Doe v. Nebraska State Patrol et al

Filing 80

MEMORANDUM AND ORDER -The Plaintiffs motion to compel, (filing no. 374 ), is granted in part and denied in part as set forth within the order. The defendants unopposed motions to continue, (filing no. 383 ), are granted. The pretrial conference and trial of the above-captioned cases are continued pending further order of the court. The clerk shall file this memorandum and order in the lead case, 8:09-cv-00456-RGK-CRZ, as a spread text order. Member Cases: 8:09-cv-00456-RGK -CRZ, 4:09-cv-03266-RGK -CRZ, 4:10-cv-03005- RGK -CRZ Ordered by Magistrate Judge Cheryl R. Zwart. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN and JANE DOE 1-36, et al.,
Plaintiffs,
v.
STATE OF NEBRASKA, et al.,
Defendants.
JOHN DOE, et al.,
Plaintiff,
v.
STATE OF NEBRASKA, et al.,
Defendants.

JOHN DOE, et al.,
Plaintiff,
v.
STATE OF NEBRASKA, et al.,
Defendants.

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8:09CV456

4:09CV3266

4:10CV3005

MEMORANDUM AND ORDER

This matter is before the court on the plaintiffs’ motion to compel the defendants to
comply with discovery requests (filing no. 374). For the reasons set forth below the motion
is granted in part and denied in part.

BACKGROUND

These consolidated cases involve the plaintiffs’ challenge to the constitutionality of
amendments to Nebraska’s Sex Offender Registration Act (“SORA”). The plaintiffs are
challenging parts of Legislative Bills 97 (LB 97) and 285 (LB 285) which were passed by the

Nebraska Legislature and signed into law by the Governor in May of 2009. The parties filed
competing motions for summary judgment, and the Honorable Richard G. Kopf issued his
ruling on August 16, 2010, (filing no. 354).

Although many of the issues were resolved by summary judgment, Judge Kopf
determined several issues of fact remained. Specifically, the following issues remain for trial:

•

Whether Neb. Rev. Stat. §§ 29-4006(1)(k)&(s), 29-4006(2), and 28-322.05,
either alone or collectively impose a punishment for (1) offenders who had
served their time and were no longer under criminal justice supervision on
January 1, 2010; and (2) offenders who had been sentenced prior to January 1,
2010, but remained under criminal justice supervision on or after January 1,
2010, in violation of the Ex Post Facto Clause either on the face of the statutes
or as applied.

•

Whether Neb. Rev. Stat. § 29-4006(2) violates the Fourth Amendment as to
offenders who were previously convicted of sex crimes and who were on
probation, parole or court-monitored supervision on or after January 1, 2010.

•

How Neb. Rev. Stat. § 28-322.05 actually operates and whether its operation
violates the Due Process Clause of the Fourteenth Amendment and the First
Amendment.

•

How Neb. Rev. Stat. § 29-4006(1)(k)&(s) actually operates and whether it
violates plaintiffs’ First Amendment Right to free speech.

2

Discovery commenced, and the plaintiffs have served Interrogatories and Requests for
Production on the various defendants.

The respective defendants have raised several

objections to a number of the Interrogatories and Requests for Production, including the
following:

Defendant Douglas County Attorney

Interrogatory No. 2:

Identify all documents and any correspondence, in any
form or medium, which relate in any way to the
enforcement of the Nebraska Sex Offender Registration
Act over the past three (3) years.

Response:

This is a facial and as-applied challenge to the Nebraska
Sex Offender Registration Act and, therefore, Defendants
object to this interrogatory as overly broad, unduly
burdensome, lacking any relevance to the issues in this
suit, and not reasonably calculated to lead to the discovery
of admissible evidence. Furthermore, to the extent any
documents exist, they are subject to the attorney-client,
work product, and legislative privilege.

Defendant Jon Bruning, Nebraska Attorney General

Interrogatory No. 1:

Identify all organizations and individuals consulted in the
drafting and editing of the current version of the Nebraska
Sex Offender Registration Act.

Response:

This is a facial and as-applied challenge to the Nebraska
Sex Offender Registration Act and, therefore, Defendants
object to this interrogatory as overly broad, unduly
burdensome, lacking any relevance to the issues in this
suit, and not reasonably calculated to lead to the discovery
of admissible evidence.

3

Interrogatory No. 2:

Identify all documents and any correspondences, in any
form or medium, which relate in any way to the
allegations in the Amended Complaint or the Answer to
the Amended Complaint.

Response:

This is a facial and as-applied challenge to the Nebraska
Sex Offender Registration Act and, therefore, Defendants
object to this interrogatory as overly broad, unduly
burdensome, lacking any relevance to the issues in this
suit, and not reasonably calculated to lead to the discovery
of admissible evidence. Furthermore, to the extent any
documents exist, they are subject to the attorney-client,
work product, and legislative privilege.

Defendant State of Nebraska

Interrogatory No. 1:

Identify all State employees involved in drafting and
editing the current version of the Nebraska Sex Offender
Registration Act.

Response:

This is a facial and as-applied challenge to the Nebraska
Sex Offender Registration Act and, therefore, Defendants
object to this interrogatory as overly broad, unduly
burdensome, lacking any relevance to the issues in this
suit, and not reasonably calculated to lead to the discovery
of admissible evidence.

Interrogatory No. 2:

Identify all documents and any correspondences, in any
form or medium, in the custody of the State, including the
State Legislature, that relate in any way to the allegations
in the Amended Complaint and the Answer to the
Amended Complaint.

Response:

This is a facial and as-applied challenge to the Nebraska
Sex Offender Registration Act and, therefore, Defendants
object to this interrogatory as overly broad, unduly
burdensome, lacking any relevance to the issues in this
4

suit, and not reasonably calculated to lead to the discovery
of admissible evidence. Furthermore, to the extent any
documents exist, they are subject to the attorney-client,
work product, and legislative privilege.
Requests for Production as to all Defendants

Request No. 1:

All communications and correspondences between the
Nebraska Attorney General’s Office and the Nebraska
State Legislature regarding LB 285, including, but not
limited to, all electronically stored communication or
correspondence.

Request No. 2:

All communications and correspondence between the
Nebraska Attorney General’s Office and Nebraska State
Legislature regarding LB 97, including, but not limited to,
a ll e le c tronic a lly store d c ommunic a tion o r
correspondence.

Request No. 3:

All interoffice communication and correspondences within
the Nebraska Attorney General’s Office regarding the
drafting and editing of LB 285, including, but not limited
to, all electronically stored communication or
correspondence.

Request No. 4:

All interoffice communication and correspondences within
the Nebraska Attorney General’s Office regarding the
drafting and editing of LB 97, including, but not limited
to, all electronically stored communication or
correspondence.

Request No. 5:

All interoffice communication within the Nebraska
Legislature regarding the drafting, editing, debate, and
passage of LB 285, including, but not limited to, all
electronically stored communication or correspondence.

5

Request No. 6:

All interoffice communication within the Nebraska
Legislature regarding the drafting, editing, debate, and
passage of LB 97, including, but not limited to, all
electronically stored communication or correspondence.

Request No. 7:

All interoffice communication and correspondence within
the Nebraska State Patrol regarding LB 285, including,
but not limited to, all electronically stored communication
or correspondence.

Request No. 8:

All interoffice communication and correspondence within
the Nebraska State Patrol regarding LB 97, including, but
not limited to, all electronically stored communication or
correspondence.

Request No. 9:

All other memorandum, notes, and other documents
relating to the drafting, editing, debate, or passage of LB
285.

Request No. 10:

All other memorandum, notes, and other documents
relating to the drafting, editing, debate, or passage of LB
97.

Request No. 12:

For the past three (3) years, all documentation and
correspondence of any kind, including, but not limited to,
electronic information and correspondence, pertaining to
the enforcement of the Nebraska Sex Offender
Registration Act.

Request No. 13:

For the past three (3) years, all documentation and
correspondence of any kind, including, but not limited to,
electronic information and correspondence, pertaining to
the interpretation of the Nebraska Sex Offender
Registration Act.

Response to All:

This is a facial and as-applied challenge to the Nebraska
Sex Offender Registration Act and, therefore, Defendants
6

object to this interrogatory as overly broad, unduly
burdensome, lacking any relevance to the issues in this
suit, and not reasonably calculated to lead to the discovery
of admissible evidence. Furthermore, to the extent any
documents exist, they are subject to the attorney-client,
work product, and legislative privilege.
ANALYSIS

Parties may discover relevant, unprivileged information that is admissible at trial or
reasonably calculated to lead to admissible evidence. Fed. R. Civ. P. 26(b)(1).

Rule 26(b) of the Federal Rules of Civil Procedure is widely recognized as a
discovery rule which is liberal in scope and interpretation, extending to those
matters which are relevant and reasonably calculated to lead to the discovery of
admissible evidence. Kramer v. Boeing Co., 126 F.R.D. 690, 692 (D.Minn.1989)
(and cases cited therein). While the standard of relevance in the context of
discovery is broader than in the context of admissibility (Rule 26(b) clearly states
that inadmissibility is no grounds for objection to discovery), Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978), Culligan v.
Yamaha Motor Corp., USA, 110 F.R.D. 122 (S.D.N.Y.1986), this often intoned
legal tenet should not be misapplied so as to allow fishing expeditions in
discovery. Some threshold showing of relevance must be made before parties are
required to open wide the doors of discovery and to produce a variety of
information which does not reasonably bear upon the issues in the case.
Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).

Once the requesting party meets the threshold relevance burden, “[a]ll discovery requests
are a burden on the party who must respond thereto. Unless the task of producing or answering
is unusual, undue or extraordinary, the general rule requires the entity answering or producing
to bear that burden.” Continental Ill. Nat’l Bank & Trust Co. Of Chicago v. Caton, 136 F.R.D.
682, 684-85 (D. Kan. 1991). The party opposing the motion to compel must provide specific

7

explanations or factual support as to how each request is improper. St. Paul Reinsurance Co.,
Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 511-12 (N.D. Iowa 2000).

“The fact that production of documents would be burdensome and expensive and would
hamper a party’s business operation is not a reason for refusing to order production of relevant
documents.” Wagner v. Dryvit Systems, Inc., 208 F.R.D. 606, 610 (D. Neb. 2001) (internal
citations omitted). The standard is whether the burden or expense is “undue” and whether the
“hardship is unreasonable in the light of the benefits to be secured from the discovery.” Id.
(quoting Wright, Miller & Marcus, Federal Practice and Procedure § 2214, p. 435 (1994)). A
party claiming requests are unduly burdensome cannot make conclusory allegations, but must
provide some evidence regarding the time or expense required. See Horizon Holdings, L.L.C.
v. Genmar Holdings, Inc., 209 F.R.D. 208, 213 (D. Kan. 2002).

With these basic principles in mind, each of the defendants’ objections regarding the
motion to compel are addressed below.

1.

Relevance

The defendants assert that much of the information requested by the plaintiffs is not
relevant. For instance, the defendants argue that none of the requested information may be
used to establish legislative intent and only the plain language of the statute and the official
legislative history may be used to determine the express or implied intent of the legislature.
Further, they argue, information from the Douglas County Attorney, the Nebraska Attorney
General’s Office and the Nebraska State Patrol cannot lead to the discovery of admissible
evidence.

It is true, particularly in Ex Post Facto Clause cases, that courts generally do not look
beyond the face of the statute, the stated purpose of the statute, and the official legislative history.
8

See United States v. May, 535 F.3d 912, 919-920 (8th Cir. 2008); see also In re DNA Ex Post
Facto Issues, 561 F.3d 294, 298 (4th Cir. 2009)(stating the court considers the structure and
design of the statute as well as the declared legislative intent); Hatton v. Bonner, 356 F.3d 955,
961-62 (9th Cir. 2004)(considering the official statements of the legislature and the structure of
the statute); Femedeer v. Haun, 227 F.3d 1244, 1249 (10th Cir. 2000)(considering the language
of the statute and the legislative record); Taylor v. State of Rhode Island, 101 F.3d 780, 783-84
(1st Cir. 1996). However, these cases do not address the use of other evidence of legislative
intent, nor do they discuss whether such an inquiry is appropriate. Thus, they do not expressly
rule out the use of materials beyond the official legislative record, nor comment on whether such
inquiries are proper. See Kay v. City of Rancho Palos Verdes, case no. cv02-03922, 2003 WL
25294710 at *8-9 (C.D.Cal. 2003)(finding case law did not expressly forbid further inquiry into
legislative intent in a case involving a “Bill of Attainer” claim).

Moreover, a number of cases, particularly those involving potential violations of
constitutional rights, have allowed queries into legislators’ motivations. See South Dakota Farm
Bureau Inc. v. Hazeltine, 340 F.3d 583, 594-96 (8th Cir. 2003) (reviewing meeting notes and
materials to determine whether a discriminatory intent existed); see also Village of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977) (noting it may be appropriate to
examine legislative motivations); Hayden v. Paterson, 594 F.3d 150, 163 (2d Cir. 2010) (noting
discriminatory intent is rarely susceptible to direct proof, and historical background is a proper
source of inquiry in a due process case). While those cases did not involve the Ex Post Facto
clause, they do address other constitutional rights in which legislative intent was at issue.

As Judge Kopf noted in his opinion on the competing summary judgment motions, the
acrimonious statements by the legislator who introduced the bill provides some evidence that
sections LB 97 and LB 285 were meant to be punitive. Thus, given the mandate on the parties
to further develop the record, the unique nature of the disputed statutes, and the case law finding
review of legislative materials is not strictly forbidden in all cases, the court does not believe
9

inquiries into the legislative intent behind the drafting, implementation and enforcement of the
statutes in question are irrelevant. Thus, the court overrules defendants’ relevancy objections.

2.

Overly Broad

Defendants also argue that the disputed discovery requests are overly broad. A few of
plaintiffs’ request do not appear to be narrowly tailored enough to meet the threshold showing
of relevance.

a.

Discovery seeking information regarding SORA, as it existed prior to
January 1, 2010

Requests for Production Nos. 12 and 13 seek information from the past three (3) years
related to interpretation and enforcement of the Nebraska Sex Offender Registration Act.
However, such a request likely requires the production of information well beyond the disputed
statutes in question. Likewise, Interrogatory No. 2, served on defendant Douglas County
Attorney, Donald Kleine requests for three (3) years worth of correspondence and documents
related to the enforcement of the Nebraska Sex Offender Registration Act.

The vast majority of the statutes in the Nebraska Sex Offender Registration Act are not
implicated in the present case. Indeed, the plaintiffs have not explained, nor does the court
understand, how the enforcement of the Nebraska Sex Offender Registration Act, as it existed
prior to January 1, 2010 is relevant to this proceeding. Thus, to the extent the requests seek
information about the enforcement Nebraska Sex Offender Registration Act as it existed prior
to January 1, 2010, that information is not relevant and the plaintiffs’ motion to compel is denied
to that extent.

b.

Interrogatories requesting “all” documents which relate “in any way”
to the Amended Complaint or Answer.
10

Interrogatory No. 2 served on the Nebraska Attorney General and Interrogatory No. 2
served on the State of Nebraska ask the defendants to identify “all” documents and
correspondence, “that relate in any way” to the allegations in the Amended Complaint and the
Answer to the Amended Complaint. These requests are not limited in any way and are akin to
asking the defendants to identify “all documents related in any way to this case.” The request
makes no allowance for the fact a number of the claims in the Amended Complaint have been
disposed of, thus, it is likely documents and communications included in these Interrogatories
are no longer relevant to this case. The unfettered nature of these requests appears to be a fishing
expedition. See, e.g, WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032,
1038 (8th Cir. 2011)(upholding the district court’s determination that a request seeking all
documents without regard to source or location was overly broad). Therefore, Interrogatory No.
2 served on the Nebraska Attorney General and Interrogatory No. 2 served on the State of
Nebraska are overly broad.

3.

Privileges

The defendants also assert several evidentiary privileges which, they argue, preclude
responses to virtually all of the disputed discovery. The respective privileges will be discussed
in turn below.

a.

Federal Law Applies

The parties apparently disagree on whether federal law or state law applies to the
privileges asserted in this case. Fed. R. Evid. 501 provides:

Except as otherwise required . . . the privilege of a witness, person, government,
State or political subdivision thereof shall be governed by the principles of
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common law as they may be interpreted by the courts of the United States in
light of reason and experience. . . . However, in civil actions and proceedings,
with respect to an element of a claim or defense as to which State law supplies
the rule of decision, the privilege of a witness, person, government, State or
political subdivision thereof shall be determined in accordance with State law.
Fed. R. Evid. 501.

Courts that have addressed the issue in cases based on federal question jurisdiction have
routinely applied federal privilege law. See Hollins v. Powell, 773 F.2d 191, 196 (8th Cir.
1985); Geissal v. Moore Medical Corp., 192 F.R.D. 620, 623 (E.D. Mo. 2000); see also In re
Sealed Case, 381 F.3d 1205, 1212 n. 7 (D.C. Cir. 2004)(when a case is before a federal court
on the basis of federal question jurisdiction, federal law of privilege applies even where
pendent state law claims are present). In the instant case, the matter is before the court on
federal question jurisdiction. Thus, the court will apply the federal law of privilege.

b.

Legislative Privilege

Much of the parties’ time and effort regarding this dispute centers around whether the
defendants are protected by the common law legislative privilege – one that defendants allege
protects state legislators from having to respond to discovery requests. The genesis of this
privilege is found in the Speech and Debate Clause of the United States Constitution. Article
I, Section 6, provides that “for any Speech or Debate in either House” legislators “shall not be
questioned in any other Place.” Based on this language, courts have found that federal
Senators and Representatives are protected from civil actions in at least two respects: (1)
federal legislators benefit from “legislative immunity” and are absolutely immune from suit for
actions they engaged in as part of the legislative process and (2) federal legislators also benefit
from a “legislative privilege” that protects federal legislators from having to testify or supply

12

other evidence in many instances.1 Supreme Court of Va. v. Consumers Union of the United
States, 446 U.S. 719, 732-34 (1980); Rodriguez v. Pataki, 280 F.Supp.2d 89, 94-6 (S.D.N.Y.
2003). The evidentiary privilege has been interpreted to allow federal legislators to avoid the
production of documents in certain cases. See Brown & Williamson Tobacco Corp. v.
Williams, 62 F.3d 408, 420 (D.C. Cir. 1995).

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.2 See 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 94-6; Miles-Un-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,3
the evidentiary legislative privilege has not been extended to all document production. See
Small v. Hunt, 152 F.R.D. 509, 513 (E.D.N.C. 1994); Marylanders for Fair Representation,
1

The most often cited rational for the Speech and Debate Clause is two-fold: (1) the need to

avoid interference by the Executive or Judiciary Branches and (2) “the desire to protect legislative
independence.” United States v. Gillock, 445 U.S. 360, 369 (1980).
2

It is true state legislators are absolutely immune from suit in actions brought in federal court

under 42 U.S.C. § 1983. See Tenney v. Brandhove, 341 U.S. 367 (1951). However, Tenney and its
progeny do not stand for the proposition that state legislators are never required to supply evidence in
a federal civil case where, like the instant case, there is no threat of personal liability to any of the state
legislators.
3

The legislative privilege does not exist for state legislators in federal criminal prosecutions.

United States v. Gillock, 445 U.S. 360, 373-74 (1980); United States v. Vesterso, 828 F.2d 1234, 1243
(8th Cir. 1987).

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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.

Indeed, in most cases the only evidentiary legislative privilege regarding the production
of documents available to state legislators (and other local government officials) is a very
narrow and qualified one, sometimes referred to as a “deliberative process privilege.”4 See In
re Grand Jury, 821 F.2d 946, 958-59 (3d Cir. 1987); Kay, 2003 WL 25294710 at *8-9;
Rodriguez, 280 F. Supp. 2d at 95-6; Newport Pacific Inc. v. County of San Diego, 200 F.R.D.
628, 637-639 (S.D. Cal. 2001); Manzi v. DiCarlo, 982 F.Supp 125 (E.D.N.Y. 1997); Florida
Assn. of Rehabilitation Facilities, Inc. v. State of Florida Dept. of Health and Rehabilitation
Services, 164 F.R.D. 257, 266-68 (N.D. Fla. 1995); Corporation Insular de SeGuros v. Garcia,
709 F.Supp. 288 (D. Puerto Rico 1989).
The deliberative process privilege protects only the legislative decision making process.
Courts have recognized the value of the privilege “to protect the confidentiality of
communications with the office-holder involving the discharge of his or her office . . . .”
Florida Assn. of Rehabilitation Facilities, Inc., 164 F.R.D. at 267. This privilege is generally
deemed to apply only to “communications involving opinions, recommendations or advice
about legislative decisions.” In re Grand Jury, 821 F.2d at 959. Such materials may be entitled
to protection in order to “promote earnest discussion within governmental walls.” Corporacion
Insular, 709 F.Supp. at 296 (citing United States v. Nixon, 418 U.S. 683, 705 (1974)).
However, documents containing factually based information used in the decision-making
process or disseminated to legislators or committees, such as committee reports and minutes
4

While some courts have created a distinction between an evidentiary legislative privilege and

the deliberative process privilege, commentators have opined that the deliberative process privilege,
particularly when applied to document production, is simply one type of legislative privilege. See 26A
Wright and Graham, Federal Practice and Procedure: Evidence § 5675 (West 2010); see also
Corporation Insular, 709 F.Supp at 295.

14

of meetings, are not entitled to protection under the deliberative process privilege. See MilesUn-Ltd., 917 F.Supp. at 100-01(allowing for the discovery of records and documentation
pertaining to the challenged city ordinance); Florida Assn. of Rehabilitation Facilities, Inc., 164
F.R.D. at 267; Small, 152 F.R.D. at 513; Marylanders for Fair Representation, Inc., 144 F.R.D.
at 302, n. 20 (D. Md. 1992).

Various courts have provided guidelines for the application of the deliberative process
privilege with regard to requests for production of documents. See Qamhiyah v. Iowa State
University, 245 F.R.D. 393, 396-97 (S.D. Iowa 2007) (applying the deliberative process
privilege in the context of a claim under the Freedom of Information Act); see also Corporation
Insular, 709 F.Supp. at 295; Florida Assn. of Rehabilitation Facilities, Inc., 164 F.R.D. at 26768 . These cases generally hold that a deliberative process privilege is qualified and protects
only documents which are pre-decisional, deliberative and reflect the subjective intent of the
legislators. Qamhiyah, 245 F.R.D. at 396. That is, the document must have been prepared
before the law or policy was enacted, must relate directly to the decision making process, and
must contain opinion or subjective material.

See Missouri Coalition for Environment

Foundation v. U.S. Army Corps of Engineers, 542 F.3d 1204, 1211 (8th Cir. 2008)(discussing
the deliberative privilege in the context of the Freedom of Information Act). Objective facts
will not be shielded from production by the deliberative process privilege. See United States
v. Irvin, 127 F.R.D. 169, 172 (C.D. Cal. 1989).

Further, even if the documents requested appear to fall under the auspices of the
deliberative process privilege, protection from production is not a given. Courts evaluating
whether to apply the deliberative process privilege generally treat it as a qualified privilege and
only protect documents from discovery after applying a balancing test based on the following
factors: “(1) the relevance of the evidence; (2) the availability of other evidence; (3) the
government’s role in the litigation; and (4) the extent to which disclosure would hinder frank
15

and independent discussion regarding contemplated policies and decisions.” Qamhiyah, 245
F.R.D. at 396 (quoting F.T.C. v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir.
1984)); see also Rodriguez, 280 F.Supp.2d at 101 (quoting In re Franklin Nat’l Bank Secs.
Litig., 478 F.Supp. 577, 583 (E.D.N.Y. 1979).

In this case, several of the interrogatories and requests for production appear to
implicate the legislative privilege. For instance, Requests for Production Nos. 5, 6, 9, 10, 12
and 13 all request documents and correspondence which could include those produced by
legislators or their aides. The plaintiffs argue the legislative privilege is inapplicable, while
the defendants are attempting to claim essentially all of the disputed discovery requests are
subject to the legislative privilege. Neither parties’ argument is wholly persuasive or consistent
with the law.

The defendants arguments for a broad and absolute legislative privilege regarding the
production of documents are unavailing. Virtually every case cited by the defendants involved
attempts to depose government officials or call them to the witness stand. The cases regarding
document production involved subpoenas to federal lawmakers. See Brown & Williamson
Tobacco Corp., 62 F.3d at 420; United Transportation Union v. Springfield Terminal Railway
Co., 132 F.R.D. 4, 6 (D. Me. 1990). These holdings are not applicable to cases, like the one
now before the court, involving a state governmental body in a federal court.

This court agrees with the reasoning of many courts that have held any legislative
privilege regarding the production of documents available to state legislators is a qualified
“deliberative process privilege.” Kay, 2003 WL 25294710 at *15-17; Newport Pacific Inc.,
200 F.R.D. at 637-639; Rodriguez, 280 F. Supp. 2d at 95-96; Manzi, 982 F.Supp at 129;
Corporation Insular, 709 F.Supp. at 296; Florida Assn. of Rehabilitation Facilities, Inc., 164
F.R.D. at 266-68. As summarized by the Third Circuit:
16

These limitations reflect a careful tailoring of the [deliberative process] privilege
to achieve its purpose of protecting confidentiality without unduly inhibiting the
truth-finding process of litigation. . . . [W]e therefore reject the . . . assumption
that a privilege protects all state legislative documents which may somehow
reveal the “thought processes” of state legislators. Confidentiality concerns do
not sweep so broadly. If a deliberative process privilege does protect state
legislators, it is limited to communications involving opinions, recommendations
or advice about legislative decisions. . . . [S]everable factual material cannot be
privileged.
In re Grand Jury, 821 F.2d at 959.

Based on this and the other case law examined above, the court finds only documents
or communications that were created prior to the passage and implementation of LB 97 and LB
285 that involve opinions, recommendations or advice about legislative decisions between
legislators or between legislators and their aides – that is, documents that are pre-decisional,
deliberative and contain matters of opinion – will be considered for protection under the
deliberative process privilege.

c.

Attorney-Client and Work-Product Privileges

As with their claim of legislative privilege, the defendants have not identified any
specific documents for the plaintiff or the court to evaluate its attorney-client privilege and
work product claims. It is highly unlikely that defendants’ claims that all of the disputed
requests involve documents that fall under attorney-client and work product protection. For
instance, Request Nos. 7 and 8 seek all “communication and correspondences within the
Nebraska State Patrol” regarding LB 285 and LB 97. Asserting a blanket privilege for these
documents simply is not sufficient.

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d.

Production Agreements/Privilege Logs

To the extent the defendants stand on their privilege claims, they shall first confer with
the plaintiffs in good faith to determine if an agreement can be reached regarding the scope,
type, and method of document disclosure. The parties are encouraged to consider using
protective orders, or “claw-back” agreements such as those contemplated under Rule 502(d)
and (e). See, e.g., Jicarilla Apache Nation v. United States, 91 Fed. Cl. 489, 494 (Fed. Cl.
2010) (“If defendant truly is concerned that the production here would occasion a waiver of
the privilege in other cases, it can easily remedy that matter by formally seeking relief under
[Rule 502(d)].”); Capitol Records, Inc, v. MP3tunes, LLC, 261 F.R.D. 44, 51 (S.D.N.Y. 2009)
(explaining that if the defendant wants to ensure an ability to timely respond to discovery
despite the need to review its emails for privilege issues, it can confer with the plaintiff and
seek a court-ordered “clawback agreement”).

If an agreement cannot be reached between the parties, consistent with the court’s
general practice, if any document is withheld from production or disclosure based on a claim
of confidentiality under the attorney-client privilege, deliberative process privilege, or work
product doctrine, the defendants shall, pursuant to Fed. R. Civ. P. 26(b)(5)(A), for each
document withheld, disclose a description of the document with as much specificity as is
practicable without disclosing its contents, including:

(a)

the general nature of the document;

(b)

the identity and position of its author;

(c)

the date it was written;

(d)

the identity and position of its addressee;

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(e)

the identities and positions of all persons who were given or have received
copies of it and the dates copies were received by them;

(f)

the document's present location and the identity and position of its custodian;
and

(g)

the specific reason or reasons why it has been withheld from production or
disclosure.

Upon receiving the defendants’ privilege log, the plaintiffs may then confer in good
faith to resolve any remaining dispute regarding the production of a document or documents,
and if it cannot be resolved, the plaintiffs may then move to compel specific documents
identified on the privilege log.

To be clear, as to the deliberative process privilege, the privilege log shall list only those
documents which arguably fall within the scope of the privilege as defined above. To the
extent the requested documents are not protected by the attorney -client privilege or work
product doctrine; are otherwise responsive to plaintiffs’ discovery requests; contain factual
information regarding the drafting, passage or enforcement of LB 97 and LB 285; or were
communicated to or shared with non-legislative members, those documents shall be produced.

IT IS ORDERED:
1)

The Plaintiffs’ motion to compel, (filing no. 374), is granted in part and denied
in part as follows:
a.

The motion is denied to the extent Interrogatory No. 2, served on
defendant Douglas County Attorney, Donald Kleine, and Requests for
Production Nos. 12 and 13 seek information regarding the enforcement
of the Nebraska Sex Offender Registration Act as it existed prior to
January 1, 2010.

b.

The motion to compel is denied as to Interrogatory No. 2, served on the
Nebraska Attorney General and State of Nebraska.
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c.

On or before April 29, 2011, the parties shall confer to determine if an
agreement (e.g., a protective order or claw-back agreement) can be
reached regarding the scope, type, and method of document disclosure.
Any agreement reached shall be submitted for court review and approval
on or before May 6, 2011.

d.

If the parties cannot reach a full agreement as to completion of the
discovery at issue, on or before May 13, 2011, the defendants shall
prepare and serve on the plaintiffs a privilege log (as described in this
memorandum and order) identifying any documents for which the
defendants assert either the deliberative process privilege, the attorneyclient privilege, or work product protection as a basis for non-disclosure.

e.

The discovery and deposition deadline is extended to July 15, 2011.
Motions to compel discovery must be filed on or before July 1, 2011.

2)

The defendants’ unopposed motions to continue, (filing no. 383), are granted.
The pretrial conference and trial of the above-captioned cases are continued
pending further order of the court.

3)

The clerk shall file this memorandum and order in the lead case,
8:09-cv-00456-RGK-CRZ, as a spread text order.

DATED this 19th day of April, 2011.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court
for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or
the services or products they provide on their Web sites. Likewise, the court has no agreements with
any of these third parties or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some
other site does not affect the opinion of the court.

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