Opinion
EP-21-CV-00259-DCG-JES-JVB
12-21-2023
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al., Plaintiffs, v. GREG ABBOTT, in his official capacity as Governor of the State of Texas, et al., Defendants. EDDIE BERNICE JOHNSON, et al., Plaintiff-Intervenors,
MEMORANDUM OPINION AND ORDER [
Judge David C. Guaderrama respectfully dissents from this Memorandum Opinion and Order and will issue a dissenting opinion in due course. The panel unanimously agrees to release the majority opinion by itself now, so that the case may proceed while Judge Guaderrama drafts his dissent.
JERRY E. SMITH, UNITED STATES CIRCUIT JUDGE
The United States and a legion of private plaintiffs have alleged that the redistricting plans enacted by Texas following the 2020 census violate the Voting Rights Act (“VRA”) and the United States Constitution. In this consolidated redistricting case, numerous discovery disputes have arisen regarding the invocation of the legislative privilege by Texas legislators and associated individuals. Specifically, the United States and private plaintiffs have moved to compel the production of numerous documents and unseal portions of deposition testimony given by legislators and their aides and consultants. We ruled on several of these motions in a July 25, 2022 order, see ECF No. 467, but the Fifth Circuit vacated that order in light of recent caselaw articulating the scope of the legislative privilege. See League of United Latin Am. Citizens v. Abbott, No. 22-50662, 2023 WL 4697109 (5th Cir. July 18, 2023) (per curiam) (unpublished).
In May 2023, the Fifth Circuit decided Jackson Municipal Airport Authority v. Harkins, 67 F.4th 678 (5th Cir. 2023), and La Union del Pueblo Entero v. Abbott, 68 F.4th 228 (5th Cir. 2023) (“Hughes”). Both cases directly affect the discovery dispute between the parties here, and at the parties' request, see ECF No. 702, this Court ordered supplemental briefing to better understand and apply these new binding cases, see ECF No. 703. After the parties had submitted almost all of their supplemental briefing, the Fifth Circuit withdrew and vacated its opinion in Harkins, substituting it with an unpublished, non-precedential opinion. See No. 21-60312, 2023 WL 5522213, at *1 (5th Cir. Aug. 25, 2023) (unpublished). Shortly thereafter, the Fifth Circuit withdrew the unpublished opinion and scheduled the case for en banc rehearing. See 78 F.4th 844 (Mem) (5th Cir. 2023). We therefore disregard Harkins and rule as follows regarding the legislative privilege and the pending motions to compel:
I. The Scope of the Legislative Privilege
We find that the legislative privilege's scope is properly and necessarily broad.
The Hughes plaintiffs pointed to Jefferson Community Health Care Centers, Inc. v. Jefferson Parish Government (“JCHCC”) for the proposition that “the legislative privilege for state lawmakers is, at best, one which is qualified.” 849 F.3d 615, 624 (5th Cir. 2017). But the court distinguished JCHCC by pointing out that those claims related to whether a court could even “decid[e] whether to issue injunctive relief[,]” not whether “state legislators can be compelled to produce documents concerning the legislative process and a legislator's subjective thoughts and motives.” Hughes, 68 F.4th at 240 (citing JCHCC, 849 F.3d at 624) (emphasis in the original). We face the same issue here. Because the Fifth Circuit treats the invocation of legislative privilege to bar a claim (JCHCC) and its invocation to prevent certain discovery (Hughes) as distinct, we do so too. Therefore, Hughes governs our discussion of the legislative privilege's scope, not Jefferson. So, we begin by applying Hughes to define the legislative privilege and its extent. Then we address which defendants can assert it.
As the Fifth Circuit explained in Hughes, the state-legislator's legislative privilege is a common-law evidentiary privilege. 68 F.4th at 235. As a common-law privilege, it is not governed by the Speech or Debate Clause of the U.S. Constitution and is therefore narrower than the federal legislative privilege and must yield in certain situations, as discussed infra. See United States v. Gillock, 445 U.S. 360, 366-67, 372 n.10 (1980). It is not an immunity from suit or from attending a deposition. Instead, the privilege covers the material a legislator may refuse to turn over or disclose. See Am. Trucking Ass'ns, Inc. v. Alviti, 14 F.4th 76, 86 n.6 (1st Cir. 2021); Hughes, 68 F.4th at 237 (“the parallel between [legislative privilege and legislative immunity] may not run to the horizon”). Specifically, it protects the “many actions and documents” legislators take, review, or produce “within ‘the legislative process itself' . . . .” Hughes, 68 F.4th at 235 (quoting In re Hubbard, 803 F.3d 1298, 1308 (11th Cir. 2015)); see also Tenney v. Brandhove, 341 U.S. 367, 372 (1951). And the scope of the legislative privilege “is necessarily broad.” Hughes, 68 F.4th at 236.
Thus, this privilege extends well beyond the act of voting for or against a particular piece of legislation. It covers material prepared for a legislator's understanding of legislation, lobbying conversations encouraging a vote on pending legislation, and even materials the legislator possesses related to potential legislation-i.e., “all aspects of the legislative process.” Id. at 235- 36 (quotation marks and citation omitted); see also Almonte v. City of Long Beach, 478 F.3d 100, 103 (2d Cir. 2007) (“[L]egislative immunity applies not only to . . . vote[s] . . ., but also to any discussions and agreements . . . prior to the vote, regardless of whether those discussions and agreements took place in secret.”). But see United States v. Helstoski , 442 U.S. 477, 490 (1979) (describing “legislative acts” under the Speech or Debate clause exclusively as prior actions). The privilege also extends to material provided by or to third parties involved in the legislative process, Hughes, 68 F.4th at 237; see In re N.D. Legis. Assembly, 70 F.4th 460, 464 (8th Cir. 2023), because all of these actions occur “within ‘the regular course of the legislative process,'” Hughes, 68 F.4th at 235 (quoting Helstoski, 442 U.S. at 489 (1979)).
Primarily, this protection enables state legislators to focus on legislating “rather than on motions practice in lawsuits.” Id. at 237 (citing Tenney, 341 U.S. at 377). Therefore, the privilege “applies with full force against requests for information about the motives for legislative votes and legislative enactments.” Hubbard, 803 F.3d at 1310. Such requests are exactly what we are dealing with here.
However, this privilege does not extend beyond the legislative process. To the extent the plaintiffs seek discovery over materials not part of the “proposal, formulation, and passage of legislation,” that material is not protected by the privilege. Hughes, 68 F.4th at 236 (quoting Hubbard, 803 F.3d at 1308).
A. The Legislative Privilege Protects Derivative Factual Information
Like other common-law privileges, the legislative privilege does not protect purely factual information. And, as the plaintiffs' and United States' briefs suggest, we believe it appropriate to analogize to two of those common-law privileges. See ECF No. 708 at 6-7 (citing Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elecs., No. 11 C 5065, 2011 WL 4837508, at *7 n.9 (N.D. Ill. Oct. 12, 2011) (analogizing the legislative privilege to the deliberative-process privilege); Upjohn Co. v. United States, 449 U.S. 383, 389, 395 (1981) (attorney-client privilege); In re Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997) (deliberative-process privilege)); ECF No. 709 at 9-13; ECF No. 722 at 5-6. But see ECF No. 721 at 14-16 (Defendants' Brief). As discussed infra, we believe analogizing to those other common-law privileges-the attorney-client privilege and the deliberative-process privilege-helps elucidate the extent of the legislative privilege. But that does not mean that all three privileges are coterminous. The legislative privilege extends further than either other privilege when it comes to bare facts.
The legislative privilege protects the possession, preparation, or review of factual information when disclosure would “inevitably reveal the [legislator's] deliberations.” In re Sealed Case, 121 F.3d at 737 (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-54 (1974)). Disclosure of the underlying facts that the legislator relied on in voting on or in crafting a legislative proposal is unlikely to affect the legislator's willingness to consider those facts or reveal his or her deliberations. However, disclosing that the legislator relied on or considered some facts, and not others, would inevitably indicate the legislator's deliberations. Thus, testimony or documentation that may indicate the legislator's relative focus on some facts is privileged. For example, testimony such as “I don't know” or “I don't recall” is privileged insofar as it indicates that the legislator did not find certain material particularly relevant to the decision-making process. Cf. ECF No. 708 at 11. Similarly, material the legislator obtained, or declined to obtain, in the decision-making process is privileged too insofar as it is sought from the legislator.
Whether something would “inevitably reveal the [legislator's] deliberations” can be considered akin to whether evidence is relevant. Similarly, so long as disclosure of the factual material by the legislator would add a brick to the plaintiffs' wall, it falls within the scope. See Fed. R. Evid 401 advisory committee's note to 1972 Proposed Rules. That is not to say that the same factual material is not discoverable from others, though. See infra.
We do not indicate that possession, preparation, or review per se brings the factual information within the scope of the privilege. It is the fact that any of those actions occurred in the legislative process that brings them within the scope. For example, a legislator may review a study in her office in preparation for teaching a class at a local college. She cannot claim legislative privilege over that study or her review of it because she did not do so for any legislative reason. But, had she reviewed that study as preparation for writing a bill, her possession and review of that study would fall within the scope of the privilege.
As Hughes makes clear, the privilege protects information shared with a legislator by a third party, or which a legislator shares with a third party for the purposes of preparing or voting on legislation. 68 F.4th at 236. We believe that this also means any reports or analyses prepared for a legislator, or even in the process of briefing a legislator, are protected derivative factual information. This is because such meetings, and therefore the preparation for them, are “part and parcel of the modern legislative procedures through which legislators receive information possibly bearing on the legislation they are to consider.” Id. (quoting Bruce v. Riddle, 631 F.2d 272, 280 (4th Cir. 1980)). Such documents and information are prepared within the legislative process. See Gov't of V.I. 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.” (emphasis added)). Just because no one presented that document to a legislator does not mean that no one presented the information contained in the document to the legislator. Therefore, such documents-even those in the possession of the executive branch or outside consultants-may fall within the legislative privilege. Cf. ECF No. 709 at 6-7.
However, the plaintiffs are right that not all facts or documents are covered within the legislative privilege. ECF No. 709 at 9; ECF No. 722 at 8-9. For example, routine administrative and employment records are not protected because not all acts of a legislator are inherently legislative. Gravel v. United States, 408 U.S. 606, 625 (1972); United States v. Brewster, 408 U.S. 501, 512-13 (1972); Davis v. Passman, 544 F.2d 865, 879-80 (5th Cir. 1977). Facts that would not inherently lead to the discovery of the legislator's mindset, opinion, or motive may be discoverable. See Lee, 775 F.2d at 525. However, the availability of the factual information elsewhere will typically indicate that such a discovery request is merely an attempt to reveal what the legislator considered-information which would be privileged.
To clarify the distinction between administrative and employment matters and legislative matters we offer an example: That the legislator hired an employee to work in her office falls beyond the scope of the privilege, even if that employee worked on matters relating to legislative acts. However, that she hired a consultant to work on a specific act or set of acts would be within the privilege's scope.
We note that the Eleventh Circuit recently adopted a strict, intent-focused inquiry when deciding whether the legislative privilege applies. See Pernell v. Fla. Bd. of Governors of State Univ., 84 F.4th 1339, 1343 (11th Cir. 2023)
B. Aides and Consultants to Legislators Can Assert the Legislative Privilege
The plaintiffs correctly note that the legislative privilege is personal, i.e., a privilege that only legislators or their aides can assert. ECF No. 725 at 6-7; see Gravel, 408 U.S. at 616-18. But the claims that executive officers like the Lieutenant Governor or employees of the Office of the Attorney General (OAG) did not act like legislators' aides falls flat. See ECF No. 708 at 10; ECF No. 709 at 6, 15. Like an expert report is privileged work-product even if the report's underlying facts are not privileged, so too can the legislative privilege cover products of the executive branch when prepared in the legislative process. So, whether the OAG, Lieutenant Governor, or any other person has the documents or information is not the dispositive question. Rather, we must ask whether the OAG or the Lieutenant Governor obtained or prepared this information to present it to legislators in the legislative process. If so, then the executive branch official acted as an aide or consultant to the legislator and properly asserted the privilege. See Hughes, 68 F.4th at 236-37; Am. Trucking, 14 F.4th at 88; N.D. Legis. Assembly, 70 F.4th at 463. However, the legislator(s) on whose behalf the executive officers assert the privilege need not consult with the officers before waiving the privilege. Further, waiver may occur automatically depending on statutes related to publication or availability of government-produced reports.
“[T]he legislative privilege that protects state lawmakers ‘is similar in origin and rationale to that accorded Congressmen under the Speech or Debate Clause.'” Hughes, 68 F.4th at 237 (quoting Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 732 (1980)). And “the Speech or Debate Clause prohibits inquiry into things done by . . . the Senator's agent or assistant which would have been legislative acts, and therefore privileged, if performed by the Senator personally.” Gravel, 408 U.S. at 616 (quotation marks and citation omitted).
Gravel expressly contemplates this scenario-where an aide invokes the privilege without prior authorization from a legislator-when it notes that “an aide's claim of privilege can be repudiated and thus waived by the [legislator].” 408 U.S. at 622 n.13.
The claim that the Lieutenant Governor can assert legislative privilege himself as an occasional member of the legislature carries little weight with this court as he and his office (citing Hubbard, 803 F.3d at 1311). While we do not adopt a rule which inquires into the intent of the subpoenaing party, our ruling effectively reaches the same result. The documents sought by plaintiffs which are discoverable from third parties can be sought from those third parties without subjecting legislators to the vicissitudes of motions practice. Any documents related to a legislative act sought by plaintiffs directly from the legislators will inherently get to the legislator's motive, meaning that the documents fall within the scope of the legislative privilege. It is only documents related to those inherently non-legislative acts, Gravel, 408 U.S. at 625, which are outside the scope of the privilege. produced these documents in his executive branch role, not as a legislative act. See Am. Trucking, 14 F.4th at 87-88. Although another situation may arise where the Lieutenant Governor legitimately claims that documents were prepared in advance of him exercising his legislative role as a member of the Committee of the Whole, or as a tie-breaking vote, that is not the case here and we decline to extend our ruling to that issue.
Finally, the plaintiffs are correct that the burden rests on the party asserting the privilege to establish that the privilege applies. ECF No. 709 at 18; see EEOC v. BDO USA, L.L.P., 876 F.3d 690, 695 (5th Cir. 2017). To the extent that the legislators claim materials or documents they have never seen are covered by the legislative privilege, they must provide adequate substantiation that someone communicated the content to them within the legislative process for the privilege to apply. However, like the court in Hughes, we are persuaded by the Eleventh Circuit's reasoning that the legislators meet this burden when they have sufficiently pointed out that “the only purpose of the subpoenas was to further [the] inquiry into the lawmakers' motivations . . . .” Hubbard, 803 F.3d at 1311; see also Pernell, 84 F.4th at 1343.
II. There are no per se time limitations on the documents that may be subject to the legislative privilege.
The United States urges us to apply legislative privilege only where it exists to documents that do not “predat[e] the proposal of redistricting plans-i.e., . . . before August 12, 2021” or “postdat[e] the passage of the same-i.e., . . . after October 25, 2021.” ECF No. 722 at 8. We will address pre-proposal documents and then post-enactment documents in turn.
The relevant language in Hughes holds that “privilege covers legislators' actions in the proposal, formulation, and passage of legislation.” 68 F.4th at 236 (internal quotation marks and citations omitted). The United States contends we should read this in the context of “potential legislation.” ECF No. 722 at 9 n.7 (quoting Hughes, 68 F.4th at 236); see also ECF No. 727 at 4-5. The United States further claims that this ought to be read narrowly so as not to include “all matters that could theoretically be subject to legislation.” ECF No. 722 at 9 n.7. Defendants retort that this is an attempt to “draw arbitrary time cutoffs.” ECF No. 731 at 8.
Concerning pre-proposal documents, the defendants have the better argument. Although the United States' concern that legislative privilege should not extend to “all matters that could theoretically be subject to legislation” is a worthy consideration, it fails to explain why a time-based restraint is essential to prevent this problem. ECF No. 722 at 9 n.7. More importantly, it is hard to read Hughes' insistence that the privilege extends to “actions in the proposal[ and] formulation . . . of legislation” consistently with such a strict time-based limit on the privilege. 68 F.4th at 236. Necessarily, there are “actions in the proposal[ and] formulation . . . of legislation” that predate the formal form of either. Legislative proposals do not materialize from thin air, and they do not address unidentified issues. Therefore, we reject any start date at which the legislative privilege applies. The legislative privilege attaches whenever someone makes an in-scope communication- regardless of any proposal.
The plaintiffs point to Helstoski, 442 U.S. at 490, to indicate that promises to engage in legislative acts in the future are not privileged. ECF No. 728 at 11. And indeed, Helstoski is clear that “[p]romises by a [legislator] to perform an act in the future are not legislative acts.” 442 U.S. at 489. But, whether something is a legislative act is a relevant consideration to whether something is in the scope of legislative privilege. That's where Helstoski is relevant, not as an artificial time-based limit on the timeframe to which privilege extends. This is consistent with our conclusion that legislative scope is co-extensive with the timeframe of legislative privilege.
Documents that post-date enactment present a similar but closer question. The United States argues that all documents which post-date the passage of legislation cannot be concerning “potential legislation” and so are not entitled to legislative privilege. ECF No. 722 at 9 n.7. As the defendants note, tying the privilege only to “potential legislation” misconstrues Hughes. ECF No. 722 at 8-9. Hughes is quite clear that the legislative privilege extends to “actions that occurred within the sphere of legitimate legislative activity” and “all aspects of the legislative process.” 68 F.4th at 235 (quotation marks and citations omitted). Moreover, it is “‘not consonant with our scheme of government for a court to inquire into the motives of legislators' . . . in drafting, supporting, or opposing proposed or enacted legislation.” Id. at 238 (quoting Tenney, 341 U.S. at 377) (emphasis added). Given this broad language, we find it imprudent to draw a line in the sand at enactment. That said, we have not found, nor can we think of, any document post-enactment that would fall within the legislative privilege. In sum, as with pre-proposal documents, post- enactment documents that are in the scope are also covered by the privilege, even if we think this is likely a null set.
The State Defendants attempt to provide an example from the record here, but we are not convinced. See, e.g., ECF No. 721 at 21 n.4. For example, the State Defendants point to post-enactment documents that were “created in furtherance of Sen[ator] Huffman's legislative duties.” Id. But they do not explain how these were “in furtherance of Sen[ator] Huffman's legislative duties.” On our read of the underlying record, these documents might be more appropriately covered under attorney-client privilege, if at all. See ECF No. 561 at 11- 14.
III. The legislative privilege-where applicable-need not yield to either the United States or the private plaintiffs.
The legislative privilege “must yield” in “extraordinary instances.” Hughes, 68 F.4th at 237 (cleaned up). That includes cases “where important federal interests are at stake, as in the enforcement of federal criminal statutes.” Id. at 237-238 (quoting Gillock, 445 U.S. at 373).
“‘[I]mportant federal interests' may be at stake in . . . ‘extraordinary' civil cases.” Id. at 238 (quoting Gillock, 445 U.S. at 373). But these “qualifications do not subsume the rule.” Id. The mere fact that “constitutional rights are at stake” or that there is a “claim of an unworthy purpose does not destroy the privilege.” Id. (quoting Tenney, 341 U.S. at 377). “Even for allegations involving racial animus . . . the Supreme Court has held that the legislative privilege stands fast.” Id.
In Hughes, the United States and many private plaintiffs averred that an amendment to the Texas Election Code violated the Constitution and the VRA. Id. at 231-32. The private plaintiffs, but not the United States, moved to compel production from “individual, non-party legislators related to the circumstances surrounding the amendment's proposal and passage.” Hughes, 68 F.4th at 232. Hughes held that this case was not “one of those extraordinary instances” and that the legislative privilege did not yield in these circumstances. Id. at 237-40 (cleaned up).
An important distinction not mentioned by the defendants. See ECF No. 721 at 7.
A. The legislative privilege does not yield to the private plaintiffs.
The private plaintiffs in this case attempt to distinguish Hughes by noting that their case is “challenging statewide redistricting” and asserting that a legislative redistricting challenge “based on discriminatory intent and effects claims under the Voting Rights Act and the U.S. Constitution” is an extraordinary civil case. ECF No. 725 at 18. In their view, “[l]egislative redistricting is a sui generis process.” Id. (quoting Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D 292, 304 (D. Md. 1992)). They contend that redistricting is unlike other forms of legislative activity because it establishes the electoral structure, thereby directly involving the self-interest of the legislators. Id. at 19. And since the legislative privilege does not apply “when ‘Congress is ill equipped' to discipline or investigate itself,” it should not apply when legislators are engaged in activities that directly involve their self-interest. ECF No. 728 at 13 (quoting Brewster, 408 U.S. at 513-14).
Regardless of the merits of this argument, it is foreclosed by Hughes. In Hughes, private plaintiffs were challenging amendments to the Texas Election Code related to “voter registration, voting by mail, poll watchers, and other aspects of election integrity and security.” 68 F.4th at 231-32. That amendment affected who could vote (voter registration), how they could vote (voting by mail), and what the environment looks like when they vote (poll watchers)-allegedly in a racially discriminatory way. Id. at 232 (“[Plaintiffs] argued that the Legislature acted with racially discriminatory intent, and thus that the amendment violate[d] the Constitution and the Voting Rights Act.”).
When legislators are determining who can vote and how, their self-interest is directly implicated because they are determining the composition of the electorate. See, e.g., League of Women Voters of Fla., Inc. v. Fla. Sec'y of State, 66 F.4th 905, 924 (11th Cir. 2023) (discussing demographic differences in voters who vote by mail in Florida). Yet the Hughes court did not view this as an extraordinary civil case; meaning the Fifth Circuit did not see the legislators' self-interest in that case as precluding application of the privilege. See 68 F.4th at 237. If a legislator's self-interest in determining the composition of the electorate was not enough to make the case “extraordinary” in Hughes, then his or her self-interest in establishing the electoral structure likewise cannot justify precluding the application of the legislative privilege. See ECF No. 721 at 9-10.
The private plaintiffs also contend that upholding the legislative privilege in these circumstances is inconsistent with the privilege's purpose. They aver that the privilege is meant to be used “not for [a legislator's] private indulgences but for the public good.” ECF No. 709 at 19 (quoting Brewster, 408 U.S. at 507). In the private plaintiffs' view, because the point of the legislative privilege is to protect the democratic process, it should yield when a lawsuit challenges a “stoppage in the democratic process.” Id. at 19-20. Nevertheless, these policy-based arguments do not change that Hughes upheld the privilege in remarkably similar circumstances. Therefore, the legislative privilege does not yield for the private plaintiffs in this case.
We find the Eleventh Circuit's reasoning in Pernell on this point particularly persuasive. See 84 F.4th at 1344 (“‘[T]here is a fundamental difference between actions by private plaintiffs and criminal prosecutions by the federal government.' Although the legislative privilege does not presumptive apply in the latter kind of case, the presumption otherwise holds firm.” (internal citations omitted) (quoting Hubbard, 803 F.3d at 1311-12)).
B. The legislative privilege does not yield to the United States.
Hughes recognized that the legislative privilege “must yield” in “extraordinary civil cases.” See 68 F.4th at 238 (cleaned up). That suggests that there must be some type of civil case in which the legislative privilege would yield to important federal interests. Caselaw provides examples of what an extraordinary civil case is not: claims of racial gerrymandering brought by private plaintiffs, claims that a state was deliberately discriminating against out of state actors,and voting-rights claims brought by private plaintiffs. But we know much less about what counts as an extraordinary civil case.
Though in fairness to the state defendants, neither the United States nor the private plaintiffs have cited to a binding civil case that was extraordinary enough to make the privilege yield.
Lee v. City of Los Angeles, 908 F.3d. 1175, 1187-88 (9th Cir. 2018).
Am. Trucking, 14 F.4th at 88.
Hughes, 68 F.4th at 237-38.
The private plaintiffs contend In re Landry established that redistricting litigation is an extraordinary civil case. 83 F.4th 300 (5th Cir. 2023). But Landry is inapposite. In that case, Louisiana sought a writ of mandamus directing the district court to reschedule a remedial hearing at which the district court was going to determine a court-ordered redistricting map before the state had an opportunity to revise the maps of its own accord. Id. at 304. In explaining why their “interven[tion] in a remedial proceeding for a preliminary injunction” via writ of mandamus was “[a]ppropriate under the circumstances,” the Fifth Circuit said that redistricting “is not ordinary litigation” because the Supreme Court has required federal courts to “accommodate to the greatest extent the legislatures' ability to confect their own remedial plans.” Id. at 307. The reference to redistricting litigation's being “not ordinary” was therefore a reference to redistricting's unique procedural posture stemming from the Supreme Court's requirement that states first be given a chance to remedy any defects before court intervention. In re Landry does not in any way elevate redistricting litigation to the status of an “extraordinary civil case” as Hughes used that phrase.
We do know that for a case to be an “extraordinary” civil case there must be important federal interests. Gillock, 445 U.S. at 373. We also know that the only time a binding case has held that the legislative privilege yielded was in the context of a federal criminal prosecution-that is, an action brought by the United States as a sovereign enforcing its laws. See id.; see also Berger v. United States, 295 U.S. 78, 88 (1935) (“The United States Attorney is the representative not of an ordinary party to a controversy but of a sovereign[] . . . .”). In one place, Hughes frames the inquiry as whether compelling discovery here would be “closer on the continuum of legislative . . . privilege to the suits under 42 U.S.C. § 1983 at issue in Tenney and Bogan [v. Scott-Harris, 523 U.S. 44 (1998)] than it is to the criminal prosecution under federal law in Gillock.” Hughes, 68 F.4th at 239. Moreover, Hughes cautions that this “extraordinary civil cases” exception cannot encompass so many civil cases that the exception “subsume[s]” the legislative privilege. Id. at 238. That is why the mere fact that “constitutional rights are at stake” or that there is a “claim of an unworthy purpose does not destroy the privilege.” Id.
We can distill from this authority three elements that make a civil case extraordinary: (1) There must be important federal interests at stake beyond a mere constitutional or statutory claim involving racial animus, (2) the suit must be more like a federal criminal prosecution than a private plaintiff seeking to enforce his own rights, and (3) it cannot be the type of suit brought so easily that it would effectively destroy the privilege.
We do not doubt that the federal government has an interest in enforcing the VRA. However, this case is fundamentally disanalogous to a sovereign enforcing its criminal laws. Moreover, granting such a broad power to the United States would subsume the rule set out in Hughes.
1. The United States acting as intervenor in this case is not analogous to a sovereign enforcing its criminal laws.
It is true that unlike the plaintiffs in Tenney and Bogan, the United States is no mere private plaintiff. But the mere fact that the United States has brought suit is not enough for the legislative privilege to yield. See infra. And in the context of a VRA Section 2 suit, a suit brought by the United States is no more extraordinary than one brought by private plaintiffs for two reasons:
First, both private plaintiffs and the United States may bring suit under Section 2 of the VRA. See 52 U.S.C. § 10302(b)-(c); see also Robinson v. Ardoin, 86 F.4th 574, 588 (5th Cir. 2023). But see Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, No. 22-1395, 2023 WL 8011300 (8th Cir. Nov. 20, 2023). That stands in stark contrast to the federal criminal prosecution in Gillock which could only have been brought by the United States.
Second, the relief available to the United States and to private plaintiffs are identical. See Id. Any relief granted by the court-say, for example, an injunction of a racially gerrymandered
electoral map-is inherently non-excludable and thus necessarily accrues to all affected voters regardless of whether a VRA Section 2 suit is brought by a private plaintiff or the United States. That includes sovereign interests, to the extent any are vindicated by a successful VRA Section 2 suit.
It is also worth noting the similarities to the United States' role in Hughes. While it is true that the United States in that case “did not join LULAC's motion to compel[,]” 2022 WL 2904741 at *2 (Brief for the United States as Appellee in Hughes), the United States was a party in that case and did argue in support of the private plaintiff's motion to compel in its brief. Id. Yet, even in that brief, the United States did not assert its sovereign interest. See generally id. Thus, Hughes did not resolve the issue that we have before us here.
The failure of the state defendants to identify an example of extraordinary civil case does not make the “extraordinary civil case” language in Hughes a dead letter. Indeed, there are many lines at which we could delineate the extraordinary without adopting the United States' bold proposition. We could, for example, say that legislative privilege should yield to the United States when the United States is enforcing civil rights that individuals cannot enforce for themselves. But we need not take any position today on what is in fact extraordinary. All we need to decide is that this is not.
2. Granting the United States broad power to overcome legislative privilege would “subsume the rule.”
In Hughes, the Fifth Circuit expressed great concern that the extraordinary-civil-case exception “not subsume the rule.” 68 F.4th at 237. The court worried that “the privilege would be of little value” if courts classified so many cases as extraordinary that legislators would constantly “be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to hazard a judgment against them based upon a jury's speculation as to motives.” See Id. at 238 (quoting Tenney, 341 U.S. at 377).
The United States asserts that this case is an infrequent one. Indeed, “[i]n the redistricting cycle following the 2020 census, [they] have only challenged one State's redistricting plan.” ECF No. 708 at 16 n.6. But, at issue is not what the United States has chosen to do, but what the United States could do. There is nothing that prevents the United States from intervening in every VRA Section 2 challenge to redistricting. Doing so would “subsume the rule,” effectively abolishing legislative privilege in the context of drawing new electoral maps. It is possible that the United States would accept a narrower ruling that just encapsulates vote-dilution redistricting cases because of such cases' emphasis on motivation. See ECF No. 727 at 9. But it is unclear that this narrows the number of cases in which the United States could abrogate legislative privilege by much.
IV. Whether privilege has been waived.
Even if a communication or document is protected by the legislative privilege, it is possible for a legislator to waive the protections of the privilege. Hughes held that the legislative privilege is waived when “the [l]egislator publicly reveals” documents or information. 68 F.4th at 237 (emphasis removed) (quotation omitted). But legislators do not waive the privilege merely by “communicat[ing] with parties outside the legislature . . . .” Id. at 236. That means that a legislator does not “publicly reveal” documents or information when they bring “third parties into the [legislative] process.” Id. at 327. Rather, the legislative privilege is waived only when “legislators . . . send privileged documents to third parties outside the legislative process . . . .” Id.
Therefore, to determine whether a legislator has waived his or her legislative privilege by disclosing information to a third party, we must determine whether the legislator brought that third party “into the [legislative] process” (no waiver), or “sen[t] privileged documents to third parties outside the legislative process” (waiver). Id. The key to drawing this line is whether the legislator made the relevant information publicly accessible. “[W]here the documents have been shared with some third parties-but haven't been shared publicly-the waiver argument fails” because those third parties have been brought into the legislative process. Id. But where documents or information have been made publicly accessible, the legislator has revealed those documents “to third parties outside the legislative process . . . .” Id.
Hughes assessed public accessibility by stating that “[t]he very fact that Plaintiffs need discovery to access these documents shows that they have not been shared publicly” and therefore not waived. 68 F.4th at 237.
In addition to following Hughes' command, distinguishing between waiver and non-waiver based on whether the legislator made the relevant information publicly accessible comports with common sense. The Hughes court held that it was not waiver for a legislator to disclose materials to a third party-including when that legislator “solicited [correspondence] from constituents.” Id. at 236. Taken literally, this could include instances where a legislator brings constituents or industry groups “into” the legislative process by holding a town hall or public event “soliciting” feedback and advice on legislation. But this cannot mean information disclosed at public events is privileged-even the state defendants do not go so far. See ECF No. 721 at 23 (“To be sure, the public record is fair game.”). On the other hand, if a legislator invites a constituent into his or her office to share the constituents' views on legislation, that encounter would likely be privileged under Hughes. The extent of the general public's access to this information explains this difference.
Thus, in determining whether any Texas legislators have waived their privilege, we look not only at whether they have disclosed information to a third party, but whether that disclosure resulted in the information becoming publicly accessible. A disclosure made to a third party brought “into” the legislative process will not be publicly accessible and there will be no waiver. Only upon a showing of public accessibility has the privilege been waived under Hughes.
Having determined that the state defendants have waived their legislative privilege in some circumstances, see infra, we must determine the scope of that waiver. The parties do not cite to any binding caselaw articulating the scope of a waiver of legislative privilege, and neither the Fifth Circuit nor the Supreme Court have answered that question. But-speaking about the attorney-client privilege-the Fifth Circuit has said that “[d]isclosure of any significant portion of a confidential communication waives the privilege as to the whole.” Indus. Clearinghouse, Inc. v. Browning Mfg. Div. of Emerson Elec. Co., 953 F.2d 1004, 1007 (5th Cir. 1992) (quoting United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982), cert. denied, 466 U.S. 944 (1984)). The idea behind this “partial waiver equals full waiver” rule is that a party should not be able to use the privilege to selectively disclose portions of communications or documents but withhold others in a way that favors them. See, e.g., United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991) (“[T]he attorney-client privilege cannot at once be used as a shield and a sword.”).
Although Browning and Bilzerian were referring to the attorney-client privilege, the rationale for expanding the scope of the waiver in this way extends to the legislative privilege as well. Accord Singleton v. Merrill, 576 F.Supp.3d 931, 940-41 (N.D. Ala. 2021) (quoting Powell v. Ridge, 247 F.3d 520, 525 (3d Cir. 2001)); see also LULAC v. Abbott, 601 F.Supp.3d 147, 180 n.14 (W.D. Tex. 2022). Just like we do not want litigants selectively to use the attorney-client privilege to make favorable disclosures, we do not want legislators to tip the scales of future or existing litigation by disclosing some favorable portions of a document publicly and keeping unfavorable portions behind closed doors.
The purpose of the legislative privilege “is not to protect against disclosure in general, but to foster the public good by protecting lawmakers from deterrents to the uninhibited discharge of their legislative duty.” Hughes, 68 F.4th at 233 (quoting Tenney, 341 U.S. at 377); see also Bogan, 523 U.S. at 52. We want lawmakers to “focus on their jobs rather than on motions practice in lawsuits.” Hughes, 68 F.4th at 237. These aims are not frustrated by a rule that expands the scope of waiver to include the whole document or communication when the legislative privilege has been waived as to a significant portion. The legislators are already in litigation and have already waived a “significant portion” of the privileged material; allowing the privilege to extend to the whole would not meaningfully increase the burden on lawmakers.
Therefore, to the extent that the Texas legislators have waived the legislative privilege with respect to a significant portion of any document or communication, the waiver applies to the whole document or communication.
V. The remaining discovery motions invoking legislative privilege.
Applying this rationale, the Court ORDERS:
• The United States' motion to compel legislative deposition testimony, ECF No. 522, is granted in part and denied in part.
• Private plaintiffs' amended motion to compel regarding portions of depositions subject to legislative privilege objections, ECF No. 555, is granted in part and denied in part.
• The United States' third motion to compel legislative deposition testimony and private plaintiffs' joinder, ECF Nos. 600 and 602, is granted in part and denied in part.
• Private plaintiffs' motion to compel deposition testimony of Senator Brian Birdwell, ECF No. 649, is denied.
• The United States' fourth motion to compel legislative deposition testimony, ECF No. 636, is granted in part and denied in part.
• Private plaintiffs' motion to compel regarding portions of the re-opened depositions of Representatives Hunter and Murr subject to legislative privilege objections, ECF No. 638, is granted in part and denied in part.
• Private plaintiffs' motion to compel third-party subpoenas duces tecum to legislators, ECF No. 540, is granted in part and denied in part.
• The United States' motion to enforce third-party subpoenas duces tecum, ECF No. 351, is granted in part and denied in part.
• Private plaintiffs' motion to compel third-party subpoenas duces tecum, ECF No. 447, is granted in part and denied in part.
• Private plaintiffs' motion to compel third-party subpoena duces tecum to Anna Mackin, ECF No. 582, is granted in part and denied in part.
• The private plaintiffs' and the United States' motions to compel and unseal portions of depositions from Senator Joan Huffman, Senator Paul Betten court, and House Parliamentarian Sharon Carter, ECF Nos. 542 and 543, are granted in part and denied in part.
• The private plaintiffs' and United States' motions to compel production of OAG documents, ECF Nos. 527 and 548, are denied.
• The United States' motion to compel the Texas Legislative Counsel to produce documents, ECF No. 644, is denied.
• The United States' motion to enforce a document subpoena issued to Representative Mike Schofield, ECF No. 532, is denied.
ECF No. 523 is denied as moot. See ECF No. 730.
The rulings in this order are subject to any withdrawals previously made by the state defendants. These orders do not resolve any issues of attorney-client privilege or work product; such issues will be resolved in a separate order. In addition, this order does not resolve the privilege objections contained in ECF No. 742.
Due to the volume of discovery materials dealt with in this order, the court has given individual, line-by-line, rulings for each invocation of the legislative privilege using the legend provided on the following page.
LP1
For the reasons stated in the court's order, the court finds the legislative privilege applies and has not been waived. Legislative privilege applies because the document or communication was created, received, or gathered in the sphere of legitimate legislative activity. Privilege has not been waived because the document or communication has not been publicly revealed. Nor is this an extraordinary case in which the legislative privilege must yield.
LP2
For the reasons stated in the court's order, the court finds the legislative privilege applies and has not been waived. Legislative privilege applies because the document or communication was created, received, or gathered in the sphere of legitimate legislative activity at the direction of, instruction of, or for a legislator. Privilege has not been waived because the document or communication has not been publicly revealed. Nor is this an extraordinary case in which the legislative privilege must yield.
LP3
The legislative privilege has been waived because this document or communication is public information.
LP4
The legislative privilege does not apply to matters that are neither inherently legislative nor indicative of a legislator's motives, such as routine administrative or executive matters.
Improper objection
The state defendants have not made a proper objection because their invocation of the legislative privilege occurred after plaintiffs' question was posed See Nguyen v. Excel Corp , 197 F.3d 200, 206 n.12 (5th Cir 1999)
No response; No objection
State defendants did not meet their burden of demonstrating that the privilege applies.
So Ordered.