League of Women Voters of Michigan et al v. Benson

Filing 58

ORDER Granting in Part and Denying in Part Non-Party Movants' Motions to Quash #27 , #46 . Signed by District Judge Denise Page Hood. (LSau)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LEAGUE OF WOMEN
VOTERS OF MICHIGAN, et al.,
Plaintiffs,

CASE NO. 17-14148
HON. DENISE PAGE HOOD

v.
RUTH JOHNSON, in her official
capacity as Michigan Secretary of
State,
Defendant.
/
ORDER GRANTING IN PART AND DENYING IN PART NON-PARTY
MOVANTS’ MOTIONS TO QUASH [#27; #46]
This matter is before the Court on two motions to quash Plaintiffs’
subpoenas instructing non-party legislative bodies (“Legislative Bodies”),1 officials
and staff (“Legislative Personnel”)2 (collectively, “Non-party Movants”) to
1

The Legislative Bodies are comprised of non-parties Michigan House Business Office, Michigan
Senate Business Office, Michigan Senate Republican Caucus, Michigan Senate Republican
Communications Office, Michigan Senate Republican Policy Office, Michigan House Republican
Caucus, Michigan House Republican Communications Office, Michigan House Republican Policy
Office, Clerk of the Michigan House, and Secretary of the Michigan Senate. The Legislative Bodies
are groups of Legislators and legislative staff members that are affiliated with the Michigan Senate
and House of Representatives.
2
The Legislative Personnel is comprised of three groups: (1) Legislators: Senator Dave
Hildenbrand, Senator Joe Hune, Senator Rick Jones, Senator Jim Marleau, Senator John Proos,
Senator Randy Richardville, Representative Jase Bolger, Representative Marty Knollenberg
(now a Senator), Representative Pete Lund, Representative Ed McBroom, Representative Rick
Outman, Representative Al Pscholka; (2) Legislative Staff: William Carney, Jeff Cobb (now
Secretary of the Senate), Scott Jones, James Kinsey, Terry Marquardt, Brian Began, Ralph
Fiebig, J. Lohrstorfer, Daniel McMaster, Gary Randall (now Clerk of the House), and Sharon
Tyler; and (3) Legislative Attorneys: Shelly Edgerton and Frederick Hall.
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produce documents related to the introduction, consideration, or passage of
Michigan’s current apportionment plan. [Doc # 27; Doc # 46] The Non-party
Legislative Personnel filed a Motion to Quash on March 8, 2018. [Doc # 27] The
Non-party Legislative Bodies’ Motion was filed on March 30, 2018. [Doc # 46]
All Responses and Replies have been filed.
For the reasons that follow, the present Motions to Quash are GRANTED
IN PART and DENIED IN PART.
I.

BACKGROUND
This suit was brought against Ruth Johnson, in her official capacity as

Michigan Secretary of State, on December 22, 2017. [Id.] Plaintiffs claim that
Michigan’s current apportionment plan—constituting three redistricting maps
adopted from the passage of Michigan Senate Bill 498 (2011) and Michigan House
Bill 4780 (2011) (“2012 Michigan Redistricting Legislation”)—violates Plaintiffs’
First Amendment free speech and association rights and Fourteenth Amendment
equal protection rights. [Doc # 1, Compl. ¶ 1] Specifically, Plaintiffs allege that
the apportionment plan intentionally places Michigan Democrats in voting districts
that reduce or eliminate the power of Democrat votes and burdens their
representational rights because of their political party affiliation. [Id.]
II.

CONTROLLING LAW
Rule 45 of the Federal Rules of Civil Procedure governs the service of

subpoenas. Rule 45(d)(3)(A) dictates that a court, upon a timely motion, must
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quash or modify a subpoena if the subpoena: (i) fails to allow a reasonable time for
compliance, (ii) requires a non-party to travel more than 100 miles from where
they reside, (iii) requires disclosure of privileged or other protected matter and no
exception or waiver applies, or (iv) subjects a person to undue burden. “The party
seeking to quash a subpoena bears a heavy burden of proof.” United States v.
Wells, No. 06-10589, 2006 WL 3203905, at *2 (E.D. Mich. Nov. 3, 2006) (citing
Irons v. Karceski, 74 F.3d 1262, 1264, 316 (D.C. Cir. 1995)).
Rule 26(b) defines the scope of discovery for tools of discovery, including
subpoenas issued pursuant to Rule 45. Sys. Prod. & Sols., Inc. v. Scramlin, No. 13CV-14947, 2014 WL 3894385, at *9 (E.D. Mich. Aug. 8, 2014). “Rule 26(b)
allows a party to obtain discovery concerning any non-privileged matter that is
relevant to any party’s claim or defense.” Id.; Fed. R. Civ. P. 26(b). “Evidence is
relevant if[] it has any tendency to make a fact [of consequence] more or less
probable than it would be without the evidence.” FED. R. EVID. 401. If, however,
a district court determines that “the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at stake in the
action, and the importance of the discovery in resolving the issues,” the court must
limit the scope of discovery. FED. R. CIV. P. 26(b)(2)(C)(iii).
Rule 26(c) governs the issuance of protective orders. “The court may, for
good cause, issue an order to protect a party or person from annoyance,
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embarrassment, oppression, or undue burden or expense.” FED. R. CIV. P. 26(c).
Such an order may forbid discovery or disclosure altogether or limit discovery to
certain matters. Id. “The burden of establishing good cause for a protective order
rests” with the party seeking the order. Nix v. Sword, 11 F. App’x 498, 500 (6th
Cir. 2001). “To show good cause, a movant for a protective order must articulate
specific facts showing clearly defined and serious injury resulting from the
discovery sought and cannot rely on mere conclusory statements.” Id. (citations
and internal quotation marks omitted).
III.

ANALYSIS
Plaintiffs mailed subpoenas duces tecum to the Legislative Personnel on

February 21, 2018, and to the Legislative Bodies on March 15, 2018. [Doc # 27-2;
Doc # 46-2] Plaintiffs seek, in part, all documents, notes, data and analysis related
to the 2012 Michigan Redistricting process. Non-party Movants argue that the
legislative privilege granted under the Speech or Debate Clause of the United
States Constitution and the Michigan Constitution, other Michigan constitutional
and statutory law, and the legislative privilege granted under federal common law,
mandate quashing the subpoenas or granting a protective order. [Doc # 27, Pg.
17–18; Doc # 46, Pg. 16] They also contend that the subpoenas seek information
that is irrelevant to the present case, are overly burdensome and without temporal
limitation, and will have a chilling effect on legislative activity. [Doc # 27, Pg. 17;
Doc # 46, Pg. 16] The Legislative Personnel assert that the subpoenas directed
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toward them seek information that is protected by the attorney-client privilege.
[Doc # 27, Pg. 17] The Legislative Bodies assert that the subpoenas sent to them
are vague. [Doc # 46, Pg. 16] Plaintiffs argue, among other things, that the
present issues are governed by federal common law and the Court should apply a
qualified legislative privilege balancing test. [Doc # 41, Pg. 6; Doc # 49, Pg. 3–5]
Plaintiffs add that the factors under the balancing test favor denying the present
Motions, the subpoenas are not overly broad or unduly burdensome, and not all of
the information sought is subject to privilege. [Doc # 41, Pg. 6; Doc # 49, Pg. 1–6]

A. Federal Common Law Governs the Claims of Legislative Privilege
Members of Congress “shall not be questioned in any other Place” for “any
Speech or Debate in either House.” U.S. CONST. art. I, § 6, cl. 1. The purpose of
the Speech or Debate Clause is to preserve the separation of powers. See Powell v.
McCormack, 395 U.S. 486, 502 (1969) (“[T]he purpose of this clause was to
prevent intimidation (of legislators) by the executive and accountability before a
possibly hostile judiciary.”). “Congress enjoys absolute privilege from testimony
and absolute immunity from liability under the Speech or Debate Clause.” Jackson
Municipal Airport Authority v. Bryant, No. 3:16-cv-246-CWR-FKB, 2017 WL
6520967, at *4 (S.D. Miss. Dec. 19, 2017) (citing Eastland v. U.S. Servicemen’s
Fund, 421 U.S. 491, 502-04 (1975)). When construing the legislative privilege, a
legislator and her aide are to be “treated as one.” Gravel v. United States, 408 U.S.
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606, 616 (1972). The Michigan Constitution contains a clause affording state
legislators similar protections. MI. CONST. art. IV, § 11.
A recent case before the United States District Court for the Eastern District
of Michigan, Michigan State A. Philip Randolph Inst. v. Johnson, No. 16-CV11844, 2018 WL 1465767 (E.D. Mich. Jan. 4, 2018), addressed which law governs
the existence of legislative privilege for state legislators in federal question cases.
In that case, the district court determined that federal common law governs claims
of legislative privilege for state legislators in federal question cases because neither
the federal Speech or Debate Clause nor the Michigan Speech or Debate Clause
protects state legislators from interference by the federal government. Id. at *3.
This Court agrees.

Federal common law governs the existence of legislative

privilege in this case. See FED. R. EVID. 501 (In federal question cases, “[t]he
common law--as interpreted by United States courts in the light of reason and
experience--governs a claim of privilege unless” the U.S. Constitution, a federal
statute, or rules prescribed by the Supreme Court provide otherwise.). See also
United States v. Gillock, 445 U.S. 360, 374 (1980) (“The Federal Speech or Debate
Clause, of course, is a limitation on the Federal Executive, but by its terms is
confined to federal legislators. The [state] Speech or Debate Clause is in terms a
limit only on the prosecutorial powers of that State.”).3
3

The Legislative Personnel and the Legislative Bodies’ claims of legislative privilege are
governed by federal common law. Accordingly, their claims of legislative privilege under
Michigan constitutional and statutory law are unpersuasive.
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B. Federal Courts Apply a Qualified Legislative Privilege
Non-party Movants argue that state legislators enjoy an absolute legislative
privilege. Plaintiffs argue that state legislators have only a qualified legislative
privilege under federal common law. This Court agrees with Plaintiffs.
Federal common law extends the absolute legislative immunity granted by
the Federal Speech or Debate Clause to state legislators. Bradley v. Mallory, 871
F.2d 1087 (6th Cir. 1989) (citing Tenney v. Brandhove, 341 U.S. 367 (1951)).
Legislative privilege is related to legislative immunity, but is a distinct concept.4
Favors v. Cuomo, 285 F.R.D. 187, 209 (E.D.N.Y. 2012). For state legislators
involved in federal question cases, legislative privilege protects state legislators
and their legislative staff from compelled disclosure of documentary or testimonial
evidence relating to actions taken within the scope of legitimate legislative activity.
Id. (citing Kay v. City of Rancho Palos Verdes, No. CV 02-03922 MMM RZ, 2003
WL 25294710, at *9–11 (C.D. Cal. Oct. 10, 2003) and Rodriguez v. Pataki, 280 F.
Supp. 2d 89, 93–94, 95 (S.D.N.Y. 2003)). The privilege, however, is not absolute.
State legislators are afforded a qualified legislative privilege against being
required to provide records or testimony concerning legislative activity. Michigan
State A. Philip Randolph Inst., 2018 WL 1465767, at *4. The privilege can be
overcome where important federal interests are at stake. Id. Federal courts have
4

Under federal common law, legislative immunity affords state legislators absolute immunity
from civil liability. Favors v. Cuomo, 285 F.R.D. 187, 208 (E.D.N.Y. 2012). The present
Motions are discovery matters. Non-party Movants’ arguments regarding legislative immunity
are immaterial.
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applied a qualified legislative privilege in cases involving constitutional challenges
to state legislation. See, e.g., Nashville Student Org. Comm. v. Hargett, 123 F.
Supp. 3d 967, 969 (M.D. Tenn. 2015); Rodriguez, 280 F. Supp. 2d at 100; Florida
v. United States, 886 F. Supp. 2d 1301, 1303–04 (N.D. Fla. 2012) (“To be sure, a
state legislator’s privilege is qualified, not absolute; a state legislator’s privilege is
not coterminous with the privilege of a member of Congress under the
Constitution’s Speech and Debate Clause.”); Bethune-Hill v. Va. State Bd. of
Elections, No. 3:14CV852, 2015 WL 3404869, at *9 (E.D. Va. May 26, 2015); N.
Carolina State Conference v. McCrory, No. 1:13CV658, 2015 WL 12683665
(M.D.N.C. Feb. 4, 2015) (“legislative privilege is not absolute, but rather requires a
flexible approach that considers the need for the information while still protecting
legislative sovereignty and minimizing any direct intrusion into the legislative
process.”); Perez v. Perry, No. SA-11–CA–360, 2014 WL 106927, at *2 (W.D.
Tex. Jan. 8, 2014) (“While the common-law legislative immunity for state
legislators is absolute, the legislative privilege for state lawmakers is, at best, one
which is qualified.”) (citations and internal quotation marks omitted); Favors, 285
F.R.D. 187, 211 (E.D.N.Y. 2012); Comm. for a Fair & Balanced Map v. Ill State
Bd. of Elections, No. 11 C 5065, 2011 WL 4837508, at *7 (N.D. Ill, Oct. 12,
2011). But see In re Grand Jury, 821 F.2d 946, 958 (3d Cir. 1987) (rejecting even
a qualified speech or debate privilege for state legislators, reasoning that such a
privilege “would not realistically serve the purposes that the Speech or Debate
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Clause is intended to advance.”). Courts presiding over such cases have found that
the qualified legislative privilege did not shield state legislators from producing at
least some responsive records or deposition testimony. E.g., Nashville Student Org.
Comm., 123 F. Supp. 3d at 969 (citations omitted).
C. Application of the Five Rodriguez Factors
Federal courts typically use a five-factor balancing test to determine whether
the legislative privilege should apply in a given case. See, e.g., Michigan State A.
Philip Randolph Inst. v. Johnson, No. 16-CV-11844, 2018 WL 1465767 (E.D.
Mich. Jan. 4, 2018); Bethune-Hill v. Virginia State Bd. of Elections, 114 F. Supp.
3d 323 (E.D. Va. 2015); N. Carolina State Conference of the NAACP v. McCrory,
No. 1:13CV658, 2014 WL 12526799, at *2 (M.D.N.C. Nov. 20, 2014); Perez v.
Perry, No. SA-11-CV-360-OLG-JES, 2014 WL 106927, at *2 (W.D. Tex. Jan. 8,
2014); Favors v. Cuomo, 285 F.R.D. 187, 217 (E.D.N.Y. 2012); Comm. for a Fair
& Balanced Map v. Illinois State Bd. of Elections, No. 11 C 5065, 2011 WL
4837508, at *7 (N.D. Ill. Oct. 12, 2011). The factors considered are: (1) the
relevance of the evidence sought to be protected; (2) the availability of other
evidence; (3) the “seriousness” of the litigation and the issues involved; (4) the role
of government in the litigation; and (5) the possibility of future timidity by
government employees who will be forced to recognize that their secrets are
violable. Rodriguez, 280 F. Supp. 2d at 101.
1. The Relevance of the Evidence
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On the issue of relevance, the Supreme Court’s decision in Village of
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252
(1977), is instructive. Intent is an element of Plaintiffs’ First Amendment and
Equal Protection claims. See David v. Bandemer, 478 U.S. 109, 127 (1986)
(requiring proof of discriminatory intent in partisan gerrymandering cases);
Hartman v. Moore, 547 U.S. 250, 256 (2006) (holding that retaliatory animus is a
required element of a cognizable First Amendment claim). In Arlington Heights,
the Supreme Court outlined three categories of direct and circumstantial evidence
courts should consider to determine whether discriminatory intent existed in cases
involving claims under the Equal Protection Clause:

(1) the impact of the

challenged action; (2) the historical background or sequence of events leading up
to the action; (3) the legislative history of the action. Id. at 264–68. The Court
held that the legislative history of an action taken by lawmakers “may be highly
relevant” to determine whether “invidious discriminatory purpose was a motivating
factor” for the action, “especially where there are contemporary statements by
members of the decisionmaking body, minutes of its meetings, or reports.” Id. at
268.
The Supreme Court has also cautioned that “[w]hen the issue is simply the
interpretation of legislation,” courts may look to statements made by legislators in
determining the purpose of the legislature, but should “eschew guesswork” when
asked to void an otherwise constitutional statute based on the comments of a small
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number of legislators. Hunter v. Underwood, 471 U.S. 222, 228 (1985). The
Arlington Heights Court held that, even in the rare case where legislators might be
called to testify concerning the purpose of an official action, the testimony
“frequently will be barred by privilege.” Arlington Heights, 429 U.S. at 268.
This case is not a mere matter of interpretation. Plaintiffs seek, in part, all
documents, notes, data and analysis related to the 2012 Michigan Redistricting
process to prove discriminatory intent and a discriminatory effect. See Bandemer,
478 U.S. at 127. The requests are certainly relevant to the present case. The
question of whether state legislators sought to dilute the votes of Democrats by
pursuing specific voting population percentages is critical to this case. The first
factor weighs in favor of disclosure.
2. The Availability of Other Evidence
Regarding the availability of other evidence, Plaintiffs likely have access to
direct and circumstantial evidence to support their claims. A considerable amount
of material relating to the redistricting process is publicly available, including
testimony regarding the redistricting process that took place in the public forum,
public statements, analyses, amendments, bills, and other information regarding the
legislation and its historical context. Some courts, however, have held that the
availability of other evidence does not render evidence regarding legislators’ direct
deliberations irrelevant “given the practical reality that officials seldom, if ever,
announce on the record that they are pursuing a particular course of action because
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of their desire to discriminate” against a particular group. Bethune-Hill, 114 F.
Supp. 3d at 341 (quoting Veasey v. Perry, No. 2:13-CV-193, 2014 WL 1340077, at
*3 (S.D. Tex. Apr. 3, 2014)). In the redistricting context, “[t]he real proof is what
was in the contemporaneous record in the redistricting process.” Page v. Virginia
State Bd. of Elections, 15 F. Supp. 3d 657, 667 (E.D. Va. 2014). Given that intent
is a critical element of Plaintiffs’ claims, the second factor weighs in favor of
disclosure.
3. The Seriousness of the Litigation and the Role of Government
The third and fourth factors also weigh in favor of disclosure. This case
involves questions regarding the impact of Michigan’s current apportionment plan
on the constitutional rights of Michigan citizens under the Equal Protection Clause
and the First Amendment. In addition, the government is a direct participant in this
action. Ruth Johnson is Michigan’s Secretary of State and chief election officer,
and is being sued in her official capacity. She is the lone defendant in this case.
See Michigan State A. Philip Randolph Inst., 2018 WL 1465767, at *7.
4. The Possibility of Future Timidity by Government Employees
The possibility of future timidity by government employees, who will be
forced to recognize that their secrets are violable, favors granting the present
Motions to Quash. “Open dialogue between lawmakers and their staff would be
chilled if their subjective, preliminary opinions and considerations are potentially
subject to public disclosure and critique.” Citizens Union of City of New York v.
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Attorney Gen. of New York, No. 16CV09592RMBKHP, 2017 WL 3836057, at *29
(S.D.N.Y. Sept. 1, 2017). Both present and further legislators and their staff will
likely “refrain from engaging in the frank and candid deliberation about, and
analysis of,” proposed legislation if Plaintiffs are granted access to state
legislators’ private communications with other legislators, committee members, or
their staff “regarding the introduction, consideration, or passage” of the 2012
Michigan Redistricting Legislation. Michigan State A. Philip Randolph Inst., 2018
WL 1465767, at *7. The fifth factor weighs in favor of quashing the subpoenas.
A. The Rodriguez Factors Favor Disclosure With Limitations
This Court finds that application of the five factors developed in Rodriguez
suggest that Plaintiffs’ need for the documents and communications requested in
the subpoenas is sufficient to overcome the legislative privilege.5 This Court,
however, acknowledges the need to preserve the legislative privilege for
documents unrelated to the intent element of Plaintiffs’ First Amendment and
Equal Protection claims. The subpoenas seek information that is unrelated to the
intent element and would otherwise be protected by the legislative privilege.
5

Federal courts considering a qualified legislative privilege have varied greatly in their
application of the five Rodriguez factors. Recently, in Michigan State A. Philip Randolph Inst.
v. Johnson, No. 16-CV-11844, 2018 WL 1465767 (E.D. Mich. Jan. 4, 2018), a case involving
constitutional challenges to a Michigan voting statute under the Equal Protection Clause of the
Fourteenth Amendment, Magistrate Judge Mona Majzoub found that three of the five factors
weighed in favor of quashing the plaintiffs’ subpoenas. Id. at *5–7. Alternatively, in BethuneHill v. Virginia State Bd. of Elections, 114 F. Supp. 3d 323 (E.D. Va. 2015), a case in which the
plaintiffs challenged twelve Virginia House of Delegates districts as unlawful racial
gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment, United
States District Judge Robert Payne found that four of the five factors weighed in favor of
disclosure. Id. at 339–42.
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“Courts following Rodriguez have found that the privilege applies to any
documents or information that contains or involves opinions, motives,
recommendations or advice about legislative decisions between legislators or
between legislators and their staff.” Bryant, 2017 WL 6520967, at *7 (citations
and quotations omitted). The legislative privilege also applies to information that
would reveal legislators’ opinions and motives. “This includes any procedures
used by lawmakers in the legislative process as well as the identification of any
specific legislators that were involved in any particular step in the process.” Id.
Some categories of documents and communications are not protected by the
legislative privilege. Documents and communications related to non-legislative
tasks are not protected by the legislative privilege. See, e.g., Eastland, 421 U.S. at
516–17.

Fact-based documents and communications are not protected by the

legislative privilege.

See, e.g., Bethune-Hill, 114 F. Supp. 3d at 343 (“All

documents or communications reflecting strictly factual information—regardless
of source—are to be produced.”). Documents and communications created after the
date of enactment are outside the scope of the legislative privilege as well. Id.
(“The privilege only protects ‘integral steps’ in the legislative process and does not
extend to commentary or analysis following the legislation’s enactment.”).
Communications between legislators or staff members and third parties consulted
during the redistricting process are not protected by the legislative privilege.
Michigan State A. Philip Randolph Inst., 2018 WL 1465767, at *7 (citing Bryant,
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2017 WL 6520967, at *7)). For any relevant documents or information that were
shared with third parties sought by Plaintiffs, that might have been protected by the
legislative privilege, the privilege is waived. See Bryant, 2017 WL 6520967, at *8.
The Legislative Personnel and Legislative Bodies must produce the otherwise
privileged information shared with third parties, and non-privileged information,
responsive to the subpoenas that is within their possession, custody, or control.
B. Legislative Personnel Have Not Met Their Burden to Establish the
Attorney-Client Privilege or the Attorney Work-Product Doctrine
The Legislative Personnel contend that Plaintiffs’ request for legislative
counsel’s notes, summaries, reports, minutes, and miscellaneous documents are
barred by the attorney-client privilege and the attorney work-product doctrine.
[Doc # 27, Pg. 39] Under the law of the Sixth Circuit, courts evaluating a claim of
attorney-client privilege must consider:
(1) Where legal advice of any kind is sought (2) from a professional
legal adviser 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 adviser, (8) unless the protection is waived.
Reed v. Baxter, 134 F.3d 351, 355–56 (6th Cir. 1998). “The burden of establishing
the existence of the [attorney-client] privilege rests with the person asserting it.”
United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999). In addition, the
attorney work-product doctrine does not protect documents that were not
developed during or in anticipation of litigation. The Legislative Personnel have
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not provided facts or argument regarding any documents, communications, or
items protected by the attorney-client privilege or the attorney work-product
doctrine.
Under the Federal Rules of Civil Procedure Rule 45 and Rule 26, a nonparty asserting a privilege must not only expressly make the claim, but must also
“describe the nature of the documents, communications, or tangible items” that are
privileged or protected.

FED. R. CIV. P. 45(e)(2)(A)(ii); FED. R. CIV. P.

26(b)(5)(A)(ii). The Legislative Personnel have not met the requirements of Rule
45 or Rule 26. The legislators, legislative attorneys, and legislative staff reserve
their right to assert claims of privilege or protection at a later time.
C. Remaining Issues
Regarding Non-party Movants’ assertions that Plaintiffs’ subpoenas are
overbroad, unduly burdensome, lack temporal proximity, and vague, the Court
finds that the subpoenas are not vague and are not overbroad. In addition, this
Order will effectively reduce the substantive and temporal scope of the subpoenas.
IV.

CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that the aforementioned law and analysis call

for the following disclosure requirements and procedures:

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1. The Legislative Personnel and Legislative Bodies must disclose any of
the requested documents or communications created after the 2012
Michigan Redistricting Legislation’s date of enactment.
2. The Legislative Personnel and Legislative Bodies must produce any of
the requested documents or communications pertaining to the 2012
Michigan Redistricting process shared with, or received from, any
individual or organization outside the employ of the individual legislators
or standing committees of the Michigan Legislature.
3. The following requested documents or communications “internal” to the
Michigan Legislature that were generated before the 2012 Michigan
Redistricting Legislation’s enactment are subject to the following
conditions:
 All documents or communications reflecting strictly factual
materials and information available to lawmakers at the time the
legislation was enacted—irrespective of the source—should be
disclosed.
 All documents or communications produced by committee,
technical, or professional staff for the legislators, excluding the
personal

staff

of

legislators,

that

reflect

recommendations, or advice are to be produced.

17

opinions,
Comments,

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requests, or opinions expressed by legislators or their aides in
communication with such staff may be redacted, subject to the
disclosure below.
1. All Michigan Redistrict Plans on record must be disclosed. All proposed
redistricting plans developed during the 2012 Michigan Redistricting
process must be disclosed.
2. All documents or communications produced by legislators or their
immediate aides before the redistricting legislation was enacted (except
those in paragraph “3” above which must be produced) may be withheld,
except to the extent that any such document pertains to, or reveals an
intent to or awareness of: discrimination against voters on the basis of
their known or estimated political party, sorting of voters according to
their known or estimated political party affiliation, the impact of
redistricting upon the ability of voters to elect a candidate of their choice,
or the impact of redistricting upon the representation of a political party
in Congress or the state legislature. This Court will not require the
disclosure of documents or communications produced by legislators or
aides that merely reference or contain demographic data. Such data
should be produced as “factual information” consistent with the
requirement above unless such information is inextricably intertwined

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with non-factual content that is not otherwise subject to disclosure
pursuant to this Order.
3. The Legislative Personnel and Legislative Bodies may withhold any
responsive privileged information that is unrelated to the introduction,
consideration, or passage of the 2012 Michigan Redistricting Legislation.
The Legislative Personnel and Legislative Bodies will produce a
privilege log that complies with Federal Rule of Civil Procedure 26(b)(5)
regarding the privileged information withheld.
IT IS FURTHER ORDERED that the Non-party Legislative Personnel’s
Motion to Quash Subpoenas (Doc # 27) is GRANTED IN PART and DENIED
IN PART consistent with this opinion.
IT IS FURTHER ORDERED that the Non-party Legislative Bodies’
Motion to Quash Subpoenas (Doc # 46) is GRANTED IN PART and DENIED
IN PART consistent with this opinion.
ENTERED: May 23, 2018
s/Denise Page Hood
Signed for and on behalf of the panel:
HONORABLE ERIC L. CLAY
United States Circuit Judge
HONORABLE DENISE PAGE HOOD
United States District Judge
HONORABLE GORDON J. QUIST
United States District Judge
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of
record on May 23, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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