League of United Latin American Citizens et al v. Abbott et al

Filing 783

ORDER DENYING IN PART 341 Motion to Quash Deposition Subpoenas and, Alternatively, Motion for Protective Order. The Court also ORDERS that its Order Granting Administrative Stay of Subpoenas (ECF No. 381) is NO LONGER IN EFFECT. Signed by Judge David C Guaderrama. (mc4)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
LEAGUE OF UNITED LATIN
AMERICAN CITIZENS, et al.,
Plaintiffs,
EDDIE BERNICE JOHNSON, et al.,
Plaintiff-Intervenors,

v.

GREG ABBOTT, in his official capacity as
Governor of the State of Texas, et al.,
Defendants.

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EP-21-CV-00259-DCG-JES-JVB
[Lead Case]
&
All Consolidated Cases

ORDER
The Mexican American Legislative Caucus (“MALC”) issued deposition subpoenas to two
non-party officials in the Texas House of Representatives, General Counsel Margo Cardwell (“Ms.
Cardwell”) and Parliamentarian Sharon Carter, and the United States issued a deposition subpoena
to Speaker Dade Phelan. ECF Nos. 341-1, 341-2, 341-3. The three recipients moved to quash the
subpoenas or, alternatively, for a protective order. ECF No. 341. In a series of orders, the Court 1
previously addressed the motion as it related to the subpoenas of Parliamentarian Carter and
Speaker Phelan. See League of United Latin Am. Citizens v. Abbott, No. EP-21-CV-00259-DCGJES-JVB, 2022 WL 2866673, at *1–4 (W.D. Tex. July 6, 2022) [hereinafter LULAC II], appeal

1

“The Court” refers to the three-judge panel presiding over this statewide redistricting
litigation under 28 U.S.C. § 2284.
All page citations in this Order refer to the page numbers assigned by the Court’s CM/ECF
system, not the document’s internal pagination, when available.
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docketed, No. 22-50648 (5th Cir. July 20, 2022) 2; ECF Nos. 429, 446, 448. The only portion of
the motion still pending relates to the subpoena of Ms. Cardwell. See ECF Nos. 448 at 1 n.1; 730
at 1 n.1.
For the reasons that follow, the Court denies the motion to quash the deposition subpoena
of Ms. Cardwell, denies the alternative motion for a protective order relating to Ms. Cardwell’s
deposition, and orders the parties to proceed with Ms. Cardwell’s deposition consistent with the
procedures set forth in this order. See infra Section II.
BACKGROUND
Ms. Cardwell is the General Counsel to the Texas House of Representatives. ECF No. 34117 ¶ 2. In this role, which is an “attorney position formally housed within the Office of the
Speaker,” Ms. Cardwell’s responsibilities include providing legal advice and other legal services
to Texas House member offices, committees, officers, and other legislative employees under Texas
Government Code § 306.008(2). Id. ¶¶ 5, 7–8. As General Counsel to the House, Ms. Cardwell
was involved in the redistricting process after the 2020 Census. See id. ¶¶ 9–11. As she asserts in
her declaration, her role included “participating in private meetings and discussions with some
House members, staff, and counsel regarding draft legislation and the legislative process.” Id. ¶ 10.
She also alleges that she provided “advice regarding legal compliance of redistricting plans” and
“coordinat[ed] with other counsel engaged to advise on the same.” Id. ¶ 11.

2

On April 10, 2024, the movant-appellants filed an unopposed motion to voluntarily
dismiss their appeal of the Court’s July 6, 2022 order. LULAC v. Hunter, No. 22-50648, ECF No.
59. On May 2, 2024, the Fifth Circuit granted the motion without prejudice. Id. at ECF No. 67.
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In an initial order addressing the three non-parties’ subpoenas, the Court held in abeyance
the motion to quash Speaker Phelan’s subpoena pending additional briefing. 3 LULAC II, 2022 WL
2866673, at *3–4. The Court also denied the motion to quash Parliamentarian Carter’s subpoena
and permitted MALC to depose Parliamentarian Carter subject to various conditions and
procedures for legislative-privilege objections. Id. at *4–6.
In that same initial order, the parties agreed to hold in abeyance the motion to quash Ms.
Cardwell’s subpoena while the parties conducted further discovery. Id. at *4. If MALC determined
“the new discovery materials further support[ed] deposing the General Counsel,” the Court ordered
MALC and Ms. Cardwell to file briefing accordingly. Id. After additional discovery, MALC filed
a supplemental response in support of deposing Ms. Cardwell, and Ms. Cardwell filed a
supplemental reply in support of quashing the deposition subpoena. ECF Nos. 427, 428.
DISCUSSION
A. Motion to Quash
Parties may seek discovery of any relevant, non-privileged information that is proportional
to the needs of the case. Fed. R. Civ. P. 26(b)(1). This permissible discovery includes deposing
non-parties through a subpoena issued under Rule 45. Fed. R. Civ. P. 45(c). At the same time,
courts may quash a deposition subpoena if it “requires disclosure of privileged or other protected
matter, if no exception or waiver applies,” or if it “subjects a person to undue burden.” Fed. R.
Civ. P. 45(d)(3)(A)(iii)–(iv). Similarly, a court may issue a protective order “to protect a party or

3

Ultimately, the United States noticed the Court that it was no longer seeking Speaker
Phelan’s deposition. ECF No. 446. The Court subsequently denied the motion to quash his
subpoena as moot. ECF No. 448.
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person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c). However, courts rarely quash deposition subpoenas or enter protective orders that
effectively prohibit the taking of depositions in their entirety. See League of United Latin Am.
Citizens v. Abbott, No. EP-21-CV-00259-DCG-JES-JVB, 2022 WL 3656395, at *2 (W.D. Tex.
Aug. 23, 2022) [hereinafter LULAC III]. In the Fifth Circuit, “[i]t is very unusual for a court to
prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order
would likely be in error.” Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979). As a result, a
party seeking to quash a deposition bears a “heavy burden” and “must show a particular and
compelling need” for a protective order. Bucher v. Richardson Hosp. Auth., 160 F.R.D. 88, 92
(N.D. Tex. 1994). “Conclusory assertions of injury are insufficient.” Id.
This order is the fifth order addressing motions to quash non-party deposition subpoenas
that the Court has issued in this litigation. See League of United Latin Am. Citizens v. Abbott, No.
EP-21-CV-00259-DCG-JES-JVB, 2022 WL 1570858, at *2–3 (W.D. Tex. May 18, 2022)
[hereinafter LULAC I], appeal docketed, No. 22-50407 (5th Cir. May 18, 2022) 4 (addressing the
motions of Representatives Ryan Guillen, Brooks Landgraf, and John Lujan); ECF No. 340
(addressing the motions of additional Texas House members and legislative employees based on
LULAC I); LULAC II, 2022 WL 2866673, at *5 (addressing the motion of Parliamentarian Carter);
LULAC III, 2022 WL 3656395, at *5 (addressing the motion of Jeffrey Archer, Executive Director
of the Texas Legislative Council). Each time, the movants sought to quash their deposition

4

On April 10, 2024, the movant-appellants filed an unopposed motion to voluntarily
dismiss their appeal of the Court’s May 18, 2022 order. LULAC v. Guillen, No. 22-50407, ECF
No. 156. On May 2, 2024, the Fifth Circuit granted the motion without prejudice. Id. at ECF No.
164.
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subpoenas on the grounds of legislative privilege. Mr. Archer also sought to quash his deposition
subpoena on the ground of attorney-client privilege. See LULAC III, 2022 WL 3656395, at *5.
Again, each time, “this Court was clear that it could not adjudge privilege claims in the absence of
actual deposition questions and denied the motion[s].” Id. at *2 n.1.
This order is no different. Despite Ms. Cardwell’s arguments to the contrary, her assertions
of the legislative and attorney-client privileges do not justify the relief she requests.
Privilege
Ms. Cardwell asserts that her relevant communications are “protected by the double layer”
of legislative and attorney-client privileges. LULAC III, 2022 WL 3656395, at *2; see ECF Nos.
341 at 15–19; 376 at 6–9; 428 at 2–6. Regarding legislative privilege, Ms. Cardwell “adopts” the
arguments that Representatives Guillen, Landgraf, and Lujan previously made in this litigation.
ECF No. 341 at 15; see ECF No. 259 at 5–18. She does not elaborate on how legislative privilege
or these adopted arguments apply specifically to her role in the redistricting process. See ECF Nos.
341 at 15–20; 376; 428.
Ms. Cardwell’s primary argument relates to attorney-client privilege. “As a legislative
attorney, her private communications with House Members, Officers, and staff that entail the
provision of legal advice or other legal services are attorney-client privileged and confidential.”
ECF No. 341 at 15 (citing Tex. Gov’t Code §§ 306.008(a)-(b)). According to Ms. Cardwell, any
non-privileged information that she obtained during the redistricting process, such as “knowledge
of underlying facts or data about where Members lived or how populations shifted,” is “not unique”
to her and is “provable in other ways,” including through depositions of legislators and their staff,
document discovery, and “the robust public record.” Id. at 16, 17 n.4, 18. Moreover, she argues
that courts have held that attorney-client privilege can be sufficient grounds for quashing a
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deposition subpoena in its entirety when alternative sources could provide the non-privileged
information sought from the quashed deposition. Id. at 17–19 (citing Hall v. Louisiana, No. 12–
657–BAJ–RLB, 2014 WL 1652791, at *3–4 (M.D. La. Apr. 23, 2014); Gates v. Texas Dep’t of
Family and Protective Servs., No. A–09–CV–018 LY, 2010 WL 11598033, at *2 (W.D. Tex. Oct.
7, 2010); Nat’l W. Life Ins. v. W. Nat’l Life Ins., No. A–09–CA–711 LY, 2010 WL 5174366, at
*2–3 (W.D. Tex. Dec. 13, 2010)).
MALC responds that Ms. Cardwell fails to establish attorney-client privilege because she
neither identifies her specific clients nor explains how all of her testimony would be “privileged
legal advice, as opposed to policy advice or other non-privileged matter.” ECF No. 360 at 2.
MALC contends that the title “General Counsel to the House” does not “automatically form an
attorney-client relationship” between Ms. Cardwell and “each and every individual [H]ouse
member, [H]ouse staffer, outside consultant, or other parties” involved in redistricting. Id. at 3.
Rather, MALC argues, the attorney-client privilege is narrow and based on a “highly fact-specific
inquiry.” Id. at 4. Moreover, MALC asks the Court to distinguish the cases that Ms. Cardwell cites
on the grounds that they address “the deposition of current opposing counsel in active litigation”
rather than “the deposition of a staff attorney in the context of redistricting litigation.” Id. at 6–7.
In the alternative, MALC asks the Court to “adopt the same procedures adopted in its May 18,
2022 Order [Doc. 282].” Id. at 7.
After additional discovery, MALC maintains that deposing Ms. Cardwell is still necessary
because Speaker Phelan’s Legislative Director 5, Mark Bell, testified in his deposition that Ms.

5

In her supplemental reply, Ms. Cardwell identifies Mr. Bell as Speaker Phelan’s Deputy
Chief of Staff. ECF No. 428 at 4–5.
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Cardwell “took the lead on redistricting” in the Speaker’s office. ECF No. 427 at 3. MALC also
obtained a declaration from Chris Turner, Texas State Representative for House District 101,
attesting that Ms. Cardwell “did not hold herself [out] as serving as [Mr. Turner’s] attorney in
redistricting matters.” ECF No. 427-2 ¶ 4. Ms. Cardwell counters that this additional testimony
does not justify the taking of her deposition “when there will be 15-plus depositions of House
members and employees, who were not acting as attorneys regarding the same topics.” ECF No.
428 at 4. She also cites other deposition testimony in support of her contention that she played a
“predominantly legal role” in the redistricting process, as opposed to a “predominantly political
role” or policy role. Id. at 2–3.
The Court has already heard—and rejected—substantially the same privilege arguments
relating to motions to quash the deposition subpoenas of six legislators in the Texas House of
Representatives and seven legislative staff members. 6 See LULAC I, 2022 WL 1570858, at *1, 3;
LULAC II, 2022 WL 2866673, at *4–6; LULAC III, 2022 WL 3656395, at *2–3, 2 n.1 (addressing
attorney-client-privilege arguments, in addition to legislative-privilege arguments, that Mr. Archer
raised); see also ECF Nos. 259, 278, 333, 340, 455. The only difference here is Ms. Cardwell’s
involvement in the redistricting process as an attorney for the Texas House of Representatives. But
this fact does not change the established processes—in general and in this litigation—for handling
privilege objections during depositions. As the Court has explained, it is unable to determine if a
privilege attaches to specific communications—and, if so, which privilege—without knowing the
deposition questions and the specific inquiry at issue, none of which MALC has provided to the

6

Likewise, the Court has already set forth governing law on legislative and attorney-client
privilege in response to motions to quash non-party deposition subpoenas. See LULAC I, 2022 WL
1570858, at *1; LULAC III, 2022 WL 3656395, at *2–3.
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Court. See LULAC III, 2022 WL 3656395, at *3 (rejecting a “list of hypotheticals—questions the
government might ask, and categories of statements that might be privileged”).
Moreover, the fact that Ms. Cardwell is an attorney for the Texas House of Representatives
“is not an absolute bar to taking . . . her deposition.” 8A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2102, Westlaw (section updated April 2023). As MALC
correctly notes, “there is prior precedent in Texas redistricting litigation for attorneys serving as
key witnesses.” ECF No. 360 at 5 (citing Perez v. Abbott, No. SA-11-CV-360, 2017 WL 1406379,
at *1 (W.D. Tex. Apr. 20, 2017)). In that litigation, the United States deposed the Texas House of
Representatives’ Speaker’s redistricting counsel as a non-party witness. See Texas v. United States,
No. 1:11-cv-1303, ECF No. 94-8 (D.D.C. 2011). His deposition followed the same procedure for
privilege objections, including attorney-client-privilege objections, that this Court has applied to
privilege objections. See id. at 21:4–15; LULAC I, 2022 WL 1570858, at *2–3 (“[T]he Court
adopts the following [deposition] procedure, originally used by the last three-judge court to hear
Texas redistricting cases.”) (citing Perez v. Perry, No. SA-11-CV-360-OLG-JES, ECF No. 102 at
5–6 (W.D. Tex. Aug. 1, 2011)). The Court continues to insist that the parties follow this established
procedure. See infra Section II(A)(2).
Undue Burden
In addition to her claims of privilege, Ms. Cardwell argues that sitting for a deposition will
be unduly burdensome. See ECF No. 341 at 15–20 (citing Fed. R. Civ. P. 45(d)(3)(A)(iv)). Here
again, she fails to demonstrate an undue burden sufficient to justify quashing her deposition in its
entirety or, alternatively, entering a protective order.
Ms. Cardwell argues that sitting for a deposition would be unduly burdensome primarily
because it would be a significant imposition on her time and responsibilities as General Counsel
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to the House. See ECF No. 341-17 ¶ 12. In that role, she “provid[es] continual legal support to
House members, committees, and [H]ouse administrative offices,” including during the summer
while “House committees continue to meet, member offices remain staffed to serve constituents,
and the administrative offices carry on their work unabated.” Id. This work also involves some
travel. Id. Any time that she spends preparing and sitting for a deposition in this litigation would
“take away from those important tasks.” Id. In addition, Ms. Cardwell contends, the information
MALC seeks is provable in other, non-privileged ways that would not require her to undertake the
“extremely difficult” task of differentiating non-privileged information from privileged
information. ECF No. 341 at 18–19 (citing Natl. W. Life Ins. v. W. Natl. Life Ins., No. A–09–CA–
711 LY, 2010 WL 5174366, at *4 (W.D. Tex. Dec. 13, 2010)). MALC does not respond directly
to Ms. Cardwell’s undue-burden arguments. See ECF Nos. 360 at 2–8; 427 at 1–4.
Because Ms. Cardwell is a non-party, the Court “must be sensitive to the . . . compliance
costs.” Leonard v. Martin, 38 F.4th 481, 489 (5th Cir. 2022). The Court is not aware of any
stipulated time limit to her deposition, unlike previous non-party depositions in this litigation. See
LULAC III, 2022 WL 3656395, at *4 (noting that the United States agreed to stipulate a three-hour
limit on the deposition of Mr. Archer). Still, MALC has not asked Ms. Cardwell to produce
documents or to review files in preparation for the deposition. See ECF No. 341-2; cf. Leonard,
38 F.4th at 490 (finding an undue burden where a non-party was required to spend an estimated
60 hours reviewing documents in preparation for a deposition). Other than the inconvenience of
sitting for a deposition and the task of differentiating non-privileged information from privileged
information, Ms. Cardwell provides no basis for her undue-burden argument. See ECF Nos. 34117 ¶¶ 9–12.
While the Court appreciates the importance of Ms. Cardwell’s time and responsibilities,
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this reason alone is insufficient to quash the deposition in its entirety. As the Court has previously
discussed, multiple case-specific factors determine whether a subpoena imposes an undue burden.
See LULAC III, 2022 WL 3656395, at *3–4 (discussing these factors and applying them to deny
the motion to quash the deposition subpoena of Mr. Archer). “[T]he Court does not think the
burden of having to sit for a deposition outweighs the relevant information” that MALC may obtain
by deposing Ms. Cardwell. LULAC I, 2022 WL 1570858, at *2 (finding that any burden was
insufficient to quash or modify the deposition subpoenas of Representatives Guillen, Landgraf,
and Lujan). At the same time, however, MALC should be mindful of the information it has already
received from other witnesses and should avoid unnecessarily duplicative questioning.
Therefore, as with the legislators’, Parliamentarian Carter’s, and Mr. Archer’s motions to
quash their deposition subpoenas, the Court DENIES Ms. Caldwell’s motion and permits MALC
to proceed with her deposition. The Court ORDERS the parties to comply with the following
procedures:
(1) The parties shall proceed with the deposition of Ms. Cardwell. Ms. Cardwell must appear
and testify even if it appears likely that she will invoke legislative or attorney-client
privilege in response to certain questions.
(2) Ms. Cardwell may invoke legislative or attorney-client privilege in response to particular
questions.
a) If Ms. Cardwell invokes legislative privilege in response to a particular question,
she must then answer the question in full. Her response will be subject to the
privilege.
b) If Ms. Cardwell invokes attorney-client privilege in response to a particular
question, she need not answer the question or portions of the question that would
reveal the substance of her attorney-client communications. See Fed. R. Civ. P.
30(c)(2); ECF No. 376 at 6, ¶ B (advising the Court of the parties’ agreement that
Ms. Cardwell “need not answer questions or portions of questions that would reveal
the substance of her attorney-client communications, over an attorney-client[-]
privilege objection”).
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(3) The portions of deposition transcripts containing questions and answers subject to
legislative- or attorney-client-privilege objections shall be deemed to contain confidential
information and shall therefore be subject to the “Consent Confidentiality and Protective
Order” at ECF No. 202.
(4) If a party wishes to use any portions of deposition testimony that are subject to legislative
or attorney-client privilege, that party must seal those portions and submit them to the Court
for in camera review, along with a motion to compel. 7
(5) Any such motion to compel shall be filed within 14 days after the deposition, but the Court
encourages MALC to file earlier, if possible.
In adopting this approach, the Court warns the parties that any public disclosure of
information to which a privilege has been asserted may result in sanctions, including striking
of pleadings. All counsel are ORDERED to spare no effort to ensure that no individual—
whether that person be counsel, court reporter, videographer, witness, or any other person
hearing or having access to information subject to privilege—disseminates information
subject to privilege to any person not permitted to handle that information or in any manner
(e.g., disclosing to media, posting on social media, etc.).
Additionally, nothing in this Order should be construed as resolving any claim of
legislative or attorney-client privilege. The Court will be better positioned to decide such questions
once there are specific questions and specific invocations of privilege.
B. Motion for a Protective Order
Finally, Ms. Cardwell moves in the alternative for a protective order based on the same
grounds as her motion to quash. ECF No. 341 at 5. Consistent with its prior orders in this litigation,
the Court denies this alternative motion. See LULAC I, 2022 WL 1570858, at *2–3; LULAC II,

7

A motion to compel shall be filed to assert that information to which a privilege objection
has been raised should be disclosed because it is not subject to the privilege, the privilege has been
waived, or the privilege should not be enforced.
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2022 WL 2866673, at *5 n.4; LULAC III, 2022 WL 3656395, at *5–6.
Ms. Cardwell requests a protective order consistent with the procedure adopted during the
litigation following the previous redistricting cycle. ECF No. 341 at 5. She suggests that a
protective order of this sort “would permit legislative[-]privilege objections that, once raised,
[would] relieve [her] from answering particular questions eliciting that objection.” Id. In other
words, Ms. Cardwell seeks a protective order that gives her the option “not to answer specific
questions, citing the [legislative] privilege.” Perez v. Perry, No. SA-11-CV-360-OLG, 2014 WL
106927, at *3 (W.D. Tex. Jan. 8, 2014).
To justify a protective order, the movant bears the burden to show “good cause and a
specific need for protection.” Anzures v. Prologis Texas I LLC, 300 F.R.D. 316, 317 (W.D. Tex.
2012). “‘Good cause’ exists when justice requires the protection of ‘a party or person from any
annoyance, embarrassment, oppression, or undue burden or expense.’” Bucher, 160 F.R.D. at 92
(N.D. Tex. 1994) (quoting Fed. R. Civ. P. 26(c)). Though that bar is slightly lower than the
“extraordinary circumstances” requirement to quash a deposition subpoena, see Salter, 593 F.2d
at 651, the requirement is still stringent. “The federal courts have superimposed a somewhat
demanding balancing of interests approach to [Rule 26(c)].” Cazorla v. Koch Foods of Miss., LLC,
838 F.3d 540, 555 (5th Cir. 2016) (cleaned up). “The movant bears the burden of showing that a
protective order is necessary, which contemplates a particular and specific demonstration of
fact.” EEOC v. BDO USA, LLP, 876 F.3d 690, 698 (5th Cir. 2017) (internal quotation marks and
citation omitted).
At this stage, a blanket protective order on legislative-privilege grounds is a premature and
inappropriate remedy. Ms. Cardwell fails to demonstrate how “ordinary deposition procedures,”
including those set forth supra, “are insufficient to protect privileged information” in the specific
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context of her deposition. LULAC III, 2022 WL 3656395, at *6. This procedure, which the Court
has applied to every other deponent in this litigation who has made the same request, sets forth a
“[w]orkable” process that shields privileged information without “stym[ying]” the plaintiffs’
“legitimate interest in discovery.” LULAC II, 2022 WL 2866673, at *5 n.4; LULAC III, 2022 WL
3656395, at *6; see LULAC I, 2022 WL 1570858, at *2; ECF No. 340. Ms. Cardwell’s requested
relief would undermine this careful balance. The Court declines to adopt an “[im]proper solution”
to privilege issues “not yet ripe for decision.” LULAC I, 2022 WL 1570858, at *1; LULAC III,
2022 WL 3656395, at *6.
CONCLUSION
The Court DENIES the “Motion by Texas House Speaker Dade Phelan, General Counsel
to the House Margo Cardwell, and House Parliamentarian Sharon Carter to Quash Deposition
Subpoenas and, Alternatively, Motion for Protective Order” (ECF No. 341) IN PART. The Court
DENIES the motion by Ms. Cardwell to quash the deposition subpoena and DENIES the
alternative motion for a protective order.
MALC MAY DEPOSE Ms. Cardwell in accordance with the procedures outlined in
Section II(A)(2) of this Order.
Because the Court previously ruled on the motion as it pertains to Speaker Phelan and
Parliamentarian Carter (ECF Nos. 409, 448), the Court directs the Clerk to redesignate the motion
(ECF No. 341) as NO LONGER PENDING on the docket.
The Court also ORDERS that its “Order Granting Administrative Stay of Subpoenas”
(ECF No. 381) is NO LONGER IN EFFECT.
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So ORDERED and SIGNED this 3rd day of June 2024.

__________________________________
DAVID C. GUADERRAMA
SENIOR U.S. DISTRICT JUDGE
And on behalf of:
Jerry E. Smith
United States Circuit Judge
U.S. Court of Appeals, Fifth Circuit

-and-

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Jeffrey V. Brown
United States District Judge
Southern District of Texas