Opinion

Cave v. Thurston

Court: District Court, E.D. Arkansas
Filed: Oct 22, 2021
Cited by: 0 cases
Authority: More cited than 17.0%

“A subpoena must also seek relevant information” (citing Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 360-62 (8th Cir. 2003))

How later courts described this case

“A subpoena must also seek relevant information” (citing Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 360-62 (8th Cir. 2003))
reviewing meeting notes and materials to determine whether a discriminatory intent existed
noting discriminatory intent is rarely susceptible to direct proof, and historical background is a proper source of inquiry in a due process case
Rule 26 “is liberal in scope and interpretation, extending to those matters which are relevant and reasonably calculated to lead to the discovery of admissible evidence”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

DONNA CAVE, et al., PLAINTIFFS

EUGENE LEVY, et al., CONSOLIDATED PLAINTIFFS

THE SATANIC TEMPLE, et al., INTERVENORS

v. Case No. 4:18-cv-00342-KGB

JOHN THURSTON, Arkansas Secretary

of State, in his official capacity DEFENDANT

ORDER

Before the Court are two motions related to discovery in this matter. The Satanic Temple,

Lucien Greaves, and Erika Robbins (collectively “The Satanic Temple Intervenors” or “TSTI”)

filed a motion to compel discovery (Dkt. No. 120). John Thurston, Arkansas Secretary of State,

in his official capacity, filed a motion for an order to show cause and compel the Satanic Temple

to make court-ordered production of documents (Dkt. No. 124). The Court held a hearing on these

motions (Dkt. No. 134). The Court entered a short order granting, in part, and denying, in part,

each of the two motions related to discovery in this matter (Dkt. No. 145). This Order sets forth

its reasons.

I. Legal Standard

Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional

to the needs of the case . . . .” Fed. R. Civ. P. 26(b)(1). The Rule is construed broadly to encompass

“any matter that bears on, or that reasonably could lead to other matter that could bear on, any

issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)

(construing the same language that appeared in a prior version of Rule 26); see also Hofer v. Mack

Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (Rule 26 “is liberal in scope and interpretation,

extending to those matters which are relevant and reasonably calculated to lead to the discovery

of admissible evidence”). The spirit of Rule 26(a) is that discovery be self-effectuating, without

need to resort to the Court, and that its scope be liberal, extending to all matters reasonably

calculated to lead to admissible evidence. This standard is well-ensconced and is generally known

and understood by civil practitioners. Hickman v. Taylor, 329 U.S. 495 (1947); Greyhound Lines,

Inc. v. Miller, 402 F.2d 134 (8th Cir. 1968); Carlson Cos., Inc. v. Sperry and Hutchinson Co., 374

F. Supp. 1080, 1100 (D. Minn. 1974); National Organization for Women, Inc. (NOW), St. Paul

Chapter v. Minnesota Min. & Mfg. Co., 73 F.R.D. 467 (D.C. Minn. 1977); see also Laker Airways

Ltd. v. Pan American World Airways, 103 F.R.D. 22 (D.C. Cir. 1984).

“Discovery rules are to be broadly and liberally construed in order to

fulfill discovery’s purposes of providing both parties with ‘information essential to the proper

litigation of all relevant facts, to eliminate surprise, and to promote settlement.’” Rollscreen Co.

v. Pella Products, 145 F.R.D. 92, 94 (S.D. Iowa 1992); see also Davis v. Union Pacific R.R. Co.,

Case No. 4:07-cv-000521 BSM, 2008 WL 3992761, at *2 (E.D. Ark. 2008) (“A request

for discovery should be considered relevant if there is ‘any possibility’ that the information sought

may be relevant to the claim or defense of any party.”); Moses v. Halstead, 236 F.R.D. 667, 671

(D. Kan. 2006) (same). Nevertheless, “there must be at least a ‘threshold showing of relevance’

before parties ‘are required to open wide the doors of discovery and to produce a variety of

information which does not reasonably bear upon the issues in the case.’” Kampfe v. Petsmart,

Inc., 304 F.R.D. 554, 557 (N.D. Iowa 2015) (quoting Hofer v. Mack Trucks, Inc., 981 F.2d 377,

380 (8th Cir. 1992)).

II. The Satanic Temple Intervenors’ Motion

TSTI propounded discovery requests to Secretary Thurston (Dkt. No. 120-1). TSTI

propounded discovery, to which the state responded with initial responses and supplemental

responses (Dkt. Nos. 120-4; 120-5). TSTI engaged in good faith negotiations in an effort to avoid

filing the motion to compel (Dkt. No. 120-6), agreeing to limit certain requests.

In good faith negotiations, TSTI agreed to limit its discovery requests seeking

correspondence to only correspondence sent from General Assembly members or staff; TSTI

agreed that correspondence sent by the Governor or staff need not be provided (Dkt. No. 120-6).

TSTI agreed to limit its request for “meeting minutes” to “non-legislative meetings,” specifying

TSTI’s narrowed request as “meetings held between General Assembly members, or their staff,

and non-General Assembly members.” (Dkt. No. 120-6; First RFPs Nos. 14, 15). TSTI explained

that “[i]t is anticipated that these meeting minutes will shed light on the origins and purposes of

the two complained-of Acts.” (Dkt. No. 120-6). TSTI agreed to withdraw its request for notes

created by state employees pertaining to either Act (Dkt. No. 120-6; First RFPs Nos. 16, 17). TSTI

agreed to withdraw its request for CC&E forms (Dkt. No. 120-6; First RFPs No. 18).

According to TSTI, defendants opted to stand on their responses and objections (Dkt. No.

120, at 2).

TSTI’s motion to compel focuses on four topics of discovery, according to TSTI: (1)

“[c]orrespondence, including emails, sent from January 1, 2015 to present by General Assembly

members or their respective staff, pertaining to this litigation”; (2) “[s]tate-possessed governance

documents and tax documents related to the American Heritage and History Foundation (‘AHHF,’)

the State Sen. Rapert organization through which he fundraised and donated the monument”; (3)

“[s]tate-possessed governance documents and tax documents related to the National Association

of Christian Lawmakers (‘NACL,’) the State Sen. Rapert organization through which he proclaims

religious purposes behind actions as a legislator”; and (4) “[m]eeting minutes and notes, between

General Assembly members or their staff and non-General Assembly members, pertaining to the

Ten Commandments Monument Display Act and Act 274 of 2017. . . .” (Dkt. No. 120, at 1-2).

A. Overall Arguments

TSTI requests that this Court address the following overall arguments pertinent to the

parties’ discovery dispute.

(1) Possession of Documents

TSTI maintains: “The State claims not to possess state tax records, correspondence from

General Assembly members, or any documents ‘in the possession of the State of Arkansas or any

of its employees’ related to AHHF or NACL or their respective activities.” (Dkt. No. 120, at 3).

TSTI is concerned based on comments from defense counsel that defense counsel is taking the

position that only Secretary Thurston must respond about documents in his possession, not on

behalf of the State of Arkansas. TSTI emphasizes that Secretary Thurston is named as a defendant

in his official capacity and cites Kentucky v. Graham, 473 U.S. 159, 166 (1985), for the proposition

that “an official-capacity suit is, in all respects other than name, to be treated as a suit against the

entity. It is not a suit against the official personally, for the real party in interest is the entity.”

(Id.).

Having reviewed the briefing and inquired of counsel during argument, the Court is unclear

as to what position Secretary Thurston takes with respect to this issue. Initially, he asserts that

TSTI is incorrect, that the State of Arkansas is not the defendant, and that instead the defendant

“is, plainly, Secretary Thurston is his official capacity.” (Dkt. No. 123, at 3). Secretary Thurston

later makes this statement in his filing: “Further, even if the State of Arkansas were a defendant

in this action, then because sovereign immunity is immunity to suit, that doctrine would absolutely

preclude the State from being compelled to respond to discovery.” (Dkt. No. 123, at 3). The cases

that Secretary Thurston cites for this statement do not involve discovery nor do they involve cases

with claims similar to the claims asserted here.

“A suit against a state official in his or her official capacity is not a suit against the official

but rather is a suit against the official’s office. Brandon v. Holt, 469 U.S. 464, 471 (1985). As

such, it is no different from a suit against the State itself.” Will v. Michigan Dep’t of State Police,

491 U.S. 58, 71 (1989) (citations omitted).

The Eleventh Amendment establishes a general prohibition of suits in federal court by a

citizen of a state against his state or an officer or agency of that state. Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 100 (1984). However, there are exceptions to this rule.

Relevant here, a suit against a state official may go forward in the limited circumstances identified

by the Supreme Court in Ex Parte Young. Under the Ex Parte Young doctrine, a private party can

sue a state officer in his official capacity to enjoin a prospective action that would violate federal

law. In determining whether this exception applies, a court conducts “a straightforward inquiry

into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.” Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland, 535

U.S. 635, 645 (2002) (alteration in original) (internal quotation omitted). Here, there is no dispute

that the relief plaintiffs seek is prospective and that they have alleged Secretary Thurston, in his

official capacity, is engaged in an ongoing violation of federal law. See 281 Care Comm. v.

Arneson, 638 F.3d 621, 632 (8th Cir. 2011).

Secretary Thurston also asserts that he “does not have possession, custody, or control of

the vast majority of the records” that TSTI seeks to compel (Dkt. No. 123, at 2). Secretary

Thurston maintains that he is “not the custodian of correspondence, notes, or other material for the

General Assembly, the Governor, and certainly not for ‘the State of Arkansas’ and ‘its

employees.’” (Id.).

Federal Rule of Civil Procedure 34(a) permits any party to serve on any other party a

request to produce and to allow the party making the request, or someone acting on the party’s

behalf, to inspect and copy any designated documents or things that contain matters within the

scope of Federal Rule of Civil Procedure 26(b) that are in the possession, custody, or control of

the party upon whom the request is served. The Court observes that these three words are separated

by “or,” not “and.” Only one of the three must exist to permit discovery. Documents are “‘deemed

to be within the ‘possession, custody, or control’. . . if the party has actual possession, custody or

control, or has the legal right to obtain the documents on demand.’” Prokosch v. Catalina Lighting,

Inc., 193 F.R.D. 633, 636 (D. Minn. 2000) (quoting In re Bankers Trust Co., 61 F.3d 465, 469 (6th

Cir. 1995)); see also In re Hallmark Cap. Corp., 534 F. Supp. 2d 981, 982 (D. Minn. 2008).

“[C]ontrol is defined as ‘the legal right, authority, or ability to obtain upon demand

documents in the possession of another.’” Id. (internal citation omitted). Because courts also

require production if the party has the practical ability to obtain the documents from another

“irrespective of his legal entitlement to the documents,” “‘control’ does not require that the party

have legal ownership or actual physical possession of the documents at issue; rather documents

are considered to be under a party’s control when that party has the right, authority, or practical

ability to obtain the documents from a non-party to the action.” Id. (citations omitted). Applying

the concept of “control” is “often highly fact-specific.” 8A Wright, Miller & Marcus, Federal

Practice and Procedure § 2210, at p. 397 (2d ed. 1994).

The Court has reviewed Secretary Thurston’s objections and will make specific rulings as

to those discovery requests that are the subject of the motion to compel.

Generally, to the extent Secretary Thurston maintains that he does not have possession,

custody, or control over a document sought by TSTI in discovery, Secretary Thurston is directed

to state explicitly in his objection to the document request that he is not in possession, custody, or

control of the document or category of documents being sought by the request and must so state

specifically in relation to that document or category of documents; blanket objections on this basis

to a request are inappropriate at this stage of the litigation. Neither TSTI nor the Court should be

left to guess as to which document Secretary Thurston claims this objection.

Further, if Secretary Thurston has in his possession, custody, or control documents that are

responsive to TSTI’s discovery requests, the Court fails to understand the legal basis on which

Secretary Thurston claims that he lacks possession, custody, or control over the document. If

Secretary Thurston intends to take this position in response to a discovery request for a document

in his possession, custody, or control, he must make explicit to TSTI and the Court that he has

responsive documents in his possession, custody, or control but persists in taking this position. He

must comply with the Federal Rules of Civil Procedure and this Court’s Order and log documents

on a privilege log that complies with this Court’s Order. Secretary Thurston also must cite the

specific legal authority providing the basis for his objection and his claimed legal position.

If Secretary Thurston takes the position in response to the document request that he is not

in possession, custody, or control of the document or category of documents, Secretary Thurston

must state the document’s or category of documents’ present location and the identity and position

of its custodian or must affirm that he does not have knowledge to provide this information.

(2) Legislative Privilege

TSTI asserts that “[t]he State claims legislative privilege to emails pertaining to this

litigation.” (Dkt. No. 120, at 3). TSTI cites Church of Lukumi Babalu Aye v. City of Hialeah, 508

U.S. 520, 540 (1993), for the proposition that “statements made by members of the decision

making body are relevant to determine whether religious animus is at play.” (Id.). TSTI further

maintains that “the state legislative privilege is a qualified one. . . when a plaintiff proceeds against

the State and seeks evidence to vindicate important public rights guaranteed by federal law.” (Id.

(quoting Bethune-Hill v. Va. State Bd. Of Elections, 114 F.Supp.3d 323, 336 (E.D. Va. 2015)).

Secretary Thurston asserts that he “is not the custodian of the General Assembly’s

correspondence. But—to the extent that Secretary Thurston may possess any correspondence to

or from legislators concerning the intent of legislative acts—the Satanic Temple’s demands raise

knotty legislative-privilege issues.” (Dkt. No. 123, at 6). The privilege does not belong to

Secretary Thurston; it belongs to members of the General Assembly and perhaps their staff

members. The privilege can be waived. The Court is aware of no authority that the privilege is

absolute, and courts that have addressed the privilege do not agree on its scope. The legislative

privilege does not provide Secretary Thurston with a basis to refuse to respond to discovery

requests. Even recognizing this, the Court observes the following with respect to this issue, noting

that no party before the Court has properly invoked the legislative privilege as a basis to withhold

information or documents sought through discovery in this matter.

The Court will apply federal law of privilege. Federal Rule of Evidence 501 provides:

Except as otherwise required. . .the privilege of a witness, person, government,

State or political subdivision thereof shall be governed by the principles of common

law as they may be interpreted by the courts of the United States in light of reason

and experience. . . . However, in civil actions and proceedings, with respect to an

element of a claim or defense as to which State law supplies the rule of decision,

the privilege of a witness, person, government, State or political subdivision thereof

shall be determined in accordance with State law.

Fed. R. Evid. 501.

Courts that have addressed the issue in cases based on federal question jurisdiction have

routinely applied federal privilege law. See Hollins v. Powell, 773 F.2d 191, 196 (8th Cir.

1985); Doe v. Nebraska, 788 F. Supp. 2d 975, 981–82 (D. Neb. 2011); Geissal v. Moore Medical

Corp., 192 F.R.D. 620, 623 (E.D. Mo. 2000). This Court has federal question jurisdiction and will

apply the federal law of privilege.

Next, the Court observes that a number of cases, particularly those involving potential

violations of constitutional rights, have allowed queries into legislators’ motivations. See South

Dakota Farm Bureau Inc. v. Hazeltine, 340 F.3d 583, 594–96 (8th Cir. 2003) (reviewing meeting

notes and materials to determine whether a discriminatory intent existed); see also Village of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977) (noting it may be

appropriate to examine legislative motivations); Hayden v. Paterson, 594 F.3d 150, 163 (2d Cir.

2010) (noting discriminatory intent is rarely susceptible to direct proof, and historical background

is a proper source of inquiry in a due process case); Bethune-Hill, 114 F. Supp. 3d at 336. These

cases address constitutional rights in which legislative intent was at issue. The Court has not

resolved in this case whether and, if so, to what extent it will permit discovery to be withheld based

on a claim of legislative privilege.

With respect to a claim of legislative privilege specifically, the Court has reviewed and

cites the parties to the well-reasoned decision of Doe v. Nebraska, 788 F. Supp. 2d at 981–82, in

which the court explained in regard to legislative privilege as applied to state legislators:

[I]n most cases the only evidentiary legislative privilege regarding the production

of documents available to state legislators (and other local government officials) is

a very narrow and qualified one, sometimes referred to as a “deliberative process

privilege.” See In re Grand Jury, 821 F.2d 946, 958–59 (3d Cir. 1987); Kay, 2003

WL 25294710 at *8–9; Rodriguez, 280 F.Supp.2d at 95–6; Newport Pacific Inc. v.

County of San Diego, 200 F.R.D. 628, 637–639 (S.D. Cal. 2001); Manzi v.

DiCarlo, 982 F. Supp. 125 (E.D. N.Y. 1997); Florida Assn. of Rehabilitation

Facilities, Inc. v. State of Florida Dept. of Health and Rehabilitative Services, 164

F.R.D. 257, 266–68 (N.D. Fla. 1995); Corporacion Insular de Seguros v.

Garcia, 709 F. Supp. 288 (D. Puerto Rico 1989).

. . . Courts evaluating whether to apply the deliberative process privilege generally

treat it as a qualified privilege and only protect documents from discovery after

applying a balancing test based on the following factors: “(1) the relevance of the

evidence; (2) the availability of other evidence; (3) the government’s role in the

litigation; and (4) the extent to which disclosure would hinder frank and

independent discussion regarding contemplated policies and decisions.”

Qamhiyah, 245 F.R.D. at 396 (quoting F.T.C. v. Warner Communications,

Inc., 742 F.2d 1156, 1161 (9th Cir. 1984)); see also Rodriguez, 280 F.Supp.2d at

101 (quoting In re Franklin Nat'l Bank Secs. Litig., 478 F. Supp. 577, 583 (E.D.

N.Y. 1979)).

. . .

This court agrees with the reasoning of many courts that have held any legislative

privilege regarding the production of documents available to state legislators is a

qualified “deliberative process privilege.” Kay, 2003 WL 25294710 at *15–

17; Newport Pacific Inc., 200 F.R.D. at 637–639; Rodriguez, 280 F.Supp.2d at 95–

96; Manzi, 982 F. Supp. at 129; Corporacion Insular, 709 F. Supp. at 296; Florida

Assn. of Rehabilitation Facilities, Inc., 164 F.R.D. at 266–68. . . .

The Court finds this decision well-reasoned but recognizes that the Court has not heard from the

appropriate parties who hold and have standing to assert the privilege. The Court invites briefing

within 45 days from the entry of this Order from the appropriate parties who hold and have

standing to assert the privilege and wish to assert it as to specific documents in this case.

(3) No Privilege Log

According to TSTI, Secretary Thurston engages in a strained reading of the discovery

requests to mount a challenge based on requests that purportedly seek materials Secretary Thurston

alleges may be covered by the attorney-client privilege and the work-product doctrine (Dkt. No.

123, at 7). TSTI requests that, to the extent the State is withholding documents under a claim of

privilege, it produce a privilege log (Dkt. No. 120, at 3). The Court agrees with TSTI’s request

for a privilege log.

Secretary Thurston is directed to state explicitly in his objection to the document request

that he is withholding specific documents from production based on a claim of attorney-client

privilege or the work-product doctrine or the deliberative process privilege; blanket objections on

this basis to a request are inappropriate at this stage of the litigation. To the extent Secretary

Thurston is withholding specific documents in response to the request for production based on a

claim of attorney-client privilege or the work-product doctrine or the deliberative process

privilege, Secretary Thurston must produce a privilege log in accord with this Court’s Order. If

Secretary Thurston is not withholding documents from production based on a claim of attorney-

client privilege or the work-product doctrine or the deliberative process privilege, he must

withdraw this objection to the document request.

If any document is withheld from production or disclosure based on a claim of

confidentiality under the attorney-client privilege or the work-product doctrine or the deliberative

process privilege, Secretary Thurston shall, pursuant to Federal Rule of Civil Procedure

26(b)(5)(A), for each document withheld, disclose a description of the document with as much

specificity as is practicable without disclosing its contents, including:

(a) the general nature of the document;

(b) the identity and position of its author;

(d) the identity and position of its addressee;

(e) the identities and positions of all persons who were given or have received

copies of it and the dates copies were received by them;

(f) the document’s present location and the identity and position of its custodian;

(g) the specific request for production or requests for production to which Secretary

Thurston maintains the document is responsive; and

(h) the specific reason or reasons why it has been withheld from production or

disclosure.

See Doe v. Nebraska, 788 F. Supp. 2d at 983–87 (explaining this practice in relation to privilege

logs).

Upon receiving Secretary Thurston’s privilege log, TSTI may then confer in good faith to

resolve any remaining dispute regarding the production of a document or documents, and if it

cannot be resolved, TSTI may then move to compel production of specific documents identified

on the privilege log. Secretary Thurston has 30 days from the entry of this Order to produce a

privilege log in compliance with the terms of this Order.

(4) Relevance

Generally, the party resisting production or objecting to discovery on the grounds of

relevancy carries the burden to sustain the objection. St. Paul Reinsurance Co., Ltd. v. Commercial

Financial Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000); Kramer v. Boeing Co., 126 F.R.D. 690,

692–93 (D. Minn. 1989). Relevancy is a difficult objection upon which to prevail during

the discovery phase of an action. “[D]iscovery may not be had on matters irrelevant to the subject

matter involved in the pending action . . . , and even if relevant, discovery is not permitted where

no need is shown, or compliance would be unduly burdensome, or where harm to the person from

whom discovery is sought outweighs the need of the person seeking discovery of the information.”

Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir.

1999) (internal quotation and citation omitted); see also Pointer v. DART, 417 F.3d 819, 821 (8th

Cir. 2005) (“A subpoena must also seek relevant information” (citing Roberts v. Shawnee Mission

Ford, Inc., 352 F.3d 358, 360-62 (8th Cir. 2003))). The party opposing the motion to compel must

provide specific explanations or factual support as to how each request is improper. St. Paul

Reinsurance Co., 198 F.R.D. at 511-12.

Secretary Thurston asserts that TSTI seeks “production of items that are variously outside

the scope of discovery, of vanishingly slight importance (if any) to resolving the issues in this

action, and irrelevant to any party’s claim or defense. . . .” (Dkt. No. 123, at 3). TSTI asserts that

Secretary Thurston regularly raises relevance as an issue with respect to certain requested

materials.

(i) Correspondence

TSTI maintains that correspondence sent from the General Assembly members or their

respective staff around the time of the complained-of Acts would tend to shed light on whether the

purpose behind the Acts was to promote Christianity or denigrate Satanism (Dkt. No. 120, at 1, 4).

Having considered the entire record before the Court, at this stage of the litigation the Court

overrules Secretary Thurston’s relevance objections to discovery requests and the production of

documents within his possession, custody, or control seeking specific correspondence as set forth

in this Order.

(ii) AHHF

The AHHF is connected to the case because it donated the Ten Commandments monument

at issue, according to TSTI (Dkt. No. 120, at 1). TSTI maintains that state-possessed governance

documents and tax documents related to AHHF are relevant. The tax records, including any

charity applications and charity disclosures, and state-filed governance records will provide a more

complete picture of the purposes of the AHHF, according to TSTI. TSTI argues that, if the AHHF

is religious or predominately fundraised from religious organizations, then that tends to establish

that the monument is also religious (Dkt. No. 120, at 4 (citing Felix v. City of Bloomfield, 847 F.3d

1214 (10th Cir. 2017)).

Having considered the entire record before the Court, at this stage of the litigation the Court

overrules Secretary Thurston’s relevance objections to discovery requests and the production of

documents within his possession, custody, or control seeking tax records, including any charity

applications and charity disclosures, and state-filed governance records for AHHF.

(iii) NACL

The NACL’s stated mission is to enact religious legislation for the purpose of providing

Christianity preferential treatment to all other religions, according to TSTI (Dkt. No. 120, at 4).

Two founding members of the NACL are Arkansas State Senator Rapert and Arkansas State

Representative Hammer who introduced the two complained-of Acts and are directors of the

AHHF. In argument before the Court, Secretary Thurston maintained that the creation of NACL

post-dates the discussion surrounding and enactment of the challenged legislation, post-dates the

placement of the Ten Commandments Monument, and post-dates the filing of this litigation. TSTI

argues that, if Senator Rapert created the NACL with the base purpose to create proselytizing

legislation and if the NACL is religious, then that tends to suggest that the prior campaign resulting

in the Ten Commandments Monument was also religious.

Having considered the entire record before the Court, at this stage of the litigation the Court

overrules the relevance objection and will allow some leeway during discovery with respect to the

NACL, given the arguments of TSTI as to its relevance to the claims and defenses in this case.

(5) Proportionality

A party claiming requests are unduly burdensome cannot make conclusory allegations, but

the party must provide some evidence regarding the time or expense required. See Horizon

Holdings, L.L.C. v. Genmar Holdings, Inc., 209 F.R.D. 208, 213 (D. Kan. 2002).

Secretary Thurston claims that TSTI’s discovery requests are overbroad and unduly

burdensome (Dkt. No. 123, at 4). In his filing, he takes issue with being provided key words for

electronic searches with respect to requests for correspondence (Id., at 4-5). Secretary Thurston

submits that “[t]he undue burden and excessive expense of the discovery demanded in these

requests far outweighs their likely benefit.” (Id., at 5). In other places in his filing, Secretary

Thurston identifies “the requested discovery’s significant volume—an estimated 15,000 pages”

(Dkt. No. 123, at 7), indicating to this Court that, in the approximately 45 days between the date

the requests were propounded and objections were provided, Secretary Thurston was able to

undertake steps to comply with the discovery request.

The Court overrules Secretary Thurston’s proportionality objection on the record before

this Court. TSTI provided search terms, and indications are that Secretary Thurston has already

run these searches electronically to gauge the scope and volume of documents. There is nothing

in the record before the Court to demonstrate the work plan, cost, time, or personnel hours that

would be devoted to a review of these potentially responsive documents. For these reasons, the

Court overrules the proportionality objection on the record before it.

(6) Blanket Objections

TSTI maintains that, despite having claimed privilege on substantially all of the requested

materials, Secretary Thurston lodges a generic objection to 13 of the 19 requests propounded by

TSTI, stating as follows:

Although Defendant has not yet identified any item responsive to this request that

has been withheld on the basis of privilege, Defendant objects, and reserves all

objections, on the basis of attorney-client privilege and attorney work product

doctrine, as well as legislative privilege to the extent that the request implicates

items or information that might be or become covered by any legislator’s assertion

of that privilege. Defendant will supplement his response if appropriate.

(Dkt. No. 120, at 4-5). TSTI challenges the assertion of this privilege.

Blanket objections on this basis to a request are inappropriate at this stage of the litigation.

If any document is withheld from production or disclosure based on a claim of confidentiality

under the attorney-client privilege or the work-product doctrine or the deliberative process

privilege, Secretary Thurston shall, pursuant to Federal Rule of Civil Procedure 26(b)(5)(A) and

in compliance with this Order, within 30 days from the entry of this Order produce a privilege log

that complies with this Order.

B. Specific Document Requests Subject To Motion

With respect to the specific requests for production that are the subject of TSTI’s motion

to compel, the Court rules as follows.

(1) Defendants’ Responses to Intervenor’s First Requests for

Production of Documents -- Request No. 1

In its effort to engage in good faith negotiations, TSTI agreed to limit requests seeking

correspondence to that sent by General Assembly members or staff, stating that correspondence

sent by the Governor or staff need not be included (Dkt. No. 120-6, at 1). The Court imposes this

limitation on Request No. 1 and modifies it accordingly. To the extent TSTI believes this Court

misunderstands its proposed limitation, TSTI may renew its motion to compel as to this request.

The Court overrules Secretary Thurston’s relevance objection. Aside from a general

relevance objection, Secretary Thurston takes no specific issue with the search terms proposed by

TSTI, and therefore, no ruling is required by the Court on the search terms proposed by TSTI.

Secretary Thurston is directed to follow this Court’s Order in supplementing his response

with respect to any claim that he does not have possession, custody, or control over a document

sought by this request for production.

The Court overrules Secretary Thurston’s proportionality objection on the record before

this Court. TSTI provided search terms, and indications are that Secretary Thurston has already

run these searches electronically to gauge the scope and volume of documents. There is nothing

in the record before the Court to demonstrate the work plan, cost, time, or personnel hours that

would be devoted to a review of these potentially responsive documents.

To the extent any document in Secretary Thurston’s possession is withheld from

production on the basis of a claim of attorney-client privilege or the work-product doctrine or the

deliberative process privilege, Secretary Thurston is required to produce a privilege log consistent

with the Federal Rules of Civil Procedure and this Court’s Order.

(2) Defendants’ Responses to Intervenor’s First Requests for

Production of Documents -- Request No. 2

In its effort to engage in good faith negotiations, TSTI agreed to limit requests seeking

correspondence to that sent by General Assembly members or staff, stating that correspondence

sent by the Governor or staff need not be included (Dkt. No. 120-6, at 1). The Court imposes this

limitation on Request No. 2 and modifies it to require production of correspondence responsive to

Request No. 2 sent or received during the period beginning January 1, 2015, to present to or from

any General Assembly Member, General Assembly Member staff, the Secretary of State, or

Secretary of State staff, excluding that sent by the Governor or staff. To the extent TSTI believes

this Court misunderstands its proposed limitation, TSTI may renew its motion to compel as to this

request.