Bethune-Hill et al v. Virginia State Board of Elections et al, No. 3:2014cv00852 - Document 59 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/26/15. (tdai, )
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Bethune-Hill et al v. Virginia State Board of Elections et al Doc. 59 [^ IN THE UNITED FOR THE STATES DISTRICT MAY 26 2015 COURT \a EASTERN DISTRICT OF VIRGINIA Richmond Division CURK. U.8. DISTRICT COURT RICHMOND. VA GOLDEN BETHUNE-HILL, et al., Plaintiffs, Civil Action No. v. VIRGINIA STATE OF ELECTIONS, 3:14cv852 BOARD et al. , Defendants, v. VIRGINIA HOUSE OF DELEGATES, et al. , Intervenor-Defendants. MEMORANDUM OPINION This matter is before the Court on PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND MEMORANDUM IN SUPPORT (Docket No. 48) . For the reasons set forth below, the motion will be granted in part and denied in part. BACKGROUND In this case, Plaintiffs have challenged twelve Virginia House of Delegates districts as unlawful racial gerrymanders in violation of Constitution. State Board the Equal Protection Clause of the U.S. Plaintiffs filed this action against the Virginia of Elections ("BOE") and various members thereof Dockets.Justia.com (collectively, body or "Defendants"), individual but legislator Plaintiffs filed their Complaint, (the "House") Howell") (collectively, 12), Intervenors have individual as not a name however, delegate except Speaker Howell moved and that motion was granted, that Soon they do Howell, to ("Speaker intervene, (Docket No. not and Feb. 24, 2015, During discovery, that "[A]11 not represent communications limited or inter alia, [related to the to those represented" members the who challenged districts; 2. "[A]11 communications [related to the 2011 redistricting process] between, among, or with the Virginia House of Delegates and any other individual or entity, including, without limitation, political organizations, lobbyists, political operatives, consultants, constituents, voters, and government officials;" and 3. 2011 "[A]11 communications [related to redistricting process] between the the Virginia House of Delegates and any and all local, statewide, or national Republican groups, including without limitation the Republican National Committee, National Republican House See Tr. Plaintiffs served the House with requests 2011 redistricting process] between or among the Virginia House of Delegates, including but the any at 9:7-9. for production of documents including, 1. 26.). represent does not speak on behalf of any individual legislator. of Hr'g, after the Virginia House of "Interveners") represented any legislative defendant. and Speaker William J. Delegates (Docket No. did Congressional Committee, Republican Republican current State Leadership Legislative Campaign or former members of Committee, Committee, the local, state, or national Republican group, their staff members, agents, employees, consultants, advisors, experts, and personnel." Decl. of Ryan Spear in Supp. Docs., Ex. B generally, (Docket "all No. of Pis.' 49). documents Mot. to Compel Produc. Plaintiffs related to also the sought, [2011 of more Virginia redistricting process] , including without limitation all emails, letters, notes, press releases, and other documents." Plaintiffs non-party have sought legislators Intervenors. and the other communications documents because it maintains delegates encouraged concerned documents are staff, with state and usage (Docket No. Hostetler, 2011 directly from the of use for agencies, business, an email system that "communications constituents, including electronic mail." the between and others transfer Def.-Ints.' the Mem. of in Ex. A, Virginia House Appropriate Use 50-1) . Counsel to the Intervenors, Baker is also in possession of other documents sought by the Plaintiffs, Marston to state Opp'n to Mot. to Compel, Policy individual, The House is in possession of these legislators' communications legislators, of Id. including files obtained from Mr. Christopher (an attorney who worked for the House during 2010 and and provided redistricting), Mr. legal and strategic advice concerning John Morgan (an individual retained by the House to assist Chris Jones with the 2011 redistricting process), and Mr. (a state legislator who expects to testify in this matter and is represented by Baker Hostetler in that capacity). In response documents that it and Plaintiffs' served privilege had legislative to withheld privilege, from the work-product doctrine. to delegates legislative affected emails to or privilege. delegates whose emails the other the produced documents basis privilege, House had That House letter had custody delegates; of the and the that the withheld informed of House on the responsive did not and that it was the responsibility of delegates The on attorney-client the the represent the delegates; the individual reflecting production grounds. that from House the parties agreed to send a joint whose privilege delegates logs the In an effort to minimize disputes about the legislative privilege, letter requests, notice to waive was or assert sent communications to had the been the legislative twenty-nine deemed (29) relevant and privileged. The notice set a date by which the delegates were to whether indicate legislative privilege. they intended to assert or waive their However, the notice did not explain that to be successful, an assertion of the legislative privilege must be accompanied privileged. be made. by proof that the documents actually are Nor did the notice explain how that showing should Of the 29 delegates who received the joint letter, twentyone (21) responded to "assert" legislative privilege, responded by waiving legislative privilege, to respond. The House produced the and four documents four (4) of (4) failed the four legislators who expressly waived their legislative privilege but continues to withhold the documents of the four legislators who failed to documents respond. of the The House remaining also continues 21 delegates, who to have withhold the expressed a preference to assert their legislative privilege but have taken no steps to establish that the withheld documents satisfy the elements of the legislative privilege. House sought to make that showing on behalf do, in fact, Nor has the of those 21 delegates. Following effort motion to compel "privileged" privilege, telephone resolve to established a the valid claims the documents, conference informally, production arguing claims with of Court Plaintiffs numerous that the of privilege the the attorney-client privilege, the filed an a purportedly Intervenors under in have not legislative or the work-product doctrine. DISCUSSION I. Legislative Privilege To understand the scope and strength of the state legislative privilege for state legislators, "it is necessary to take a step back and examine the parallel concept of legislative immunity." E.E.O.C. [WSSC II], is v. Washington 631 F.3d 174, 180 important legislative to Sanitary (4th Cir. 2011). identify privilege Suburban how differ In addition, it immunity and legislative between Comm'n federal legislators as to the source of the privileges, and state their purpose, and the degree of their protection. A. History and Purpose of the Legislative Privilege 1. Federal Legislative Immunity and Privilege Legislative immunity and legislative privilege for federal legislators derive from the Speech and Debate Clause of the United States Constitution which provides that, "for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place." 1. U.S. Const. Art. I, § 6, cl. The Speech and Debate Clause was "designed to assure a co equal branch of the government wide freedom of speech, debate, and deliberation" and has been read as a means to protect "the legislative process" and "prevent intimidation of legislators by the Executive and accountability judiciary," Gravel v. (1972). Thus, two before United States, important possibly 408 U.S. principles immunity at the federal level: a animate 616, 617 legislative (1) the separation of powers, and (2) the protection of the legislative process. v. U.S. Servicemen's Fund, 606, hostile 421 U.S. 6 491, See Eastland 502 (1975) (observing that "the clause . . . reinforc[es] the separation of powers so deliberately established by the Founders" and was "not written into the Constitution simply for the personal or private benefit of Members of Congress, legislative process by but to protect the integrity of the insuring the independence of individual legislators"). Although the clause speaks only shields federal legislators from of "Speech or Debate," it liability for all "things generally done in a session of the House by one of its members in relation 103 U.S. to the business before 168, 204 (1881), it," Kilbourn v. Thompson, such as the production of committee reports, the passage of resolutions, and the act of voting, see Gravel, 408 U.S. at 617. To determine whether particular activities fall within this "legitimate legislative sphere," the party claiming the privilege must prove that the activities are "an integral processes by part which of the Members proceedings with respect rejection of proposed deliberative participate in and communicative committee and House to the consideration and passage or legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." IcL at 625. Such "legislative acts" typically involve "the adoption of prospective, legislative-type rules . . that establish population. They a also general policy generally bear affecting the the outward larger marks of public decisionmaking, legislative including procedures." WSSC the II, observance 631 F.3d at of 184 formal (internal quotations marks and citations omitted). The sweeping legislative civil and (noting language immunity criminal both questioned,' "the for of such actions. the Clause activities See absoluteness renders applicable Eastland, of the and the sweep of the term federal 421 terms in U.S. both 503 not 'shall at be 'in any other Place'"). "Just as a criminal prosecution infringes upon the independence which the action, Clause whether is for designed an to preserve, injunction or a private damages, civil creates a distraction and forces Members to divert their time, energy, and attention from litigation." their legislative tasks to defend the Id. Of course, this does not mean that federal legislators are immune from criminal or civil law in any general sense. e-g. / United States v. Gillock, 445 U.S. Rather, legislative activities may not the Clause means that 360, 373 n.ll See, (1980). constitute a basis for liability, either as the predicate of the cause of action, see Doe v. McMillan, ("[T]he upon actions liability were from suit.") which petitioners 'legislative acts,' (internal support thereof, 412 U.S. 306, 312 (1973) citation United States v. and, sought as omitted), Helstoski, such, or as to predicate were immune evidence 442 U.S. 477, in 487 (1979) ("[E]vidence of a legislative act of a Member may not be introduced by the Government in a prosecution under [18 U.S.C.] § 201 [to show bribery of a public official]."). Clause's constitutional stature, the Speech and Debate poses an absolute bar to liability if a federal acting within 421 U.S. In immunity, at the "legitimate legislative Due to the Clause legislator sphere." is Eastland, 503. addition to this substantive and evidentiary use the Supreme Court has also upheld the existence of a federal legislative privilege prohibiting the use of compulsory process to elicit testimony from federal legislators and their immediate staff with respect to their legislative activities. See Gravel, 408 U.S. at 621. the production activities. of documents cert, federal denied, D.C. 552 legislators legislative pertaining See United States v. Room 2113, Washington, 2007) This privilege similarly prohibits activity engaged 1295 in legislative Rayburn House Office Bldg., 20515, 497 F.3d 654, U.S. are to (2008). the "protected sphere not 660 (D.C. Cir. This of only is because legitimate from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) . In short, federal legislators are entitled to an absolute legislative immunity grounded in the Constitution for any civil or criminal performed action within activity." based the in substance "sphere of or evidence legitimate upon acts legislative This immunity is further safeguarded by an absolute legislative privilege preventing documentary disclosure regarding compelled testimony activities legislative or in support of such claims. 2. State Legislative Immunity and Privilege State legislators and other legislative actors also possess legislative (1951), immunity, based practical upon Tenney the importance," (collecting cases). v. Brandhove, concept's 341 U.S. see WSSC II, After all, 631 the 372 pedigree "historical 367, and F.3d at "practical 180-81 import" legislative immunity is "difficult to overstate." of Id. at 181. Because "legislators bear significant responsibility for many of our toughest legislators decisions," with the legislative breathing room immunity necessary "provides to make these choices in the public's interest" without fear of undue judicial interference or personal liability. Id^ "even to where the legislative body This immunity applies which the individual legislator belongs lacks immunity for its legislative acts[.]" id- at 181 (comparing Independence, 445 U.S. the 622, holding in Owen v. City of 657 (1980), that municipalities do not enjoy immunity under § 1983, 10 with the holding in Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998), that municipal legislators do enjoy legislative immunity). State legislative immunity differs, however, legislative immunity in its source of authority, degree of which protection. is grounded Unlike in federal constitutional from federal purposes, legislative law, state and immunity, legislative immunity in federal court is governed by federal common law. Gillock, 445 animating while U.S. at 372 immunity for state significant - are underlying the n.10. Moreover, legislators distinguishable constitutional the under principles common law - from those principles immunity afforded federal legislators. For example, support to the the separation of powers principle "gives no grant" of evidentiary use immunity to state legislators in "those areas where the Constitution grants the Federal Clause Government dictates the that power to federal act" because enactments competing state exercises of power." "the will Gillock, Supremacy prevail over 445 U.S. at 370. And while "principles of comity command careful consideration," id. at 373, any concern with "federal interference in the state legislative process is not on the same constitutional footing with the interference of one branch of the Federal Government in the affairs of a coequal branch," id. at 370. 11 Similarly, the need to protect legislative independence and the legislative process tempered when federal federal common law. for state legislators may be somewhat statutory law comes In United States v. into conflict Gillock, with the Supreme Court acknowledged its grant of "common-law absolute immunity from civil but suit" to qualified its state legislators holding. Id. at in Tenney v. 372. The Court noted that "Tenney was a civil action brought by a private vindicate private rights," and that Brandhove, the plaintiff to common-law immunity "survived the passage of the Civil Rights Act" because the Court could not believe that Congress "would impinge on a tradition so well grounded in indicating as much. Thus, while history and reason" without expressly Id. (emphasis added). state legislators "are entitled to absolute immunity from federal damages liability" in civil actions as a matter of routine judicial "interpretation of federal law," Lake Country, 440 teaches that, U.S. at 406, 404, the Supreme Court's case law "where important federal interests are at stake," legislative immunity for state actors may be curtailed, Gillock, 445 U.S. at 373. For example, "[f]ederal prosecutions of state and local officials, including state legislators, using evidence of their official acts are not infrequent." (collecting cases) . immunity] Thus far, Id. at 373 n.ll cases have "drawn the line [for at civil actions" with respect to state legislative 12 immunity from personal liability. Fair Representation, Md. 1992) ("The Inc. v. Id. See also Marylanders for Schaefer, 144 F.R.D. Tenney Court created 292, 297 absolute immunity (D. from civil suit for state legislators acting within 'the sphere of legitimate legislative activity.' liability extends relief[.]") to suits The protection against civil for injunctive and declaratory (internal citation omitted). The state legislative privilege - like state legislative immunity - likewise may become qualified based on the nature of the claim at issue. immunity and privilege Constitution, federal This is because both state are founded on the United States but rather are based on an interpretation of the common law that immunity or privilege law. not legislative See Owen, is 445 U.S. sovereign on matters is necessarily incompatible with at 647 of federal ("Congress law[.]"); Higginbotham, 436 U.S. 618, 626 (1978) to substitute our views abrogated federal [is] when the statutory the supreme Mobil Oil Corp. v. ("[W]e have no authority for those expressed by Congress in a duly enacted statute."). Intervenors are not wrong to observe that "legislators are entitled to capacity" absolute under Fourth immunity when Circuit acting precedent, Opp'n to Mot. to Compel at 11 (Docket No. v. McLean, 76 F.3d 611, 613 (4th Cir. 13 in a legislative Def.-Ints.' 50) Mem. in (citing Burtnick 1996)), and that the Fourth Circuit has applied a legislative privilege in such cases to bar compulsory testimony, Burtnick, 76 F.3d at 613. But, this precedent does no more than recognize the default state of absolute absence common-law immunity of contrary federal accorded law in cases in and the application common-law privilege in support thereof. Cartledqe, civil 928 F.2d 93, 96 (4th Cir. the of the See United States 1991) v. (acknowledging that the Gillock Court "employed a balancing test" to weigh the state legislative privilege against the need to enforce federal law) . As in Tenney, the Burtnick Court was faced "with a civil action brought by a private plaintiff to vindicate private rights." Gillock, 445 U.S. at 372 (discussing Tenney) . And, as in Tenney, the Burtnick Court held that absolute state legislative immunity and circumstances. privilege should be preserved under such See Burtnick, 76 F.3d at 613; accord Hollyday v. Rainey, 964 F.2d 1441, 1443 (4th Cir. 1992). However, presumptions the for principles the state animating the legislative default common-law privilege in cases brought against individual legislators and the state legislative privilege in cases brought against coterminous. the State itself are not In the former circumstance, the line for immunity is drawn between civil and criminal suits, with the legislator's privilege extending to provide absolute protection against compulsory process where liability against the individual would 14 itself be barred. This not only eliminates "the burden of [legislators] defending themselves," Dombrowski, 387 U.S. at 85, but also directly supports the principle of legislative independence, which provides individual legislators immunity for the "public good," Lake Country, II, 440 U.S. at 404. See also WSSC 631 F.3d at 181 ("Legislative privilege against compulsory evidentiary immunity process and to exists further to safeguard encourage the . . . legislative republican values it promotes."). However, where the State faces liability, the legislative privilege becomes qualified when it stands as a barrier to the vindication of important federal interests and insulates against effective redress of public rights. As the Supreme Court noted in Owen, At the heart of [the] . immunity the for concern monetary unwarranted the that justification for . . individual the liability and official threat will unconscionable of is personal introduce an consideration into the decisionmaking process, thus paralyzing the governing official's decisiveness and distorting his judgment on matters of public policy. The inhibiting effect is significantly reduced, if not eliminated, however, when the personal liability is removed. Owen, 445 U.S. at 655-56. threat of In other words, there is little to no threat to the "public good" of legislative independence when a legislator is not threatened with individual liability. 15 The only interest cases is advanced the by the legislator's legislative interest distraction of compulsory process. privilege in being in free such from the See WSSC II, 631 F.3d at 177 ("We recognize the great importance of protecting legislators from intrusive and costly is clear inquiries into their legislative acts."). Although normally it still apply in that the civil absolute suits privilege brought by private plaintiffs to vindicate private rights, see generally id., authorities "distraction do not establish that the will the interest" standing alone is sufficient to justify an absolute legislative privilege in instances personally threatened privilege would where with frustrate applies whether or see icL state liability the protecting vital public rights.1 will still apply, a legislator and an execution is exercise of of federal not the laws In such situations, a privilege at 181 (noting that a "privilege not the legislators themselves This is not to say that the distraction interest have been is not a significant one. See, e.g., Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 503 (1975); Dombrowski v. Eastland, 387 U.S. 82, 84-85 (1967). federal But the interest carries far greater weight for legislators where it is backed by constitutional authority. State legislators' distraction interest - grounded in federal common law - cannot outweigh an interest in the enforcement of federal statutory law. A presumption of absolute privilege may still prevail when plaintiffs seek private redress, but this presumption does not apply when plaintiffs seek to vindicate important, public rights. 16 sued"), but it will be qualified and subject to balancing in the face of great evidentiary need. Thus, the controversy bedeviling the federal courts as to whether the state legislative privilege is either "absolute" or "qualified" may be beside the point. See Kay v. City of Rancho Palos Verdes, No. CV 02-03922, 2003 WL 25294710, at *11-14 (CD. Cal. 2003) federal (collecting conflicting cases and noting that "the courts application of have the not adopted legislative a consistent privilege in approach civil to suits"). Rather, the answer depends upon the nature of the claim and the defendant. where In civil legislators suits are against presumed individual to be legislators clothed in - absolute immunity in the absence of an express congressional declaration to the contrary, see legislative privilege documentary disclosure Gillock, privilege exists to 445 prevents in at the of such immunity 372-732 the or claims. and This further the See WSSC II, "public good" of legislative independence. F.3d at - testimony compelled support safeguard U.S. 631 181. The presumption is that Congress could not have intended to void this historical immunity sub silentio. Admittedly, the Tenney Court did not reach the question whether Congress would have such "constitutional power to limit the freedom of State legislators cases, 37 6. acting within their traditional calling this "a big assumption." sphere" Tenney, in 341 U.S. such at This Court need not - and does not - reach this question because the plaintiffs in this case are not seeking such relief against any individual state legislator. 17 However, in federal criminal cases brought against individual legislators, or where important federal interests are at stake, the presumption of absolute state legislative immunity or absolute state legislative privilege yields. 445 U.S. at 373 n.ll, See Gillock, 373; E.E.O.C. v. Wash. Suburban Sanitary Comm'n (WSSC I) , 666 F. Supp. 2d 526, 532 (D. Md. 2009), aff'd 631 F.3d 174 2011) legislative privilege is one of (4th Cir. non-evidentiary use ("[The] of legislative acts against a legislator, not one of non-disclosure."); Page v. Virginia State Bd. of Elections (Page I), 15 F. Supp. 3d 657, 2014) (quoting WSSC I, 666 F. Supp. 2d at 532) that 'legislative completely privilege insulates any is an of (E.D. Va. ("[T]he argument impenetrable disclosure 665 shield documents' is that not tenable."). Therefore, the state legislative privilege is a qualified one when evidence of forbidden criminal behavior is sought, see Gillock, 445 U.S. at 373, or when a plaintiff proceeds against the State and seeks evidence to rights guaranteed by federal law, 304 (Murnaghan & Motz, vindicate important public see Schaefer, JJ. , concurring) ("The 144 F.R.D. at doctrine of legislative immunity . . . insulates legislators from liability for their official acts and shields them from judicial scrutiny into their deliberative processes [, but] necessarily prohibit judicial . . . does not . inquiry into legislative motive where the challenged legislative action is alleged to have violated an overriding, free-standing public policy."). Several federal courts have taken the same, or a similar, approach in finding that the privilege is a qualified one in redistricting cases. See Favors v. Cuomo (Favors I), 285 F.R.D. 187 Comm. (E.D.N.Y. State Bd. 2012); of Elections, No. for a Fair & Balanced Map v. 11 C 5065, 111. 2011); Baldus v. Brennan, Nos. 2011 WL 4837508 111. (N.D. ll-CV-562, ll-CV-1011, 2011 WL 6122542 (E.D. Wis. 2011); Rodriguez v. Pataki, 280 F. Supp. 2d 89 (S.D.N.Y.) aff'd, 293 F. Supp. 2d 302 (S.D.N.Y. 2003); Schaefer, 144 F.R.D. at 304 (Murnaghan & Motz, JJ. , concurring) ("[T]estimonial legislative United States v. see Simpson v. Irvin, immunity is 127 F.R.D. City of Hampton, not an absolute[.]"); 169 (CD. Cal. Va., 166 F.R.D. 1989). But 16 (E.D. Va. 1996).3 Although some courts analyze the propriety of disclosure or testimony under the deliberative process privilege4 rather The court in Simpson was faced with a request for documentary evidence to challenge a city council's electoral plan. court did not find the privilege absolute, The but cited Burtnick for this proposition and found the privilege issue presented in its case to be "identical" to that presented in Burtnick. For the reasons discussed herein, this Court does not read Burtnick to equate a request for production of documents in a civil action to vindicate public rights as identical to a request for testimony in a civil action to vindicate private rights, and thus does not subscribe to the reading accorded Burtnick in Simpson. The deliberative process privilege traditionally applies to executive and administrative officials and protects the 19 than the legislative legislators is privilege, qualified all the the privilege same based on accorded the to important federal interests at play and the quintessentially public nature of the right. WL 4837508, at redistricting legislative See, e.g., *6 ("Given cases, this immunity Legislators] here. Comm. for a Fair & Balanced Map, 2011 the federal court does not interests concludes entirely that at stake common shield . . . Voting rights cases, in law Non-Part[y although brought by private parties, seek to vindicate public rights."). Redistricting litigation appropriate circumstance presents a for qualifying the particularly state legislative privilege because judicial inquiry into legislative intent is specifically contemplated as part of the resolution of the core issue that such cases present. in Village of Arlington As the Supreme Court explained Heights v. Metropolitan Housing Development Corporation: Proof of racially discriminatory intent or purpose is required to show a violation the Equal Protection Clause. of [Although] courts [normally] refrain from reviewing the merits of [legislative] decisions, absent a showing of arbitrariness or irrationality[,] . . . [w]hen there is a "decisionmaking processes of government agencies" to encourage "frank discussion of legal or policy matters" and ensure that the decisions and policies formulated are not rendered poorer by the chill public." Cir. that might result "if the discussion were made Ethyl Corp. v. U.S. E.P.A., 25 F.3d 1241, 1248 (4th 1994) {citing N.L.R.B. v. Sears, 132 (1975)). " 20 Roebuck & Co., 421 U.S. proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified. 429 U.S. 899, 252, 905 becomes 265-66 (1996) the (1977). ("The See also Shaw v. constitutional 'dominant and wrong controlling' Hunt, occurs 517 U.S. when race consideration. The plaintiff bears the burden of proving the race-based motive and may do so district's either shape through and 'circumstantial demographics' or evidence through evidence going to legislative purpose.'"). ^more of a direct And, while "judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of the other branches of government" and "[p]lacing a decisionmaker on the stand is therefore 'usually to be avoided,'" Arlington Heights, 429 U.S. at 268 n.18, it is nonetheless permissible extraordinary instances," id^ at 268.5 where the natural corrective "[i]n some In redistricting cases, mechanisms built into our republican system of government offer little check upon the very real threat of "legislative self-entrenchment," see Christopher Asta, Note, Developing A Speech or Debate Clause Framework for See also Rodriguez, 280 F. Supp. 2d at 95 ("[C]ourts have indicated that, notwithstanding their immunity from suit, legislators may, at times, be called upon to produce documents or testify at depositions."); Veasey v. Perry, No. 2:13-CV-193, 2014 WL 1340077, at *1 (S.D. Tex. 2014) (noting that Arlington Heights "limited, but did not foreclose, the possibility of piercing the privilege for state legislators in discriminatoryintent claims"). 21 Redistricting Litigation, 89 N.Y.U. L. Rev. 238, 264 (2014), the courts are presented with just such an "extraordinary instance." Thus, the Court is not inclined to hold that a judicially crafted evidentiary privilege based on federal common law can, with unflinching and absolute effect, trump the need for direct evidence that is highly relevant to the adjudication of public rights guaranteed by federal statutory law and the Constitution, especially where no threat to legislative presented. immunity itself is Although the Court will not lightly intrude upon the state legislative privilege, it must be a qualified privilege in such a scenario and yield in the face of an evidentiary need that lies at the core of the inquiry required by the Supreme Court in redistricting cases. B. Qualified Privilege Analysis The next question is the extent to which the legislators' claims of qualified legislative privilege may serve as a basis to withhold the requested evidence. Most courts that have conducted this qualified privilege analysis in the redistricting context have employed a five-factor balancing test imported from deliberative process privilege case law. Supp. 2d at 101 (S.D.N.Y. 2003) See Rodriguez, 280 F. (applying the "official information privilege" test from In re Franklin Nat'l Bank Sees. Liti£^, 478 F. Supp. 577, 583 (E.D.N.Y. 1979) to the legislative privilege); Comm. for a Fair & Balanced Map, 2011 WL 4837508, at 22 *7 (citing Rodriguez Favors I, 285 F.R.D. 666 (same).6 and applying at 209-10 (same); This test examines: evidence sought to be protected; evidence; the five-factor Page I, 15 F. "(i) (ii) analysis); Supp. the relevance 3d at of the the availability of other (iii) the 'seriousness' issues involved; (iv) the role of government in the litigation;" and at (v) of the the purposes of the privilege. litigation Page I, 15 F. and the Supp. 3d 666. Of course, it is necessary to be mindful of the differences between the deliberative process privilege and the legislative privilege example, when most applying courts the to test apply to the new test circumstances. in the For legislative context have examined "the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable" e.g., Rodriguez, 280 F. when analyzing the fifth factor. Supp. 2d at 101. See, The threat of "chilled deliberation" is clearly the purpose of the deliberative process privilege, but it is not the primary purpose of the legislative privilege. 1987) See In re Grand Jury, (" [Confidentiality does not 821 F.2d 946, lie at the 958 root (3d Cir. of the concerns motivating a privilege for all legislative speech or "The 'official information privilege' is also known and referred to at common law as the 'deliberative process privilege' and/or 'executive privilege.'" Evans v. City of Chicago, 231 F.R.D. 302, 315 (N.D. 111. 2005). 23 debate."). process This distinction matters. privilege protects the Because the deliberative uninhibited formulation of policies, it focuses on documents "reflecting advisory opinions, recommendations[,] and deliberations" and excludes documents reflecting the factual bases for these opinions unless they are "intertwined with the policy-making process." 25 F.3d at 1248-49. Factual content is See Ethyl Corp., excluded from the privilege entirely because disclosure of such content would not curtail the robust and vigorous debate necessary to the formulation of policy. The legislative privilege, however, has a wider sweep based on different process," purposes. Favors I, Because 285 the F.R.D. at privilege 210, the "protects activity a of legislative fact-finding is encompassed within the privilege, see Gov't of Virgin Islands v. Lee, 775 F.2d 514, 521 (3d Cir. 1985) (" [F]act-finding, information gathering, and investigative activities are essential prerequisites to the drafting of bills and the enlightened debate over proposed legislation. As such, fact-finding occupies a position of sufficient importance in the legislative process to legislative immunity."). justify the protection To advance legislators' avoiding the distraction of compulsory process, afforded by interest in the privilege should therefore extend to factual information relied upon in the legislative process and be 24 subject to a balancing of interests rather than wholesale exclusion. 25294710, at *11. See Kay, 2003 WL The principle of "legislative independence" may justify greater protection for "opinion" documents under the overlapping rationale of preventing timidity in the formulation of public policy,7 but that does not mean that the production of "fact" documents poses no burden whatsoever. Similarly, because many privileges rest upon a "confidentiality" interest, disclosure to third parties normally results in a complete waiver of the privilege. of this rule is The application less strict when applied to the legislative privilege because, again, the privilege "protects a process" and encompasses "communications adversaries[.]" Favors I, even 285 as F.R.D. between at 210. political There are obviously limits to who falls within the legislative process, see Page I, 15 F. Supp. 3d at 668 (denying legislative privilege to consultant independently contracted by partisan political party), but even these boundaries may be subject to balancing, see Dombrowski, 387 U.S. at 85 ("Th[e] Court has held . . . that this doctrine is less absolute, although applicable, when applied to officers or employees of a legislative body, rather than to legislators themselves."); Favors I, 285 F.R.D at 213 Some courts have simply applied the deliberative process privilege directly to legislators. See In re Grand Jury, 821 F.2d at 958 (applying the deliberative process privilege to state legislators instead of the legislative privilege). 25 ("Retained consultants who aid legislators in the performance of their legislative duties fall within the scope of the qualified legislative privilege[.]"). cover the factual bases process of fact-finding, to third parties are of Thus, a whether the privilege legislative decision, should protect the or extend in varying concentric degrees questions to be addressed within the qualified balancing analysis rather than with any kind of "per se" rule. Acknowledging these differences in the purpose and scope of the deliberative privilege, process privilege and the legislative the Court finds that the five-factor balancing test employed by framework other for courts decision provides on the the proper legislative analytical privilege issues presented here. 1. Under Relevance of Evidence Rule 26 of the Federal Rules of Civil Procedure, parties "may obtain discovery of any nonprivileged matter that is relevant to any party's claim or defense [. ]" 26(b). giving Here, rise Plaintiffs' other cases, legislative government's] "[t]he to state the present litigation Page I, 15 F. claims." government's Supp. Fed. R. Civ. P. role is in the central events to 3d at 666. the Unlike where the deliberative process privilege or the privilege may decision-making be employed process 26 to from "prevent being swept [the up unnecessarily into the public domain," this is a case where the decisionmaking process "is Balanced 2011 4837508, Map, WL the case." at Comm. *8 for (internal a Fair brackets & and citations omitted). In an Equal Protection Clause case, "proof of a legislative body's discriminatory intent is relevant and extremely important as direct evidence." documents legislators Baldus, 2011 WL 6122542, at *1. containing or the their opinions key advisors and subjective would be "[A]ny beliefs relevant to of the broader inquiry into legislative intent and the possibility of racially motivated decisions that were not adequately tailored to a compelling government interest." 666. Page I, 15 F. Supp. 3d at Even "purely factual material can shed light on what factors and considerations were foremost in the legislature's mind while the legislation was pending." perhaps the most important Id. In this case, inquiry will be whether the State sought to "maintain [or increase] present minority percentages in majority-minority districts" without regard to whether these percentages were reasonably necessary "in order to maintain the minority's present ability to elect the candidate of its choice[.]" See Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1274 (2015). It is true that "plaintiffs need not offer direct evidence of discriminatory intent," such 27 as "statements made by the decision making body or members thereto," "demonstrate intentional discrimination." Balanced Map, 2011 WL 4837508, at *8. in Comm. order to for a Fair & There are, in fact, "a variety of circumstantial factors" from which courts "may infer discriminatory intent." Id^ at *3. However, those alternatives are properly considered under the second factor below and should not be used to discount the relevancy of the evidence sought. Likewise, of it may be true that "the individual motivations" particular legislators may be neither necessary nor sufficient for Plaintiffs to prevail. See id. at *4 (citing Palmer 224 v. Thompson, 403 U.S. 217, (1971), for the proposition that "no case in [the Supreme] Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted Aguillard, 482 U.S. 578, 638 (1987) "the subjective enterprise"). intent However, of for it"); Edwards v. (calling the evaluation of legislators ... a perilous that does not mean the evidence cannot constitute an important part of the case presented against, or in favor of, the districting plan. See Washington v. Davis, 426 U.S. 229, 270 n.ll (1976) ("To the extent that Palmer suggests a generally applicable proposition that legislative purpose irrelevant in constitutional adjudication, is our prior cases as indicated in the text are to the contrary [.]") ; Shaw v. Hunt, 517 U.S. 899, 923 (1996) (attributing to Palmer the lesson that 28 "racially Clause motivated only when differently from State Bd. 5019686 legislation the challenged whites.'") of Elections (E.D. Va. (emphasis added); 2014) 135 S. cited specific drawing[, including] race was Ct. 58 F. vacated 1699 as Equal Protection 'affect[s] Page v. nom. blacks Virginia Supp. 3d 533, sub (2015) factors a predominant the legislation (Page II), Personhuballah, several violates 2014 WL Cantor v. ("The Supreme Court has evidence of racial line statements by legislators indicating that factor in redistricting [and] evidence that race or percentage of race within a district was the single redistricting criterion that of the could not be compromised[.]"). Moreover, the question whether State thought it appropriate to use specific racial percentages in an attempt to comply with the requirements of the Voting Rights Act is one that is particularly important to this litigation, regardless of the subjective motivations purportedly legislators' final voting decisions. driving individual Given the centrality of the "legislative purpose" inquiry to Plaintiffs' claim as well as the Supreme Court's recent guidance in Alabama Legislative Black Caucus, clearly 135 S. Ct. relevant, and 1257 (2015), the evidence sought is thus this disclosure. 29 factor weighs in favor of 2. Availability of Other Evidence Direct evidence of discriminatory intent is not necessary to prevail. "[C]ourts may infer discriminatory intent from a variety of circumstantial factors." Map, 2011 WL 4837508, at *3. Comm. for a Fair & Balanced These factors include: [Bjloc voting along racial lines; low minority voter registration; exclusion from the political process; unresponsiveness of elected officials to needs of minorities; . depressed attributable to socio-economic status inferior education and employment and housing discrimination[;] . . . the historical background of the decision; the specific sequence of events leading up to the challenged decision; the normal retrogression voting procedural (i.e.[,] strength departures from sequence; a minority decrease of a cohesive in voting the bloc over time); and manipulation of district boundaries to adjust the relative size of minority groups, including the "packing" of minority voters. Id_^ See also Page II, 2014 WL 5019686, at *6. purposes, Plaintiffs may resort to For evidentiary various sources of information, including "special interest group position papers," "press releases," "newspaper articles," "census "registered voter data and election returns," etc. reports," Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *8. That said, the availability of alternate evidence does not render the evidence sought here irrelevant by any measure. As one court held, "the second factor weighs slightly in favor of disclosure" despite the existence of other evidence "given the 30 practical reality that officials 'seldom, if ever, announce on the record that they are pursuing a particular course of action because of their minority.'" desire Veasey, Town of Clarkton, N. to discriminate 2014 WL 1340077, C, against at *3 682 F.2d 1055, 1064 a racial (citing Smith v. (4th Cir. 1982)). In other words, the availability of alternate evidence will only supplement - Plaintiffs. not supplant Plaintiffs circumstantial evidence. real - need the not Page I, evidence "confine 15 F. Supp. sought their Id_;_ proof" 3d at 667. proof is what was in the contemporaneous redistricting process." by the to "The record in the The Court finds that this factor weighs in favor of disclosure. 3. Seriousness of Litigation and Issues Involved In a republican government, there is no more foundational right than meaningful representation. A legislature reflective of the democratic body is the root from which all rights and laws derive. As John Adams wrote, an assembly "should be, in miniature, an exact portrait of the people at large. think, feel, reason, and act like them." on Government: It should John Adams, Thoughts Applicable to the Present State of the American Colonies; In a Letter from a Gentleman to his Friend (April, 1776) . Courts have readily recognized the "seriousness of the litigation" in racial gerrymandering cases. Page I, 15 F. Supp. 3d at 667 ("The right to vote and the rights conferred by the 31 Equal Protection Clause are of cardinal importance."); 285 F.R.D. at 219 Favors I, (observing that the third factor is "intended to give due consideration to some of the most invidious forms of government malfeasance"); Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *8 ("There can be little doubt that plaintiffs' allegations are serious. Plaintiffs raise profound questions about the legitimacy of the redistricting process[.]"). The Plaintiffs allege an undoubtedly serious deprivation of rights. This factor weighs heavily in favor of disclosure. 4. Role of the Government The fourth factor in the balancing analysis cuts at cross purposes. than As discussed above, the legislators - are where the legislature - rather the target legislative immunity is not under threat, legislative privilege may be tempered. of the remedy and application of the On the other hand, the legislature's decision to "inject itself into the case" does not mean that the legislators have "voluntarily installed themselves as defendants." 2001). See Powell v. Ridge, 247 F.3d 520, 525 (3d Cir. Notwithstanding this distinction, the "decision-making process remains at the core of the plaintiffs' claims . . [and] the legislature's direct role in the litigation supports overcoming the privilege." on these contrary Favors I, 285 F.R.D. at 220. factors, the weighs in favor of disclosure. 32 Court finds that the Based factor 5. The Purposes of Privilege state legislative privilege protects a "distraction" interest - to guard legislators from the burdens of compulsory process - encourage process and a "legislative legislators to independence" engage deeply and act boldly in the public in interest the interest - to legislative without fear of personal consequence. The distraction interest is not one to be taken lightly. However, a request for request for testimony, documents is especially where, are collected and available less burdensome as here, than a the documents in the hands of the Intervenors. Because even absolute legislative privilege "does not bar an inquiry into whether a legislator's activities and conversations were, in fact, legislative in nature," Lee, 775 F.2d at 517, some degree of documentary review is necessary for the privilege to be claimed in the first place. As such, an intrusion already exists and a request for production only varies the degree of the intrusion. While any additional burden of compulsory process necessarily militates against disclosure, a request for documents is less burdensome than a request for testimony. The legislative against disclosure. substantially independence likewise weighs Admittedly, the threat to this interest is lowered subject to liability. interest when individual legislators are not See Owen 445 U.S. at 656 ("The inhibiting 33 effect is significantly reduced, if not eliminated, when the threat of personal liability is removed."); F. Supp. 3d at 665 ("In assessing legislative privilege, privilege immunity is an because it is outgrowth the of the to of thought (citing WSSC II, 15 of the that remember doctrine was Page I, applicability necessary privilege effectuate the immunity.") the however, the legislative necessary to 631 F.3d at 181). Some courts have gone so far as to say that the Gillock decision negated the altogether. existence a state See In re Grand Jury, believe ... burdens of legislative privilege 821 F.2d at 957 ("We do not a state legislator's interest in avoiding the of compliance with a subpoena is alone sufficient to justify creation of a speech or debate privilege."). Moreover, is protected independence" deliberative to the extent that legislators' either as principle process a or component under privilege, the a of confidentiality the "legislative separately Court will potential for "timidity" stemming from disclosure. cognizable consider This threat has been taken seriously by other courts in this context. Pa9e J' 15 F- communications Supp. of 3d at 667 legislative the See ("[A]ny effort to disclose the aides and assistants who are otherwise eligible to claim the legislative privilege on behalf of their employers threatens to impede future deliberations by the legislature."); Comm. for a Fair & Balanced Map, 34 2011 WL 4837508, at *8 constituents, and lobbyists, others. without ("Legislators They fear of must public face competing party leaders, be able to demands from special interest groups confer disclosure."). with Of one course, another contrary authority exists as well. Irvin, 127 F.R.D. at 174 ("This Court is the not convinced that occasional instance in which disclosure may be ordered in a civil context will add measurably to the inhibitions already attending legislative deliberations."); Baldus, 2011 WL 6122542, at *2 ("Allowing the plaintiffs access to these items may have some minimal 'chilling effect' on the Legislature, but that future fact is outweighed by the highly relevant and potentially unique nature of the evidence."); ed.) ("The upheld in 26A Fed. deliberative a case where Prac. process there is & Proc. privilege any need Evid. § 5680 should for (1st seldom be the evidence because it rests on such a puny instrumental rationale. ... It rests upon . . . dubious empirical assumptions."). Based on the analysis above, this Court finds that the fifth factor weighs against disclosure. C. Application Balancing the competing, substantial interests at stake, the Court finds that the totality of circumstances warrant the selective disclosure of the assertedly privileged documents in the House's possession. In this 35 context, where Plaintiffs allege racial gerrymandering and seek an injunctive remedy from the legislature itself, and the intent of the legislature is the dispositive issue in the case, the balance of interests calls for the legislative privilege to yield. record, the foregoing principles Under the facts in this call for the following any documents disclosure requirements and procedures. First, the communications House created date of enactment. must after produce the redistricting or legislation's The privilege only protects "integral steps" in the legislative process and does not extend to commentary or analysis following the legislation's enactment. Second, the House must produce any communications shared with, or received from, organization outside the employ of the documents or any individual or legislature. The legislative privilege is strongest as applied to communications among legislators aides. and between legislators and their immediate Gravel, 408 U.S. at 616-17 ("The day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latter's alter egos."). The privilege also applies, "legislative members, albeit with officers, See Schaefer, 85 and Tenney, less strength, to or other employees of a legislative body." 144 F.R.D. at 298 (citing Dombrowski, 341 U.S. ("[C]ommunications staff with at 378); Favors I, technical 36 387 U.S. at 285 F.R.D. employees who at 212 'provide information to legislators collectively, ' but who a particular legislator as his deserve weak deference or her personal in the 'do not advise staff,' balancing of at best competing interests.") . However, "a knowledgeable conversation outsiders, between such as legislators lobbyists, to and mark up legislation is a session for which no one could seriously claim privilege." brackets Rodriguez, omitted). 280 F. Supp. 2d at As observed in Page I, 101 (internal "the Virginia Code specifically identifies the personnel that can be employed by individual legislators and standing legislative committees in the General Assembly, and the Code also specifies the procedures for appropriating the 15 F. Supp. 3d at 663 individual or funds to compensate those staff members." (citing Va. Code § 30-19.4). organization was pursuant to this provision, retained by Unless an the House itself any communications or documents with or from such person may not be withheld. Third, for communications before the the following "internal" legislation's to the date of kinds House of documents or that were generated enactment, the following disclosure rules apply: • All documents factual or communications information - regardless of reflecting strictly source - are to be produced. This includes all "materials and information available to lawmakers at the time a decision was made." 37 See Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *9 (internal brackets omitted). • All documents or communications produced by committee, technical, or professional staff for the House (excluding the personal staff of legislators) that reflect opinions, recommendations, or advice are to be produced. Comments, requests, or opinions expressed by legislators or their aides in communication with such staff may be redacted, subject to the disclosure rule below. Fourth, with respect to the failed to respond to the parties' to privilege is deemed to be four legislators inquiry, who have any potential claim waived. See Veasey, 2014 WL 1340077, at *2 ("The privilege is also deemed to be waived as to the 17 legislators who did not respond to defense inquiry regarding the assertion of the privilege."). counsel's The House argues that it may not waive the legislators' privilege and that by producing documents it would be doing so. case. and This is not the The House has reached out to the legislators in question advised privilege. them of their rights to waive or assert their Those that have not responded have failed to assert the privilege. Thus, the House is not "waiving" the privilege against their wishes. The legislators waived the privilege and their documents must be produced. Fifth, as to many of the remaining requested documents, the record does not actually establish that there is a legislative privilege. asserting As the privilege Plaintiffs has the correctly burden 38 of contend "[a] demonstrating party its applicability." 501 (4th Cir. insufficient N.L.R.B. 2011) . to of a Interbake Foods, LLC, 637 F.3d 492, "A conclusory assertion of privilege establish particular document." proponent v. a Page I, privilege privilege's 15 F. must Supp. applicability 3d at 661. "demonstrate v. Conseco, Inc., 477 F. Supp. 2d 741, 751 a Thus, the specific showing that the communications were privileged." to is facts RLI Ins. Co. (E.D. Va. 2007). Because "[t]he privilege is a personal one and may be waived or asserted by each individual legislator," Schaefer, 298, 144 F.R.D. at the "legislator or an aide has the burden of proving the preliminary facts of the privilege." Fed. Prac. & Proc. Evid. § 5675 Legislative Privilege, 26A (1st ed.). To be clear, one does not prove entitlement to legislative (or, indeed, any) privilege simply by asserting it. proved. burden "The fact on the that making specific legislator when a mass of claims It must be may impose evidence is a involved does not justify the making of blanket claims of privilege." Id. The privilege must be proved for each document withheld as privileged. Contrary to the Intervenors' not particularly be a difficult arguments, exercise. this need Intervenors implicitly represent that they have already done this analysis by attempting to withhold the documents on legislative privilege grounds. Thus, counsel for the Intervenors may work with individual legislators and/or their aides to help "prove up" 39 their claims of privilege and minimize the burden imposed. The House cannot, however, undertake this analysis on its own. Ordinarily, an order However, requiring this parties Intervenors inadequate showing made production case presents the individual not the and legislators the simply privilege (or not) of the a most notice drafted instructed the documents unusual (who must prove by here would warrant the at issue. circumstance because the privilege) are Plaintiffs and the "assert" the legislators to and did not instruct how the privilege, once asserted, must be proved. Considering the importance of the legislative privilege and the confusing nature of the notice, the Court declines to impose the usual consequences of the failure of proof upon the non party legislators. Instead, the Court will require counsel for the Intervenors to work with the legislators to demonstrate the existence of the privilege for each document if, can be done. that This process will be expedited. To assist in expediting that process, as indeed, the Court instructs follows: • All documents or communications produced by legislators or their immediate aides before the redistricting legislation was enacted (excepting those in paragraph "Third" above which must be produced) may be withheld, except to the extent any such document pertains to, or "reveals an awareness" of: racial considerations employed in the districting process, sorting of voters according to race, or the impact of redistricting upon the ability of minority voters to elect a candidate of 40 choice. In such a situation the public interest in vindicating vital constitutional rights overcomes the presumption of common-law privilege and warrants production. See Favors v. Cuomo (Favors II), No. ll-CV-5632, Mem. & Order at 34 (E.D.N.Y. 2013) (Docket No. 559). Because considerations of race and ethnicity "are, in fact, necessary to ensure compliance with the [Voting Rights Act]," the Court will not require the disclosure of documents or communications produced by legislators or aides that merely reference or contain demographic data, although such data itself should be produced as "factual information" consistent with the requirement above unless it intertwined with non-factual content. is inextricably Id.8 Sixth, to the extent the Intervenors argue that all of the documents on their privilege logs are adequately described and reasonably withheld, they are incorrect. Counsel for the Intervenors must reevaluate the claims of legislative privilege and the adequacy of its privilege log descriptions in light of this Memorandum Opinion, Plaintiffs, provide a modified privilege log to and submit its revised set of proposed privileged documents to this Court for in camera review. F.R.D. at 220 See Favors I, 285 (collecting cases and noting that "the prudent course is for the Court to perform an analysis of the allegedly privileged documents, specific documents in camera, prior to ruling (or categories of documents) as to the over which the Q If individual legislators choose to introduce additional evidence of other motivations to dispel the notion that racial considerations predominated, they are welcome to waive their privilege with respect to other documents and communications with the understanding that some degree of subject matter waiver may apply to ensure that fair context is provided. 41 privilege has been invoked"). This process too will be expedited. In crafting their modified privilege logs, should remember the Plaintiffs are withheld Rambus, the there to discern must be sufficient whether or not the in compliance with the rules v. Inc. Va. 2004) that Infineon Techs. AG, 220 the Intervenors detail to documents set out F.R.D. allow withheld above. 264, 272 See (E.D. (privilege log descriptions insufficient if they "lack information applies"); adequacy Favors of document, necessary I, privilege 285 to determine F.R.D. logs, at courts whether 222 ask ("In a privilege assessing whether, 'as to the each the privilege log sets forth specific facts that, credited, would privilege.'") notation suffice to establish each (internal brackets omitted). that merely indicates that redistricting issues is insufficient. a element of if the In that regard, document relates See id. at 223. a to The fact that a document relates to redistricting bespeaks its relevance, not its privilege. All documents withheld on the purported basis of the legislative privilege are subject to the rules set out II. above. Attorney-Client Privilege The purpose of the attorney-client privilege is to "promote broader public interests in the observance of law and administration of justice . . . [t]he privilege recognizes that 42 sound legal advice or advocacy serves public ends and that such advice or advocacy depends informed by the client." 280 F.R.D. 247, 251 upon the being fully ePlus Inc. v. Lawson Software, Inc., (E.D. Va. 2012) States, 449 U.S. 383, 389 (1981)). attorney-client lawyer's privilege is (quoting Upjohn v. United As with all privileges, the narrowly construed recognized "to the very limited extent that and only . . . excluding relevant evidence has a public good transcending the normally predominant principle ascertaining truth." v. Stables, 148 F.3d of utilizing all rational means for Rambus, 220 F.R.D. at 271 (quoting Hawkins 379, 383 (4th Cir. 1998)). The Fourth Circuit applies the "classic test" for determining the existence of the attorney-client privilege: The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). The attorney-client privilege does not, however, "apply to the 43 situation where it is the . . . understanding of the client that the communication is to be made known to others." See F.T.C. v. Reckitt Benckiser Pharm., Inc., No. 3:14MC5, 2015 WL 1062062, at *3 (E.D. Va. 2015) (citing In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984)). If the individual or entity requesting had legal confidentiality person cannot information at the later time seek of to the no expectation communication, shield that then information of that simply because it was regarding a legal issue. As with the legislative privilege, the attorney-client privilege must be asserted and established by the privilege holder. with The Intervenors may claim the privilege only in accord the rule set by Jones legislator is the client. requested legal advice provided legal protected. advice and only if one In other words, of them or a if a legislator from House counsel and/or House counsel to a legislator, then this may be Similarly, if the House itself sought legal advice or such advice was provided to the House, then this may be protected. The Intervenors may not assert the privilege on behalf of third parties, committees, including individual or political parties. delegates, campaign If the Intervenors are in possession of communications reflecting an individual delegate's request for outside legal advice, the proper course of action is 44 for the House properly to claim advise and the delegate establish the so that the delegate privilege. The can House's possession of such communications does not necessarily waive the privilege counsel, as between the individual delegate and outside so long as the delegate can demonstrate that there was a reasonable expectation of privacy in the emails sent using the House email system. 404, 409 this question have Asia (4th Cir. Global (1) personal United 2012). States v. Hamilton, Ltd., whether or 701 F.3d Most federal courts to have evaluated relied upon the four-factor test Crossing, questions: banning See other which the examines institution objectionable from In re the following maintains use, (2) a policy whether the institution monitors the use of the user's computer or e-mail, (3) whether third parties have a right of access to the computer or e-mails, and (4) or whether the user policies. Nor whether the institution notified the user - was aware - of the use and monitoring See 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005). have the Intervenors made any kind of showing to support their claim that the House and any individual legislator requesting common information interest shared doctrine a applies "common when interest." two or more "[T]he parties consult or retain an attorney concerning a legal matter in which they share a common interest." Dev., 372 F.3d 286, 292 Hanson v. (4th 45 Cir. U.S. Agency for Int'1 2004). This doctrine typically share "permits privileged parties whose materials legal with one interests another in coincide order to to more effectively prosecute or defend their claims," Hunton & Williams v. DOJ, 590 F.3d 272, 277 (4th Cir. 2010), although "it is unnecessary that there be actual litigation in progress for this privilege to apply." "Merely satisfying Hanson, the 372 F.3d requirements at of 292. the However, common interest doctrine without also satisfying the requirements of a discovery privilege does not protect documents from disclosure." 590 F.3d at 280. that the Hunton, The Intervenors bear the burden of showing attorney-client privilege applies, and that this privilege was not waived as to a third party because of the operation of the common interest doctrine. That showing has not been made. "[A]lthough a where two parties common interest are clearly agreement can be collaborating in inferred advance of litigation, mere 'indicia' of joint strategy as of a particular point in time are insufficient to demonstrate interest agreement has been formed." words, the interest in Intervenors passing invoking the doctrine. cannot Id. at 284-85. simply point constitutional that to legislation a common In other a generalized to justify It is dubious to argue that individual legislators and the Intervenors were operating under an implied common interest agreement if the 46 individual legislators were completely unaware of being part of such an agreement. This is especially important assumed here because the Intervenors have that they had a common interest with individual legislators all along. this The Intervenors have made no effort to verify - even to day - assessment that whether of their any those parties in supposed common communications fact concurred interest, or document and exchanged in its it is clear prior to the establishment of a common interest agreement are not protected from disclosure. See id. at 285. Intervenors also may not claim privilege for communications shared freely organizations, parties. however, with, or including in the campaign presence committees Such documents must be produced. of, and outside political The Court will not, require production of communications where the only other parties to the otherwise privileged (as defined in Jones) communication were the House Republican Caucus, the Virginia Senate, or other entities internal to the legislative branch. Communications information with seeking - the information Virginia from Attorney - or sharing General's office, however, do not fall within the attorney-client privilege. The Attorney General provides legal advice to the executive branch and its constituents. No legislator or legislative entity could reasonably expect that an attorney-client relationship would be created or that the attorney-client privilege would attach as a 47 result of a request for a legal opinion or position from the executive. In order to provide individual legislators the opportunity to claim and establish attorney-client privilege with respect to their communications forestall respect ruling to with on the communications attorney-client privilege. outside counsel, Plaintiffs' motion the Court will to compel with purportedly withheld pursuant to the As with the legislative privilege, the Intervenors must review the claims of privilege in light of today's ruling, affected, and provide notice to any non-parties revise its privilege log potentially accordingly. This process will also be expedited. III. Work Product Doctrine The work product doctrine embodies the principle that "the material which reflects an attorney's efforts to investigate and prepare a case are protected from discovery if such material was created in 'anticipation of litigation.'" See Conseco, 477 F. Supp. 2d at 746 (citing Hickman v. Taylor, 329 U.S. 495, 508-10 (1947)). The protections of the work product doctrine extend beyond the litigation for which the materials Duplan 480, Corp. 483 v. (4th Moulinage Cir. 1973) et Retorderie ("[W]e find were prepared. de Chavanoz, no indication 487 F.2d that the Court intended to confine the protection of the work product to 48 the litigation discoverable in which it was prepared or to make in a subsequent law suit."). work by an attorney is not protected, at 746. Otherwise however, in the "ordinary course of business." identical if it was created Conseco, Legislative counsel could not, it freely 477 F. Supp. 2d for example, withhold documents pertaining to pending legislation on the basis of the work product doctrine because "[t]he [1]egislature could always have a reasonable belief that any of its enactments would result in litigation. That is the nature of the legislative process." Baldus, 2011 WL 6385645, at *2. Intervenors disclosure of argue work Virginia State Bd. Ints.' Mem. that product Plaintiffs from the of Elections, No. have proceedings 3:13-CV-678. in Opp'n to Mot. to Compel at 18 sought in the Page v. See Def.- (Docket No. 50). In response, Plaintiffs argue that the disputed documents "may have been protected by Rule 26(b)(4) in Page" but "appear on the privilege log of the House, which was not a party in Page," thus waiving the protection conferred by the work product doctrine. Pis.' Reply in Supp. of Mot. to Compel at 18 (Docket No. 51). The Intervenors, however, represent never been in the possession, or Speaker Howell." at 19. the that the documents custody, "have or control of the House Def.-Ints.' Mem. in Opp'n to Mot. to Compel Because Baker Hostetler represents both the holder of documents from Page as well 49 as the Intervenors in the current litigation, the House contends that the documents are only listed on the privilege logs because they "came within the scope of [Plaintiffs'] counsel to fact that does not these requests, the House." counsel to Id. which sought documents held by This is a fair the House may have explanation. The reviewed the documents result in a waiver of the work product doctrine under circumstances. Plaintiffs' motion will be denied respect to these documents. CONCLUSION For the foregoing reasons, PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND MEMORANDUM IN SUPPORT (Docket No. 48) will be granted in part and denied in part. It is so ORDERED. /s/ iur Robert E. Payne Senior United States District Judge Richmond, Virginia Date: May 26, 2015 50 with
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