Stallworth v. Bryant et al

Filing 251

ORDER granting in part and denying in part 214 Motion to Enforce Subpoenas. Signed by Magistrate Judge F. Keith Ball on 12/19/17 (RBM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JACKSON MUNICIPAL AIRPORT
AUTHORITY, ET AL.
VS.

PLAINTIFFS
CIVIL ACTION NO. 3:16-cv-246-CWR-FKB

GOVERNOR PHIL BRYANT, ET AL.

DEFENDANTS

ORDER GRANTING IN PART AND DENYING IN PART
MOTION TO ENFORCE SUBPOENAS
Before the Court is a Motion to Enforce Subpoenas [214] filed by Plaintiff-Intervenors
Jackson Municipal Airport Authority (“JMAA”), the Board of Commissioners of the JMAA
(“Board”), and each of the Board members (“Board Members”)1 in their official and individual
capacities (collectively “JMAA Plaintiffs”). The motion seeks an order compelling certain
members of the Mississippi Legislature (collectively, “Legislators”)2 to respond to subpoenas
duces tecum served in this case. For the reasons stated below, the Court finds that the motion
should be granted in part and denied in part.
I. Factual Background
This case presents a legal challenge to Senate Bill 2162 (“SB 2162”), a law passed by the
Mississippi Legislature during the 2016 Legislative Session and signed by the Governor on May
4, 2016. See [42]. Plaintiffs challenge the law, arguing that it amounts to an unconstitutional
takeover by the State of Mississippi of the JMAA. See id. Plaintiffs’ Complaint asserts claims

1

The Board Members include Dr. Rosie L.T. Pridgen, Reverend James L. Henley, Jr., LaWanda D. Harris, Vernon W.
Hartley, Sr., and Evelyn O. Reed.
2
The Legislators include Senators Josh Harkins, Dean Kirby, Philip Moran, Chris Caughman, Nickey Browning, and
John A. Polk, Representative Mark Baker, and Alex Monsour, a former member of the Mississippi House of
Representatives.

1

under both Mississippi and federal law. The case is before the Court on federal subject matter
jurisdiction. The JMAA Plaintiffs’ motion [214] concerns a discovery dispute with non-party
members of the Mississippi Legislature who played roles in the passage of SB 2162.3
On March 7, 2017, JMAA and the Board served subpoenas on each of the Legislators.
[130]-[137]. In April 2017, certain Board Members4 served subpoenas on four of the Legislators.5
[205]-[208].
At issue in this dispute is a request, Request #3, that was contained in each of the
subpoenas. See [215] at 3. The subpoenas request the following:
3.
Any and all documents, including but not limited to, email communications
and text messages and any documents attached thereto (stored or otherwise)
exchanged by (sent to and/or from) you and any person, including members of the
Mississippi legislature and any governmental agency, body or its representative(s)
regarding Senate Bill 2162 and / or the Jackson-Medgar Evers International Airport
from January 1, 2014 to present. The responsive information is requested to be
produced on a disk, in single page Tiff files, a summation load file, and OCR.
See id.
The Legislators object to the request on the grounds of (1) relevance, and (2) privilege. See
[225] at 7. They argue:
Documents responsive to category (3) include all correspondence and
communications between the legislators and any other person with respect to the
passage of Senate Bill 2162. The category seeks to obtain copies of
communications between Members of the Mississippi Legislature and government
officials regarding Senate Bill 2162’s consideration and passage, but it extends to
all other persons as well. The JMAA plaintiffs are not entitled to these documents
because materials that pertain to the legislators’ thought processes or the
communications they had regarding legislation are privileged.

3

SB 2162 lists Senator Harkins as its primary author. It lists Senators Kirby, Moran, Caughman, and Browning as
additional authors. The bill passed through the Senate Committee on Accountability, Efficiency, and Transparency,
chaired by Senator Polk. The bill passed through two House Committees: (1) Judiciary A, chaired by Representative
Baker, and (2) Ports, Harbors and Airports, chaired by then-Representative Monsour.
4
These Board Members included Pridgen, Harris, Hartley, and Reed.
5
The four Legislators were Senators Kirby, Caughman, and Harkins, and Representative Baker.

2

[225] at 9. Additionally, the Legislators contend that federal law does not require that they produce
a privilege log. They argue that any documents responsive to the request are by their very nature
privileged, rendering the creation of a privilege log, as normally required by Fed. R. Civ. P. 26,
superfluous. They contend that the doctrine of “absolute [legislative] immunity” also protects them
from having to produce a privilege log. See id. at 12.6
The JMAA Plaintiffs now ask the Court to (1) order the Legislators to produce any
responsive, nonprivileged documents, and (2) require them to produce a privilege log for
documents the Legislators claim are privileged.
II. Analysis
Rule 26 of the Federal Rules of Civil Procedure provides that "[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case. . . ." Fed. R. Civ. P. 26(b)(1). See also, e.g., United States ex
rel. Rigsby v. State Farm Fire & Cas. Co., 794 F.3d 457, 467 (5th Cir. 2015). “The Fifth Circuit
has traditionally adhered to a broad and liberal treatment of the federal discovery rules.” Gilleylen
v. City of Tupelo, Mississippi, No. 1:16CV94-SA-DAS, 2017 WL 3283863, at *1 (N.D. Miss.
Aug. 2, 2017)(citing United States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991)). “Information
within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ.
P. 26(b)(1).

6

The Legislators also claim that production of a privilege log "would be unduly burdensome and oppressive
considering the small likelihood there would be any non-privileged communications relative to Senate Bill 2162."
[225] at 12. To the extent the Legislators are claiming that production of a privilege log would be unduly
burdensome due to the responsive documents being privileged, the Court addresses that argument infra. To the
extent the Legislators contend that production of a privilege log would be unduly burdensome and oppressive for
any other reason, the Legislators have failed to provide the required evidence in support of such a claim. See Heller
v. City of Dallas, 303 F.R.D. 466, 490 (N.D. Tex. 2014)("A party resisting discovery must show specifically how
each . . . document request is overly broad, unduly burdensome, or oppressive. This requires the party resisting
discovery to show how the requested discovery was overly broad, unduly burdensome, or oppressive by submitting
affidavits or offering evidence revealing the nature of the burden.”)(citing McLeod, Alexander, Powel & Apffel, P.C.
v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)).

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a. Relevance.
The Complaint in this case alleges, inter alia, that Defendants, through passage of SB 2162,
violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. See [42] at
39-49. More specifically, the Complaint states, “Plaintiffs, in their individual capacities and as
citizens and taxpayers of the City of Jackson and the State of Mississippi, . . . allege that Senate
Bill 2162 was based, either in whole or in part, on discriminatory purposes.” Id. at 41. Courts, in
reviewing Equal Protection Clause claims, have found that the motivations behind the allegedly
discriminatory law are relevant in determining whether a violation has occurred. See Johnson v.
Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997) (“The Supreme Court has instructed us time and
again, however, that disparate impact alone cannot suffice to state an Equal Protection violation .
. . . Thus, a party who wishes to make out an Equal Protection claim must prove the existence of
purposeful discrimination motivating the state action which caused the complained-of injury.”)
See also, Gaalla v. Brown, 460 F. App'x 469, 477-78 (5th Cir. 2012) (citing Washington v. Davis,
426 U.S. 229, 243 (1976); Arlington Hts. v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977);
and Hunter v. Underwood, 471 U.S. 222, 227 (1985)).
Courts in the Fifth Circuit have found that statements by state legislators are relevant to
show discriminatory intent in the passage of legislation. See Hall v. Louisiana, No. CIV.A. 12657-BAJ, 2014 WL 1652791, at *9 (M.D. La. Apr. 23, 2014)(citing Village of Arlington, 429 U.S.
at 268.)(“The legislators argue that the evidence requested is irrelevant to show discriminatory
intent. Contrary to the legislators' argument, statements made by members of the lawmaking body
are relevant to show discriminatory intent, which may be part of the proof used to establish
Plaintiffs' substantive claims.”); see also Veasey v. Perry, No. 2:13-CV-193, 2014 WL 1340077,
at *2 (S.D. Tex. Apr. 3, 2014)(“The evidence the United States seeks to compel [from the state

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legislators] is highly relevant to its claim because it bears directly on whether state legislators,
contrary to their public pronouncements, acted with discriminatory intent in enacting SB 14.”).
Request #3 appears reasonably tailored to seek documents which may shed light on the
Legislators’ motivations in drafting and passing SB 2162. Accordingly, the Court finds that
Request #3 seeks material that may be relevant to the claims asserted in Counts VII and VIII of
the Complaint.7
b. Legislative Privilege
In addition to requiring that discovery be relevant to the claims and defenses of the case,
Rule 26 also requires that the discovery sought be “nonprivileged.” The Legislators assert that all
documents which may be responsive to Request #3 are protected by “legislative privilege,” and,
therefore, protected from disclosure.
The United States Constitution’s Speech and Debate Clause states: “. . . for any Speech or
Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.”
USCS Const. Art. I, § 6, Cl 1. However, because the Speech and Debate clause only applies to
members of Congress, federal courts have had to determine in piecemeal fashion what protections
should be afforded to state legislators. Consequently, determining whether a state legislator is
entitled to invoke legislative privilege in federal court, or determining the scope of that privilege,
is not as simple as it would be under either state law or if the legislator were a member of Congress.

The Court’s finding of relevance of the documents and information sought by Request #3 is made only as a
preliminary finding under Rule 26 of the Federal Rules of Civil Procedure. The Court’s finding that Request #3
seeks relevant documents and information should not be construed as a finding that all documents and information
responsive to Request #3 would be relevant. Further, the Court makes no finding as to the relevance of the
documents and information sought in Request #3 for purposes of analysis under the factors in Rodriguez v. Pataki,
280 F. Supp. 2d 89 (S.D.N.Y. 2003), and under the legislative privilege.
7

5

1. Federal Law Applies
Federal law controls any assertion of legislative privilege the Legislators make in this case.
The legislative privilege, as applied to claims to be decided under federal law, “is an evidentiary
privilege ‘governed by federal common law, as applied through Rule 501 of the Federal Rules of
Evidence.’” Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov't, 849 F.3d 615, 624
(5th Cir. 2017)(citing Perez v. Perry, No. SA-11-CV-360-OLG-JES, 2014 WL 106927, at *1
(W.D. Tex. Jan. 8, 2014)). The rule states:
Rule 501. Privilege in General
The common law—as interpreted by United States courts in the light of reason and
experience—governs a claim of privilege unless any of the following provides
otherwise:
•
•
•

the United States Constitution;
a federal statute; or
rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for
which state law supplies the rule of decision.
Fed. R. Evid. 501. While several claims in the Complaint are made under state law, Counts VII
and VIII are federal. Accordingly, any privilege which the Legislators seek to invoke must be one
found under federal common law.
The Legislators contend that if this case were decided under Mississippi law, they would
be completely sheltered from having to produce the requested documents. They may well be
correct. See, e.g., Jones v. Loving, 55 Miss. 109, 111 (Miss. 1877) (finding that it is not “possible
. . . to inquire into the motives which prompted [legislative action].”); Bond v. Marion Cty. Bd. of
Supervisors, 807 So. 2d 1208, 1218 (Miss. 2001)(“this Court will not look to the journals of the
legislature to determine whether the legislature [acted properly].”). Likewise, under federal law, if
the Legislators were members of Congress, they would likely be shielded by the Speech and
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Debate Clause from having to produce the documents requested, as they pertain to “legislative
conduct.” See generally Gravel v. United States, 408 U.S. 606, 622-24 (1972); Eastland v. U.S.
Servicemen's Fund, 421 U.S. 491, 502-04 (1975) (Congress enjoys absolute privilege from
testimony and absolute immunity from liability under the Speech or Debate Clause).
A compelling argument can be made that state legislators should be afforded under federal
common law the same protections as federal law provides federal legislators. After all, the law of
any given state likely affords state legislators similar protections in state court to those the
Constitution provides members of Congress. However, as will be discussed, federal common law
in its current form provides state legislators less protection than it does members of Congress.
2. State Legislators and the Qualified Legislative Privilege
The Legislators assert a “legislative privilege,” but many of the cases they cite to support
their interpretation of that privilege discuss “legislative immunity.” The doctrines of legislative
privilege and legislative immunity are similar, but distinct. As described in Rodriguez v. Pataki,
280 F. Supp. 2d 89 (S.D.N.Y. 2003) aff'd, 293 F. Supp. 2d 302 (S.D.N.Y. 2003) (hereinafter
“Rodriguez”):
Closely related to the concept of legislative immunity is the concept of legislative
privilege. Although the two doctrines are often discussed interchangeably, there is
one key difference. Legislative immunity entitles a state legislator, in an appropriate
case, to the dismissal of all of the claims against him or her in the complaint, much
as judicial immunity entitles judges to the dismissal of suits against them arising
out of the performance of their judicial functions. Legislative privilege, on the other
hand, is not absolute. Thus, courts have indicated that, notwithstanding their
immunity from suit, legislators may, at times, be called upon to produce documents
or testify at depositions.
Id. at 95 (internal citations omitted); see also United States EEOC v. Wash. Suburban Sanitary
Comm'n, 666 F. Supp. 2d 526, 531 (D. Md. 2009); Village of Arlington Heights v. Metropolitan
Housing Devel. Corp., 429 U.S. 252, 268 (1977).

7

The relevant doctrine to the motion at hand is “legislative privilege,” not “legislative
immunity.” The Legislators are not parties to this action, but instead are the subjects of subpoenas
seeking the production of documents. The question thus becomes whether the doctrine of
legislative privilege shields the Legislators from having to (1) produce the documents, and/or (2)
create a privilege log.
“The Speech and Debate Clause only applies to members of Congress and Senators and
does not, by its plain language, apply to state legislators. However, federal courts have wrestled
with whether a common law evidentiary legislative privilege applies to state legislators.” Doe v.
Nebraska, 788 F. Supp. 2d 975, 984 (D. Neb. 2011) (citing Village of Arlington Heights, 429 U.S.
at 268; National Assn. of Social Workers v. Harwood, 69 F.3d 622, 631 (1st Cir. 1995); Star
Distribs. Ltd. v. Marino, 613 F.2d 4, 9 (2d. Cir. 1980); Rodriguez, 280 F.Supp.2d at 94-96; MilesUn-Ltd., Inc., v. Town of New Shoreham, 917 F. Supp. 91, 97 (D.N.H. 1996)). “While a few such
cases have held that state and local government legislators are immune from providing testimony
in most civil cases, the evidentiary legislative privilege has not been extended to all document
production.” Id. (citing Small v. Hunt, 152 F.R.D. 509, 513 (E.D.N.C. 1994); Marylanders for Fair
Representation, Inc. v. Schaefer, 144 F.R.D. 292, 302 n. 20 (D. Md. 1992)). “That is, state and
local officials may be protected from testifying, but are not necessarily exempted from producing
documents.” Id. These cases also demonstrate that jurisprudence on the Speech and Debate Clause,
i.e. cases involving members of Congress, is distinct from federal common law relating to the
limited legislative privilege afforded state legislators. See North Carolina State Conference v.
McCrory, No. 1:13CV658, 2015 WL 12683665, at *3 (M.D.N.C. Feb. 4, 2015)(“Distinct from the

8

legislative immunity afforded federal legislators under Article I of the U.S. Constitution, the
legislative privilege of State legislators derives from federal common law.”).8
3. Fifth Circuit Authority on State Legislator Legislative Privilege
The Fifth Circuit has held that the legislative privilege is derived from federal common law
and limited in scope, describing the relevant law as follows:
“While the common-law legislative immunity for state legislators is absolute, the
legislative privilege for state lawmakers is, at best, one which is qualified." This
privilege "must be strictly construed and accepted only to the very limited extent
that permitting a refusal to testify or excluding relevant evidence has a public good
transcending the normally predominant principle of utilizing all rational means for
ascertaining the truth."
Jefferson, 849 F.3d at 624 (quoting Perez, 2014 WL 106927, at *1, and citing Rodriguez, 280 F.
Supp. 2d at 93-94). Prior to Jefferson, district courts in the Fifth Circuit had ruled similarly.
“Unlike the absolute privilege afforded to members of Congress, the legislative privilege for state
lawmakers is qualified and capable of yielding.” Hall, 2014 WL 1652791, at *8 (citing Rodriguez,
280 F.Supp.2d at 93–94; Hobert v. City of Stafford, 784 F.Supp.2d 732, 763 (S.D. Tex. 2011)).
Courts in the Fifth Circuit examining the extent to which state legislative privilege is qualified
have cited Rodriguez, or cases stemming from it, as providing the relevant analysis and law. See
Jefferson, 849 F.3d at 624; Perez, 2014 WL 106927, at *1-2; Hall, 2014 WL 1652791, at *8-9;
Harding v. City. of Dallas, No. 3:15-CV-0131-D, 2016 WL 7426127, at *12 (N.D. Tex. Dec. 23,
2016); Veasey v. Perry, No. 2:13-CV-193, 2014 WL 1340077, at *1, n. 3 (S.D. Tex. Apr. 3, 2014);

8

The Court acknowledges that some courts examining state legislator legislative privilege have found that the
privilege is absolute and indistinguishable from the doctrine of legislative immunity. See Kay v. City of Rancho
Palos Verdes, No. CV 02-03922 MMM RZ, 2003 WL 25294710, at *11-14 (C.D. Cal. Oct. 10, 2003)(collecting
cases finding in favor of an absolute state legislator legislative privilege. However, the court in Kay ultimately
disagreed with those cases and concluded that the privilege is qualified). “The cases adopting this absolute approach
rely in part on the policy underlying common law legislative immunity, i.e., to 'protect the integrity of the legislative
process by ensuring the independence of individual legislators.’” Id. at 12. (quoting from Miles-Un-Ltd., Inc., 917 F.
Supp. at 98). These cases, however, appear to be heavily outnumbered by others finding that the privilege is
qualified and distinct from legislative immunity, as the Fifth Circuit has found. See discussion infra.

9

and BBC Baymeadows, LLC v. City of Ridgeland, No. 3:14-CV-676-HTW-LRA, 2015 WL
5943250, at *5 (S.D. Miss. Oct. 13, 2015)) (citing Perez, 2014 WL 106927 at *2).
The Rodriguez court, examining legislative privilege in a redistricting case, found that “in
deciding whether and to what extent the privilege should be honored, the Court must balance the
extent to which production of the information sought would chill the [legislature’s] deliberations
concerning such important matters as redistricting against any other factors favoring disclosure.”
Rodriguez, 280 F. Supp. 2d at 100. It found that courts should weigh the following factors when
determining whether the legislative privilege should be honored:
(i) the relevance of the evidence sought to be protected; (ii) the availability of other
evidence; (iii) the 'seriousness' of the litigation and the issues involved; (iv) the role
of the government in the litigation; and (v) the possibility of future timidity by
government employees who will be forced to recognize that their secrets are
violable.
Id. at 101. Courts in the Fifth Circuit have adopted the five Rodriguez factors in determining
whether legislative privilege applies. See, e.g., Hall, 2014 WL 1652791, at *9; Perez, 2014 WL
106927, at *2. “In considering these factors, ‘the court's goal is to determine whether the need for
disclosure and accurate fact finding outweighs the legislature's need to act free of worry about
inquiry into its deliberations.’” Hall, 2014 WL 1652791, at *9 (quoting Veasey, 2014 WL
1340077, at *2; also citing Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No.
11-5065, 2011 WL 4837508, at *7 (N.D. Ill. Oct.12, 2011)).
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.” Hall, 2014 WL
1652791, at *10 (citing Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *9–10). “The
privilege . . . also applies to any information that would reveal such opinions and motives. This

10

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. Further,
communications between legislators or legislative staff and any third party would not be subject
to the legislative privilege.
If a document meets the requirements of the legislative privilege, the Legislators may
properly assert the privilege. Even then, however, because the privilege is qualified, it may be
overcome, and production of the document compelled, based upon the Court’s weighing of the
five Rodriguez factors.
4. Waiver of the Legislative Privilege
The Legislators urge the Court to find that communications between legislators and
outsiders regarding legislation should also be protected by the legislative privilege. [225] at 10-11.
In support of their position, the Legislators cite three cases: (1) Jewish War Veterans of the U.S.
of Am., Inc. v. Gates, 506 F. Supp. 2d 30, 57 (D.D.C. 2007; (2) Puente Arizona v. Arpaio, 314
F.R.D. 664, 670 (D. Ari. 2016), and (3) Tohono O’odham Nation v. Ducey, 2016 WL 3402391 at
*1, *4 (D. Ariz. June 21, 2016).
In response, JMAA Plaintiffs contend that the privilege does not extend to conversations
between legislators and third parties. See [229] at 9 (citing, Perez, 2014 WL 106927, at *2; Comm.
for a Fair & Balanced Map, 2011 WL 4837508, at *10; and Rodriguez, 280 F. Supp. 2d at 101).
While the Fifth Circuit has not addressed waiver of the legislative privilege, it has favorably cited
and quoted from Perez with regard to the qualified nature of the privilege in general. See Jefferson,
849 F.3d at 624. And the Perez court found that “[t]o the extent . . . that any legislator, legislative
aide, or staff member had conversations or communications with any outsider (e.g. party
representatives, non-legislators, or non-legislative staff), any privilege is waived as to the contents

11

of those specific communications.” Perez, 2014 WL 106927, at *2 (parenthetical in original).
Other courts have also found that a legislator waives legislative privilege with regard to any
document he shares with a third party. See Favors v. Cuomo, 285 F.R.D. 187, 212 (E.D.N.Y. 2012)
(Although the privilege extends to legislative staffs and experts, “communications with
'knowledgeable outsiders' — e.g., lobbyists — fall outside the privilege.”); Lee v. Virginia State
Bd. of Elections, No. 3:15-CV-357 (HEH-RCY), 2015 WL 9461505, at *1 (E.D. Va. Dec. 23,
2015)(“legislative privilege does not preclude the production of communications between and
among the Nonparty Legislators and third parties, such as state agencies, constituents, and
lobbyists, among others ("Third Parties"), [and] . . . does not preclude the production of
communications between and among the Legislative Employees and Third Parties . . . .”).
The Court finds that to the extent otherwise-privileged documents or information have been
shared with third parties, the privilege with regard to those specific documents or information has
been waived. On this issue, the three cases cited by the Legislators are each readily distinguishable.
Jewish War Veterans of the U.S. of Am., Inc. v. Gates addresses application of the
legislative privilege to members of Congress vis a vis the Speech and Debate Clause. See 506 F.
Supp. 2d 30, 52-60 (D.D.C. 2007). As discussed supra, the Speech and Debate Clause does not
apply to state legislators. See, e.g., Florida v. United States, 886 F. Supp. 2d 1301, 1303 (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.”).
Puente Arizona v. Arpaio addresses a similar circumstance to that in the case sub judice,
and supports the Legislators’ position that all third-party communications should be privileged.
However, the Puente Arizona court’s decision is predicated upon that court’s interpretation of two

12

other cases: Miller v. Transamerican Press, Inc., 709 F.2d 524 (9th Cir. 1983) and Almonte v. City
of Long Beach, 478 F.3d 100 (2nd Cir. 2007). The Puente Arizona court found that Miller defined
the relevant scope of the legislative privilege as applied to state legislators. Puente Arizona, 314
F.R.D. at 670. Miller, however, concerned the legislative privilege as applied to members of
Congress, not state legislators, and was thus not applicable. See Miller, 709 F.2d at 526 (former
Congressman claimed privilege pertaining to actions taken while a member of Congress). The
Puente Arizona court also found that Rodriguez was no longer good law, and had been abrogated
by the Second Circuit in Almonte. See Puente Arizona, 314 F.R.D. at 670. Almonte does not,
however, appear to have abrogated Rodriguez,9 and this Court can find no other opinion which
held similarly. In fact, earlier this year and ten years after the Almonte decision, the Fifth Circuit
cited Rodriguez favorably in Jefferson, and, thus, found Rodriguez to be good law.
The third case the Legislators cite, Tohono O’odham Nation v. Ducey, also out of Arizona,
relies on both the Puente Arizona decision, and upon Gravel v. United States, 408 U.S. 606, 625
(1972), a Speech and Debate Clause case regarding members of Congress and their staff. See
Tohono O’odham Nation, 2016 WL 3402391, at *4. For the reasons already stated, the Court also
finds this case unpersuasive.
The Court finds that to the extent documents or information otherwise protected by the
legislative privilege have been shared with third parties, the privilege has been waived.
Accordingly, the Legislators must produce those documents.

9

The Court notes that Almonte did not address Rodriguez or the issue of legislative privilege. Instead, Almonte
exclusively concerned legislative immunity. See Almonte, 478 F.3d at 103-04. And courts in the Second Circuit
continue to cite Rodriguez as good law as recently as September 2017. See, e.g., Citizens Union of City of New York
v. Attorney Gen. of New York, No. 16CV09592RMBKHP, 2017 WL 3836057, at *11 (S.D.N.Y. Sept. 1, 2017).
Further, a three-judge panel of the same court as Puente Arizona cited Rodriguez and used the Rodriguez factors to
find that documents were not protected by legislative privilege in 2014, seven years after the Almonte decision. See
Harris v. Ariz. Indep. Redistricting Comm'n, 993 F. Supp. 2d 1042, 1070-71 (D. Ariz. 2014). The Supreme Court of
the United States affirmed the three-judge panel’s decision in Harris v. Ariz. Indep. Redistricting Comm'n, 136 S.
Ct. 1301 (2016), though the legislative privilege issue was not addressed in the appeal.

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c. Privilege Log
The Legislators have invoked the legislative privilege in response to Request #3 without
producing an accompanying privilege log. Rule 26(b)(5)(A)(ii) of the Federal Rules of Civil
Procedure provides that where a party withholds documents under a privilege claim, the party must
expressly make the claim, and must “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.” See also
Walker v. George Koch Sons, Inc., No. 2:07-CV-274-KS-MTP, 2008 WL 4371372, at *6 (S.D.
Miss. Sept. 18, 2008).
Rule 26 of the Local Uniform Civil Rules states:
A party withholding information claimed privileged or otherwise protected must
submit a privilege log that contains at least the following information: name of the
document, electronically stored information, or tangible thing; description of the
document, electronically stored information, or tangible thing, which description
must include each requisite element of the privilege or protection asserted; date;
author(s); recipient(s); and nature of the privilege.
L.U.Civ.R. 26(e).
Claiming that all documents responsive to Request #3 would categorically fall within the
legislative privilege, the Legislators have not produced a privilege log. In support of their position,
the Legislators rely heavily on In re Hubbard, 803 F.3d 1298 (11th Cir. 2013), and essentially
claim that the legislative privilege is absolute. Although the Court finds that the Legislators have
made a good faith argument based on Hubbard, the Court also finds that Hubbard, an Eleventh
Circuit opinion, is inconsistent with the Fifth Circuit view (and apparent majority view) of the
legislative privilege as a limited, qualified privilege.10

10

Hubbard does not recognize a distinction between the concepts of legislative privilege, legislative immunity, and
the Speech and Debate Clause as applied to state legislators. In support of its interpretation of state legislator
“legislative privilege,” Hubbard cites the following cases: Tenney v. Brandhove, 341 U.S. 367, 372 (1951) (dealing

14

Considering the claims in this case, the specific request, and the privilege at issue, the Court
finds that Fed. R. Civ. P. 26 and L.U.Civ.R. 26 require a privilege log. Accordingly, should the
Legislators withhold any documents responsive to Request #3, they must also produce a privilege
log identifying all such documents, in accordance with Fed R. Civ. P. 26 and L.U.Civ.R. 26.
Should Plaintiffs wish to challenge a privilege claim as to any documents on the Legislators’
privilege logs, Plaintiffs must file a motion identifying the specific documents to which they
contest the claim of privilege and setting forth their arguments for production under the Rodriguez
factors and otherwise. After briefing on any such motion has been completed, the Court will, if
necessary, conduct an in camera review, in whole or part, and rule on the motion.
III. Conclusion
For the reasons given above, IT IS ORDERED that:
The Motion to Enforce Subpoenas [214] is GRANTED IN PART and DENIED IN PART.
By February 28, 2018, the Legislators must produce the nonprivileged documents
responsive to Request #3 and must produce a privilege log identifying the responsive documents
withheld from production under a claim of privilege. Any privilege log must comply with and
provide the information required by Fed. R. Civ. P. 26(b)(5)(A) and L.U.Civ.R. 26(e).
SO ORDERED, this the 19th of December, 2017
/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE

with legislative immunity of state legislators); United States v. Gillock, 445 U.S. 360, 361 (1980) (finding that Fed.
R. Evid. 501 does not bar introduction of legislative acts as evidence in a criminal prosecution of a state legislator);
Reeder v. Madigan, 780 F.3d 799, 800, 805 (7th Cir. 2015) (cited by the Hubbard court for the proposition that the
case “affirm[s] the legislative privilege of state representative and senators.” However, Reeder does not actually
discuss legislative privilege at all, and instead concerns legislative immunity. See id.at 802-03.); Women's
Emergency Network v. Bush, 323 F.3d 937, 950 (11th Cir. 2003) (discussing standing and legislative immunity);
Baraka v. McGreevey, 481 F.3d 187, 196-97 (3d Cir. 2007) (discussing legislative immunity); EEOC v. Wash.
Suburban Sanitary Comm'n, 631 F.3d 174, 181 (4th Cir. 2011) (finding that legislative privilege did not apply to the
facts of that case); and MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856, 859 (D.C. Cir. 1988)
(pertaining to the Speech and Debate Clause and members of Congress, not state legislators).

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