Doe v. Nebraska State Patrol et al

Filing 90

MEMORANDUM AND ORDER- The Magistrate Judges memorandum and order (filing 384 in Case No. 8:09CV456) shall not be disturbed and is hereby sustained; The defendant's objection to and appeal from the Magistrate Judge's memorandum and order 386 in Case No. 8:09cv456) is denied. Member Cases: 8:09-cv-00456-RGK -CRZ, 4:09-cv-03266-RGK -CRZ, 4:10-cv-03005-RGK -CRZ. Ordered by Judge Richard G. Kopf. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

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

8:09CV456

4:09CV3266

4:10CV3005

MEMORANDUM AND ORDER
On April 19, 2011, Magistrate Judge Cheryl R. Zwart entered a memorandum
and order (filing 384 in Case No. 8:09CV456) which granted in part and denied in part
the plaintiffs’ motion to compel discovery (filing 374 in Case No. 8:09CV456) in
these consolidated cases. On May 3, 2011, the defendants filed a statement of
objections (filing 386 in Case No. 8:09CV456).
Pursuant to 28 U.S.C. § 636(b)(1)(A), the court has reviewed the portions of the
memorandum and order to which objections have been made, and finds that the
objections should be denied for the reason that the Magistrate Judge’s findings of fact
and conclusions of law are not clearly erroneous or contrary to law.1

1

To the extent the appropriate standard of review is de novo, I have conducted
a de novo review.

The defendants object to that portion of the Magistrate Judge’s order which
compels them to produce the following categories of documents:
(1) All communications and correspondence between the
Nebraska Legislature and the Nebraska Attorney General’s Office
regarding LB 285 and LB 97 (Document Request Nos. 1 and 2);
(2) All interoffice communications and correspondence within the
Nebraska Legislature regarding the drafting, editing, debate, and passage
of LB 285 and LB 97 (Document Request Nos. 5 and 6); and
(3) All memorandum, notes, and other documents relating to the
drafting, editing, debate, or passage of LB 285 and LB 97 (Document
Request Nos. 9 and 10).
The defendants argue that such documents are irrelevant to the issues remaining to be
tried. They also claim that the documents are subject to legislative privilege.
For the reasons articulated in Judge Zwart’s memorandum, I am satisfied that
the plaintiffs’ requests “appear reasonably calculated to lead to the discovery of
admissible evidence.” Fed.R.Civ.P. 26(b)(1). I also conclude that Judge Zwart has
correctly analyzed the legislative privilege claim by ruling that “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” (filing 384 at
17), and by requiring the defendants to produce all other documents.2

2

Judge Zwart directed the parties to meet and confer regarding the production
of documents, encouraged them to consider entering into a “claw-back” agreement
and requesting a protective order from the court, and instructed the defendants to
prepare a privilege log for any withheld documents.
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Accordingly,
IT IS ORDERED that:
(1)

the Magistrate Judge’s memorandum and order (filing 384 in Case No.
8:09CV456) shall not be disturbed and is hereby sustained; and

(2)

the defendants’ objection to and appeal from the Magistrate Judge’s
memorandum and order (filing 386 in Case No. 8:09CV456) is denied.

June 15, 2011.

BY THE COURT:

Richard G. Kopf
United States District Judge

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