McHugh, III v. St. Tammany Parish

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WILLIAM R. MCHUGH, III, ET AL. CIVIL ACTION

VERSUS NO. 24-1300

ST. TAMMANY PARISH, ET AL. SECTION “O”

ORDER AND REASONS

Before the Court are two competing motions1 concerning application of the

legislative privilege. At the core of both motions is a St. Tammany Parish Council

resolution that appointed six members to the St. Tammany Parish Library Board of

Control; that assigned the newly appointed members staggered terms for the stated

purpose of complying with Louisiana law; and that caused the early termination of

the five-year, fixed-term appointments of five former Library Board members,

including Plaintiffs William R. McHugh, III, Anthony Parr, and Rebecca Taylor.2

For the first motion, Plaintiffs move for an in limine ruling that the legislative

privilege does not apply.3 They reason that the resolution is not legislation, and that

the relevant acts of the St. Tammany Parish Council did not occur within the sphere

of legitimate legislative activity.4 They thus ask the Court to compel Defendants St.

Tammany Parish and St. Tammany Parish Councilmember David Cougle to produce

all documents that have been withheld or redacted based on the legislative privilege.5

1 ECF Nos. 69, 70.

2 ECF Nos. 69, 70; see also ECF No. 79-1.

3 ECF No. 69.

4 Id. at 1–2.

5 Id. at 2.

For the second motion, Defendants—joined by seven members6 of the St.

Tammany Parish Council—move for an in limine ruling prohibiting Plaintiffs from

breaching the legislative privilege.7 They contend the Court should prohibit Plaintiffs

from asking “about the motives for legislative enactments” during the bench trial that

is set to start on Tuesday, August 13, 2024.8 And they ask the Court to exclude three

categories of evidence on legislative-privilege grounds: (1) recordings of phone calls

between McHugh and members of the St. Tammany Parish Council; (2) portions of

the deposition testimony of Cougle and Tanner; and (3) “any document offered into

evidence that is protected from public disclosure by the legislative privilege.”9

The motions turn on whether the legislative privilege applies. On that

threshold question, the Court concludes that Defendants have not carried their

burden—as proponents of the privilege—to show that the legislative privilege applies.

Guided by Bogan v. Scott–Harris, 523 U.S. 44 (1998), Bryan v. City of Madison, 213

F.3d 267 (5th Cir. 2000), and Hughes v. Tarrant County, 948 F.2d 918 (5th Cir. 1991),

and mindful that “the exercise of legislative discretion should not be inhibited by

judicial interference,” Bogan, 523 U.S. at 53, the Court concludes that Defendants

have not shown that the resolution and the acts relating to it are “legislative” acts

triggering application of the privilege. Accordingly, for these reasons and those that

follow, Plaintiffs’ motion is GRANTED and Defendants’ motion is DENIED.

6 Cheryl Tanner, Jeffery Corbin, Arthur Laughlin, Kathy Seiden, Patrick Burke, Larry Rolling,

and Rick Smith.

7 ECF No. 70.

8 Id. at 1.

9 Id.

I. BACKGROUND

This civil-rights case arises from Plaintiffs’ claim that Defendants St.

Tammany Parish and St. Tammany Parish Councilmember David Cougle violated

Plaintiffs’ rights under the First Amendment, the Fourteenth Amendment, and the

Louisiana Constitution in connection with the issuance of a May 2, 2024 resolution

(the “Resolution”) terminating Plaintiffs’ five-year, fixed-term appointments to the

St. Tammany Parish Library Board of Control (the “Library Board”) and appointing

five10 new Library Board members.11 Among other claims, Plaintiffs assert that the

St. Tammany Parish Council issued the Resolution—prematurely terminating their

appointments—in retaliation for protected speech Plaintiffs made during Library

Board meetings on the topic of minors’ access to Lesbian, Gay, Bisexual, Transgender,

and Queer (“LGBTQ”) literature at St. Tammany Parish libraries.12

Plaintiffs William R. McHugh, III, Anthony Parr, and Rebecca Taylor allege

that they are appointed members of the Library Board13 serving five-year, fixed terms

that ended on June 1, 2024. According to the complaint, six of the Library Board’s

seven members are appointed by the St. Tammany Parish Council, the legislative

arm of St. Tammany Parish government.14 Plaintiffs allege that the St. Tammany

Parish Council appointed Plaintiff McHugh to the Library Board on June 1, 2023 for

10 One of the Library Board’s six Parish Council-appointed members, Ann Shaw, was

reappointed via the May 2 Resolution. See ECF No. 13-1 at 1. Thus, the Resolution resulted in the

appointment of five new Library Board members.

11 See generally ECF No. 1.

12 See, e.g., id. at ¶ 88.

13 Id. at ¶¶ 1–3.

14 Id. at ¶ 5.

a five-year term expiring on August 4, 2027;15 that the Parish Council appointed

Plaintiff Parr on June 1, 2023 for a five-year term expiring on July 12, 2027;16 and

that the Parish Council appointed Plaintiff Taylor on July 7, 2022 for a five-year term

expiring on July 12, 2027.17 According to the complaint, Parr is the Library Board’s

“secretary/treasurer,”18 and Taylor is the Library Board’s president.19

Plaintiffs allege that the May 2024 termination of their appointments to the

Library Board represents the culmination of “a firestorm of controversy” that began

in June 2022.20 Then, three of St. Tammany Parish’s twelve library branches—the

Slidell, Madisonville, and Mandeville branches—featured displays announcing

“Pride Month,” “an annual commemoration of primarily [LGBTQ] pride.”21 According

to Plaintiffs’ complaint, “one display in the children’s section at the Mandeville

branch library prompted complaints from patrons concerned about their children’s

exposure to the materials.”22 Per Plaintiffs, “a near-capacity crowd offered

widespread support for the Pride displays” at a Library Board meeting in July 2022.23

After that July 2022 meeting, according to Plaintiffs, “[t]he controversy

shifted” from Pride displays to books “featuring LGBTQ themes.”24 Plaintiffs allege

that St. Tammany Parish residents formed the St. Tammany Library Accountability

15 Id. at ¶ 1.

16 Id. at ¶ 2.

17 Id. at ¶ 3.

18 Id. at ¶ 2.

19 Id. at ¶ 3.

20 Id. at ¶¶ 8–9.

21 Id. at ¶ 8 (internal quotation marks and footnote omitted).

22 Id. at ¶ 10.

23 Id. at ¶ 13.

24 Id. at ¶ 14.

Project, “an advocacy organization” with a “purported mission to prevent the sexual

exploitation of children.”25 Defendant David Cougle is a co-founder of the St.

Tammany Library Accountability Project.26 Plaintiffs allege that Cougle leveraged

“the issue of library materials” to win election to the St. Tammany Parish Council.27

According to the complaint, between summer 2022 and his election to the St.

Tammany Parish Council in October 2023, Cougle repeatedly denounced the Library

Board and its handling of the issue of minors’ access to LGBTQ literature that Cougle

and the St. Tammany Library Accountability Project deemed “sexually explicit” or

“pedophilic.”28 Among other things, Plaintiffs allege that Cougle launched an online

petition titled “Stop the Saint Tammany Parish Library System’s Sexual Exploitation

of Children!”;29 that Cougle later updated the online petition to announce his

candidacy for Parish Council and to promise that, if elected, he would “do everything

in [his] power to solve the library crisis[]”;30 that Cougle called the St. Tammany

Parish Library System’s administration “predatory”31; that Cougle vowed to “remove

[L]ibrary [B]oard members that refused to accept community standards” if Cougle

were elected to the Parish Council;32 and that Cougle criticized what Cougle perceived

to be the “liberal” and “far-left” political affiliation of the Library Board.33

25 Id. at ¶ 15 (internal quotation marks omitted).

26 Id. at ¶ 16.

27 Id.

28 See, e.g., id. at ¶¶ 18, 21, 23, 31, 33 (internal quotation marks omitted).

29 Id. at ¶ 28 (internal quotation marks omitted).

30 Id. at ¶ 34 (internal quotation marks omitted).

31 Id. at ¶ 31 (internal quotation marks omitted).

32 Id. at ¶ 42 (internal quotation marks omitted).

33 See, e.g., id. at ¶¶ 42, 44 (internal quotation marks omitted).

According to the complaint, the current members of the St. Tammany Parish

Council—including Councilman Cougle—won election in October 2023.34 Plaintiffs

allege that the October 2023 Parish Council “election swept nine new members into

power,” and that “only four of the current 14 Council members were previous

incumbents.”35 The current Parish Council took office in January 2024.36

After Cougle and the other current members of the Parish Council took office,

in late January 2024, Cougle allegedly wrote a position paper claiming that the

Library Board appointments were “not in compliance with state law.”37 According to

the complaint, Cougle contended that Section 25:214 of the Louisiana Revised

Statutes requires staggered terms for Library Board appointments, and that because

the appointees were not serving staggered terms, the appointments were “invalid.”38

Cougle allegedly claimed that the existing seats on the Library Board “were deemed

vacant,” and “urged the Parish Council to declare existing [Library Board] members’

terms expired, and to nominate candidates for appointment to a staggered term[.]”39

According to the complaint, in February 2024, the St. Tammany Parish Library

Accountability Project urged the St. Tammany Parish Council to “refrain[] from

supporting” Plaintiffs, who the Project “perceived to be responsible for the current

crisis.”40 A few days later, according to Plaintiffs’ complaint, the St. Tammany Parish

34 Id. at ¶ 46.

35 Id.

36 Id. at ¶ 49.

37 Id. at ¶ 51 (internal quotation marks omitted).

38 Id.

39 Id. at ¶ 52.

40 Id. at ¶ 56 (internal quotation marks omitted).

Library Accountability Project urged the St. Tammany Parish Council to “replac[e]

the people who caused the problem,” i.e., Plaintiffs.41

In March 2024, according to Plaintiffs, Cougle introduced a Parish Council

resolution calling for nominations to fill the Library Board positions that Cougle’s

position paper had declared “vacant.”42 Plaintiffs allege that the Parish Council voted

to postpone action on Cougle’s resolution;43 however, at a Parish Council meeting the

next month, in April 2024, another Parish Council member introduced a

“substantially similar” substitute resolution.44 The substitute resolution called for (1)

the appointment of six Library Board members to staggered terms that would start

on June 1, 2024, and (2) Library Board nominations who would be voted on at the

May 2, 2024 meeting and whose staggered terms would be assigned by randomly

drawn lots.45 Consistent with the substitute resolution, Plaintiffs allege, the Parish

Council nominated 22 candidates to the Library Board, including Plaintiffs and the

other then-sitting members of the Library Board, Carmen Butler and Ann Shaw.46

According to the complaint, on May 2, 2024, the Parish Council issued the

Resolution reflecting the Council’s vote not to appoint Plaintiffs to the Library

Board.47 Rather than reappointing Plaintiffs, the Parish Council voted to appoint five

candidates that had been endorsed as “approved conservative candidates” who “would

41 Id. at ¶ 57 (internal quotation marks omitted).

42 Id. at ¶ 58 (internal quotation marks omitted).

43 Id. at ¶ 59.

44 Id. at ¶ 63.

45 Id. at ¶ 64.

46 Id. at ¶ 65.

47 Id. at ¶ 69; see also ECF No. 13-1 at 1–2.

protect our children” in an ad that ran in the Slidell Independent the week before the

Parish Council meeting.48 Besides those five candidates, one sitting Library Board

member, Ann Shaw, was reappointed to the Library Board.49 The Resolution

described these staggered appointments as “necessary” “[i]n order to comply with

state law,” specifically “La. R.S. 25:214(B).”50

Eighteen days after the St. Tammany Parish Council issued the Resolution

appointing Plaintiffs’ replacements, on May 20, 2024, Plaintiffs brought this 42

U.S.C. § 1983 lawsuit in this Court.51 Plaintiffs sued St. Tammany Parish and Cougle,

in his official capacity as a member of the St. Tammany Parish Council.52 In their

complaint, Plaintiffs allege four causes of action (1) First Amendment retaliation;53

(2) viewpoint discrimination under the First Amendment;54 (3) substantive-due-

process violations under the Fourteenth Amendment;55 and (4) violations of the free-

speech rights enshrined in Article I, § 7 of the Louisiana Constitution.56 Plaintiffs

seek attorney’s fees and costs under 42 U.S.C. § 1988 and “declaratory relief and an

injunction barring enforcement” of the Resolution.57 Plaintiffs do not seek damages.58

48 ECF No. 1 at ¶¶ 67, 69 (internal quotation marks omitted).

49 ECF No. 13-1 at 1.

50 Id.

51 See generally ECF No. 1.

52 Id. at ¶¶ 4, 7.

53 Id. at ¶¶ 83–94.

54 Id. at ¶¶ 95–109.

55 Id. at ¶¶ 110–117.

56 Id. at ¶¶ 118–123.

57 Id. at 1 (unnumbered opening paragraph).

58 Id. at 24 (unnumbered “wherefore” clause).

As for the First Amendment retaliation claim, Plaintiffs allege that they

“engaged in protected First Amendment activities” when they “discuss[ed] Library

Board actions and agenda items; discuss[ed] and vot[ed] on book challenges;

discuss[ed] censorship; [and] discuss[ed] accessibility and display of items at parish

libraries.”59 Plaintiffs allege that St. Tammany Parish and Cougle “engaged in

adverse action [against Plaintiffs] in suggesting, discussing, and passing [the

Resolution] to appoint six new Library Board members, replacing Plaintiffs and

effectively terminating their duly made appointments to the Library Board.”60 And

Plaintiffs allege that those “adverse actions were motivated by and taken in

retaliation for Plaintiffs’ speech, not for another legitimate government reason.”61

As for the viewpoint-discrimination claim, Plaintiffs allege they “exercised

their fundamental constitutional right to speak at Library Board meetings[] [by]

expressing their views about Library Board actions and agenda items; by voting on

book challenges; by discussing censorship; [and] by discussing accessibility and

display of items at parish libraries.”62 Plaintiffs allege “Defendants discriminated

against the content and viewpoint of Plaintiffs’ speech by terminating their

appointments to the Library Board.”63 And Plaintiffs allege “Defendants’ motive in

removing Plaintiffs from the Library Board was to silence a particular viewpoint.”64

59 Id. at ¶ 85.

60 Id. at ¶ 88.

61 Id. at ¶ 90.

62 Id. at ¶ 99.

63 Id. at ¶101.

64 Id. at ¶ 102.

As for the substantive-due-process claim under the Fourteenth Amendment,

Plaintiffs allege that they “have a liberty interest” in their unpaid, voluntary

appointments to the Library Board that “was implicated in the Parish Council’s

actions to remove them.”65 Plaintiffs allege that the Parish Council terminated their

appointments “based on various false charges that were publicized, i.e., that they are

liberal, activist, members of a political conspiracy to sexualize children.”66 According

to Plaintiffs, “Defendants failed to refute these untrue allegations, failed to protect

Plaintiffs’ professional standing and reputation, and failed to redress the damages

caused to them by the false charges of Cougle and others.”67 Plaintiffs ultimately

allege that “Defendants terminated Plaintiffs’ positions . . . without providing them

due process of law to refute and redress these unfounded and untrue charges.”68

Finally, as for the fourth and final claim—a free-speech claim under Article I,

§ 7 of the Louisiana Constitution—Plaintiffs allege that “Defendants intentionally

and willfully retaliated against Plaintiffs for exercising their freedom of speech and

association by acting to terminate their appointments to the Library Board.”69

65 Id. at ¶ 111.

66 Id. at ¶ 112.

67 Id. at ¶ 115.

68 Id. at ¶117.

69 Id. at ¶ 121.

On the same day Plaintiffs filed this lawsuit, Plaintiffs moved for a temporary

restraining order and a preliminary injunction prohibiting Defendants from enforcing

the Resolution.70 In that May 20 motion, Plaintiffs asked the Court to issue injunctive

relief before June 1, when the terms of the Library Board members appointed through

the St. Tammany Parish Council’s May 2 Resolution would begin.71 Plaintiffs did not

submit any evidence supporting the motion for a temporary restraining order.72

On May 31, two days after oral argument,73 the Court denied the motion for a

temporary restraining order.74 The Court concluded that “Plaintiffs ha[d] not carried

their heavy burden to prove an unequivocal need for issuance of a temporary

restraining order by June 1, 2024.”75 “Specifically,” the Court concluded that

“Plaintiffs ha[d] not shown a substantial threat of irreparable injury if the new

Library Board members appointed on May 2 begin their terms on June 1, considering

the first meeting of the new Library Board purportedly will not occur until July 22.”76

Importantly, however, the Court “emphasize[d] that its conclusion and analysis

[were] based on the limited briefing and the lack of evidence before it, and that the

Court’s preliminary-injunction analysis could depart sharply from the necessarily

abbreviated analysis offered” in the opinion denying a temporary restraining order.77

70 ECF No. 3.

71 ECF No. 3-1 at 20.

72 ECF Nos. 3 (motion); 3-1 (supporting memorandum); 3-2 (proposed order).

73 See ECF No. 16 (minute entry).

74 ECF No. 17.

75 Id. at 1.

76 Id.

77 Id. at 12.

Six days later, on June 5, the Court consolidated the hearing on Plaintiffs’

motion for a preliminary injunction with a bench trial on the merits of the action

under Federal Rule of Civil Procedure 65(a)(2).78 The Court’s minute entry and order

provided the parties “clear and unambiguous notice of the [C]ourt’s intent to

consolidate the trial and the hearing . . . at a time which still afford[ed] the parties a

full opportunity to present their respective cases.” Univ. of Tex. v. Camenisch, 451

U.S. 390, 395 (1981) (internal citations, quotation marks, and brackets omitted). No

party submitted a timely, reasoned objection to the Court’s consolidation order.

Twenty-two days after the Court consolidated the preliminary-injunction

hearing with a trial on the merits under Rule 65(a)(2), on June 27, Defendants

notified the Court that Defendants objected to Rule 65(a)(2) consolidation.79 But

Defendants’ notice of objection did not include any facts or supporting authority; the

notice of objection simply stated that Defendants “object to the consolidation of the

hearing on the merits with the trial of the Plaintiffs’ request for a Preliminary

Injunction,” without explaining the factual or legal basis for the objection.80 The

Court overruled the objection “because Defendants . . . provided no support—factual

or legal—for it.”81 Defendants have not renewed that objection or elaborated upon it.

78 ECF No. 18 at 2.

79 ECF No. 40.

80 Id. at 1.

81 ECF No. 42 at 13 n.83.

Four substantive rulings followed the Court’s Rule 65(a)(2) consolidation order.

First, the Court denied Cougle’s Rule 12(b)(6) motion to dismiss the Section 1983

claims against him.82 The Court reasoned that Cougle was not entitled to absolute

legislative immunity for the independent reasons that (1) Plaintiffs sue him in his

official capacity, and (2) Plaintiffs seek declaratory and injunctive relief against

him.83 The Court also exercised its discretion to decline to dismiss the official-capacity

claims against Cougle as redundant.84 That ruling rested, in relevant part, on three

facts: (1) Plaintiffs seek prospective injunctive relief against Cougle; (2) Plaintiffs

allege specific wrongdoing by Cougle; and (3) it is unclear whether Cougle would be

bound by an injunction against St. Tammany Parish only, given that Cougle is not a

Parish employee but an independently elected member of the Parish Council.85

Second, the Court denied St. Tammany Parish’s Rule 12(b)(6) motion to

dismiss the claims against it.86 The Court first declined to dismiss Plaintiffs’ First

Amendment retaliation claim based on the facial constitutionality of the Resolution

and the so-called “O’Brien rule” because the well-pleaded allegations of the complaint

allowed at least a plausible inference that the Resolution effectively singled Plaintiffs

out for disfavored treatment, and dismissing the claim at the Rule 12 stage would

have required the Court to resolve fact disputes.87 The Court then declined to dismiss

Plaintiffs’ viewpoint-discrimination claim based on the Parish’s argument that

82 ECF No. 37.

83 Id. at 14.

84 Id. at 14–17.

85 Id. at 16–17.

86 ECF No. 52.

87 Id. at 12–21.

Plaintiffs do not have a First Amendment right to sit on the Library Board because

Plaintiffs do not claim a constitutional right to sit on the Library Board; their First

Amendment viewpoint-discrimination claim instead rests on their alleged First

Amendment right to speak at Library Board meetings.88 The Court next declined to

dismiss Plaintiffs’ due-process claim based on the Parish’s argument that such a

claim required an employment relationship because the Parish failed to persuade the

Court that Plaintiffs’ due-process claim in fact requires an employment

relationship.89 Finally, the Court declined to dismiss Plaintiffs’ free-speech claims

under the Louisiana Constitution for the same reasons the Court declined to dismiss

Plaintiffs’ claims under the First Amendment to the United States Constitution.90

Third, the Court denied two expedited discovery motions—one from Plaintiffs,

one from Defendants—raising the legislative privilege and other issues in connection

with June 4 discovery that Plaintiffs served on Cougle in his official capacity.91

In the first of those motions, Plaintiffs moved in limine to preclude Defendants,

categorically, from asserting the legislative privilege to bar discovery.92 Plaintiffs

contended that the legislative privilege does not bar discovery because the challenged

actions of the St. Tammany Parish Council were “ministerial and/or administrative”

rather than legislative, and because, even if the privilege could properly be invoked,

the privilege must yield because this case presents exceptional circumstances.93

88 Id. at 21–24.

89 Id. at 24–26.

90 Id. at 26.

91 ECF No. 42.

92 See generally ECF No. 25.

93 ECF No. 25-1 at 1–7.

In the second of those expedited discovery motions, Defendants moved for a

protective order relieving them of the obligation to respond to the June 4 discovery

requests directed to Cougle in his official capacity.94 As relevant here, Defendants

contended that a protective order was merited because Plaintiffs’ June 4 discovery

requests were directed at a non-party; the requests sought irrelevant information

about legislative motive; and the legislative privilege barred the discovery.95

As for Defendants’ argument that Plaintiffs’ discovery was directed at a non-

party, the Court’s June 28 order and reasons concluded that Defendants had not

shown good cause meriting a protective order.96 The Court concluded that Plaintiffs’

discovery was properly directed at a party, David Cougle in his official capacity,

because that discovery was directed to “Defendant David Cougle,” and Cougle is a

Defendant in his official capacity only.97 The Court thus declined to issue a protective

order on the basis of Defendants’ argument that Plaintiffs’ June 4 discovery was

directed at a non-party.98 The Court further ordered Defendants to “construe each of

Plaintiffs’ June 4 discovery requests as directed to Cougle in his official capacity and

respond accordingly by no later than Monday, July 1, 2024 at 5:00 p.m.”99

94 ECF No. 30.

95 ECF No. 30-1 at 1–25.

96 Id. at 18–20.

97 Id.

98 Id.

99 Id. at 19–20.

As for Defendants’ irrelevance-of-motive argument, the Court’s June 28 order

and reasons concluded that Defendants failed to carry their burden to show good

cause meriting issuance of a protective order.100 The Court reasoned that the motive

for Defendants’ actions was relevant to Plaintiffs’ First Amendment retaliation claim

because retaliatory motive is an element of that claim.101 Consequently, the Court

declined to issue a protective order based on Defendants’ argument that motive is

irrelevant to Plaintiffs’ First Amendment retaliation claim.102 The Court further

ordered that, to the extent Defendants were refusing to respond to any of Plaintiffs’

June 4 discovery based on this irrelevance-of-motive argument, “Defendants must

respond to the discovery by Monday, July 1, 2024 at 5:00 p.m.”103

As for the legislative privilege, the Court’s June 28 order and reasons

concluded that the Court could not resolve the legislative-privilege questions raised

in the dueling discovery motions on the limited record that was before it.104 The

parties failed to provide the information necessary for the Court to decide whether,

and if so, to what extent, the legislative privilege applied to bar any of Plaintiffs’ June

4 discovery to Cougle in his official capacity.105 The Court thus denied Defendants’

motion for a protective order on the legislative-privilege ground without prejudice to

Defendants’ right to timely assert the legislative privilege in a manner that allowed

100 Id. at 20–22.

101 Id.

102 Id.

103 Id. at 22.

104 Id. at 23–28.

105 Id. at 27.

both the Court and Plaintiffs to evaluate Defendants’ privilege claims.106

In that same June 28 order and reasons, the Court directed Defendants to

provide the information necessary for the Court and Plaintiffs to assess Defendants’

legislative-privilege claims on a document-specific basis.107 Defendants did so.

No party promptly moved the Court for any further relief with respect to the

legislative privilege or Plaintiffs’ June 4 discovery. Plaintiffs, for their part, did not

promptly move the Court to compel further responses to their June 4 discovery. Nor

did Plaintiffs promptly raise with the Court any challenge to any of the specific

legislative-privilege claims Defendants made in response to the Court’s June 28 order

and reasons. Given the absence of any request for the Court’s intervention in

discovery, as well as the representations of counsel during the status conferences108

that followed the Court’s June 28 order and reasons, the Court understood that the

parties were cooperating in discovery without significant issue, and that any

discovery disputes—related to the legislative privilege or other matters—would be

submitted to the Court “as soon as practicable,” as the Court ordered.109

But the parties did not again raise the legislative privilege or any other

discovery dispute with the Court until July 23. Then, Cougle moved to quash a

subpoena duces tecum that Plaintiffs issued to him (in his individual, non-party

capacity) on legislative-privilege and relevance grounds.110 That motion to quash

106 Id.

107 Id. at 28.

108 See ECF Nos. 45, 48, 53.

109 ECF No. 18 at 2.

110 ECF No. 51.

represented the first time since the Court’s June 28 order and reasons that the parties

asked the Court to referee any discovery dispute or resolve any question of privilege.

In the fourth and final substantive ruling, the Court denied Cougle’s motion to

quash Plaintiffs’ subpoena duces tecum on legislative-privilege and relevance

grounds.111 As for the legislative privilege, the Court declined to quash the subpoena

because, according to representations Plaintiffs made about the “nature of the

subpoena”112 in their briefing, the subpoena did not actually require Cougle to disclose

the 10 documents over which Cougle asserted the legislative privilege.113 Because the

Court concluded that the subpoena did not call for the disclosure of any of the 10

documents over which Cougle asserted the legislative privilege, the Court did not

reach the merits of Cougle’s legislative-privilege claims.114 As for relevance, the Court

concluded that Cougle had not carried his burden to show that information pre-dating

his January 8, 2024 appointment to the St. Tammany Parish Council was not

relevant to any claim or defense in the case.115 The upshot of the Court’s ruling was

that Cougle was not required to produce any of the documents over which he asserted

the legislative privilege; however, Cougle was required to produce any responsive

documents he had been withholding on the relevance grounds the Court rejected.116

111 ECF No. 57.

112 ECF No. 54 at 5–6. Specifically, Plaintiffs’ brief represented that the subpoena sought “only

communications and other documents made” in Cougle’s individual capacity; that it did not seek

“official communications”; and that Cougle “misconstrue[d] the nature of the subpoena” insofar as he

interpreted it to require production of documents made in his official capacity “after he took office.” Id.

113 ECF No. 57 at 22–27.

114 Id. at 1–30.

115 Id. at 27–29.

116 Id. at 30.

After the Court issued its order and reasons denying Cougle’s motion to quash,

on August 1, the Court held a pretrial conference in anticipation of the August 13

bench trial.117 Going into the pretrial conference, there were no motions pending, and

the Court understood that all legislative-privilege and discovery issues the parties

wished to resolve pre-trial had in fact been resolved, either by Court order or

agreement of the parties. During the pretrial conference, however, the parties

indicated that there were ongoing discovery disputes the parties had not yet properly

submitted to the Court, and that the parties wished for a further ruling on “issues

surrounding the legislative privilege.” The Court thus ordered “any motion raising

any ‘issues surrounding legislative privilege’” to be filed by noon on August 5.118

Competing motions in limine followed.119 Now, Plaintiffs move for (1) an in

limine ruling that the legislative privilege does not apply; and (2) an order compelling

Defendants to produce all documents withheld or redacted based on the legislative

privilege.120 Defendants oppose.121 Defendants in turn move for an in limine ruling

(1) prohibiting Plaintiffs from asking “about the motives for legislative enactments”

during the trial; and (2) excluding (a) recordings of phone calls between McHugh and

members of the St. Tammany Parish Council; (b) portions of the deposition testimony

of Cougle and Tanner; and (c) “any document offered into evidence that is protected

from public disclosure by the legislative privilege.”122 Plaintiffs oppose.123

117 See ECF No. 68.

118 Id. at 1.

119 ECF Nos. 69, 70.

120 ECF No. 69 at 2.

121 ECF No. 79.

122 Id.

123 ECF No. 80.

II. LEGAL STANDARD

“Legislative privilege is an evidentiary privilege governed by federal common

law, as applied through Rule 501 of the Federal Rules of Evidence.” La Union Del

Pueblo Entero v. Abbott, 68 F.4th 228, 235 (5th Cir. 2023) (“Hughes”)124 (internal

citation, alterations, and quotation marks omitted). “The legislative privilege is

personal to the legislator.” Bettencourt, 68 F.4th at 321 (citing Gravel v. United States,

408 U.S. 606, 616 (1972)). “[I]f a legislator brings third parties into the legislative

process,” however, “those third parties may invoke the privilege on that legislator’s

behalf for acts done at the direction of, instruction of, or for the legislator.” Id. at 322.

“The scope of the legislative privilege is ‘necessarily broad.’” Id. (quoting

Hughes, 68 F.4th at 236). “State lawmakers can invoke legislative privilege to protect

actions that occurred within ‘the sphere of legitimate legislative activity’ or within

‘the regular course of the legislative process.’” Hughes, 68 F.4th at 235 (first quoting

Tenney v. Brandhove, 341 U.S. 367, 376 (1951); then quoting United States v.

Helstoski, 442 U.S. 477, 489 (1979)). The legislative privilege “[e]xtend[s] well beyond

voting for or against a particular piece of legislation”; the privilege “covers ‘all aspects

of the legislative process,’ including material prepared for a legislator’s

understanding of legislation and materials the legislator possesses related to

potential legislation.” Bettencourt, 68 F.4th at 322 (quoting Hughes, 68 F.4th at 235–

36) (citing Almonte v. City of Long Beach, 478 F.3d 100, 103 (2d Cir. 2007)).

124 The Fifth Circuit has “often referred” to this decision “as Hughes because Senator Hughes

was the first-named non-party legislator appellant who was claiming legislative privilege.” La Union

del Pueblo Entero v. Abbott, 93 F.4th 310, 314 n.5 (5th Cir. 2024) (“Bettencourt”).

The legislative privilege also “protects against inquiry into acts that occur in

the regular course of the legislative process and into the motivation for those acts.”

United States v. Brewster, 408 U.S. 501, 525 (1972); see also, e.g., Tenney, 341 U.S. at

377 (declaring “that it [i]s not consonant with our scheme of government for a court

to inquire into the motives of legislators”). “[T]his protection enables state legislators

to focus on legislating ‘rather than on motions practice in lawsuits.’” League of United

Latin Am. Citizens v. Abbott, No. 21-CV-259, — F. Supp. 3d —, 2023 WL 8880313, at

*2 (W.D. Tex. Dec. 21, 2023) (“LULAC”) (quoting Hughes, 68 F.4th at 237).

The privilege “also extends to material provided by or to third parties involved

in the legislative process.” Id. (citing Hughes, 68 F.4th at 237). “As part of that

process, lawmakers routinely meet with persons outside the legislature—such as

executive officers, partisans, political interest groups, or constituents—to discuss

issues that bear on legislation.” Hughes, 68 F.4th at 235–36 (internal citation,

alterations, and quotation marks omitted). So, “some communications with third

parties, such as private communications with advocacy groups, are protected by

legislative privilege.” Id. (internal citation, alterations, and quotation marks

omitted). Among other examples, the legislative privilege “covers material prepared

for a legislator’s understanding of legislation, lobbying conversations encouraging a

vote on pending legislation, and even materials the legislator possesses related to

potential legislation[.]” LULAC, 2023 WL 8880313 at *2 (internal citations omitted).

“Even if a communication or document is protected by the legislative privilege,

it is possible for a legislator to waive the protections of the privilege.” Id. at *9. For

example, the “legislative privilege as to certain documents is waived when the

Legislator publicly reveals those documents.” Hughes, 68 F.4th at 236–37 (internal

alterations, citations, and quotation marks omitted; emphasis in original). That

means a legislator waives the privilege with respect to privileged documents sent “to

third parties outside the legislative process.” Id. at 237 (emphasis in original). But a

legislator does not waive the privilege by sending privileged documents to third

parties the legislator has “brought . . . into the [legislative] process.” Id. (emphasis in

original). In short, “where the [purportedly privileged] documents have been shared

with some third parties—but haven’t been shared publicly—the waiver argument

fails.” Id. Instead, “the legislative privilege is waived only when legislators send

privileged documents to third parties outside the legislative process.” LULAC, 2023

WL 8880313, at *9 (internal alterations, citation, and quotation marks omitted).

Of course, the privilege “does not extend beyond the legislative process.”

LULAC, 2023 WL 8880313, at *2. So, “[t]o the extent . . . [P]laintiffs seek discovery

over materials not part of the ‘proposal, formulation, and passage of legislation,’ that

material is not protected by the privilege.” Id. (quoting Hughes, 68 F.4th at 236).

Finally, “[d]etermining the applicability” of a privilege “is a highly fact-specific

inquiry,” and Defendants, as “the part[ies] asserting the privilege” here, “bear[] the

burden of proof.” EEOC v. BDO USA, L.L.P., 876 F.3d 690, 695 (5th Cir. 2017)

(internal citations and quotation marks omitted).

III. ANALYSIS

The competing motions in limine require the Court to resolve a threshold

question: Does the legislative privilege apply? Plaintiffs say it does not.125 They

contend that the legislative privilege does not apply because the Resolution is not

“legislative.”126 They reason that the Resolution and the acts leading up to it are not

“legislative” because the Resolution is specific to the terms of the six Library Board

members then holding office, and the Resolution affected a small group of identifiable

people.127 Defendants insist the privilege applies.128 They rejoin that the Resolution129

is “legislative” because it “bears all of the traditional hallmarks of legislation.”130

The parties have not cited, and the Court has not located, any published Fifth

Circuit authority, or any Supreme Court precedent, analyzing what acts qualify as

“legislative” for purposes of the legislative privilege. But the Supreme Court and the

Fifth Circuit have provided helpful guidance on how to determine whether acts are

“legislative” for purposes of legislative immunity. See, e.g., Bogan, 523 U.S. at 54–56;

Bryan, 213 F.3d at 272–74; Hughes, 948 F.2d at 920–21; see also, e.g., Da Vinci Inv.,

Ltd. P’ship v. Parker, 622 F. App’x 367, 371–73 (5th Cir. 2015) (per curiam); Craig v.

Police Jury Grant Par., 265 F. App’x 185, 189–92 (5th Cir. 2008) (per curiam).

125 ECF No. 69-1 at 6–8; see also ECF No. 25-1 at 3–7.

126 ECF No. 69-1 at 6–8; see also ECF No. 25-1 at 3–7.

127 ECF No. 69-1 at 6–8; see also ECF No. 25-1 at 3–7.

128 ECF No. 79 at 1–5; see also ECF No. 30-1 at 4–17.

129 In their briefing on the motions, Defendants have not argued that the legislative privilege

is triggered based on any resolution other than the May 2 Resolution discussed here. See ECF Nos. 70,

79. Defendants did not attach to their motion or their opposition to Plaintiffs’ motion in limine any

resolution other than the May 2 Resolution. See ECF Nos. 70, 70-1, 70-2, 70-3, 79, 79-1. Nor have

Defendants made any argument that other resolutions differ from the May 2 Resolution in any manner

that is material to the legislative-versus-administrative analysis that follows.

130 ECF No. 30-1 at 6; see also ECF No. 79 at 1–3.

Hughes v. Tarrant County articulated the “two tests” the Fifth Circuit applies

“[t]o determine whether a particular activity is legislative” for purposes of legislative

immunity. Da Vinci Inv., Ltd., 622 F. App’x at 371. As relevant here, Hughes v.

Tarrant County presented the question whether Texas county commissioners enjoyed

legislative immunity from a 42 U.S.C. § 1983 suit brought by a Texas state district

court clerk after the county commissioners denied the clerk’s request to pay the

attorney’s fees the clerk incurred as a result of contempt proceedings. See 948 F.2d at

920–21. The panel answered “no” and affirmed the denial of legislative immunity on

summary judgment. See id. at 920. The panel rejected the commissioners’ argument

that the refusal to compensate the clerk for his attorney’s fees “was a decision

regarding the allocation of county monies, and as such was a legislative function.” Id.

at 920. In holding that decision was not “legislative,” the panel relied principally on

“two different tests” drawn from Cutting v. Muzzey, 724 F.2d 259, 261 (1st Cir. 1984):

The first test focuses on the nature of the facts used to reach the given

decision. If the underlying facts on which the decision is based are

“legislative facts,” such as “generalizations concerning a policy or state

of affairs,” then the decision is legislative. If the facts used in the

decisionmaking are more specific, such as those that relate to particular

individuals or situations, then the decision is administrative. The

second test focuses on the “particularity of the impact of the state

action.” If the action involves establishment of a general policy, it is

legislative; if the action single[s] out specific individuals and affect[s]

them differently from others, it is administrative.

Id. at 921 (alterations in original) (quoting Cutting, 724 F.2d at 261).

Applying “the guidelines suggested” by the First Circuit and other courts, the

panel held that the county commissioners’ challenged conduct—specifically, “the

decision to refuse to compensate [the clerk] for his attorney fees incurred in the

contempt proceedings”—“was not legislative.” Id. at 920, 921. The panel reasoned

that “[e]ven though the decision concerned the allocation of county monies, it was not

based on legislative facts” because it “was not based on general facts regarding any

policy, but instead, it was based on specific facts of an individual situation related to

the district court clerk.” Id. “Furthermore,” the panel continued, “the action did not

purport to establish a general policy; it was particular to [the clerk].” Id. Because the

panel concluded “that the challenged conduct was not legislative,” the panel held

“that the commissioners are not entitled to absolute legislative immunity.” Id.

The Fifth Circuit applied Hughes v. Tarrant County in Bryan. See 213 F.3d at

272–74. At issue in Bryan was whether two aldermen and a mayor enjoyed absolute

legislative immunity from a Section 1983 suit brought by a developer whose contract

to buy land zoned for apartments expired after he was unable to secure a building

permit from the mayor and the board of aldermen. Id. at 269–72. The developer’s suit

challenged four sets of activities: (1) the mayor’s “repeated vetoes” of the developer’s

site and development plans; (2) the mayor’s “blocking a decision” on the developer’s

plans at board meetings; (3) the vote by the mayor and two aldermen to apply for a

rezoning of the property at issue; and (4) events at a particular board meeting, “where

the mayor placed the rezoning decision back on the agenda without notifying the

parties, and where she and the two aldermen voted to rezone the property

notwithstanding the board’s earlier vote against rezoning.” Id. at 272. The panel held

that only the fourth set of activities qualified as “legislative.” See id. at 273–74.

The panel held that “[t]he first challenged activity, the mayor’s repeated

vetoes, was non-legislative.” Id. at 273. Each veto related to “a determination” that

the developer’s particular “plan satisfied city zoning ordinances or building

requirements.” Id. The panel reasoned that “[s]uch a determination does not involve

the determination of a policy.” Id. (internal quotation marks omitted). “Rather than

constituting a prospective rule, an overall plan, or general policy,” the panel

continued, the mayor’s vetoes “entered the realm of enforcement with respect to

approval of a specified proposed plan.” Id. (internal quotation marks omitted). What

is more, the panel explained, “the determination” underlying the vetoes “was based

on specific, particular facts and affected [the developer’s] development alone.” Id.

The panel similarly held that the second challenged activity—“where the

mayor delayed decisions on approval of [the developer’s] plans at various board

meetings”—was non-legislative. Id. at 274. The panel reasoned that this activity was

non-legislative because “[t]he point at issue in those [board] meetings was specifically

and particularly related to the [developer’s] proposed development.” Id. The mayor’s

“decision to delay a vote on that issue, therefore, was also specific and particular.” Id.

The panel also held that the third challenged activity, “the vote to apply for a

rezoning,” was non-legislative. Id. Observing that “private citizens are able to” apply

for a rezoning, the panel reasoned that “[t]his type of activity is more like ad hoc

decisionmaking than the formulation of a policy.” Id.

But the panel held that the fourth and final set of challenged activities—

events relating to a particular board meeting—qualified as “legislative.” Id. At that

board meeting, “the mayor placed the rezoning decision back on the agenda without

notifying the parties, and . . . she and the two aldermen voted to rezone the property

notwithstanding the board’s earlier vote against rezoning.” Id. at 272. Although those

activities “were irregular and inappropriate,” the panel held that “they were still

legislative in nature because they involved a rezoning provision.” Id. at 274.

Before Bryan but after Hughes v. Tarrant County, the Supreme Court in Bogan

provided more guidance on the activities that are “legislative” for purposes of

legislative immunity. See 523 U.S. at 53–56. Bogan stemmed from a city council

ordinance eliminating a city’s department of health and human services. Id. at 46–

47. The elimination of the department was part of a package to freeze the salaries of

municipal employees and eliminate 135 city positions in anticipation of a reduction

in state aid. Id. at 47. The administrator and sole employee of the department sued

the mayor, the chair of the city council ordinance committee, and others under Section

1983, alleging “that the elimination of her position was motivated by racial animus

and a desire to retaliate against her.” Id. The mayor and the chair of the city council

ordinance committee moved to dismiss based on legislative immunity. Id. at 47.

The district court denied the motion to dismiss on absolute-legislative-

immunity grounds, and the case went to trial. Id. After a jury found the mayor and

the chair of the city council ordinance committee liable on the administrator’s First

Amendment claim, both parties moved for judgment notwithstanding the verdict

based on absolute legislative immunity. Id. at 48. But the district court again denied

their claims of absolute legislative immunity, reasoning that “the ordinance

amendment passed by the city council was an individually-targeted administrative

act, rather than a neutral, legislative elimination of a position which incidentally

resulted in the termination of plaintiff.” Id. (internal quotation marks omitted).

The First Circuit affirmed in relevant part. Id. That court reasoned that

legislative immunity did not attach because “the conduct was administrative, rather

than legislative, because [the mayor and the chair of the city council ordinance

committee] relied on facts relating to a particular individual [i.e., the administrator]

in the decisionmaking calculus.” Id. (internal citation and quotation marks omitted).

The Supreme Court reversed. Id. at 56. The Court held that the challenged

acts of the mayor and the chair of the city council ordinance committee—specifically,

“introducing, voting for, and signing an ordinance eliminating the government office

held by [the administrator]”—“constituted legislative activities.” Id. at 46, 54–56. In

so holding, the Court observed that “[w]hether an act is legislative turns on the

nature of the act, rather than on the motive or intent of the official performing it.” Id.

at 54. The Court thus framed the dispositive question as “whether, stripped of all

considerations of intent and motive, [the] actions were legislative.” Id.

The Court answered in the affirmative. In so doing, the Court first explained

that the “acts of voting for an ordinance were, in form, quintessentially legislative.”

Id. at 55. The Court next reasoned that the mayor’s “introduction of a budget and

signing into law an ordinance also were formally legislative, even though [the mayor]

was an executive official[,]” because the mayor’s actions “were integral steps in the

legislative process.” Id. (internal citations omitted). The Court then concluded it did

not need to “determine whether the formally legislative character” of the challenged

actions “is alone sufficient” to merit “legislative immunity, because . . . the ordinance,

in substance, bore all the hallmarks of traditional legislation.” Id. Specifically, the

Court explained that the ordinance “reflected a discretionary, policymaking decision

implicating the budgetary priorities of the city and the services the city provides to

its constituents”; that the ordinance “may have prospective implications that reach

well beyond the particular occupant of the office”; and that “the city council, in

eliminating [the department], certainly governed ‘in a field where legislators

traditionally have power to act.’” Id. at 56 (quoting Tenney, 341 U.S. at 379).

The Court draws on Bogan, Bryan, and Hughes v. Tarrant County to determine

whether the Resolution and relevant acts are “legislative.” The Court does so because

(1) the Fifth Circuit has drawn on legislative-immunity cases when analyzing the

legislative privilege;131 (2) the parties have not argued that, or offered any reason why,

the analysis of what is “legislative” differs in this legislative-privilege context; and (3)

the parties have not proposed any other analytical framework.132

131 See, e.g., Hughes, 68 F.4th at 235–38 (relying on, inter alia, Tenney, 341 U.S. at 376, 377;

Bogan, 523 U.S. at 52, 53; Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 732 (1980)).

132 The parties’ briefing on the issue of what is “legislative” relies in large part on thoughtful

but nonprecedential district-court opinions. See, e.g., ECF No. 69-1 at 6 (citing Angelicare, LLC v. St.

Bernard Par., No. 17-CV-7360, 2018 WL 1172947, at *7 (E.D. La. Mar. 6, 2018); ECF No. 79 at 1–2

(first citing Pratt Land & Dev., LLC v. City of Chattanooga, No. 1:19-CV-010, 2020 WL 5240750, at

*13 (E.D. Tenn. Sept. 2, 2020); and then citing Gaalla v. Citizens Med. Ctr., No. CIV.A. 6-10-14, 2012

WL 2870701, at *7 (S.D. Tex. July 10, 2012) (Costa, J.)).

Applying Bogan, Bryan, and Hughes v. Tarrant County, the Court concludes

that Defendants have not carried their burden—as proponents of the legislative

privilege—to show that the Resolution is “legislative” such that the legislative

privilege applies to bar Plaintiffs’ discovery and to limit otherwise admissible trial

and deposition testimony.

“[S]tripped of all considerations of intent and motive,” Bogan, 523 U.S. at 54,

the Resolution is not “legislative.” The Resolution did not “enact[] . . . an overall plan”

or “establish[] general policy.” Hughes, 948 F.2d at 921 (quoting Cutting, 724 F.2d at

261). Instead, the Resolution “was based on specific facts of an individual situation

related to” the Library Board alone. Id. Defendants cite no evidence to the contrary.

What is more, the Resolution was “particular to” the Library Board, and it

affected just eleven identifiable people: the three Plaintiffs, the two non-Plaintiff

former members of the Library Board whose appointments the Resolution

terminated; and the six current Board members. Id. “The point at issue in” the

Resolution “was specifically and particularly related” to those 11 people and the

Library Board alone. Bryan, 213 F.3d at 274. Indeed, on its face, the Resolution

merely “appoint[ed] six members to the Library Board of Control with staggered

terms” for the stated purpose of complying with Section 25:214(B) of the Louisiana

Revised Statutes.133 It did not address any other Parish body or establish any general

policy of bringing all Parish bodies into compliance with Section 25:214(B).134

133 ECF No. 79-1.

134 Id.

The Resolution merely applied “general rules” of Section 25:214(B) “to one

specific” Parish body Id.; cf. Da Vinci Inv., Ltd. P’ship, 622 F. App’x at 372 (reasoning

that the denial of a development plan was not “legislative” because it “applied general

rules to one specific piece of property” (internal alterations, citation, and quotation

marks omitted))). And Defendants have not shown that the Resolution “involve[d] the

degree of discretion and public policy-making traditionally associated with legislative

functions” rather than “merely an administrative application of existing policies.”

Minton v. St. Bernard Par. Sch. Bd., 803 F.2d 129, 135 (5th Cir. 1986).

The Resolution is also unlike the ordinance and acts the Supreme Court

considered “legislative” in Bogan. See 523 U.S. at 55–56. First and most

fundamentally, the Resolution is unlike an ordinance—and unlike “legislation”

generally—because it is undisputed that the Resolution does not carry “the force of

law.”135 The Home Rule Charter for St. Tammany Parish distinguishes between acts

of the St. Tammany Parish Council that do and do not carry “the force of law”:

Although “[a]n act of the council which is not to have the force of law may be enacted

by resolution,”136 an “act of the council having the force of law shall be by ordinance.”137

Accordingly, because the Resolution does not carry “the force of law,” the Resolution

does not have a “formally legislative character” or bear “all the hallmarks of

traditional legislation,” as did the ordinance in Bogan. See id. at 55–56.138

135 See ECF No. 56 at ¶ 11 (internal quotation marks omitted).

136 Id. (internal quotation marks omitted).

137 See St. Tammany Parish Home Rule Charter Commission, A Home Rule Charter for a

President–Council Government for St. Tammany Parish, Section 2-11, “Action Requiring an

Ordinance.”

138 For similar reasons, the Resolution is unlike the ordinance the Fifth Circuit considered

This case is unlike Bogan for another reason: Defendants have not shown that

the Resolution “may have prospective implications that reach well beyond the

particular occupant[s] of the” Library Board positions. Id. at 56. On its face, the

Resolution applied only to the Library Board and eleven identifiable people. It is thus

unlike the ordinance in Bogan—the product of a “quintessentially legislative” budget

cut that had been implemented as part of a broader policy package to freeze salaries

and eliminate 135 positions in anticipation of a reduction in state aid. Id. at 47, 55.

In sum, Defendants have not shown that the Resolution and related acts are

“legislative” under Bogan, Bryan, and Hughes v. Tarrant County. Because

Defendants have not shown that the Resolution and related acts are “legislative,”

Defendants have not carried their burden, as proponents of that privilege, to show

that the privilege applies to bar disclosure of the documents Plaintiffs seek or

testimony—by deposition or a trial—bearing on the Resolution and related matters.

Even if Defendants had shown that the Resolution and related acts were

“legislative,” however, the legislative privilege still would not apply broadly to bar all

of the at-issue discovery and testimony. Indeed, the legislative privilege has been

waived as to at least some of that discovery and testimony. A legislator waives the

privilege as to documents and communications the legislator “publicly reveals”—that

is, documents and communications “shared with some third parties” who are “outside

“legislative” in Craig. See 265 F. App’x at 190–92. The ordinance in Craig “involved the allocation of

parish resources, a traditional legislative activity.” Id. at 192 (citing Bogan, 523 U.S. at 55–56). Here,

by contrast, Defendants have not directed the Court to anything in the record that supports a

conclusion that the Resolution “involved the allocation” of St. Tammany Parish “resources” or that the

Resolution “implicat[ed] [St. Tammany Parish’s] budgetary considerations.” Id.

the legislative process.” Hughes, 68 F.4th at 236–37 (internal alterations, citations,

and quotation marks omitted; emphasis in original). Here, the legislative privilege

has been waived as to all documents and communications that have been shared with

third parties outside the legislative process. That category of course includes any

documents and communications that were produced in response to a public-records

requests or otherwise released to the public. But it also includes the recordings

McHugh made of phone calls with Councilmember Tanner and Councilmember

Corbin, because, on this record and briefing, Defendants have not shown that

McHugh was within “the legislative process” at the time of those conversations. Id.

And even if the Resolution were legislative, the legislative privilege would not

stretch quite as far as Defendants suggest. The privilege “does not extend beyond the

legislative process.” LULAC, 2023 WL 8880313, at *2. “To the extent . . . [P]laintiffs

seek discovery over materials not part of the ‘proposal, formulation, and passage of

legislation,’ that material is not protected by the privilege.” Id. (quoting Hughes, 68

F.4th at 236). Even if the Resolution were “legislative,” Defendants have not shown

that activities relating to the process of inviting candidates to apply for the Library

Board—including interviewing candidates, sending questionnaires to candidates,

and nominating them—were “part of the ‘proposal, formulation, and passage of’” the

Resolution. Id. (quoting Hughes, 68 F.4th at 236). As a result, such material would

not be protected from disclosure by the legislative privilege, even if it applied.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that Plaintiffs’ motion» to compel and motion in limine

on the application and scope of the legislative privilege is GRANTED, and

Defendants’ motion° in limine asserting the legislative privilege is DENIED.

Because Defendants have not shown that the Resolution and the acts related to it are

“legislative” acts triggering application of the privilege, the legislative privilege does

not apply to bar (a) disclosure of the documents Plaintiffs have sought in discovery;

or (b) testimony—by deposition or at trial—bearing on the Resolution and related

issues. Defendants must produce all documents withheld or redacted based on a

legislative-privilege objection by no later than Monday, August 12, 2024 at 12:00 p.m.

New Orleans, Louisiana, this 9th day of August, 2024.

He ke S he

BRANDON S. LONG □□

UNITED STATES DISTRICT JUDGE

189 ECF No. 69.

140 BCE No. 70.

34