Opinion
SA-21-CV-00844-XR
05-25-2022
LA UNION DEL PUEBLO ENTERO, et al., Plaintiffs v. GREGORY W. ABBOTT, et al., Defendants
ORDER
XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE
On this date, the Court considered Plaintiff League of United Latin American Citizens' (“LULAC”) motion to compel (ECF No. 391). After carefully considering the parties' briefing, holding a hearing on the motion, and conducting an in camera review of the requested documents, the Court issues the following order.
BACKGROUND
This action arises out of an omnibus voting bill, Senate Bill 1 (“S.B. 1”), the State of Texas enacted on August 31, 2021. Plaintiffs claim, inter alia, that the Texas Legislature enacted S.B. 1 with the intent to discriminate against certain racial minorities, including Black and Latinx voters. ECF No. 207 at 52. On December 15, 2021, Plaintiffs served third-party subpoenas to the legislative sponsors of S.B. 1, Texas Representatives Briscoe Cain and Andrew Murr and Texas Senators Paul Bettencourt and Bryan Hughes (collectively, “the State Legislators”). ECF No. 392 at 5, 23, 41, 59. The subpoenas sought documents and communications from the State Legislators concerning claims of criminal conduct in Texas elections, the anticipated effects of S.B. 1, and communications with third-party organizations concerning S.B. 1. See, e.g., id. at 8-17.
Subsequently, counsel for the State Legislators sent Plaintiffs a letter asserting various objections to the subpoenas, including assertions of legislative, investigative, deliberative-process, and attorney-client privileges. Id. at 77-79. After numerous meet-and-confer sessions, the Parties were unable to resolve their disagreements concerning the State Legislators' assertions of privilege. Plaintiff LULAC filed the instant motion to compel, seeking discovery of various documents over which the State Legislators have asserted legislative, attorney-client, work-product, and investigative privileges.
DISCUSSION
I. Legal Standard
Pursuant to Rule 45 of the Federal Rules of Civil Procedure, a party to a litigation may serve a nonparty a subpoena to “produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control[.]” FED. R. CIV. P. 45(a)(1)(A)(iii). The nonparty may object to the subpoena within 14 days after the subpoena is served, and failure to serve written objections to a subpoena within 14 days “typically constitutes a waiver of such objections, as does failing to file a timely motion to quash.” Total Rx Care, LLC v. Great N. Ins. Co., 381 F.R.D. 587, 592-93 (N.D. Tex. 2017).
The subpoenaed party may object to the subpoena on the grounds that the sought discovery is privileged. FED. R. CIV. P. 45(e)(2). “Rule 45(e)(2) governs a non-party's withholding of information on the grounds of privilege or work-product protections but is substantively identical to Rule 26(b)(5)'s requirements as to a responding party.” Am. Fed'n of Musicians of the U.S. & Can. v. Skodam Films, LLC, 313 F.R.D. 39, 46 (N.D. Tex. 2015). As such, when a nonparty withholds purportedly privileged information, the nonparty must: “(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5). Conclusory assertions of privilege are “insufficient to carry out the proponent's burden of establishing” the relevant privilege. EEOC v. BDO USA, L.L.P., 876 F.3d 690, 696 (5th Cir. 2017). When the nonparty relies on a privilege log to assert the relevant privilege, the log must “must provide sufficient information to permit courts and other parties to ‘test[ ] the merits of' the privilege claim.” Id. at 697 (quoting United States v. El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982)) (alteration in original).
II. Analysis
Plaintiffs seek to compel (1) 139 legislative documents over which Plaintiffs assert the State Legislators have failed to justify their assertion of legislative privilege; (2) 89 documents over which Plaintiffs contend the State Legislators have waived the legislative privilege; (3) 41 documents over which Plaintiffs argue the State Legislators have improperly asserted and/or waived attorney-client or work-product protection; and (4) 11 documents over which Plaintiffs claim the State Legislators have improperly asserted an investigative privilege.
To begin, the Court notes that the privilege log is defective. The log, in many instances, is devoid of information concerning where certain documents originated, whom the documents were shared with, and in many cases, only contains conclusory statements to support the assertion of the relevant privilege. Nonetheless, the Court will discuss each of these disputed assertions of various forms of privilege in turn.
a. Legislative Privilege
Legislative privilege is an evidentiary privilege, “governed by federal common law, as applied through Rule 501 of the Federal Rules of Evidence.” Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov't, 849 F.3d 615, 624 (5th Cir. 2017) (quoting Perez v. Perry, No. SA-11-CV-360-OLG-JES, 2014 WL 106927, at *1 (W.D. Tex. Jan. 8, 2014) (three-judge panel)). “Legislative privilege protects legislators from possible prosecution by an unfriendly executive and conviction by a hostile judiciary, and is one means for ensuring the independence of the legislature, in other words, it serves to preserve the constitutional structure of separate, coequal, and independent branches of government[.]” Gilby v. Hughs, 471 F.Supp.3d 763, 766-67 (W.D. Tex. 2020) (internal citations omitted). The privilege applies to “any documents or information that contains or involves opinions, motives, recommendations or advice about legislative decisions between legislators or between legislators and their staff.” Jackson Mun. Airport Auth. v. Bryant, No. 3:16-CV-246-CWR-FKB, 2017 WL 6520967, at *7 (S.D.Miss. Dec. 19, 2017) (quoting Hall v. Louisiana, No. 12-657-BAJ-RLB, 2014 WL 1652791, at *10 (M.D. La. Apr. 23, 2014)). The privilege does not apply, though, to “documents containing factually based information used in the decision-making process or disseminated to legislators or committees, such as committee reports and minutes of meetings, ” or “the materials and information available [to lawmakers] at the time a decision was made.” Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 11 C 5065, 2011 WL 4837508, at *9 (N.D. Ill. Oct. 11, 2011) (internal quotations and citations omitted) (alteration in original).
The privilege is personal, and it may be waived or asserted by the individual legislator. Perez, 2014 WL 106927, at *1. “[C]ounsel for the State of Texas may not invoke the privilege on behalf of the legislator, legislative aide, or staff member.” Id. at *2. Nor can a legislator assert or waive the privilege on behalf of another legislator. Gilby, 471 F.Supp.2d at 767. “To the extent . . . that any legislator, legislative aide, or staff member had conversations or communications with any outsider (e.g. party representatives, non-legislators, or non-legislative staff), any privilege is waived as to the contents of those specific communications.” Perez, 2014 WL 106927, at *2.
Further, the privilege accorded to state legislators is qualified. United States v. Gillock, 445 U.S. 360, 373 (1980); Jefferson Cmty. Health Care Ctrs., Inc., 849 F.3d at 624. The privilege “must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” Jefferson Cmty. Health Care Ctrs. Inc., 849 F.3d at 624 (quoting Perez, 2014 WL 106927, at *1). Accordingly, in determining whether and to what extent the legislative privilege must be honored, the Court “must balance the extent to which production of the information sought would chill the [Texas] Legislature's deliberations . . . against any other factors favoring disclosure.” Rodriguez v. Pataki, 280 F.Supp.2d 89, 100 (S.D.N.Y. 2003). The Rodriguez court articulated five factors to consider in making such a determination: “(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the ‘seriousness' of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.” Id. at 101; see also Veasey v. Perry, No. 2:13-CV-193, 2014 WL 1340077, at *2 (S.D. Tex. Apr. 3, 2014) (applying the Rodriguez five-factor analysis); Perez, 2014 WL 106927, at *2.
The Court will first address whether the legislative privilege has been waived as to the documents identified in Table B of the privilege log. Next, the Court will address the remaining legislative privilege claims under the Rodriguez five-factor test.
i. Waiver
LULAC contends that the documents identified in Table B indicate a waiver of the legislative privilege on its face, as these documents were obtained from or disclosed to nonlegislative parties. The Court agrees. The vast majority of documents identified in Table B are communications between the State Legislators and non-legislative third parties. There are two categories of such communications: (1) communications between the State Legislators and third-party organizations, constituents, lobbyists, etc.; and (2) communications between the State Legislators and executive branch offices, such as the Office of the Attorney General (“OAG”), Secretary of State, and Lieutenant Governor.
As identified in Table B, Documents 78 and 84 are communications between the State Legislators and the Texas Legislative Council. The Texas Legislative Council is a nonpartisan, legislative agency. As such, these communications do not constitute a waiver. These documents are subject Court's analysis in balancing the Rodriguez factors, infra.
First, the legislative privilege was waived when the State Legislators communicated with parties outside the legislature, such as party leaders and lobbyists. As discussed, “[t]o the extent . . . that any legislator, legislative aide, or staff member had conversations or communications with any outsider (e.g. party representatives, non-legislators, or non-legislative staff), any privilege is waived as to the contents of those specific communications.” Perez, 2014 WL 106927, at *2; see also Gilby, 471 F.Supp.3d at 767; Favors v. Cuomo, 285 F.R.D. 187, 212 (E.D.N.Y. 2012); Jackson Mun. Airport Auth., 2017 WL 6520967, at *8; Lee v. Va. State Bd. of Elections, No. 3:15-cv-357 (HEH-RCY), 2015 WL 9461505, at *1 (E.D. Va. Dec. 23, 2015). Therefore, the Court finds that to the extent otherwise-privileged documents or information has been shared with third parties, the legislative privilege has been waived.
Still, the State Legislators argue that the privilege has not been waived because these communications were made as part of the legislative “process of gathering facts for and considering election integrity legislation.” ECF No. 397 at 12. To support their assertions, the State Legislators rely on numerous authorities construing the federal Constitution's Speech and Debate Clause and federal legislative immunity. See id. at 12-13 (citing Watkins v. United States, 354 U.S. 178, 187 (1957) (discussing Congress's power to conduct investigations); Gov't of Virgin Islands v. Lee, 775 F.2d 514, 519-20 (3d Cir. 1985) (discussing the Speech and Debate Clause and 48 U.S.C. §1572(d), the Virgin Islands' legislative immunity statute); Miller v. Transamerican Press, 709 F.2d 524, 530 (9th Cir. 1983) (discussing legislative privilege as applied to members of Congress); McSurely v. McClellan, 553 F.2d 1277, 1284 (D.C. Cir. 1976) (en banc) (discussing federal legislators' immunity under the Speech and Debate Clause)). However, the Supreme Court has made it clear that the Speech and Debate Clause does not apply to state legislators. Gillock, 445 U.S. at 374. As such, these authorities are unpersuasive in this context.
The State Legislators further cite three district court cases concluding that all third-party communications with state legislators are privileged: Puente Arizona v. Arpaio, 314 F.R.D. 64 (D. Ariz. 2016), Thompson v. Merrill, No. 2:16-cv-783-ECM, 2020 WL 2545317 (M.D. Ala. May 19, 2020), and Jeff D. v. Kempthorne, No. CV-80-4091-E-BLW, 2006 WL 2540090 (D. Idaho Sept. 1, 2006). All are unpersuasive. While Puente Arizona concluded that state legislators' communications with third parties were protected, in reaching that conclusion, the court relied on Miller and Jewish War Veterans of the U.S. of Am., Inc. v. Gates, 506 F.Supp.2d 30 (D.D.C. 2007). Both Miller and Jewish War Veterans concerned the application of the legislative privilege to members of Congress through the Speech and Debate Clause, not state legislators. Miller, 709 F.2d at 530; Jewish War Veterans, 506 F.Supp.2d at 52. Thompson is no more availing. There, the court relied on, and was controlled by, the Eleventh Circuit's decision in In re Hubbard, 803 F.3d 1298 (11th Cir. 2015), concluding that third-party communications were protected by the legislative privilege. However, Hubbard “is inconsistent with the Fifth Circuit view (and apparent majority view) of the legislative privilege as a limited, qualified privilege.” Jackson Mun. Airport Auth., 2017 WL 6520967, at *9. Finally, the court in Jeff D. cites no authority for the proposition that a state legislators' communications with third parties are privileged. See Jeff D., 2006 WL 2540090, at *3. Case law within the Fifth Circuit is clear that state legislators waive the legislative privilege when they communicate with outsiders. E.g., Gilby, 471 F.Supp.3d at 767; Perez, 2014 WL 106927, at *2. This Court reaches the same conclusion here.
Indeed, as the Jackson court noted, “Hubbard does not recognize a distinction between the concepts of legislative privilege, legislative immunity, and the Speech and Debate Clause as applied to state legislators.” Jackson Mun. Airport Auth., 2017 WL 6520967, at *9 n.10.
Similarly, the legislative privilege is waived when a state legislator communicates with executive branch officials. Again, with respect to communications between state legislators and “any outsider (e.g. party representatives, non-legislators, or non-legislative staff), any privilege is waived as to the contents of those specific communications.” Perez, 2014 WL 106927, at *2 (emphasis added). At issue here are communications with the Office of the Attorney General, Secretary of State, and the Lieutenant Governor. ECF No. 392 at 263-88. Each of these entities are members of the executive branch, and thus constitute “outsiders.” TEX. CONST. art. IV, § 1 (amended 1995) (“The Executive Department of the State shall consist of a Governor, . . . a Lieutenant Governor, Secretary of State, . . . and Attorney General.”); see also Perez, 2014 WL 106927, at *2. Further, expanding the privilege to protect state legislators' communications with the executive branch is inconsistent with the purposes of the privilege: to protect the legislative branch from “intimidation” by the executive and judicial branches. Gilby, 471 F.Supp.3d at 767. As such, the Court concludes that the State Legislators' communications with the executive branch are not protected by the legislative privilege.
The Court will analyze whether such communications with the OAG are protected by the attorney-client privilege infra.
Nonetheless, the State Legislators have asserted that the privilege extends to officials outside the legislative branch when such officials perform legislative functions. ECF No. 397 at 20. The cases the State Legislators cite in support of this proposition concern legislative immunity from suit, not legislative privilege. See id. Legislative immunity and legislative privilege are related concepts, but they are distinct. Jackson Mun. Airport Auth., 2017 WL 6520967, at *4; see also Harding v. County of Dallas, No. 3:15-CV-0131-D, 2016 WL 7426127, at *2 (N.D. Tex. Dec. 23, 2016). The Rodriguez court offered a helpful explanation of the distinction:
Closely related to the concept of legislative immunity is the concept of legislative privilege. Although the two doctrines are often discussed interchangeably, there is one key difference. Legislative immunity entitles a state legislator, in an appropriate case, to the dismissal of all of the claims against him or her in the complaint, much as judicial immunity entitles judges to the dismissal of suits against them arising out of the performance of their judicial functions. Legislative privilege, on the other hand, is not absolute. Thus, courts have indicated that, notwithstanding their immunity from suit, legislators may, at times, be called upon to produce documents or testify at depositions.Rodriguez, 280 F.Supp.2d at 95 (internal citations omitted). As legislative immunity and legislative privilege are distinct concepts, the Court declines to extend the privilege to executive branch officials assisting in the drafting of legislation.
The State Legislators assert that these cases are relevant because “[legislative] immunity from suit derives from the testimonial privilege, not the other way around.” Id. (quoting Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 418 (D.C. Cir. 1995)). Yet again, the authority that the State Legislators present is wholly unpersuasive. Brown concerns the application of the Speech and Debate Clause, which, as stated, does not apply in this context. Further, if the Court were to accept that the evidentiary privilege afforded to state legislators derived from their testimonial privilege, as the State Legislators urge, then state legislators would have qualified immunity from suit for their legislative acts. That is not the law. Perez, 2014 WL 106927, at *2 (“While the common-law legislative immunity for state legislators is absolute, the legislative privilege for state lawmakers is, at best, one which is qualified.” (internal quotations and citations omitted)).
The State Legislators also urge this Court to adopt the court's holding in Texas v. Holder, No. 12-128 (DST, RMC, RLW), 2012 WL 13070060 (D.D.C. June 5, 2012), concluding that communications between state legislators and executive agencies are privileged. Id. at *4. However, like the other cases the State Legislators cite, the court there relied on cases construing the Speech and Debate Clause. See id. at *4 (citing Jewish War Veterans, 506 F.Supp.2d at 57; McSurely, 553 F.2d at 1287). The Court therefore declines to follow the Texas court's holding.
Even assuming such cases are relevant, the State Legislators fail to meet their burden to establish that any individual from the executive branch was in fact performing a legislative function with respect to the communications at issue. Communications from legislators to the executive branch seeking guidance on formulating legislation “are not meaningfully different” from communications between legislators and constituents, lobbyists, or think-tanks. See Gilby, 471 F.Supp.3d at 768. The privilege log does not explain how these communications were in relation to a legislative function. Instead, the log merely asserts that the communications were “considered when drafting legislation” or consisted of “advice” concerning pending legislation. These assertions do not show how the communications are “meaningfully different” from the legislators' communications with other outsiders, such as lobbyists.
The State Legislators' communications with the Lieutenant Governor's office require closer examination. While the Lieutenant Governor is a member of the executive branch, he is also the President of the Texas Senate. TEX. CONST. art. IV, § 16. His official duties include: (1) appointing the chairs and members of all committees and standing subcommittees; (2) announcing each reading of a bill; (3) referring each bill to a committee or standing subcommittee; (4) signing bills and joint resolutions passed by the whole legislature; (5) voting on legislation in the event of a senate tie; and (6) presiding over the senate and running the operations of the senate chamber, including recognizing members for debate and scheduling most bills for debate. Tex. S. Rules 4.01, 5.08, 7.03, 7.06, 7.23, 11.01, 12.01, 87th Leg., 2d Spec. Sess. (2021). Further, when the senate resolves into a Committee of the Whole Senate, the Lieutenant Governor may participate in debate and vote on all questions, including bills pending before the Committee of the Whole. Id. at 13.01-.05.
While the Lieutenant Governor has extensive, enumerated legislative functions, the State Legislators have not shown that the communications at issue involved any of these legislative functions. Rather, the communications involve the Lieutenant Governor's input on drafting legislation. The Lieutenant Governor may exercise such a right as to legislation pending before the Committee of the Whole Senate, but S.B. 1 and its predecessors were considered by the State Affairs Committee. See, e.g., S.J. of Tex. 87th Leg., 2d C.S. 4 (2021). Thus, the Lieutenant Governor's communications are not meaningfully different than the State Legislators' communications with lobbyists or other third parties. As such, the Court concludes the legislative privilege is waived.
ii. Balancing of Interests
The State Legislators have additionally asserted the legislative privilege as to several internal documents such as notes and drafts of election legislation as well as communications between the State Legislators and their staff. These documents and communications are subject to the legislative privilege. Thus, the Court will weigh the Rodriguez factors to determine if they should nevertheless be disclosed: “(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the ‘seriousness' of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.” Id. at 101; see also Veasey v. Perry, No. 2:13-CV-193, 2014 WL 1340077, at *2 (S.D. Tex. Apr. 3, 2014) (applying the Rodriguez five-factor analysis); Perez, 2014 WL 106927, at *2.
The first factor weighs in favor of disclosure. The LULAC Plaintiffs allege that “a racially discriminatory purpose was a motivating factor in the passage of SB 1” in violation of Section 2 of the Voting Rights Act. ECF No. 207 at 52. The evidence that the LULAC Plaintiffs seek to compel is highly relevant in proving their Section 2 claim, as the documents reflect the State Legislators' contemporaneous thoughts and motivations in drafting and enacting S.B. 1.
With respect to the second factor, the availability of other evidence, litigants may prove a Section 2 claim through circumstantial or direct evidence of a discriminatory purpose. Veasey v. Abbott, 830 F.3d 216, 230-31 (5th Cir. 2016). Thus, the State Legislators' private communications and notes are not the only evidence that would allow the LULAC Plaintiffs to prove their Section 2 claim. However, the Court concludes this factor weighs in favor of disclosure “given the practical reality that officials ‘seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority.'” Veasey, 2014 WL 1340077, at *3 (quoting Smith v. Town of Clarkton, 682 F.2d 1055, 1064 (4th Cir. 1982)).
Litigants may also prevail on a Section 2 claim by demonstrating that legislation has a discriminatory effect. Veasey, 830 F.3d at 243.
The third and fourth factors also weigh in favor of disclosure. The LULAC Plaintiffs raise serious questions whether S.B. 1 complies with the Voting Rights Act and the First and Fourteenth Amendments. See ECF No. 207 at 52-61. Additionally, the state government played a direct role in the alleged unlawful conduct. See Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *8. As the LULAC Plaintiffs have alleged that the Texas legislature intentionally discriminated against minority voters, “the decisionmaking process . . . is the case.” Id. (quoting United States v. Bd. of Educ. of the City of Chi., 610 F.Supp. 695, 700 (N.D. Ill. 1985) (emphasis in original)).
The fifth and final factor, the possibility of future timidity by government officials, weighs against disclosure. “[C]ourts have long recognized that the disclosure of confidential documents concerning intimate legislative activities should be avoided.” Veasey, 2014 WL 1340077, at *3; see also Comm. for a Fair and Balanced Map, 2011 WL 4837508, at *9. Even so, “‘where important federal interests are at stake,' the principle of comity, which undergirds the protection of legislative independence, yields.” Bensick v. Lamone, 263 F.Supp.3d 551, 555 (D. Md. 2017) (quoting Gillock, 445 U.S. at 373). Courts have repeatedly recognized that such important federal interests include protecting the fundamental right to vote. See, e.g., id.; Veasey, 2014 WL 1340077, at *2. As such, the Court finds that the need for accurate fact finding outweighs any chill to the legislature's deliberations. See Baldus v. Brennan, No. 11-CV-562, 11-CV-1011, 2011 WL 6122542, at *2 (E.D. Wis. Dec. 8, 2011) (concluding that the potential “chilling effect” on the state legislature “is outweighed by the highly relevant and potentially unique nature of the evidence.”).
b. Attorney-Client Privilege
The State Legislators have further asserted the attorney-client privilege protects several documents from disclosure. “[T]he attorney-client privilege protects communications made in confidence by a client to his lawyer for the purpose of obtaining legal advice. The privilege also protects communications from the lawyer to his client, at least if they would tend to disclose the client's confidential communications.” Hodges, Grant & Kaufmann v. U.S. Gov't, Dep't of the Treas., 768 F.2d 719, 720-21 (5th Cir. 1985) (internal citations omitted). “[D]isclosure of attorney-client communications to a third party lacking a common legal interest will result in a waiver of the attorney-client privilege.” S.E.C. v. Brady, 238 F.R.D. 429, 439 (N.D. Tex. 2006) (citing In re Auclair, 961 F.2d 65, 69 (5th Cir. 1992)). Parties have a “common legal interest” if they are “co-defendants in actual litigation” or “potential” co-defendants. United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002). “Communications between potential codefendants and their counsel are only protected if there is ‘a palpable threat of litigation at the time of the communication, rather than a mere awareness that one's questionable conduct might some day result in litigation.'” Id. (quoting In re Santa Fe Int'l Corp., 272 F.3d 705, 711 (5th Cir. 2001)).
The LULAC Plaintiffs argue that the privilege log shows many instances of waiver. In response, the State Legislators argue that no waiver occurred as all parties to the communications shared a common legal interest in drafting legislation. ECF No. 397 at 21. However, the State Legislators have not presented, and the Court has not found, any Fifth Circuit case law concluding that parties may have a common legal interest in anything other than “actual litigation.” See In re Santa Fe Int'l Corp., 272 F.3d at 710-13 (discussing cases within the Fifth Circuit addressing the common-interest doctrine). Nor can the State Legislators plausibly claim that a threat of litigation existed at the time of the communications. These communications concerned advice in drafting legislation that was still being debated and amended, and the legislation was not guaranteed to pass. In some cases, the legislation did in fact fail. See H.J. of Tex., 87th Leg., R.S. 5466 (2021) (recording SB 7's failure because the House of Representatives lacked a quorum). Consequently, the State Legislators cannot assert that the common-interest doctrine protects the communications from disclosure.
Even beyond the numerous instances of waiver, many of the communications at issue do not concern legal advice. Several of the communications concern “solicited information about incidents of voting misconduct.” See ECF No. 392 at 284-85. Facts within the client's knowledge are not protected by the attorney-client privilege, “even if the client learned those facts through communications with counsel.” Thurmond v. Compaq Comput. Corp., 198 F.R.D. 475, 483 (E.D. Tex. 2000). As these communications relayed facts, not legal advice, they are not privileged.
c. Work-Product Protection
The State Legislators have also asserted work-product protection as to several documents. However, “[d]ocuments prepared for one who is not a party to the present suit are wholly unprotected by Rule 26(b)(3) even though the person may be a party to a closely related lawsuit in which he will be disadvantaged if he must disclose in the present suit.” 8 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 2024 (3d ed. 1998). The State Legislators are not parties to the underlying suit, nor can they be. Thus, any assertions of work-product protection are improper.
d. Investigative Privilege
Finally, the State Legislators have asserted an investigative privilege over eleven documents. The Fifth Circuit recognizes an investigative privilege, often referred to as a law enforcement privilege. In Re U.S. Dep't of Homeland Sec., 459 F.3d 565, 568-69 (5th Cir. 2006). The privilege protects government documents relating to an ongoing criminal investigation from release. Id. at 569 n.2. However, the privilege “is bounded by relevance and time constraints, ” and
[s]everal types of information probably would not be protected, including documents pertaining to: (1) people who have been investigated in the past but are no longer under investigation, (2) people who merely are suspected of a violation without being part of an ongoing criminal investigation, and (3) people who may have violated only civil provisions. Furthermore, the privilege lapses after a reasonable period of time.Id. at 571.
It is unclear if the State Legislators may properly assert an investigatory privilege. See Id. at 569 n.2 (observing that the law enforcement privilege is a “subcategory” of the executive privilege). However, even assuming they may assert the privilege, the State Legislators have not met their burden to show that an investigatory privilege is applicable. Jonathan White, Chief of the Elections Integrity Division at the Office of the Attorney General, avers that the documents concern “potential election code violations.” ECF No. 397-11 at 3. Nowhere in the privilege log or elsewhere do the State Legislators assert that these documents concern an ongoing criminal investigation or that any investigation even occurred. As such, the Court concludes that the State Legislators have failed to show the documents are subject to an investigatory privilege.
CONCLUSION
For the foregoing reasons, Plaintiff LULAC's motion to compel (ECF No. 391) is GRANTED. The State Legislators are ORDERED to produce all documents, with the exception of DOC0000477, as specified in Appendix A below, by June 3, 2022.
It is so ORDERED.
APPENDIX OMITTED