Veasey et al v. Abbott et al

Filing 226

ORDER ON MOTION TO COMPEL granting in part and denying in part #162 Motion to Compel.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MARC VEASEY, et al,
Plaintiffs,
VS.
RICK PERRY, et al,
Defendants.

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§ CIVIL ACTION NO. 2:13-CV-193
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ORDER ON MOTION TO COMPEL

Before the Court is “United States’ Motion to Compel the Production of
Legislative Documents” (D.E. 162). Defendant, the State of Texas (Texas), objects to the
requested discovery and defends the motion on the grounds that the United States’s
request is procedurally improper and the documents sought are protected by the
legislative and attorney-client privileges. D.E. 183, 190, and 199. For the reasons set
forth below, the United States’ motion to compel is GRANTED IN PART and
DENIED IN PART.
I.

The United States is not required to serve individual legislators or the Texas
Attorney General’s Office with Rule 45 subpoenas for documents that are in
Texas’s possession.
The parties disagree about the proper procedural vehicle for conducting discovery

of legislative documents. The United States seeks to effect discovery pursuant to FED. R.
CIV. P. 34 based on its claim that the documents sought are in the possession, custody, or
control of Texas—a party to this litigation. Texas contends that Texas legislators are nonparties to this litigation so the United States must serve Rule 45 subpoenas on the
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individual state legislators who are the authors or recipients of the documents the United
States seeks. The Texas Office of the Attorney General (OAG) received the documents
at issue from the legislators in connection with prior litigation between Texas and the
United States involving the same voting rights claims now before this Court.
At a hearing held April 1, 2014, the Court announced its finding that although
neither the OAG nor the state legislators are parties to the present lawsuit, the documents
at issue are in Texas’s possession, and because Texas is a party to the lawsuit, any
documents in its possession are discoverable pursuant to Rule 34.1,2 To the extent the
United States seeks documents that are not in Texas’s possession, they must subpoena the
individual legislators for those materials under Rule 45.
The Court further ruled that the Texas Legislative Council (TLC) is an entity
separate and apart from the State of Texas. Consequently, any documents of the TLC
that are not already in the possession, custody, or control of Texas must be obtained
through a Rule 45 subpoena. However, if documents are already in the possession of
Texas, they may be obtained pursuant to Rule 34.
II.

Although a qualified legislative privilege exists, the United States’s interest is
of sufficient importance to compel the production of the requested legislative
documents and ESI in a limited manner.

1

“A party may serve on any other party a request . . . to produce . . . items in the responding party's possession,
custody, or control.” FED R. CIV. P. 34(a)(1). As Plaintiffs point out, “the phrase ‘possession, custody or control’ is
in the disjunctive and only one of the numerated requirements need be met.” D.E. 189, p. 13 (citing Soto v. City of
Concord, 162 F.R.D. 603, 619. (N.D. Cal. 1995)).

2

The documents are discoverable subject to any applicable privileges, some of which are discussed below.

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A.

The legislative privilege exists, but it is qualified.

The Supreme Court of the United States articulated a testimonial privilege for state
legislators. Village of Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 268 (1977). It severely limited, but did not foreclose, the possibility of
piercing the privilege for state legislators in discriminatory-intent claims. Id. Subsequent
cases have reinforced the qualified nature of the legislative privilege.3 Accordingly, this
Court recognizes the existence of a state legislative privilege but declines to adopt
Texas’s characterization of that privilege as absolute.
B.

Texas must produce documents and ESI in its possession for legislators
who have waived the privilege.

The legislative privilege is not applicable to the documents of any legislator who
voluntarily waives the privilege. Accordingly, the legislative privilege is waived as to the
37 legislators who voluntarily waived it. The privilege is also deemed to be waived as to
the 17 legislators4 who did not respond to defense counsel’s inquiry regarding the
assertion of the privilege.5 Documents for these 54 legislators are subject to disclosure,
and Texas is ordered to turn them over by April 8, 2014.

3

See Rodriguez v. Pataki, 280 F. Supp. 2d 89, 95-96 (S.D.N.Y. 2003) (stating that legislative privilege, unlike
legislative immunity, is not absolute); see also Hobert v. City of Stafford, 784 F.Supp.2d 732, 763 (S.D. Tex. 2011)
(finding that a qualified privilege was appropriate for local legislators); U.S. v. Gillock, 445 U.S. 360, 373 (“Where
important federal interests are at stake, such as the enforcement of federal statutes, comity yields.”).
4
Defense counsel has indicated that one of the legislators could not respond due to illness. D.E. 219-4, p. 2. The
Court declines to make a determination on whether the privilege is waived as to that individual legislator at this
time.
5

The individual legislators are listed in the exhibits to D.E. 219.

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C.

The balance of the privilege factors weighs in favor of disclosure.

According to Texas, 189 legislators have asserted the legislative privilege. As a
qualified privilege, there is an established framework of five factors that courts have
weighed in determining whether the legislative documents must be disclosed: (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 the 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. Perez v. Perry, 2014 WL 106927,
at *2 (S.D. Tex. Jan. 8, 2014).

“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.’” Comm. for a Fair & Balanced Map v. Ill. State
Bd. of Elections, 2011 WL 4837508, at *7 (N.D. Ill. Oct. 12, 2011) (citing ACORN v.
County of Nassau, 2009 WL 2923435, at *7 n. 2). On one hand, the importance of
eliminating racial discrimination in voting—the bedrock of this country’s democratic
system of government—cannot be overstated.

On the other hand, ensuring that

legislators maintain the privilege of confidential communication with their aides, staff
members, and other legislators in the discharge of their duties is vital to the legislative
process. In seeking to strike the proper balance, this Court finds the five-factor analysis
applied in Perez and Committee for a Fair & Balanced Map to be the appropriate rubric
for determining when the legislative privilege should give way to the need for disclosure
in discovery. As discussed below, the Court reserves the question whether the legislative
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privilege should be pierced—making the products of discovery admissible—until the
time of trial.
The Court finds that the first, third, and fourth factors weigh strongly in favor of
disclosure. The evidence the United States seeks to compel 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.

The federal

government’s interest in enforcing voting rights statutes is, without question, highly
important, as noted above. Further, the state government’s role is direct. The motive and
intent of the state legislature when it enacted SB 14 is the crux of this Voting Rights Act
case.
With respect to the second factor, the availability of other evidence, the United
States insists that a concerted effort on behalf of SB 14’s key supporters to coordinate
talking points and refuse to publicly engage with the concerns of minority legislators
about the bill’s impact on minority populations has resulted in a situation where the
documents sought are the only existing evidence of candid discussions about SB 14.
Texas cautions that indulging the United States’s assumption that the legislators’ talking
points do not reflect the true intent of the legislature is a dangerous activity and insists
that Arlington Heights requires the United States to look to publicly available sources
(e.g., public debates, legislative history, and floor speeches) to establish any
discriminatory intent claim and not to what the individual legislators said amongst each
other.

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While recognizing that candid discussions among legislators may not be the only
evidence that would allow the United States to prove its discriminatory intent claim, the
Court holds that the second factor weighs slightly in favor of disclosure given the
practical reality that officials “seldom, if ever, announce on the record that they are
pursuing a particular course of action because of their desire to discriminate against a
racial minority.”6
Finally, with regard to the fifth factor—the possibility of future timidity among
legislators—courts have long recognized that the disclosure of confidential documents
concerning intimate legislative activities should be avoided.7

The United States’s

characterization of the harm as “speculative” does not undermine the importance of
preserving confidentiality of communication among legislators, their aides, and their staff
members. Accordingly, the Court holds that the final factor weighs against disclosure.
The Court finds that the overall balance of factors weighs in favor of disclosure on
a confidential basis. In serious litigation about important issues, the need for accurate
fact finding is great. However, the extent to which inquiry into such sensitive matters is
permitted should correspond with the degree to which the intrusion is absolutely
necessary. Given the sensitive nature of the documents sought and the importance of
preserving confidential communication among legislators, the Court is not inclined to
fully pierce the legislative privilege at this point by authorizing complete and public
disclosure of the documents and ESI at issue.
6

Smith v. Town of Clarkton N.C., 682 F.2d 1055, 1064 (4th Cir. 1982).

7

See Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *9 (citing Rodriguez, 280 F.Supp.2d at 102; Kay v.
City of Rancho Palos Verdes, 2003 WL 25294710, at *14 (C.D. Cal. Oct. 10, 2003)).

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However, because of the unique nature of this case, the significance of the subject
matter of this litigation, and the importance of developing an accurate factual record,
Texas is ordered to produce to the United States, under seal, all of the documents in its
possession, custody, or control that it has withheld on the basis of legislative privilege by
April 8, 2014. The Court concludes that the applicability of the privilege to specific,
relevant documents is best addressed at the trial phase of this lawsuit.
The documents are to be designated as “highly confidential” and access is
restricted to (1) attorneys-of-record, their associates, staff, and assistants working on this
litigation, (2) experts and experts’ staff, and (3) the Court.8 Pursuant to FED. R. EVID.
502(d), the Court orders that the privilege protection is not waived by disclosure under
this provision. If any party wishes to introduce a sealed document at trial, it must raise
the issue with the Court beforehand. The Court will then decide whether to fully pierce
the legislative privilege and admit the documents.
III.

Parties are to confer regarding the applicability of the attorney-client
privilege to certain documents.
At the April 1st hearing, the Court advised Texas and the OAG that the attorney-

client privilege would not automatically attach to all documents previously provided to
them by the state legislators. In light of this ruling and the rulings set forth above, the
parties are ordered to meet and confer regarding the documents Texas claims are
protected from disclosure by the attorney-client privilege.

8

See Consent Protective Order, D.E. 105, p. 6, ¶ 2.1.

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CONCLUSION
For the reasons set forth above, the Court GRANTS IN PART the United States’s
Motion to Compel, (D.E. 162), and ORDERS that the documents previously withheld on
the basis of legislative privilege be produced for discovery under seal, marked “highly
confidential” by April 8, 2014. The Court DENIES IN PART any request in the motion
to pierce the legislative privilege in its entirety and reserves that question until the time of
trial.
ORDERED this 3rd day of April, 2014.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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