Bailey v. Metropolitan Government of Nashville and Davidson County, Tennessee, The

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

JANE DOE )

) CONSOLIDATED CASES

v. ) Case No. 3:20-cv-01023

) Judge Trauger

METROPOLITAN GOVERNMENT OF ) Magistrate Judge Holmes

NASHVILLE AND DAVIDSON COUNTY, )

TENNESSEE and DR. ADRIENNE BATTLE )

DR. LILY MORENO LEFFLER )

)

v. ) Case No. 3:21-cv-00038

)

METROPOLITAN GOVERNMENT OF )

NASHVILLE AND DAVIDSON COUNTY, )

TENNESSEE and DR. ADRIENNE BATTLE )

DR. JAMES BAILEY, DR. PIPPA )

MERIWETHER, and DR. DAMON CATHEY )

)

v. ) Case No. 3:21-cv-00122

)

METROPOLITAN GOVERNMENT OF )

NASHVILLE AND DAVIDSON COUNTY, )

TENNESSEE and DR. ADRIENNE BATTLE )

O R D E R

Pending before the Court by referral from the District Judge are Defendant Metro’s motions

to quash subpoenas filed separately in these related cases – Docket No. 48 in Case No. 3:20-cv-

01023, Docket No. 47 in Case No. 3:21-cv-00038, and Docket No. 42 in Case No. 3:21-cv-00122

– each of which is, for the reasons discussed in more detail below, GRANTED without prejudice

for Plaintiffs to file a motion to take the requested non-party depositions based on further

developments. The parties also raised issues about other discovery, which are further addressed

below.

The facts of this case are presumed and are not again recited here, except as necessary to

explain or give context to the Court’s ruling. Essentially, these cases are disputes over the

termination or demotion of Plaintiffs (in the three related cases) ostensibly for budgetary reasons.

Plaintiffs assert a variety of causes of action based, in part, on their contention that the budgetary

reason given for the adverse employment actions taken against them is pretextual. To explore

whether the claimed budgetary reason is pretextual, Plaintiffs issued subpoenas for the depositions

of Sharon Gentry, Amy Frogge, and Jill Speering, all of whom are or were at the time of the events

giving rise to Plaintiffs’ complaints members of the Metro Nashville Public Schools Board of

Education (the “school board”).

Motion to Quash

Defendant Metro seeks to quash the subpoenas, arguing that the legislative and deliberative

process privileges protect the school board members from testifying and that the information

Plaintiffs seek through the depositions is available through other means. Plaintiffs argue that

(1) Metro cannot assert the privilege on behalf of individual school board members: (2) Metro

failed to comply with the procedural requirements to invoke the privilege; (3) the privilege does

not apply to discrimination claims; (4) the motion to quash is premature because application of the

privilege depends on information sought during the depositions; and, (5) even if the motion is not

premature, the factors in the case of Rodriquez v. Pataki, 280 F.Supp.2d 89, 93-94 (S.D. N.Y.

2003), compel a determination that the privilege does not apply.

Federal Rule of Civil Procedure 26(b)(1) allows discovery of “any nonprivileged matter

that is relevant to any party's claim or defense....” Fed.R.Civ.P. 26(b)(1). “Relevant information

need not be admissible at the trial if the discovery appears reasonably calculated to lead to the

discovery of admissible evidence.” Id. The scope of discovery, however, does have “ultimate and

necessary boundaries,” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57

L.Ed.2d 253 (1978), and the court may limit the extent of discovery in a variety of circumstances.

Fed.R.Civ.P. 26(b)(2)(C), (c). The ability to limit discovery is within the sound discretion of the

trial court. Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir.1981).

“[A]s a general rule, a party has no standing to seek to quash a subpoena directed to a non-

party.” United States v. Well s, No. 06-10589, 2006 WL 3203905, *2 (E.D.Mich. Nov.3, 2006);

Microsoft Corp. v. Tech. Enter., LLC, No. 07-mc210, 2008 WL 424613, *1 (S.D.Ind. Feb.13,

2008); Hadix v. Caruso, No. 92-cv-110, 2006 WL 2865506, *1 (W.D.Mich. Oct.3, 2006). But an

exception exists where the party-movant can demonstrate a claim of privilege or personal right.

Mann v. Univ. of Cincinnati, No. 95-3195, 1997 WL 280188, *4 (6th Cir.1997) (per curiam);

Microsoft, 2008 WL 424613 at *1 (quoting United States v. Raineri, 670 F.2d 702, 712 (7th

Cir.1982)); Schweinfurth v. Motorola, Inc., No. 05-cv-024, 2008 WL 4981380, *2 (N.D.Ohio

Nov.19, 2008). Finally, a party seeking to quash a subpoena bears a heavy burden of proof. Wells,

2006 WL 3203905 at *2. With these general standards in mind, the Court addresses the arguments

made by Plaintiffs.

Metro’s assertion of legislative privilege

Plaintiffs rely on a number of cases from other jurisdictions in arguing that the legislative

privilege can only be waived or asserted by individual legislators. However, not all the cases

support that proposition. There are at least a few cases that restrict assertion or waiver of the

legislative privilege to individual legislators. See e.g. ACORN v. County of Nassau, No. CV 05-

2301, 2007 WL 2815810, at *4 (E.D. N.Y. Sept. 25, 2007) (internal citations omitted). However,

many of the other cases cited by Plaintiffs simply acknowledge that the privilege may be asserted

or waived by individual legislators with limiting assertion or waiver. Further, in other cases, the

legislative body was permitted to assert the privilege on behalf of individual legislators. See e.g.

Harris v. Arizona Indep. Redistricting Comm’n, 993 F.Supp.2d 1042, 1068-69 (D. Ariz. 2014)

aff’d (on other ground)s, 578 U.S. 253 (2016) (defendant redistricting commission moved for

protective order on basis of legislative privilege); Cunningham v. Chapel Hill, ISD, 438 F.Supp.2d

718, 719-20 (E.D. Tex. 2006) (defendant CHISD asserted privilege on behalf of individual school

board member); Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of Health & Rehab.

Servs., 164 F.R.D. 257, 259 (N.D. Fla. 1995) (Florida legislator moved for a protective order

regarding depositions of legislative staff employees). See also Logan’s Super Markets, Inc. v.

McCalla, 343 S.W.2d 892, 894 (Tenn. 1961) (legislative privilege is akin to judicial privilege,

which belongs to the public, not to the individual)

Given that there is no controlling precedent on the question of who may assert a legislative

privilege, the Court elects to follow those courts that permitted the legislative body to assert the

privilege. That approach makes sense because it is the work of the legislative body that gives rise

to the privilege in the first place. This inextricable link between the legislative body and the

legislative privilege also confers standing on Metro move to quash the subpoena based on

legislative privilege.

Nevertheless, counsel for Metro stated that Metro would submit affidavits from the

individual school board members attesting to their intention to individually invoke the privilege.

Instructions for such filings are detailed below.

Procedural requirements for assertion of deliberative process privilege

Neither party has discussed the distinction, if any, between the legislative privilege and the

deliberative process privilege. In fact, the parties tend to use the terms interchangeably. While

the legislative privilege contemplates a deliberative process within its scope, not every deliberative

process privilege is a legislative privilege. The deliberative process privilege in its purest form

protects from discovery documents and internal communications that are part of an agency’s

decision-making process. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504,

44 L.Ed.2d 29 (1975) (advisory opinions, recommendations and deliberations comprising part of

a process by which governmental decisions and policies are formulated are protected from

discovery); see also Dep't of Interior & Bureau of Indian Affairs v. Klamath Water Users

Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (communications among

governmental officials are protected from discovery to promote open and frank discussions).

Plaintiffs contend that, to the extent Metro is asserting the deliberative process privilege,

the privilege can only be invoked by an agency head or high-ranking agency official, which Metro

has not done. However, there is no binding precedent from the Sixth Circuit requiring assertion

by an agency head or other official. See Breakthrough Towing, LLC v. Hall, Civil Action No. 15-

cv-12526, 2017 WL 1164523, at *4 (E.D. Mich. March 29, 2017).

More fundamentally, the record is devoid of any information that would support Plaintiff’s

contention that the head of MNPS or some other high-ranking official should have described with

particularity the information subject to the deliberative process privilege. From all references, the

notices of deposition for the school board members issued by Plaintiffs were simple notices

without any delineation of the specific areas of inquiry. Without this information, there is no

practical way for Metro – or any MNPS official – to identify the areas of inquiry that might be

encompassed within the privilege, whether legislative privilege or deliberative process privilege

or some hybrid. Plaintiffs cannot complain that Metro did not state with particularity what

information is subject to the privilege when Plaintiffs did not identify the specific information

about which they seek inquiry through the noticed depositions. See e.g. Johnson v. Metropolitan

Government of Nashville and Davidson County, Nos. 3:07-0979, 3:208-00031, 2009 WL 1952780,

at *4 n.4 (M.D. Tenn. July 2, 2009) (plaintiffs sought to take deposition of Civil Service

Commission member on 10 delineated areas).

Claimed privilege does not apply to discrimination claims

Plaintiffs’ argument that the legislative privilege does not apply to discrimination claims

is unsupported by other cases from this district. In Johnson v. Metropolitan Government of

Nashville and Davidson County, supra, this Court granted the motions of a non-party Metro Civil

Service Commission member and a non-party newspaper reporter to quash subpoenas in two

employment discrimination cases. In doing so, this Court noted that the issue of the government’s

intent, such as in a discrimination case, is an impediment to application of the legislative privilege

only when the plaintiff claims that the governmental official asserting the privilege engaged in

misconduct. 2009 WL 1952780, at *4 (citing U.S. v. Lake County Bd. of Commissioners, 233

F.R.D. 523, 526 (N.D. Ill. 2005) and North Pacifica, LLC v. City of Pacifica, 274 F.Supp.2d 1118,

1122 (N.D. Cal. 2003)). Here, there is no allegation that any of the school board members

“committed any wrongdoing or had discriminatory intent” and legislative immunity is not

therefore lost simply because Plaintiffs “happen to allege misconduct by other government

officials.” Id.

Rather, the critical assessment is whether the acts taken pertain to legislative functions,

instead of being ministerial or administrative in nature. Id. at *2-3. Here, the action taken was a

budgetary process during which various positions were ostensibly eliminated. Consideration of

the school budget is a general policy decision, not aimed at any particular individual. The actions

taken in approval of the budget process are inherently legislative.

It is not clear from the record what role the school board plays in specific personnel

decisions, including termination or demotion of school directors. If the school board is called upon

to consider or approve such decisions, those would arguably be administrative in nature. But that

does not change the legislative character of the subject vote on the school budget. If however,

after further discovery, Plaintiffs uncover facts that tend to support their theory that the elimination

of positions was not part of the budget process or that specific individuals were targeted for adverse

employment actions, they may request permission to take the depositions of the school board

members.

The Court is aligned with the reasoning enunciated in Johnson and in the memorandum

opinion by Judge Bryant. 2009 WL 819491 (M.D. Tenn. March 26, 2009). Based on Johnson and

the legislative nature of the actions taken by the school board members in consideration of the

schools budget, the Court finds that the legislative privilege precludes the noticed depositions of

the school board members and supports the motion to quash.

The Court does not find that Hargett v. Nashville Student Organizing Committee compels

a different outcome. 123 F.Supp.3d 967 (M.D. Tenn. 2015). First, that case involved a very

different kind of case, one at which “relatively novel” constitutional challenges to “Tennessee’s

uniquely restrictive Voter ID law” and other serious public policy concerns were at the center. Id.

at *971. The Court is not in any minimizing the discrimination claims in these cases or the impact

on the individual plaintiffs. The cases are simply different, with different considerations.

Additionally, as noted in the Hargett case, in a challenge to a state law, there is a dearth of

available information about the purpose of the official action other than the legislative history. Id.

In Hargett, the plaintiffs had already subpoenaed documents from individual legislators and from

the Tennessee General Assembly’s Office, with limited response. Here, Plaintiffs can depose

Dr. Battle and other witnesses about the circumstances that eventually resulted in the termination

or demotion of Plaintiffs. They can also request documents and conduct other discovery.

Further, in the Hargett case, Plaintiffs identified eight specific topics related specifically

to the challenged law. Id. at 968-69. Here, the notices of deposition were apparently open-ended.

In Hargett, the depositions were permitted, at least in part, because the legislative privilege

considerations were “not suitable for resolution in the abstract.” Id. at 971. And in permitting the

depositions, the Court expressly noted that the testimony is “potentially privileged, at least in part.”

Id. For all these reasons, the Court does not find that Hargett militates against application of the

legislative privilege under the circumstances presently before the Court in this case.1

Verification of Interrogatories by Metro Attorney

Although not raised directly raised by Plaintiffs, they also assert that Metro’s responses to

interrogatories are deficient because they are verified by in-house counsel with the Metro Law

Department.2 Although the Court was initially inclined to concur with Plaintiffs due to the

practical implications of an attorney potentially being a witness in the case and concerns over

whether the verifying individual must have personal knowledge of the answers, after further

reflection, the Court has determined that it is more prudent for the parties to raise and fully brief

this issue since there is authority for Metro’s position. See e.g. Gazvoda v. Secretary of Homeland

Security, Case No. 15-cv-14099, 2018 WL 1281756, at *11 (E.D. Mich. March 13, 2018) Longino

1 Because the Court has determined that the depositions are precluded by application of the

legislative privilege as articulated in the Johnson case, there is no need to reach the other two

arguments raised by Plaintiffs that the privilege is premature or that the Court is required to apply

any other factors.

2 Presumably, Dr. Battle has verified or will verify her individual responses to

interrogatories, as Rule 33(b)(1)(B) extends only to corporate or governmental defendants, not to

individuals.

v. City of Cincinna, No. 1:12-cv-424, 2013 WL 831738, at *4 (S.D. Ohio March 6, 2013)

(collection of cases); EEOC v. Chrysler LLC, 2008 WL 2622948, at *1 (E.D. Mich. July 2, 2008).

The Court’s further instructions to the parties regarding this issue are detailed below.

Based on the foregoing, the Court ORDERS as follows:

1. Defendant Metro’s motions to quash subpoenas filed separately in these related

cases – Docket No. 48 in Case No. 3:20-cv-01023, Docket No. 47 in Case No. 3:21-cv-00038, and

Docket No. 42 in Case No. 3:21-cv-00122 – each of which is GRANTED without prejudice for

Plaintiffs to file a motion to take the requested non-party depositions based on further

developments.

2. By no later than December 15, 2021, Metro must file affidavits from each

individual school board member affirming their invocation of the legislative privilege.3

3. Defendants must promptly provide supplemental discovery responses in Leffler and

complete responses in Doe and Bailey. If Metro fails to do so, Plaintiffs may file a motion to

compel without the necessity of a discovery conference, and Plaintiffs should refer to this Order

in their motion to compel as the basis for filing a motion without a preceding request for a

discovery conference. But the motion to compel can only be filed after the parties have made a

good faith attempt to resolve the issues in accordance with Local Rule 37.01.

4. The parties shall also in accordance with Local Rule 37.01 confer and attempt to

resolve any dispute regarding verification by an in-house Metro attorney of interrogatory responses

3 The filing deadline instructed by the Court during the November 23 discovery conference

was December 10. Metro should have been working on obtaining the affidavits with that deadline

in mind. Nevertheless, given the unavoidable delay in entry of this order, the Court has allowed a

few more days.

and, if they are unable to do so, may include in their motion to compel any request for relief based

on that issue.*

It is SO ORDERED.

>

(AJtalome J) | |

RABBARA D. HONMES

United States Magistrate Judge

* To be clear, counsel should discuss all potential issues implicated by the verification of

interrogatory responses by the party’s attorney, including, but without limitation, whether that

person is required to possess personal knowledge of the answers and the prospect that the attorney

may be called as a witness.

10