemption to the Freedom of Information Act. The privilege “rests on the
obvious realization that officials will not communicate candidly among themselves if each
remark is a potential item of discovery and front page news, and its object is to enhance the
No. 09-2269-CM-DJW, 2012 WL 234024, at *13 (D. Kan. Jan. 25, 2012) (finding
documents prepared or transmitted by “high level members” of intellectual-property division,
who were working at the direction of attorneys, to be privileged).
Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).
quality of agency decisions by protecting open and frank discussion among those who make
them within the Government.”33 “It further serves to prevent the premature disclosure of
proposed policies, and avoids ‘misleading the public by dissemination of documents
suggesting reasons and rationales for a course of action which were not in fact the ultimate
reasons for the agency’s action.’”34
Defendant asserts that, as the state official charged by the NVRA with administering
that federal statute in Kansas, the “Secretary of State and his deputies have an interest in
suggesting future amendments to the NVRA.”35 Thus, defendant argues, their internal
discussions about amending the NVRA are protected by the deliberative-process privilege.
The court respectfully disagrees. The obvious problem with defendant’s argument is
that the deliberative-process privilege he asserts protects the pre-decisional deliberations of
federal government agencies.36 Defendant hasn’t cited a case in which the privilege was
accorded to state agencies or officials. To the contrary, caselaw indicates that the privilege
is “limited to authorities ‘of the Government of the United States.’”37 Thus, only the “head
Id. at 8-9 (internal quotations and citations omitted).
Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007) (quoting
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).
ECF No. 288 at 25.
See N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975).
Kerr v. U.S. Dist. Court, 511 F.2d 192, 197 (9th Cir. 1975) (quoting 5 U.S.C. §
551(1)). See also St. Michael’s Convalescent Hosp. v. California, 643 F.2d 1369, 1373-74
(9th Cir. 1981) (rejecting FOIA privilege assertion as to documents held by state agencies
of the relevant federal agency . . . [or] [t]he government official to whom authority is
delegated may assert the privilege.”38 Defendant hasn’t suggested that the Office of the
Kansas Secretary of State is a federal agency, or a delegate of a federal agency, tasked with
proposing congressional amendments to the NVRA. The court acknowledges defendant may
have a legitimate interest in the language of the NVRA because he is tasked with
administering it in Kansas. But he hasn’t demonstrated such an interest entitles him to assert
this privilege applicable to federal agencies. Thus, defendant hasn’t satisfied his burden of
demonstrating the deliberative-process privilege applies.39 His objection on that basis
therefore is overruled.
Executive-Privilege Assertion Over the Photographed Document
Secretary Kobach asserts the photographed document that he presented to then
President-elect Trump is protected by the executive (or “presidential”) privilege. In United
acting pursuant to federal Medicaid regulations, because the definition of “agency” “does not
encompass state agencies or bodies,” and also because the federal government did not
exercise the supervision “needed to characterize the state bodies as federal agencies”);
Buford v. Holladay, 133 F.R.D. 487, 494 (S.D. Miss. 1990) (“[T]his Court concludes that the
deliberative process privilege should not be extended to include state governmental agencies.
. . .”).
Fairholme Funds, Inc. v. United States, 128 Fed. Cl. 410, 432 (2016) (vacated in
part on other grounds, In re: United States, Nos. 2017-104, 2017-1122, 2017 WL 406243
(Fed. Cir. Jan. 30, 2017)).
To be clear, the court is not ruling that some manner of deliberative-process
privilege can never apply to state agencies. But defendant’s privilege assertion was based
on the privilege accorded federal agencies. Defendant never directly asserted a state-agency
States v. Nixon,40 the Supreme Court recognized “the presumptive confidentiality of
Presidential communications”41 as a qualified privilege. This “privilege of confidentiality
of Presidential communications derives from the supremacy of the Executive Branch within
its assigned area of constitutional responsibilities.”42 The Supreme Court stated the privilege
is necessary because a “President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so in a way
many would be unwilling to express except privately.”43
Defendant states that, though not acting in his capacity as Kansas Secretary of State,
he presented the photographed document to President-elect Trump as a member of the
“transition team” that “aids the President-elect in preparing policies and assuming his official
duties as President as efficiently as possible.”44 Defendant asserts communications between
a President-elect and his transition team are entitled to protection because “[a]llowing this
document to be discoverable would jeopardize the right of the President-elect to have
confidential and frank communications within his transition team.”45
418 U.S. 683 (1974).
Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 440 (1977).
Id. at 447.
United States v. Nixon, 418 U.S. at 708.
ECF No. 288 at 28.
Defendant’s argument for withholding the photographed document under the
executive privilege is unpersuasive. First, Secretary Kobach’s communication was made to
a president-elect, not to a sitting president. Although a president-elect by statute and policy
may be accorded security briefings and other transitional prerogatives, he or she has no
constitutional power to make any decisions on behalf of the Executive Branch. No court has
recognized the applicability of the executive privilege to communications made before a
president takes office. If that were the law, it would mean that potentially almost everything
communicated to a president-elect by the hundreds of persons seeking appointments in the
new administration would be shielded by privilege.
In Nixon v. Administrator of General Services, the Supreme Court did recognize that
former presidents may assert privilege over certain communications made during their terms
in office.46 But the reasoning given by the Court for its decision doesn’t directly translate to
communications with president-elects. There, the Court adopted the view of the Solicitor
General, who reasoned,
the privilege is necessary to provide the confidentiality required for the
President’s conduct of office. Unless he can give his advisers some assurance
of confidentiality, a President could not expect to receive the full and frank
submissions of facts and opinions upon which effective discharge of his duties
depends. The confidentiality necessary to this exchange cannot be measured
by the few months or years between the submission of the information and the
end of the President’s tenure; the privilege is not for the benefit of the
President as an individual, but for the benefit of the Republic. Therefore the
433 U.S. at 439.
privilege survives the individual President’s tenure.47
The Court concluded the executive privilege could be asserted by a former president, but
only as to materials whose content falls within the scope of “communications in performance
of a President’s responsibilities of his office, and made in the process of shaping policies and
making decisions.”48 Defendant offers no persuasive argument for how the holding in Nixon
v. Administrator of General Services might apply to president-elects.
Second, even adopting defendant’s view that the executive privilege may be asserted
by a president over communications made before he takes office, defendant doesn’t address
the fact that now-President Trump conspicuously has not asserted the privilege over the
photographed document; if indeed Secretary Kobach was a member of the “transition team”
for President-elect Trump, then it’s reasonable to infer that Secretary Kobach would have
notified President Trump and given him an opportunity to weigh in on this dispute. Nor has
defendant made a persuasive case for allowing Secretary Kobach, who may have sought a
high-level position in the Executive Branch but who is not a member of the Executive
Branch, to assert the privilege himself. At least one court has recognized that whether the
executive privilege must be invoked by a president personally is an open question.49
Id. at 448-49 (emphasis added).
Id. at 449 (internal quotations, modifications, and citations omitted) (emphasis
In re Sealed Case, 121 F.3d 729, 744 n.16 (D.C. Cir. 1997); Judicial Watch, Inc. v.
Dept. of Justice, 365 F.3d 1108, 1114 (D.C. Cir. 2004).
Defendant does not attempt to persuade the court that the question should be answered in the
Finally, and perhaps most importantly, defendant hasn’t addressed whether
communication about proposed amendments to voting laws are applicable to the discharge
of presidential “duties”50 or a president’s “assigned area of constitutional responsibilities.”51
As discussed above, the privilege only protects “communications in performance of a
President’s responsibilities of his office;” it does not protect every communication with a
president.52 The Supreme Court recognized in Arizona v. Inter Tribal Council of Arizona,
Inc., a case addressing the NVRA in relation to Arizona’s mail-in voter application, that the
Elections Clause of the United States Constitution53 assigns the power to regulate voterregistration to Congress, working with the states.54 Defendant hasn’t clearly articulated what
Nixon v. Adm’r of Gen. Servs., 433 U.S. at 448-49.
Id. at 447.
See id. at 449 (“The appellant may legitimately assert the Presidential privilege, of
course, only as to those materials whose contents fall within the scope of the privilege
recognized in United States v. Nixon, supra. In that case the Court held that the privilege is
limited to communications ‘in performance of (a President’s) responsibilities,’ 418 U.S., at
711, 94 S.Ct., at 3109, ‘of his office,’ id., at 713, and made ‘in the process of shaping policies
and making decisions,’ id., at 708, 94 S.Ct., at 3107.”) (quoting United States v. Nixon, 418
U.S. at 708, 711, 713).
Art. I, § 4, cl.1 (“The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature thereof; but the
Congress may at any time by Law make or alter such Regulations, except as to the places of
133 S. Ct. 2247, 2251–53 (2013).
duty President Trump has in regulating voter-registration.
In the end, defendant simply hasn’t presented sufficient argument or evidence to
persuade the court that the executive privilege protects the photographed document from
discovery.55 His objection on that basis therefore is overruled.
Because the court has found both the draft amendment and photographed document
relevant and not protected by any asserted privilege, the documents must be produced to
plaintiffs in discovery. The parties have raised the question, however, of whether, before
production, defendant may redact those portions of the documents not relevant to the
reopened discovery issues. Opposing redaction, plaintiffs cite cases applying the general rule
in this district that a party responding to a Fed. R. Civ. P. 34 document request may not
unilaterally “scrub responsive documents for non-responsive information.”56 The court has
stated that allowing such unilateral redaction, and thereby inserting “another step in the
process,” would invite additional discovery disputes and undermine Fed. R. Civ. P. 1’s
directive to construe the Rules to advance the just, speedy, and inexpensive determination
Defendant’s argument for application of the privilege to the facts in this case
consists of only five sentences. ECF No. 288 at 28.
HR Tech., Inc. v. Imura Int’l U.S.A., Inc., No. 08-2220-JWL, 2010 WL 4792388, at
*5-6 (D. Kan. Nov. 17, 2010) (quoting Orion Power Midwest, L.P. v. Am. Coal Sales Co.,
No. 2:05-cv-555, 2008 WL 4462301, at *1-2 (W.D. Pa. Sept. 30, 2008)); Neonatal Prod.
Grp., Inc. v. Shields, No. 13-2601-DDC, 2015 WL 7078796, at *4 (D. Kan. Nov. 13, 2015).
of cases.57 The instant situation, however, is quite different. Here, the court has conducted
an in camera review of the documents. So the usual concerns accompanying unilateral
redaction by a party are absent.
The court appreciates there may be great curiosity by plaintiffs (and, indeed, the
general public) about the contents of the photographed document, transcending far beyond
the technical NVRA issues involved in this litigation. By the same token, defendant has
asserted national-security concerns over release of some of the information in the document.
Regardless of whether the asserted national-security concerns are justified, and regardless
of whether Secretary Kobach’s national-security recommendations in the photographed
documents are wise or unwise (which would involve a largely political assessment), the court
sees no reason to jeopardize these stated concerns by production of information the court’s
review has indicated is completely irrelevant and unresponsive to the very narrow issues
involved in the Sixth Request.58
HR Tech., 2010 WL 4792388, at *5-6 (quoting Orion Power, 2008 WL 4462301,
at *1-2); Neonatal Prod. Grp., 2015 WL 7078796, at *4.
The parts of the documents the court is ordering defendant to produce to plaintiffs
do not implicate any national-security concerns, i.e., they only deal with the voting-rights
issues involved in this lawsuit. The court acknowledges the public generally has a right of
access to judicial records. See Eugene S. v. Horizon Blue Cross Blue Shield, 663 F.3d 1124,
1135 (10th Cir. 2011); Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007); United
States v. Apperson, 642 F. App’x 892, 898 (10th Cir. 2016). In this instance, however, no
party has sought to file the disputed documents on the judicial record for use in this case.
Rather, at this point, plaintiffs have simply requested the documents in discovery and
defendant has asserted a discovery objection. As in many federal lawsuits, a protective order
permitted by Fed. R. Civ. P. 26(c) was entered in this case. ECF No. 55. The protective
order governs the parties’ production of documents in discovery.
Accordingly, defendant may redact portions of the documents that are neither relevant
nor responsive to the Sixth Request. Specifically, this is limited to redaction of numbered
paragraphs 4 and 5 in the draft amendment, and all language in the photographed document
except the document’s heading, sub-heading V, and numbered paragraph 23.
IT IS THEREFORE ORDERED that plaintiffs’ motion to compel is granted.
Defendant is ordered to produce the two identified documents, redacted as noted above, by
April 19, 2017.
Dated April 17, 2017, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge
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