Perez et al v. Perry et al

Filing 990

ORDER GRANTING IN PART AND DENYING IN PART 976 Motion to Compel. Signed by Judge Orlando L. Garcia. (aej)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

SHANNON PEREZ, ET AL,

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Plaintiffs,
v.
RICK PERRY, ET AL.
Defendant.

Civ. No. SA-11-CV-360-OLG-JES-XR

ORDER
On this day came on to be considered Plaintiff-Intervenor United States of America’s
(“United States”) motion to compel. Doc. No. 976. After careful consideration, the motion is
GRANTED IN PART and DENIED IN PART.
BACKGROUND
On September 24, 2013, this Court granted the United States’ motion to intervene in this
case. Doc. No. 904. Since that time the parties have been engaged in discovery. On April 16,
2014, the United States filed this motion to compel certain legislative documents pertaining to
the Texas Legislature’s enactment of its 2011 Congressional and House redistricting plans. Doc.
No. 976. The United States is already in possession of many relevant documents following the
preclearance litigation in Texas v. United States.

By its motion, the United States seeks

discovery from two individual legislators1 from whom the United States did not obtain discovery
during the 2011 preclearance litigation. Doc. No. 976, Ex. 1 at ¶¶ 2-3. In addition, the United
States seeks supplemental discovery from 37 other legislators Id. at ¶¶ 4-5.

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Representatives Larry Gonzales and J.M. Lozano

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The United States argues that these files are within the “control” of the State of Texas.
Doc. No. 976 at 5. Alternatively, the United States argues that the individual legislators must be
considered part of the “State of Texas,” a named party to this case. Id. at 7-8.

In response,

Texas denies having possession, custody, or control of the relevant documents, and argues that
any further legislative discovery must be obtained through Rule 45 subpoenas directed at the
individual legislators themselves. Doc. No. 978.

Texas also contends that the individual

legislators are not “parties” to this lawsuit, and that documents in their possession are not subject
to party discovery under FED. R. CIV. P. 34. Id.
DISCUSSION
Rule 34 provides that, subject to the relevancy limitations of Rule 26, 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)(A).

Texas argues that it is not in possession of the

legislative materials that the United States seeks. Doc. No. 978 at 4. However, a party can
“control” documents that are within the possession or custody of a non-party. See e.g. In re NTL,
Inc. Secs. Litigation, 244 F.R.D. 179 (S.D.N.Y. 2007) (neither legal ownership nor physical
possession of documents required for a party to “control” them); Rosie D. v. Romney, 256
F.Supp. 2d 115 (D. Mass. 2003) (State officials had “control” over documents in non-party state
agency’s possession). Documents are considered to be within a party’s control “when that party
has the right, authority, or practical ability to obtain the documents from a nonparty.” Shell
Global Solutions (US) Inc., v. RMS Engineering, Inc., No. 4-09-3778, 2011 WL 3418396, at *2
(S.D. Tex. Aug. 3, 2011) (citations omitted).
As a starting point, it is clear that Texas is under an obligation to produce responsive
legislative materials which are already in its possession, custody, or control, including legislative

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materials used in the 2011 D.C. litigation.

This includes any documents simultaneously

possessed or controlled by both the State and the individual legislators. This also includes any
documents or electronically stored information (“ESI”) in the possession of the Texas Legislative
Council (with the exception of any documents or ESI between this three-judge panel and Clare
Dyer and David Hanna).

In addition, Texas may be presumed to have “control” over ESI

contained on official state government servers. Texas has demonstrated a “practical ability” to
obtain such ESI during the course of the D.C. preclearance litigation.2 In addition, the State of
Texas and the Speaker of the Texas House of Representatives sought dismissal of Speaker
Strauss as a party to this litigation, arguing that inclusion of the Speaker in his official capacity
was an unnecessary redundancy. Doc. No. 209. Accordingly, the Court finds that Texas has
sufficient “control” over ESI stored on government servers. Texas is ORDERED to produce any
such ESI that is responsive to the United States’ Requests for Production.
Moreover, the Attorney General’s office has claimed an attorney-client privilege with
respect to 23 individual legislators in this case. Doc. No. 978 at 2. In general, an attorney is
presumed to have control over documents in its client’s possession. See Chevron Corp. v.
Salazar, 275 F.R.D. 437, 447-51 (S.D.N.Y. 2011); American Society For Prevention of Cruelty
to Animals v. Ringling Brothers and Barnum & Bailey Circus, 233 F.R.D. 209 (D.D.C. 2006).
However, to the extent that Texas asserts an attorney-client privilege with these legislators, it
does so solely in their official capacities. With regard to ESI stored on private servers (Hotmail,
Gmail, etc.) and hard-copy documents that are in the possession of the 23 individual legislators
represented by the Attorney General’s office, it is inconsistent for the State to argue that on one
hand the Attorney General represents these individuals, but that for discovery purposes the
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In addition, Texas concedes that it has produced certain non-public legislative ESI “as a matter of courtesy.” Def’s
Resp. at 9. As a matter of logic, if Texas has the ability to produce documents as a courtesy, it cannot deny that it
has the “practical ability” to obtain such documents.

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United States must resort to Federal Rule of Civil Procedure 45. Texas is ORDERED to produce
any such ESI or hard-copy documents in the possession of these 23 legislators that is responsive
to the United States’ Requests for Production.
However, with regard to the other legislators who are not represented by the Attorney
General’s office, for ESI stored on their private servers, or for hard-copy documents that are not
within the State’s possession, custody or control, the United States must obtain a subpoena under
Rule 45. See Veasey v. Perry, No. 2:13-193, 2014 WL 1340077, at *1 (S.D. Tex. April 3, 2014)
(“To the extent the United States seeks [legislative] documents that are not in Texas’s
possession, they must subpoena the individual legislators for those materials under Rule 45.”).
The United States’ claim that requiring subpoenas would be unduly burdensome does not vitiate
the separation of powers and privacy principles that protect the personal files of these individual
legislators.
CONCLUSION
In light of the foregoing analysis, Texas is ORDERED to produce the following: (1)
responsive ESI contained on official government servers, (2) any hard-copy documents in its
possession, custody, or control; (3) and hard-copy documents or ESI in the possession, custody
or control of the Texas Legislative Council, and (4) any responsive ESI or hard-copy documents
in the possession, custody, or control of any legislator represented by the Attorney General’s
office. To the extent that the United States seeks any additional discovery from a legislator not
represented by the Attorney General, it must obtain Rule 45 subpoenas.

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SIGNED this 6th day of May, 2014.

/s/
ORLANDO L. GARCIA
UNITED STATES DISTRICT JUDGE

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