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Page v. Virginia State Board of Elections

United States District Court, E.D. Virginia, Richmond Division

May 8, 2014

DAWN CURRY PAGE, et al., Plaintiffs,
v.
VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants

Page 658

For Gloria Personhuballah, an individual, James Farkas, an individual, Plaintiffs: John Kuropatkin Roche, LEAD ATTORNEY, Perkins Coie LLP, Washington, DC; John Michael Devaney, Marc Erik Elias, PRO HAC VICE, Perkins Coie LLP (DC-NA), Washington, DC; Kevin Hamilton, PRO HAC VICE Perkins Coie LLP, Seattle, WA; Mark Buchanan Rhoads, Robert W. Partin, McCandlish Holton PC, Richmond, VA.

For Charlie Judd, in his capacity as Chairman of the Virginia State Board of Elections, Kimberly Bowers, in her capacity as Vice-Chair of the Virginia State Board of Elections, Don Palmer, in his capacity as Secretary of the Virginia State Board of Elections, Defendants: Trevor Stephen Cox, LEAD ATTORNEY, Hunton & Williams LLP (Richmond), Richmond, VA Mike Melis, Office of the Attorney General (Richmond), Richmond, VA.

For Robert B. Bell, Christopher Marston, Movants: Frederick W. Chockley, III, LEAD ATTORNEY, Baker & Hostetler LLP, Washington, DC; Efrem Mark Braden, PRO HAC VICE, Baker & Hostetler LLP(DC-NA), Washington, DC; Jennifer Marie Walrath, Baker & Hostetler LLP (DC), Washington, DC.

For Clerk of the Virginia Senate, Clerk of the Virginia House, Division of Legislative Services, Interested Parties: Cullen Dennis Seltzer, LEAD ATTORNEY, Sands Anderson PC, Richmond, VA.

For William Robert Janis, Interested Party: Frederick W. Chockley, III, LEAD ATTORNEY, Baker & Hostetler LLP, Washington, DC; Efrem Mark Braden, PRO HAC VICE, Baker & Hostetler LLP(DC-NA), Washington, DC; Jennifer Marie Walrath, Baker & Hostetler LLP (DC), Washington, DC.

For Eric Cantor, Congressman, Robert Wittman, Congressman, Bob Goodlatte, Congressman, Frank R. Wolf, Congressman, Randy Forbes, Congressman, Morgan Griffith, Congressman, Scott Rigell, Congressman, Robert Hurt, Congressman, Intervenor Defendants: John Matthew Gore, LEAD ATTORNEY, PRO HAC VICE, Jones Day (DC-NA), Washington, DC; Jonathan Andrew Berry, LEAD ATTORNEY, Michael Anthony Carvin, Jones Day, Washington, DC.

OPINION

Page 659

MEMORANDUM OPINION

Robert E. Payne, Senior United States District Judge.

This matter is before the Court on the non-party Christopher Marston's MOTION TO QUASH SUBPOENAS TO ROBERT B. BELL, WILLIAM ROBERT JANIS, AND CHRISTOPHER MARSTON AND/OR FOR A PROTECTIVE ORDER, Docket No. 61. For the reasons set forth below, the Motion will be denied in part.

BACKGROUND

Dawn Curry Page, Gloria Personhuballah, and James Farkas (" Plaintiffs" ) filed this action against Virginia State Board of Elections, Don Palmer, Kimberly Bowers, Charlie Judd, and Kenneth Cuccinelli II, (" Defendants" )[1] alleging that the Plaintiffs' rights under the Equal Protection Clause of the United States Constitution were violated by the racial gerrymander of Virginia Congressional District 3 during the 2011-12 redistricting cycle. The Plaintiffs' request for hearing by a three-judge court pursuant to 28 U.S.C. § 2284(a) was granted by the Chief Judge of the United States Court of Appeals for the Fourth Circuit.

Kenneth Cuccinelli II (then the Attorney General of Virginia) and the Virginia State Board of Elections have been dismissed from this case by consent of the parties. Virginia's Republican Congressional delegation filed an unopposed motion to intervene as defendants. After the Court denied motions for summary judgment

Page 660

submitted by the Defendants and the Intervenor Defendants, Dawn Curry Page withdrew as a plaintiff upon consent of the parties.

The pending motion was originally filed by non-parties Robert B. Bell, William Robert Janis, and Christopher Marston, in response to a series of subpoenas issued by the Plaintiffs. Bell and Janis were members of the Virginia House of Delegates at the time of the redistricting. They were subpoenaed to give depositions, but Plaintiffs have since withdrawn the subpoenas, and Janis and Bell are no longer parties to this motion. From Marston, the Plaintiffs sought documents pertaining to the redistricting process. Marston has refused to produce those documents, claiming that the attorney-client privilege and the legislative privilege protect them from disclosure. The Court has completed an in camera review of the documents Marston claims to be protected by the attorney-client privilege and has upheld some claims of privilege while rejecting others. See Docket No. 90. Accordingly, this opinion will address only Marston's assertion of a legislative privilege.

In his declaration, Marston avers that, during the relevant time period, he " was Executive Director of and Counsel to the Virginia House Republican Caucus," but that he " was paid as an independent contractor by the House Republican Campaign Committee." The parties agree that the membership of the Caucus and the Campaign Committee is the same. However, at oral argument, counsel for Marston acknowledged that, notwithstanding the overlap in membership, the organizations are distinctly different. The Caucus functions within the confines of the House of Delegates, whereas the Campaign Committee serves a political function, helping Republican delegates to be elected or reelected.

Marston also avers that, while he served as " legal counsel to the Speaker of the Virginia House of Delegates and the Virginia House Republican Caucus," he " also worked in a legislative capacity for the Republican members of the Virginia House of Delegates." His job in the latter capacity was coordinating communications and legislative strategy. Marston asserts that there were four staff members, but that, in his consulting capacity, he " effectively was lead staff for the redistricting efforts of the Virginia House of Delegates."

In his role of consultant, Marston " participated in crafting redistricting legislation; coordinating and gathering analysis of data and information from which redistricting legislation was introduced; assisted members of the House of Delegates in holding hearings on redistricting; assisted in preparing statements to members about redistricting; advised members and their staff regarding strategy for passage of redistricting legislation; and regularly engaged in frank discussions with members concerning the creation, evolution, and passage of redistricting legislation." Marston recites that, when performing those responsibilities, he " was a consultant due to the manner in which [he] was compensated."

DISCUSSION

Testimonial and evidentiary privileges exist against the backdrop of the general principle that all reasonable and reliable measures should be employed to ascertain the truth of a disputed matter. Privileges are therefore strictly construed and accepted only where the public good associated with the exclusion of relevant evidence overrides the general principle in favor of admission. Trammel v. United States,445 U.S. ...


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