Lee et al v. Virginia State Board of Elections, et al, No. 3:2015cv00357 - Document 114 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by Magistrate Judge Roderick C. Young on 12/23/2015. (tjoh, )
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Lee et al v. Virginia State Board of Elections, et al Doc. 114 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division BARBARA LEE, et al^ Plaintiffs, Civil Action No. 3:15CV357 (HEH-RCY) V. VIRGINIA STATE BOARD OF ELECTIONS, etal, Defendants. MEMORANDUM OPINION On Legislative Nonparties' Motion for Stay of Discovery and Motion to Quash Subpoenas and/or Motion for Protective Order This matter is before the Court for resolutionof non-dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(A) on the Legislative Nonparties' Motion for Stay of Discovery and Motion to Quash Subpoenas and/or Motion for Protective Order ("Mot. to Quash," ECF No. 71). Plaintiffs have served subpoenas on several nonparty current, or former, members of the Virginia General Assembly ("Nonparty Legislators").' Through these subpoenas. Plaintiffs seek to compel the Nonparty Legislators to produce communications between themselves and various otherpersons; these communications involve several senate bills and related topics discussed by the Virginia Senate. {See Notice of Additional Attach, to Mot. to Queish, ECF No. 73, Subpoena to Senator ' Plaintiffs have served subpoenas on the following Nonparty Legislators: Speaker of the Virginia House of Delegates William Howell; Majority Leader of the Virgmia Senate Kirk Cox; Delegate Tim Hugo; Delegate Rob Bell; Delegate Margaret Ransone; Delegate Randy Minchew; Delegate David Ramadan; Delegate Buddy Fowler; Delegate Mark Cole; Delegate John O'Bannon; Delegate Nick Rush; Delegate Joseph Yost; Delegate Israel O'Quinn; Delegate Riley Ingram; Delegate Dave Albo; Delegate Steve Landes; Delegate Chris Jones; Senator Jill Vogel; Senator Bryce Reeves; Senator John Cosgrove; Senator Bill Carrico; Senator Mark Obenshain; Senator Steve Martin; Senator Dick Black; and Senator Jeffrey McWaters. (Legs.' Mot. to Quash at 1 n.l.) Plaintiffs also have served subpoenas on Delegate John Cox, Delegate Jackson Miller, Delegate Thomas Garrett, and Senator Ralph Smith. These four legislators have not joined the Motion to Quash as they either have no responsive documents or do not object to the subpoenas. {See Pis.' Mem. Opp'n to Mot. to Quash ("Pis.' Opp'n") at 3 n. 2, ECF No. 82.) Dockets.Justia.com Bryce E. Reeves, Attach. A("Reeves Subpoena") at5, ECF No. 73-1;^ see also Non-Party Legislators' Mem. of P. & A. in Supp. of Legislators' Mot. to Quash ("Legs.' Mem. Supp."), ECF No. 72, Attach. 3, Decl. of Sen. Jill Holtzman Vogel ("Vogel Decl.") H4, ECF No. 72-3.) The Nonparty Legislators refused to produce these communications, arguing that the communications are protected by legislative privilege andthatproduction would be unduly burdensome. {See Legs.' Mem. Supp. at 3-4.) Having reviewed the submissions byPlaintiffs andthe Legislative Nonparties, and for the reasons discussed herein, the Courtholds (1) that legislative privilege precludes the production of communications between and among theNonparty Legislators andany persons in the employ of the Nonparty Legislators ("Legislative Employees"); (2) that legislative privilege does notpreclude the production of communications between and among theNonparty Legislators and third parties, such as state agencies, constituents, and lobbyists, among others ("Third Parties"); (3) that legislative privilege does not preclude the production of communications between and among the Legislative Employees andThird Parties; and, (4) given the limitations noted below andthe fact thatdiscovery is broad in scope andfreely permitted, thatthe production of communications with Third Parties is not unduly broad orburdensome.^ Accordingly, the Court will grant the Motion to Quash to the extent set forth herein and otherwise will deny the Motion to Quash. I. BACKGROUND Barbara H. Lee, Gonzalo J. Aida Brescia, and the DemocraticParty of Virginia ("Plaintiffs") havebrought this suit against the Virginia StateBoardof Elections and its officers as well as the Virginia Department of Elections and its commissioner (collectively, "Defendants"). Plaintiffs ^Forall citations, theCourt uses the pagination of thedocuments themselves, rather thantheECF pagination. ^Because the Courtfinds that communications between and among the Nonparty Legislators and the Legislative Employees areprivileged the Courtwilldeny the Motion to Quash to the extentit seeks a protective order. Furthermore, because this Court has ruled on the Motion to Dismiss, {seeOrder, ECFNo. Ill), the Courtwill deny as moot the Motionto Quash to the extent it seeks a stay of discoverypendingthe resolutionofthe Motionto Dismiss. allegethat Virginia's recently-passed Voter Identification Law ("Voter ID Law") violatesthe Federal Constitution, violates the Voting Rights Act ("VRA"), and results in impermissible Partisan Fencing. {See Am. Compl. 100-11,114-126, ECF No. 36.) Therefore, Plaintiffs askthe Court for declaratory and injunctive relief with regard to Virginia's Voter ID Law."^ {See Am. Compl. at 38-39, HHA-D.) In seeking evidence of the"legislative intent" oftheVoter ID Law, Plaintiffs served the Nonparty Legislators with subpoenas, demanding theproduction of "[a]ll communications between any person and [the legislator], and/or [the legislator's] employees, staff, agents, vendors, or consultants, regarding or related to ... "[v]oter identification, including free voter ID" and Senate Bills 1,663, and 1256—enacted by the General Assembly in 2013 (collectively, "Voter ID Communications"). {See Reeves Subpoena at 5; see also Vogel Decl. 14.)^ The Nonparty Legislators refused to produce the Voter ID Communications demanded in the subpoenas and subsequently filed their Motion to Quash (ECF No. 71). For thereasons discussed below, the Court finds that all communications between and amongthe Nonparty Legislators and the Legislative Employees are protected bylegislative privilege. The Court also finds, however, thatcommunications between and among Nonparty Legislators and/or Legislative Employees and third parties are not protected bylegislative privilege. Accordingly, the Court grants in part and denies in partthe Nonparty Legislators' Motion to Quash (ECF No. 71). ^Plaintiffs originally also brought a claim regarding the re-enfranchisement ofnon-violent felons. {See Am. Compl. 112-13.) Plaintiffs have since voluntarily dismissed this claim. (Stipulation for Dismissal Pursuant to Rule 41(A)(1), ECFNo. 97; see Order Dismissing part of Count II of the Am. Compl., ECF No, 98.) Plaintiffs also originally brought claims regarding alleged "long wait times to vote." {See Am. Compl. ^ 105-07, 116, 119,121, 124-26.) However, the Court has since dismissed Plaintiffs' long-line claims. {See Order, ECF No. 111.) ^The subpoenas also demanded communications regarding original demanded communications regarding Senate Bills 702, 964, and 1150; "[v]oter wait times and/or lines at the polls;" and "re-enfranchisement of non-violent felons." {See Reeves Subpoena at 11; see also Vogel Decl. ^ 4.) As Plaintiffs' claims regarding voter wait times and reenfranchisement have been dismissed, see supra note 4, the Court will quash the subpoenas to the extent they demand communications regarding Senate Bills 702, 964, and 1150; voter wait time and/or lines at the polls; and, reenfranchisement of non-violent felons. 11. DISCUSSION A. Legislative Immunity and Legislative Privilege The Court begins by noting that "[legislative privilege clearly falls within the category of accepted evidentiary privileges." EEOC v. Washington Suburban Sanitary CommQ^'WSSC //") 631 F.3d 174,180(4thCir. 2011) (citing Burtnick v. McLean, 16 F.3d611,613 (4th Cir. 1996)). Legislative privilege derives from the doctrine oflegislative immunity, and the twin doctrines are the two sides of the same coin. As the FourthCircuit has stated, "[l]egislative privilege against compulsory evidentiary process exists to safeguard ... legislative immunity and to further encourage the republican values it promotes." M at 181. As this Court has previously held, "[legislative] privilege is rooted inthe absolute immunity granted to federal legislators ... and exists to safeguard that immunity." Page v. Va. State Bd. ofElections, 15 F. Supp. 3d 657, 661 (E.D. Va. 2014) (quoting WSSC11, 631 F.3d at 180). Moreover, as the United States District Court for the District ofMaryland has noted, "[l]egislative immunity not only protects state legislators from civil liability, italso functions as an evidentiary and testimonialprivilege.^'' Marylandersfor FairRepresentation, Inc. v. Schaefer, 144 F.R.D. 292,297 (D. Md. 1992) (Smalkin, J.) (emphasis added). "The doctrine oflegislative immunity (both inits substantive and testimonial aspects) itself embodies fundamental public policy. It insulates legislators from liability for their official acts and shields themfrom judicial scrutiny into their deliberative process. The doctrine isa bulwark in upholding the separation ofpowers." Id. at304 (Mumaghan, J., &Motz, J.) (emphasis added). In short, the doctrine of legislative privilege—^which extends equally to testimony and other evidence—exists to safeguard legislative immunity. See Simpson v. City ofHampton, 166 F.R.D. 16, *19 (E.D. Va. 1996) ("Pursuant to the Fourth Circuit['s holding inBurtnick,] the Court DENIES PlaintiffsMotion to Compel Discovery of the council members' personal notes andfiles, as they areprotected by testimonial legislative privilege.'' (citing Burtnick, 76 F.3d 611) (emphasis added)). 4 B. Legislative Immunity Applies to State Legislators Federal legislators enjoy legislative immunity and legislative privilege that derives from the "Speech orDebate Clause" ofthe Federal Constitution.^ fVSSC //, 631 F.3d at 180 ("The Speech or Debate Clause provides [legislative] immunity to federal legislators."); see also Domhrowski v. Eastland, 387 U.S. 82, 84-85 (1967) ("It is the purpose and office of the doctrine of legislative immunity, having its roots as it does in the Speech or Debate Clause of the Constitution, that legislators engaged *in the sphere of legitimate legislative activity,' should beprotected not only from the consequences of litigation's results butalso from the burden of defending themselves."). State legislators also enjoy legislative immunity and legislative privilege; however, insofar as state legislators may employ these protections in federal court, the protections are grounded in federal common law.^ See Tenneyv. Brandhove, 341 U.S. 367 (1951) (recognizing legislative immunity for state legislators sued for violating the Civil Rights Act of 1871); see also WSSCII, 631 F.3d at 180-81 ("In recognition of the immunity's historical pedigree and practical importance the Supreme Court has extended it to a wide range of legislative actors." (citing Tenney, 341 U.S. at 372-76, for ® "[The Senators and Representatives] shall inall Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech orDebate in either House, they shall not bequestioned inany other Place." U.S. Const, art. I, §6, cl.l. ' The Nonparty Legislators argue that they have a separate legislative privilege stemming from the Virginia Constitution's Speech or Debate Clause. (See Legs.' Mem. Supp. at 7-8 (quoting Va. Const, art IV, § 9 ("Members of the General Assembly shall, an allcases, except treason, felony, or breach ofthe peace, be privileged from arrest during the sessions oftheir respective houses; and for any speech ordebate ineither house shall not bequestioned inany other place.")).) The Court, however, does not separately analyze the claim ofprivilege under the Virginia Constitution as the analysis is substantially similar to that under the federal common law, wherein privilege for state legislators ultimately relates back to the Speech or Debate clause of the Federal Constitution. SeeGreenburg v. Collier, 482 F. Supp. 200, 202 (E.D. Va. 1979) ("The [Virginia] and federal immunities are very similar in their wording. Further, they appear to be based upon the same historical and public policy considerations."). Furthermore, because theCourt—^using Supreme Court and Fourth Circuit precedent interpreting both the federal common law and the Federal Speech or Debate Clause—ultimately finds that internal legislative communications are privileged, but that third-party communications are not, the Court does not undertake a separate analysis under the Virginia Speech or Debate Clause, which is substantially coterminous with its federal analog. See id. at 202-04 (discussing the Virginia Speech or Debate Clause and analyzing a privilege claim thereunder using Supreme Court precedent based on the Federal Speech or Debate Clause, ultimately holding that state legislators enjoyed legislative privilege and did not need to produce internal legislative communications that related to the motive underlying the passage of a Virginia state law) (citing United States V. Brewster, 408 U.S. 501 (1972)). the proposition that the immunity has been extended to state legislators)); Page, 15 F. Supp. 3d at 661 ("In Tenney v. Brandhove, the Supreme Court of the United States found that the Speech or Debate Clause was partof a broader common law ^tradition [of legislative privilege]... well grounded in history' andextended the benefit of thattradition (though not the Speech or Debate Clause itself) to state legislators." (quoting Tenney, 341 U.S. at 372-76)). Moreover, state legislators enjoy the benefits of legislative immunity and legislative privilege regardless of whether they are named as parties to the underlying lawsuit. Schlitz v. Virginia, 854 F.2d 43,46 (4th Cir. 1988) ("[W]e reject plaintiffs argument that he cancircumvent the doctrine of legislative immumty bydeclining to name as defendants individual legislators. The purpose of the doctrine is to prevent legislators from having to testify regarding matters of legislative conduct, whether ornot they are testifying to defend themselves."). The Supreme Court and the Fourth Circuit have addressed the doctrine of legislative immunity in a number of cases. Inwhat seems to bethe first Supreme Court case to explicitly recognize federal common law legislative immunity for state legislators, Tenney v. Brandhove, the Supreme Court explicitly ruled "that it was not consonant with our scheme of government for a court to inquire into the motives of legislators." Tenney, 341 U.S. at 377. In thatcase, the Supreme Court found thatstate legislators enjoyed immunity forconduct that was alleged to have violated a civil rights statute passed in 1871 and aimed at enforcing the Fourteenth Amendment to the Federal Constitution. Id. at 378; see also Bogan v. Scott-Harris, 523 U.S. 44,49 (1998) ("Recognizing this venerable tradition [of legislative immunity], we haveheldthat state and regional legislators are entitled to absolute immunityfrom liability under § 1983 for their legislative activities." (emphasis added) (citing Tenney, 341 U.S. 367)); United States v. Gillock, 445 U.S. 360, 371-72 (1980) (discussing Tenney). In so doing, the Supreme Court explained the dangers of curtailing legislative immunity by explicitly stating that"[i]ntimes of political passion, dishonest or vindictive motives 6 are readily attributed to legislative conduct and as readily believed... [and thatc]ourts are notthe place for such controversies." Tenney, 341 U.S. at 378. Later, in Supreme CourtofVa. v. Consumers Union ofthe U.S., Inc., the United States Supreme Court reiterated its holding that state legislators enjoy legislative immunity bystating "[i]n Tenney we concluded that Congress did not intend § 1983 to abrogate the common-law immunity of state legislatures. Although Tenney involved anaction for damages under § 1983, its holding is equally applicable to § 1983 actions seeking declaratory orinjunctive relief." Supreme Court of Va., 446 U.S. 719, 732 (1980) (recognizing a federal common law legislative immunity and legislative privilege for state legislators). The Supreme Court also reaffirmed that legislative privilege is an essential derivative of legislative immunity, stating thatin order "[t]o preserve legislative independence, we have concluded that * legislators engaged "inthe sphere oflegitimate legislative activity," should be protected not only from the consequences oflitigation's results but also from the burden of defending themselves.'" Id. at 732 (quoting Dombrowski, 387 U.S. at 87 (quoting Tenney, 341 U.S. at 376)). The Supreme Court went so far asto declare that state legislators enjoy absolute immunity, at least in § 1983 civil claims, bynoting that there is little doubt that if the Virginia Legislature had enacted the State Bar Code and if suit had been broughtagainst the legislature, its committees, or members for refusing to amend the Code in the wake of our cases indicating that the Code in some respects would be held invalid, the defendants in that suit could successfully have sought dismissal on the grounds ofabsolute legislative immunity. Id. at 733-34 (emphasis added). The parties have not proffered, and this Court is not aware of, any subsequent Supreme Court decision that has overturned the holdings in either Tenney or Supreme Court of Virginia} ® discussed below, the Court notes that in United States v. GillocK 445 U.S. 360 (1980), the United States Supreme As Court recognized an exception to the doctrine of legislative immunity insofar as a state legislator did not enjoy absolute legislative immunity or legislative privilege in the case of a criminal prosecution for violation of federal law. As discussed below, this Court is not convinced that the Supreme Court intended Gillock to create a broad carve-out to the 7 Likewise, the Fourth Circuit has consistently held that state legislators enjoy legislative immunityand legislative privilege. Indeed, the Fourth Circuit has explicitly stated that legislative immunity"allows [legislators] to focus on their public duties by removing the costs and distractions attending lawsuits ... [and legislative immunity] shields them from political wars of attrition in which their opponents try to defeat them through litigation rather than at the ballot box." fVSSC II, 631 F.3d at 181. Furthermore, "[legislative privilege agamst compulsory evidentiary process exists to safeguard ... legislative immunity andto further encourage the republican values it promotes." Id. Applying this safeguard in Washington Suburban Sanitary Commission, the Fourth Circuit specifically recognized that"if the [government agency] or private plaintiffs sought to compel information from legislative actors about their legislative activities, they would not need to comply." Id. (citing Burtnick, 16 F.3d at 613) (ADEA casebrought by the EEOC). In the earlier case of Burtnick v. McLean, the Fourth Circuit also recognized that legislative immunity applied to individual state and local legislators sued under § 1983. The Fourth Circuit specifically held that "McLean, in herindividual capacity as a legislator, is still immune from suit under the legislative immunity doctrine." Burtnick, 76 F.3d at 613 (citations omitted). The Fourth Circuit further reinforced this holding by noting that "local legislators are entitledto absolute immunity when acting in a legislative capacity." Id. (citation omitted) (emphasis added). Noting that"[t]heexistence of testimonial privilege is the prevailing law in [the Fourth Circuit]" andthat "thisprivilege [is] stillviable," the Fourth Circuit held thatthe plaintiffs "attempt to establish a prima facie case [ofdiscrimination] will have to be accomplished without the testimony of members of the Board as to their motives." Id. (citations omitted). doctrine of legislative immunity for state legislators. Indeed, inSupreme Court of Virginia, immediately prior to noting that Virginia legislators "could successfully have sought dismissal [of a § 1983 case] on the grounds of absolute legislative immunity^'' Supreme Court of Va., 446 U.S. at 734 (emphasis added), the United States Supreme Court recognized itsholding in Gillock as only curtailing immunity for state legislators inthe criminal context, id. at 733 ("the separation-of-powers doctrine justices a broader privilege for Congressmen than for state legislators in criminal actions") (citing Gillock, 445 U.S. 360). 8 Moreover, in rejecting an argument that legislative immunity for state legislators is not absolute, the Fourth Circuit has held that "where ... the suit would require legislators to testify regarding conduct in their legislative capacity, the doctrine of legislative immunity has full force." Schlitz, 854F.2dat 45 (citing Dombrowski, 387U.S. at 85). In reaching that holding, the Fourth Circuit specifically stated that—in thecourse of ADEA litigation—an inquiry into "whether [the Virginia General] Assembly's purported motives for declining to reelect [a state judge] are a pretext for age discrimination" was an inquiry that ran "squarely afoul of the doctrine of legislative immunity." Id. at 45. Likewise, in Kensington Volunteer Fire Dep %Inc. v. Montgomery Cty.^ 684 F.3d 462 (4th Cir. 2012), the Fourth Circuit held thata district court did noterr"in refusing to inquire into the allegedly unconstitutional motive behind the County's budget." Kensington, 684 F.3d at 467. In reaching this holding, the Fourth Circuit expounded onSupreme Court precedent and "warned that it was a 'hazardous matter' to inquire into legislative motives because '[w]hat motivates one legislator to make a speech about a statute is notnecessarily what motivates scores of others to enact it, andthe stakes are sufficiently high for us to eschew guesswork.'" Kensington, 684F.3d at 468 (quoting UnitedStates v. O'Brien, 391 U.S. 367, 383-84 (1968)). In summation, the Fourth Circuit and SupremeCourt have consistently held that state legislators enjoy both legislative immunity andits supporting doctrine, legislative privilege, C. Recognized Exceptions to Legislative Immunity for State Legislators The United States Supreme Court has recognized a specific exception to the doctrines of legislative immunity and legislative privilege. In United States v. Gillock, the Supreme Court held that a state legislator could not invoke legislative privilege in a case wherein the state legislator was being prosecuted for violation of a federal criminal statute. Gillock, 445 U.S. at 361-62, 374. Specifically, the Supreme Court concluded 9 that although principles of comity command careful consideration, our cases disclose that where important federal interests are at stake, as in the enforcement of federal criminal statutes, comity yields. . . . Here, we believe that recognition of an evidentiary privilege for state legislators for their legislative acts would impair the legitimate interest of the Federal Government in enforcing its criminal statutes with only speculative benefit to the state legislative process. Id. at 373. In reachingits decision, the Supreme Courtdistinguished its holding in Tenney, explaining that legislators enjoy immunity incivil cases, but that legislators cannot utilize the "judicially fashioned doctrine ofofficial immunity ... to immunize criminal conduct proscribed by anAct of Congress." Id. at 372 (quoting O v . Littleton, 414 U.S. 488, 503 (1974) (quoting Gravel v. United States, 408 U.S. 606, 627(1972))). Moreover, the Supreme Court further seemed to limit its holding in Gillock to criminal matters, stating explicitly that''^Tenney and subsequent cases on official immunity have drawn the line at civil actions." Id. at 373. Citing the Supreme Court's holding in Gillock, some in-circuit district courts have found a limited exception to legislative privilege in cases involving legislative redistricting. See Bethune HillV. Va. State Bd ofElections, No. 3:14CV852,2015 WL 3404869, *9 (E.D. Va. May 26, 2015); Page, 15 F. Supp. 3dat 657, 665; Schaefer, 144 F.R.D. at 292, 304. These courts have all noted, essentially, that "[l]egislative redistricting is a suigeneris process." Schaefer, 144 F.R.D. at 304; Bethune-Hill, 2015 WL 3404869, at *9;Page, 15 F. Supp. 3d at 665 (quoting Schaefer, 144 F.R.D. at 304). In ordering limited production in Bethune-Hill, this Court explained the unique nature of redistricting cases by noting thatthey are "extraordinary" and that"thenatural corrective mechanisms builtinto ourrepublican system of government offerlittle check upon the very real threat of "legislative self-entrenchment." Bethune-Hill, 2015 WL 3404869, at *9. Likewise, in Page, this Court found that"a consultant who was employed by a partisan political committee" could not claim legislative privilege. Page, 15 F. Supp. 3d at 662. The Court determined, however, that evenwere the partisan consultant eligible to assert legislative privilege, the privilege would 10 yield because of the suigeneris nature of the redistricting claims brought in thatcase. See id. at 665 (quoting Schaefer, 144 F.R.D at 304). This court specifically held that the "significant difference [ofredistricting cases] prompted the [Schaefer] court to require a flexible approach to resolving discovery objections based on legislative privilege." Id. Ultimately, based onthe unique nature of redistricting cases, theBethune-Hill, Page, and Schaefer courts held thata flexible, qualified privilege analysis was required with regard to legislative privilege. The Court is unconvinced, however, that the same flexible approach is appropriate in the instant c£ise. First, this Court's holding in Page wasultimately based on the unremarkable proposition that a consultant hired bya partisan political caucus and "paid as an independent contractor" bya partisan political campaign committee was ineligible to claim legislative privilege. See Page, 15 P. Supp. 3dat 660, 664. Second, this Court reached itsholding inBethune-Hill, based on the "extraordinary" nature of legislative redistricting cases. Bethune-Hill, 2015 WL 3404869, at *9. Moreover, even accounting for that "extraordinary" nature, this Court stilldid not order a general production of all legislative communication, but rather still limited the scope of production, inpartdue to "theimportance of the legislative privilege." Id. at *15-* 17. Finally, while the Schaefer court also ordered the limited production of communications due to the unique nature of legislative redistricting cases, one member of the three-judge panel stated that"[i]t is evident that any action (orinaction) taken by the Maryland Legislature after the Governor's plan was introduced on January 8,1992 falls within the scope of legislative immunity." Schaefer, 144 F.R.D. at 299. Likewise, the other two judges on the panel stated that they would flatly prohibit [the legislators'] depositions from being taken as to any action which they took after the redistricting legislation reached the floor of the General Assembly as President of the Senate and Speaker of the House, respectively (unless they ultimately are listed by the Defendants as trial witnesses) because of the direct intrusion of such discovery into the legislative process. at 305. 11 In summation, this Court is not persuaded by Plaintiffs' argument that these in-circuit district court cases compel the broad production of documents sought in the instant case, especially in light of binding Fourth Circuit precedent thatwarns of the "hazardous" nature of inquiring into legislative motive, Kensington, 684 F.3d at 468 (quoting O'Brien, 391 U.S. at 383-84), and that continues to hold that "[t]he existence oftestimonial privilege is the prevailing law in [the Fourth Circuit]," Burtnick, 76 F.3d at613 (citations omitted).^ D. Legislative Privilege and Production in the Instant Case Ultimately, adhering tothe Fourth Circuit's ruling that legislative privilege is"still viable" in this Circuit, seeBurtnick, 16 F.3d at 613 (citations omitted), the Court will briefly discuss the extent to which the Nonparty Legislators and the Legislative Employees may claim that privilege. First, the Court concludes thatthe Legislative Employees are in substantially the same position asthe Nonparty Legislators themselves interms ofeligibility to claim legislative privilege. See, e.g.. Gravel v. United States 408 U.S. 606, 616-17 (1972) (discussing legislative privilege and noting that a legislator "and his aide are to be 'treated as one' and that the refiisal to recognize legislative privilege for aides would frustrate the purpose of legislative privilege for the legislator); see, e.g., also, N.C. NAACP, No. 1:13CV658, ECF No. 207, Slip Op. at 14 (concluding that ' The Court notes that, even if it were to adopt a "qualified analysis" as used in the redistricting cases, it would still ultimately reach the same holding it reaches without adopting the qualified analysis. The Court would reach the same conclusion in large part for the reasons articulated by Judge Peake in North Carolina State Conf. of the NAACP v. McCrory, No. 1:13CV658, ECF No, 207, Slip Op. at 5-15 (M.D.N.C. Nov. 20, 2014). In N.C. NAACP, Judge Peake addressed subpoenas for legislative communications and a motion to quash in a case involving a challenge to a state voter identification law. See id. at 1-5. In analyzing the discovery disputes. Judge Peaked essentially adopted the same qualified privilege analysis that the Bethune-Hill, Page, and Schaefer courts utilized. See id. at 5. Judge Peake characterized this analysis as "a flexible approach that considers the need for the information while still protecting legislative sovereignty and minimizing any direct intrusion into the legislative process." Id. After performing the qualified analysis. Judge Peak ultimately concluded "that communications between legislators and third parties are not ordinarily within the scope of legislative privilege, [and] that any such privilege has been waived as to those communications." Id. at 14. However, Judge Peake also concluded that legislative privilege did apply "to purely internal legislative conmiunications (i.e., communications solely among legislators and communications between legislators and legislative staff)." Id. Ultimately, therefore, this Court notes that it would reach the same result either under the qualified privilege analysis stemming from the redistricting cases orunder the absolute privilege analysis, "the existence [ofwhich] is the prevailing lawin [theFourth Circuit]." Burtnick, 16 F.3d at 613 (citations omitted). 12 communications between legislators and legislative staffare privileged under thedoctrine of legislative privilege). Second, the Courtconcludes that the Nonparty Legislators were acting in a legislative capacity by passing the Senate Bills in question and debating thetopic of voter identification. That is, the Nonparty Legislators were engaged in "theadop[tion of] prospective, legislative-type rules ,. . thatestablish[]... a general policy affecting the larger population." WSSCII, 631 F.3d at 184 {<j(}xo\mg Alexander v. Holden, 66F.3d 62, 66-67 (4th Cir. 1995) (citation omitted)) (internal quotation marks omitted) (alterations in original). Third, the Court concludes that any communications the Nonparty Legislators or the Legislative Employees made with Third Parties—such asstate agencies, constituents, lobbyists, and other third parties—^are notprotected by legislative privilege. The Nonparty Legislators and the Legislative Employees may not claim legislative privilege withregard to communications made to or from third parties because the involvement of third parties inherently destroyed any privilege that may or may nothave existed. See Alexander, 66 F.3d at 68 n.4 (noting that it is possible to waive the legislative privilege (quoting Schaefer, 144 F.R.D at 298)); N.C. NAACP, No. 1:13CV658, ECF No. 207, Slip Op. at 9 ("[Legislative] privilege was waived when the communications were shared with non-legislative outside parties." (citingAlexander, 66 F.3d at 68 n.4)). Fourth, noting that the Senate Bills in question were introduced in early 2013 and maintaining consistency withthe scope of discovery previously ordered by this Court, {see Order, ECFNo. 105), the Courtwill limitthe time period for production of any communications to 2012 through the date on which the Complaint was filed^June 11,2015. Fifth, giventhe limited scopeof time,the limitations imposed by the application of privilege, the factthat the communication records are apparently searchable electronically, andthe fact that"[d]iscovery ... is broadin scope and freely permitted," CareflrstofMd, Inc. v. Carefirst 13 Pregnancy Ctrs., Inc., 334 F.3d 390,402 (4th Cir. 2003), this Court concludes that the productions ordered herein are not unduly broad or burdensome, cf. N.C. NAACP, No. 1:13CV658, ECF No. 207, Slip Op. at 10-11. III. CONCLUSION Having considered the Parties' motions, briefs, and controlling Fourth Circuit and Supreme Court law, and for the reasons discussed above, the Court holds (1) that legislative privilege precludes the production of communications between and among the Nonparty Legislators and the Legislative Employees; (2) that legislative privilege does not preclude the production of communications between and among the Nonparty Legislators and Third Parties, such as state agencies, constituents, and lobbyists, among others; (3) that legislativeprivilege does not preclude the productionof communications between and among the Legislative Employees and Third Parties; and, (4) given the limitations noted above andthe fact that discovery is broadin scope and freely permitted, thatthe production of communications with Third Parties is notunduly broad or burdensome. Accordingly, the Court will grant the Motion to Quash (ECF No. 71) to the extent set forth herein and otherwise will deny the Motion to Quash, An appropriate Order shall issue. Let the Clerk file this Memorandum Orderelectronically and notify all counsel accordingly. Isl Roderick C. Young United States Magistrate Judge Richmond, Virginia Date: December 23. 2015 14
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