United States District Court, E.D. Virginia, Richmond Division
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For Golden Bethune-Hill, an individual, Plaintiff: John Kuropatkin Roche, LEAD ATTORNEY, Aria Christine Branch, Perkins Coie LLP, Washington, DC; Abha Khanna, Ryan Spear, William Benjamin Stafford, PRO HAC VICE, Kevin John Hamilton, Perkins Coie LLP, Seattle, WA; Bruce Van Spiva, Elisabeth Carmel Frost, PRO HAC VICE, Marc Erik Elias, Perkins Coie LLP (DC-NA), Washington, DC.
For Christa Brooks, an individual, Chauncey Brown, an individual, Atoy Carrington, an individual, Davinda Davis, an individual, Alfreda Gordon, an individual, Cherrelle Hurt, an individual, Terrell Kingwood, an individual, Tavarris Spinks, an individual, Mattie Mae Urquhart, an individual, Vivian Williamson, an individual, Sheppard Roland Winston, an individual, Plaintiffs: John Kuropatkin Roche, LEAD ATTORNEY, Perkins Coie LLP, Washington, DC; Abha Khanna, Ryan Spear, William Benjamin Stafford, PRO HAC VICE, Kevin John Hamilton, Perkins Coie LLP, Seattle, WA; Bruce Van Spiva, Elisabeth Carmel Frost, PRO HAC VICE, Marc Erik Elias, Perkins Coie LLP (DC-NA), Washington, DC.
For Virginia State Board of Elections, Defendant: Jeffrey P. Brundage, LEAD ATTORNEY, Eckert Seamans Cherin & Mellott LLC (DC), Washington, DC; Anthony F. Troy, Eckert Seamans Cherin & Mellott LLC (Rich), Richmond, VA; Daniel Ari Glass, Kathleen Angell Gallagher, PRO HAC VICE, Eckert Seamans Cherin & Mellott LLC (DC-NA), Washington, DC; Godfrey Thadeus Pinn, Jr., Harrell & Chambliss LLP, Richmond, VA.
For James B. Alcorn, in his capacity as Chairman of the Virginia State Board of Elections, Edgardo Cortes, in his capacity as Commissioner of the Virginia Department of Elections, Clara Belle Wheeler, in her capacity as Vice-Chair of the Virginia State Board of Elections, Singleton B. McAllister, in his capacity as Secretary of the Virginia State Board of Elections, Defendants: Jeffrey P. Brundage, LEAD ATTORNEY, Eckert Seamans Cherin & Mellott LLC (DC), Washington, DC; Anthony F. Troy, Eckert Seamans Cherin & Mellott LLC (Rich), Richmond, VA; Daniel Ari Glass, Kathleen Angell Gallagher, PRO HAC VICE, Eckert Seamans Cherin & Mellott LLC (DC-NA), Washington, DC.
For Virginia Department of Elections, Defendant: Jeffrey P. Brundage, LEAD ATTORNEY, Eckert Seamans Cherin & Mellott LLC (DC), Washington, DC; Anthony F. Troy, Eckert Seamans Cherin & Mellott LLC (Rich), Richmond, VA; Daniel Ari Glass, Kathleen Angell Gallagher, PRO HAC VICE, Eckert Seamans Cherin & Mellott LLC (DC-NA), Washington, DC; Effrem Mark Braden, PRO HAC VICE, Baker & Hostetler LLP(DC-NA), Washington, DC.
For Virginia House of Delegates, William J. Howell, Speaker, Intervenor Defendants: Katherine Lea Mcknight, LEAD ATTORNEY, Jennifer Marie Walrath, Richard Bryan Raile, Baker & Hostetler LLP (DC), Washington, DC; Effrem Mark Braden, PRO HAC VICE, Baker & Hostetler LLP(DC-NA), Washington, DC.
Robert E. Payne, Senior United States District Judge.
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.
In this case, Plaintiffs have challenged twelve Virginia House of Delegates districts as unlawful racial gerrymanders in violation of the Equal Protection Clause of the U.S. Constitution. Plaintiffs filed this action against the Virginia State Board of Elections (" BOE" ) and various members thereof (collectively, " Defendants" ), but did not name any legislative body or individual legislator as a defendant. Soon after Plaintiffs filed their Complaint, however, the Virginia House of Delegates (the " House" ) and Speaker William J. Howell (" Speaker Howell" ) (collectively, " Interveners" ) moved to intervene, (Docket No. 12), and that motion was granted, (Docket No. 26.). Intervenors have represented that they do not represent any individual delegate except Speaker Howell, and that the House does not speak on behalf of any individual legislator. See Tr. of Hr'g, Feb. 24, 2015, at 9:7-9.
During discovery, Plaintiffs served the House with requests for production of documents including, inter alia,
1. " [A]ll communications [related to the 2011 redistricting process] between or among the Virginia House of Delegates, including but not limited to those members who represent or represented" the challenged districts;
2. " [A]ll 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. " [A]ll communications [related to the 2011 redistricting process] between the Virginia House of Delegates and any and all local, statewide, or national Republican groups, including without limitation the Republican National Committee, National Republican Congressional Committee, Republican State Leadership Committee, Republican Legislative Campaign Committee, current or former members of the local, state, or national Republican group, their staff members, agents, employees, consultants, advisors, experts, and personnel."
Decl. of Ryan Spear in Supp. of Pls.' Mot. to Compel Produc. of Docs., Ex. B (Docket No. 49). Plaintiffs also sought, more generally, " all documents related to the [2011 Virginia redistricting process], including without limitation all emails, letters, notes, press releases, and other documents." Id.
Plaintiffs have sought the communications of individual, non-party legislators and other documents directly from the Intervenors. The House is in possession of these legislators' communications because it maintains an email system that the delegates are encouraged to use for " communications between legislators, staff, state agencies, constituents, and others concerned with state business, including the transfer of documents and usage of electronic mail." Def.-Ints.' Mem. in Opp'n to Mot. to Compel, Ex. A, Virginia House Appropriate Use Policy (Docket No. 50-1) . Counsel to the Intervenors, Baker Hostetler, is also in possession of other documents sought by the Plaintiffs, including files obtained from Mr. Christopher Marston (an attorney who worked for the House during 2010 and 2011 and provided legal and strategic advice concerning redistricting), Mr. John Morgan (an individual retained by the House to assist with the 2011 redistricting process), and Mr. Chris Jones (a state legislator who expects to testify in this matter and is represented by Baker Hostetler in that capacity).
In response to Plaintiffs' requests, the House produced documents and served privilege logs reflecting other documents that it had withheld from production on the basis of the legislative privilege, the attorney-client privilege, and the work-product doctrine. In an effort to minimize disputes about the legislative privilege, the parties agreed to send a joint letter to delegates whose emails the House had withheld on legislative privilege grounds. That letter informed the affected delegates that the House had custody of responsive emails to or from the delegates; that the House did not represent the delegates; and that it was the responsibility of the individual delegates to waive or assert the legislative privilege. The notice was sent to the twenty-nine (29) delegates whose communications had been deemed relevant and privileged. The notice set a date by which the delegates were to indicate whether they intended to assert or waive their legislative privilege. However, the notice did not explain that to be successful, an assertion of the legislative privilege must be accompanied by proof that the documents actually are privileged. Nor did the notice explain how that showing should be made.
Of the 29 delegates who received the joint letter, twenty-one (21) responded to " assert" legislative privilege, four (4) responded by waiving legislative privilege, and four (4) failed to respond. The House produced the documents of the four legislators who expressly waived their legislative privilege but continues to withhold the documents of the four legislators who failed to respond. The House also continues to withhold the documents of the remaining 21 delegates, who have expressed a preference to assert their legislative privilege but have taken no steps to establish that the withheld documents do, in fact, satisfy the elements of the legislative privilege. Nor has the House sought to
make that showing on behalf of those 21 delegates.
Following a telephone conference with the Court in an effort to resolve the claims informally, Plaintiffs filed a motion to compel the production of numerous purportedly " privileged" documents, arguing that the Intervenors have not established valid claims of privilege under the legislative privilege, the attorney-client privilege, or the work-product doctrine.
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. v. Washington Suburban Sanitary Comm'n [WSSC II], 631 F.3d 174, 180 (4th Cir. 2011). In addition, it is important to identify how legislative immunity and legislative privilege differ between federal and state legislators as to the source of the privileges, 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." U.S. Const. Art. I, § 6, cl. 1. 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 before a possibly hostile judiciary," Gravel v. United States, 408 U.S. 606, 616, 617, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Thus, two important principles animate legislative immunity at the federal level: (1) the separation of powers, and (2) the protection of the legislative process. See Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 502, 95 S.Ct. 1813, 44 L.Ed.2d 324 (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, but to protect the integrity of the legislative process by insuring the independence of individual legislators" ).
Although the clause speaks only of " Speech or Debate," it shields federal legislators from liability for all " things generally done in a session of the House by one of its members in relation to the business before it," Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881), 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 part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Id. at 625. Such " legislative acts" typically involve " the adoption of prospective, legislative-type rules . . . that establish a general policy affecting the larger population. They also generally bear the outward marks of public decisionmaking, including
the observance of formal legislative procedures."
WSSC II, 631 F.3d at 184 (internal quotations marks and citations omitted).
The sweeping language of the Clause renders federal legislative immunity for such activities applicable in both civil and criminal actions. See Eastland, 421 U.S. at 503 (noting both " the absoluteness of the terms 'shall not be questioned,' and the sweep of the term 'in any other Place" '). " Just as a criminal prosecution infringes upon the independence which the Clause is designed to preserve, a private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation." Id.
Of course, this does not mean that federal legislators are immune from criminal or civil law in any general sense. See, e.g., United States v. Gillock, 445 U.S. 360, 373 n.11, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980). Rather, the Clause means that legislative activities may not constitute a basis for liability, either as the predicate of the cause of action,
see Doe v. McMillan, 412 U.S. 306, 312, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973) (" [T]he actions upon which petitioners sought to predicate liability were 'legislative acts,' and, as such, were immune from suit." ) (internal citation omitted), or as evidence in support thereof,
United States v. Helstoski, 442 U.S. 477, 487, 99 S.Ct. 2432, 61 L.Ed.2d 12 (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]." ). Due to the Clause's constitutional stature, the Speech and Debate Clause poses an absolute bar to liability if a federal legislator is acting within the " legitimate legislative sphere."
Eastland, 421 U.S. at 503.
In addition to this substantive and evidentiary use immunity, 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. This privilege similarly prohibits the production of documents pertaining to legislative activities. See United States v. Rayburn House Office Bldg., Room 2113, Washington, D.C. 20515, 497 F.3d 654, 660, 378 U.S. App.D.C. 139 (D.C. Cir. 2007) cert, denied, 552 U.S. 1295, 128 S.Ct. 1738, 170 L.Ed.2d 539 (2008). This is because federal legislators engaged in the sphere of legitimate legislative activity are " protected not only from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967).
In short, federal legislators are entitled to an absolute legislative immunity grounded in the Constitution for any civil or criminal action based in substance or evidence upon acts performed within the " sphere of legitimate legislative activity." This immunity is further safeguarded by an absolute legislative privilege preventing compelled testimony or documentary disclosure regarding legislative activities in support of such claims.
2. State Legislative Immunity and Privilege
State legislators and other legislative actors also possess legislative immunity, Tenney v. Brandhove,341 U.S. 367, 372, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), based upon the concept's " historical pedigree and practical importance," see WSSC II, 631 F.3d at 180-81 (collecting cases). After all, the " practical import" of legislative immunity is " difficult to ...