MC Trilogy Texas LLC v. City of Heath Texas

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MC TRILOGY TEXAS, LLC, §

§

Plaintiff, §

§

VS. § Civil Action No. 3:22-CV-2154-D

§

CITY OF HEATH, TEXAS, §

§

Defendant. §

MEMORANDUM OPINION

AND ORDER

In this action challenging a municipality’s land use decisions, subpoenaed non-party

city officials1 and defendant the City of Heath, Texas (“Heath”) move in separate motions

under Fed. R. Civ. P. 45(d)(3)(A)(iii) and (iv) to quash and for a protective order. They

maintain that plaintiff MC Trilogy Texas, LLC (“MC Trilogy”) is seeking information that

is privileged or protected and that imposes an undue burden. Alternatively, both request that

the court modify the subpoenas to allow only the disclosure of necessary information. MC

Trilogy moves to compel production of documents. For the reasons explained, the court

grants in part and denies in part the non-party city officials’ July 13, 2023 motion to quash

and for a protective order and imposes a meet and confer requirement; denies Heath’s July

13, 2023 motion to quash and for a protective order; and grants MC Trilogy’s August 3, 2023

1The subpoenaed non-parties are all individuals who served as members of the City

of Heath City Council or the City of Heath Planning and Zoning Commission at the time of

the alleged conduct. The individuals include Brent Weaver, Donna Rolater, Frank New,

Harry Heinkele, Jim Chester, Joe Ruszkiewiez, James Tunnell, Paul Ruff, Rich Krause,

Robert Shaw, Thomas Bishop, Wayne Gordon, Kelson Elam, and Sharon Caldwell.

motion to compel.2

I

The court assumes the parties’ familiarity with its prior memorandum opinions and

orders in this case, see MC Trilogy Tex., LLC v. City of Heath (MC Trilogy I), ___ F.Supp.3d

___, 2023 WL 2544308, at *1 (N.D. Tex. Mar. 16, 2023) (Fitzwater, J.); MC Trilogy Tex.,

LLC v. City of Heath (MC Trilogy II), 2023 WL 3635639, at *1 (N.D. Tex. May 24, 2023)

(Fitzwater, J.), and recounts the background facts and procedural history only as necessary

to understand this decision.

In MC Trilogy II the court granted Heath’s motion for a protective order preventing

MC Trilogy from obtaining discovery from non-party city officials under Rule 34.3 See MC

Trilogy II, 2023 WL 3635639, at *1. “The court expressed no view regarding the extent to

which another discovery procedure, such as the subpoena process outlined in Rule 45, could

be used.” Id. at n.3. MC Trilogy then served Rule 45 subpoenas duces tecum on the same

non-party city officials from whom it had previously sought discovery. The subpoenas seek

documents that can be broadly categorized as concerning the following: (1) the preliminary

and final plat application; (2) the Heath and McLendon-Chisholm Portion of MC Trilogy’s

development; (3) telephone data; (4) the Rockwall County Municipal Utility District No. 10

2There are several other discovery motions that are currently pending. These will be

decided in due course, after they become ripe.

3All references in this memorandum opinion and order to a “Rule” are to a Federal

Rule of Civil Procedure. Other rules are identified specifically.

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(“MUD”); and (5) Heath’s local ordinances and development plans. The non-party city

officials object to the subpoenas and move to quash and for a protective order on the basis

of legislative privilege, deliberative process privilege, undue burden, attorney-client

privilege, and work product protection.4 Heath has filed a motion in support of the non-party

city officials’ motion. MC Trilogy moves to compel the production of documents. The court

is deciding the motions on the briefs, without oral argument.

II

The court turns first to the non-party city officials’ motion to quash and for a

protective order (ECF No. 57).

A

The non-party city officials seek to prevent MC Trilogy from obtaining production

regarding notes and communications concerning the MC Trilogy development. They

maintain that some of the production that MC Trilogy seeks is protected by the legislative

privilege because land use decisions relate to a legislative function insofar as they reflect

discretion, policymaking, and are generally applicable. Regarding the remaining production

4The court does not address whether the deliberative process privilege applies to

certain production requests because the court grants the motion to quash regarding those

requests on legislative privilege grounds. Nor does the court address whether attorney-client

privilege or work product protection applies because the non-party city officials lack standing

to assert either the privilege or protection. It is well established under Texas and federal law

that the attorney-client privilege can be asserted only by the client or by one authorized to

act on the client’s behalf, like an attorney. See Tex. R. Evid. 503(c); Upjohn Co. v. United

States, 449 U.S. 383, 389 (1981). And work production protection “belongs to both the

client and the attorney, either of whom may assert it.” In re Grand Jury Subpoenas, 561 F.3d

408, 411 (5th Cir. 2009).

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requests, the non-party city officials posit that the subpoenas impose an undue burden

because they seek duplicative and irrelevant production.5 Alternatively, the non-party city

officials request that the court modify the subpoenas to allow only the disclosure of necessary

information.

MC Trilogy responds that the production it seeks is not protected by legislative

privilege because the challenged acts relate to an administrative or ministerial, not a

legislative, function. It contends that, to the extent the challenged acts are legislative, the

privilege is either strictly construed to permit discovery or is waived. MC Trilogy also

maintains that the discovery requests do not impose an undue burden because MC Trilogy

is seeking information that is relevant to its federal- and state-law claims and proportional

to the needs of the case. For example, according to MC Trilogy, communications among the

subpoenaed non-party city officials relating to the Trilogy development are relevant to

establish “the character of the City’s action . . . and its investment-backed expectations” to

prove a takings claim. P. Resp. to Mot. to Quash (ECF No. 70) at 15. And, MC Trilogy

contends, the requests are also “sufficiently tailored in time, scope[,] and subject matter.”

Id. at 12.

5The non-party city officials also move for relief on the ground that the subpoenas

pose an undue burden because they do not allow “reasonable time” for compliance. Time

for compliance is a separate ground under Rule 45(d)(3)(A)(i) rather than 45(d)(3)(A)(iv).

Nevertheless, the court need not address this argument because it is modifying the subpoenas

based on undue burden.

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B

Rule 26(b)(1) provides that a party may obtain discovery of “any nonprivileged matter

that is relevant to any party’s claim or defense.” Under Rule 45(d)(3)(A)(iii), if the party

seeks information that “requires disclosure of privileged or other protected matter [and] no

exception or waiver applies,” the court, on timely motion, “must quash or modify [the]

subpoena.” Sully v. Freeman, 2017 WL 3457123, at *1 (W.D. Tex. Feb. 1, 2017). The

moving party must establish that information sought by the subpoena is “privileged or other

protected matter.” Id.

Federal courts have the authority and duty to recognize claims of privilege that are

valid under federal common law. See Fed. R. Evid. 501. The legislative privilege “is an

evidentiary privilege, ‘governed by federal common law.’” Jefferson Cmty. Health Care

Ctrs., Inc. v. Jefferson Par. Gov’t (Jefferson), 849 F.3d 615, 624 (5th Cir. 2017) (quoting

Perez v. Perry, 2014 WL 106927, at *1 (W.D. Tex. Jan. 8, 2014)). “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.’” La Union Del

Pueblo Entero v. Abbott, 68 F.4th 228, 235 (5th Cir. 2023) (internal quotation marks omitted)

(first citing United States v. Helstoski, 442 U.S. 477, 489, 499 (1979); and then citing Tenney

v. Brandhove, 341 U.S. 367, 376 (1951)). “[T]he privilege is not limited to the casting of a

vote on a resolution or bill; it covers all aspects of the legislative process” and protects the

function of the legislature more broadly. La Union Del Pueblo Entero, 68 F.4th at 235;

accord In re Hubbard, 803 F.3d 1298, 1310 (11th Cir. 2015).

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The legislative privilege’s primary purpose is to allow lawmakers to “focus on their

public duties.” See, e.g., Hubbard, 803 F.3d at 1310 (citing E.E.O.C. v. Wash. Suburban

Sanitary Comm’n, 631 F.3d 174, 181 (4th Cir. 2011); Eastland v. U.S. Servicemen’s Fund,

421 U.S. 491, 503 (1975) (explaining that the Speech or Debate Clause ensures that civil

litigation will not “create[] a distraction and force[] Members to divert their time, energy, and

attention from their legislative tasks to defend the litigation”)). Complying with discovery

requests detracts from lawmakers’ public duties. See La Union Del Pueblo Entero, 68 F.4th

at 237-38.

The Supreme Court explained in Tenney that “[t]he reason for

the privilege is clear.” “In order to enable and encourage a

representative of the public to discharge his public trust with

firmness and success, it is indispensably necessary[] that he

should enjoy the fullest liberty of speech, and that he should be

protected from the resentment of every one, however powerful,

to whom the exercise of that liberty may occasion offense.” . .

. “[I]t [i]s not consonant with our scheme of government for a

court to inquire into the motives of legislators,” and courts are

not to facilitate an expedition seeking to uncover a legislator’s

subjective intent in drafting, supporting, or opposing proposed

or enacted legislation.

Id. at 238 (quoting Tenney, 341 U.S. at 374, 377).

But the state legislative privilege is not absolute. See, e.g., League of United Latin

Am. Citizens v. Abbott, 2022 WL 2713263, at *1 (5th Cir. May 20, 2022) (stating that the

court and the Supreme Court have confirmed that the state legislative privilege is not

absolute.). “[T]he legislative privilege for state lawmakers is, at best, one which is

qualified.” Jefferson, 849 F.3d at 624. The extent to which the legislative privilege is

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qualified is determined by “balancing the interests of the party seeking disclosure against the

interests of the party claiming the privilege.” Harding v. County of Dallas, 2016 WL

7426127, at *3 (N.D. Tex. Dec. 23, 2016) (Fitzwater, J.) (citing Perez, 2014 WL 106927, at

*2). Courts assess the following five factors in performing the balancing test:

(i) the relevance of the evidence sought to be protected; (ii) the

availability of other evidence; (iii) the “seriousness” of the

litigation and the issues involved; (iv) the role of the

government in the litigation; and (v) the possibility of future

timidity by government employees who will be forced to

recognize that their secrets are violable.

Id. In considering these factors, “the court’s goal is to determine whether the need for

disclosure and accurate fact finding outweighs the legislature’s ‘need to act free of worry

about inquiry into [its] deliberations.’” Id. (quoting Veasey v. Perry, 2014 WL 1340077, at

*2 (S.D. Tex. Apr. 3, 2014)).

C

With the foregoing principles in mind, the court turns to the parties’ arguments.

1

The court begins by considering whether the topics on which MC Trilogy seeks

production relate to a “legislative function,” as required for the legislative privilege to apply.

MC Trilogy seeks production on the following topics:

all notes prepared by or provided to [city officials] relating to (i)

the ROW Final Plat Application, or any portion thereof,

including all notes prepared by or provided to [city officials] at

any meeting of the City Council Planning and Zoning

Commission where the ROW Final Plat Application, or any

portion thereof, was considered or discussed; (ii) the Heath

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Portion Trilogy Development, including all notes prepared by or

provided to [city officials] at any meeting of the City Council

Planning and Zoning Commission where the Heath Portion

Trilogy Development was considered or discussed; (iii) the

minimum lot size for a single-family dwelling property in the

City of Heath (A) Agricultural zoning classification; (iv) the

City of Heath, Texas Ordinance No. 210824A, including all

notes prepared by or provided to [city officials] at any meeting

of the City Council Planning and Zoning Commission where

Ordinance No. 210824A was considered, discussed, or voted

upon.

P. Resp. to Mot. to Quash (ECF No. 70) at 7.

The court concludes that topics (iii) and (iv) relate to a legislative function to the

extent MC Trilogy seeks to discover the Heath City Council’s motives or objectives to enact

the agricultural zone’s minimum lot size and Ordinance No. 210824A. In MC Trilogy I the

court stated that Heath’s decision to enact an ordinance was “clearly legislative in nature.”

MC Trilogy I, 2023 WL 2544308, at *3. MC Trilogy does not dispute this. Instead, MC

Trilogy maintains that it seeks only to discover these topics insofar as they relate to Heath’s

“ministerial” duty to approve MC Trilogy’s final plat application. The court addresses this

argument below as it relates to topics (i)-(iv).

The court also concludes that topics (i)-(iv) relate to a legislative function to the extent

MC Trilogy seeks to discover Heath’s motives or objectives in denying MC Trilogy’s final

plat application. In particular, MC Trilogy seeks to discover whether Heath “contrive[d] a

‘basis’” upon which to deny the ROW Plat Application by considering laws and ordinances

not in effect at the time the plat was filed. P. Resp. to Mot. to Quash (ECF No. 70) at 5-6.

MC Trilogy maintains that the legislative privilege does not apply because the plat approval

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process relates to an administrative or ministerial, rather than a legislative, function. The

court disagrees.

Plat approval relates to a legislative function because the decision impacts the larger

population, not specific individuals or property alone. The Supreme Court of Texas has

explained that “[t]he purpose of plat approval is to ensure that subdivisions are safely

constructed and to promote the orderly development of the community. Plat approval

protects future purchasers from inadequate police and fire protection, inadequate drainage,

and insures sanitary conditions. Public health, safety, and morals are general public

interests.” City of Round Rock v. Smith, 687 S.W.2d 300, 302 (Tex. 1985). In Smith the

Supreme Court of Texas addressed whether plat approval is a proprietary or governmental

function for purposes of governmental immunity. See id. at 301-02. It concluded that plat

approval or disapproval is a “quasi-judicial exercise of the police power” and thus subject

to governmental immunity because plat approval requires the city to exercise “discretionary

powers of a public nature embracing judicial or legislative functions.” Id. at 301-03. The

court contrasted plat approval from “ministerial acts[,] which could be performed by a private

subcontractor.” Id. at 303. A governmental unit only has a “ministerial duty” to approve a

plat application “once the relevant governmental unit determines that a plat conforms to

applicable regulations.” Schroeder v. Escalera Ranch Owners’ Ass’n, 646 S.W.3d 329, 332

(Tex. 2022).

Plat approval also relates to a legislative function because it is “part and parcel” of

modern zoning procedures. See La Union Del Pueblo Entero, 68 F.4th at 236. The Fifth

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Circuit interpreted legislative privilege broadly when it extended the privilege to third party

communications outside the legislature. See id. In doing so, the Fifth Circuit held that the

legislative privilege covered some third party communications because “[m]eeting with

‘interest’ groups . . . is a part and parcel of the modern legislative procedures through which

legislators receive information possibly bearing on the legislation they are to consider.” Id.

(quoting Bruce v. Riddle, 631 F.2d 272, 280 (4th Cir. 1980)). Consequently, “the legislative

privilege’s scope is necessarily broad.” La Union Del Pueblo Entero, 68 F.4th at 236 (citing

Hubbard, 803 F.3d at 1308).

Here, the non-party city officials considered general public interests when reviewing

MC Trilogy’s plat. The plat was denied because it “depicted a residential subdivision with

minimal farming, ranching, and related agricultural uses” and “a high volume of through

traffic and drainage runoff,” contrary to the stated intent of the agricultural district. Compl.

(ECF No. 1) at 17 (quoting September 10, 2021 communication from Heath Director of

Planning). Other courts have similarly held that the application of zoning and planning

ordinances to individual property relates to a legislative function. See Canaan Christian

Church v. Montgomery County, 335 F.Supp.3d 758, 764 (D. Md. 2018) (holding that

county’s denial of church’s sewer change request was legislative act for purposes of

legislative privilege during discovery); Buonauro v. City of Berwyn, 2011 WL 2110133, at

*3-7 (N.D. Ill. May 25, 2011) (holding that city’s denial of clinic’s license application

integrally related to city’s zoning laws was legislative act for purposes of legislative privilege

during discovery). The plat approval process is merely another procedure steeped in

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legislative thought and function. See La Union Del Pueblo Entero, 68 F.4th at 236. The

court therefore holds that plat approval is a legislative act for purposes of the legislative

privilege.

2

Having determined that topics (i)-(iv) relate to a legislative function, the court next

considers whether the non-party city officials can rely on the legislative privilege to refuse

production on these topics. The court applies the Perez five-factor balancing approach to

determine whether the interests of the party seeking disclosure (here, MC Trilogy) outweigh

the interests of those claiming the privilege (here, the non-party city officials). See Perez,

2014 WL 106927, at *2. The court considers, together, topics (i)-(iv) and concludes that

each factor weighs against allowing discovery.

a

Factor one—relevance—weighs against allowing discovery. The non-party city

officials contend that the discovery is not relevant because notes of a single legislator, which

may reflect mental impressions and the reason for the legislator’s vote, are not controlling

and may not be attributed to the body as a whole. In their reply, however, they “concede that

their internal notes may be relevant to the Plaintiff’s federal taking claim.” Non-Party

Officials Reply in Support of Mot. to Quash (ECF No. 82) at 3.

In deciding MC Trilogy’s takings claim, the court can consider the character of the

governmental action and the extent to which the regulation has interfered with distinct

investment backed interests. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104,

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124 (1978). The “character ” of the governmental action refers to the type of regulation at

the heart of the underlying takings claim. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528,

538-39 (2005); Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 840 (Tex. 2012). For

example, in Penn Central the “character” of the governmental action was New York City’s

designation of Grand Central Terminal as a “landmark.” See Penn Cent. Transp. Co., 438

U.S. at 110-11. The action benefited those who might visit the landmark and damaged Penn

Central, who could no longer execute longstanding plans to build a skyscraper above the

terminal. Id. at 116-19. Additionally, “investment-backed expectations” refer to “‘the

regulatory environment at the time of the acquisition of the property.’” Love Terminal

Partners, L.P. v. United States, 889 F.3d 1331, 1345 (Fed. Cir. 2018) (quoting

Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1350 n.22 (Fed. Cir. 2001) (en

banc). To the extent MC Trilogy seeks to discover whether the Heath city council

“contrive[d] a basis” on which to deny the plat, proof of motive is not required to prove

character or investment-backed interests for a takings claim.

MC Trilogy also maintains that the discovery it seeks is relevant to its declaratory

judgment claim because the Texas Local Government Code mandates that the City shall

consider the approval of an application for permit “solely on the basis of any orders,

regulations, ordinances, rules, expiration dates, or other properly adopted requirements in

effect at the time.” See Tex. Loc. Gov’t Code Ann. § 245.002. Plaintiffs in factually similar

cases used publicly available documents to prove the city considered more than the laws in

effect at the time. See Save Our Springs All. v. City of Austin, 149 S.W.3d 674, 682 (Tex.

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App. 2004, no pet.) (development agreement); Jacks v. Zoning Bd. of Adjustment, 2019 WL

2998807, at *2 (Tex. App. 2019, pet. denied) (permit); Reagan Nat’l Advert. of Austin, Inc.

v. City of Cedar Park, 387 F.Supp.3d 703, 706 n.3 (W.D. Tex. 2019) (regulatory code). The

court has not located a case in which discovery into a city council’s non-public motives,

objectives, impressions, and/or opinions was required to prove a Chapter 245 claim. It

therefore appears on the present record that MC Trilogy can prove its takings and declaratory

judgment claims without relying on the privileged information it seeks in topics (i)-(iv).

Accordingly, the court concludes that the non-party city officials’ notes and communications

regarding topics (i)-(iv) are not sufficiently relevant to weigh in favor of discovery.

b

Factor two—the availability of other evidence—weighs against allowing discovery

for the same reasons as factor one. MC Trilogy can obtain evidence regarding the Heath city

council’s “basis” for denying its plat from documents already in its possession, like the city

attorney’s letter in response to MC Trilogy’s plat application, and other publicly available

records, like City of Heath, Texas Ordinance No. 210824A and the date it took effect. MC

Trilogy can rely on this information to establish the character of Heath’s action or whether

Heath properly or improperly denied the plat in accordance with Chapter 245. Factor two

weighs against disclosure.

c

Factors three and four—the “seriousness” of the litigation and the issues involved and

the role of the government in the litigation—weigh against allowing discovery. The Supreme

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Court’s view on a state and local government’s exercise of police power is well-established:

It is to be remembered that we are dealing with one of the most

essential powers of government—one that is the least limitable.

It may, indeed, seem harsh in its exercise, usually is on some

individual, but the imperative necessity for its existence

precludes any limitation upon it when not exerted arbitrarily. A

vested interest cannot be asserted against it because of

conditions once obtaining. See Chi. & Alton R.R. Co. v.

Tranbarger, 238 U.S. 67, 78 (1915). To so hold would preclude

development and fix a city forever in its primitive conditions.

[T]here must be progress, and if in its march private interests are

in the way, they must yield to the good of the community.

Hadacheck v. Sebastian, 239 U.S. 394, 410 (1915). Applying the reasoning of Hadacheck,

the court concludes that factors three and four weigh against disclosure.

d

Regarding factor five—the possibility of future timidity among government

employees (here, legislators)—“courts have long recognized that the disclosure of

confidential documents concerning intimate legislative activities should be avoided.”

Veasey, 2014 WL 1340077, at *3 (citation omitted). Accordingly, the court holds that the

fifth factor weighs against disclosure.

e

The court concludes that the overall balance of factors weighs in favor of applying the

legislative privilege to excuse the non-party city officials from producing the information

covered by topics (i)-(iv).

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D

The court now considers whether, and to what extent, the non-party city officials

waived the legislative privilege.

1

The legislative privilege can be waived under certain conditions. See Favors v.

Cuomo, 285 F.R.D. 187, 211-12 (E.D.N.Y. 2012). For example, legislative privilege can be

waived when “the Legislator publicly reveal[s] those documents” or “the statements have no

connection whatsoever with ‘legitimate legislative activity.’” Id.; see also Hubbard, 803

F.3d at 1308 (quoting Tenney, 341 U.S. at 376). But “formal technicalities are not a proper

basis for denying an otherwise proper claim of governmental privilege if the grounds for

assertion of the privilege are adequately presented to the district court.” Branch v. Phillips

Petroleum Co., 638 F.2d 873, 882-83 (5th Cir. Unit A Mar. 1981). The purpose of some

procedural prerequisites is simply “to insure that subordinate officials do not lightly or

mistakenly invoke the government’s privilege in circumstances not warranting its

application.” Id. at 882. If there is “sufficient compliance” to satisfy that goal, the privilege

should be honored. Id. at 882-83. In Branch it was enough that the Equal Employment

Opportunity Commission’s (“EEOC’s”) Houston director: (1) consulted with the office of

the General Counsel at the EEOC, and (2) “made the EEOC’s objections to disclosure and

its basis for them known to the court in written responses to questions accompanying the

subpoena itself.” Id. at 883.

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2

The court concludes that the non-party city officials did not waive the legislative

privilege for any request where the non-party city officials asserted the privilege. The non-

party city officials did not publicize the production that MC Trilogy seeks (which is why MC

Trilogy requests the documents), and the communications and notes connect with “legitimate

legislative activity,” as established above. See Hubbard, 803 F.3d at 1308. In Branch the

Fifth Circuit held that a party who consults with an attorney and makes the objection to

disclosure and its basis known has demonstrated “sufficient compliance” with any procedural

safeguards concerning legislative privilege. See Branch, 638 F.2d at 883. Because the non-

party city officials did not publicize the communications and notes that MC Trilogy seeks

and consulted with an attorney and asserted the privilege in response to some document

requests, the legislative privilege has not been waived to request for production (“RFP”) Nos.

4, 6, 17, and 20. Accordingly, the court grants the non-party city officials’ motion to quash

to the extent MC Trilogy seeks production of documents in topics (i)-(iv) barred by the

legislative privilege under Rule 45(d)(3)(A)(iii).

To the extent the non-party city officials have not asserted legislative privilege in

response to some document requests, however, the privilege has been waived.6 Rule 45(d)(2)

6The non-party city officials expressly asserted the legislative privilege only in

response to some discovery requests, but not other, similar requests. For example, RFP No.

2 requests “all notes prepared by You or provided to You relating to the Preliminary Plat

Application, or any portion thereof, including all such notes prepared by You or provided to

You at any meeting of the City Council where the Preliminary Plat Application, or any

portion thereof, was considered or discussed.” Non-Party Officials App. (ECF No. 59) at 78,

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provides, in pertinent part: “When information subject to a subpoena is withheld on a claim

that it is privileged . . . , the claim shall be made expressly . . . .” Rule 45(d)(2) (emphasis

added). Thus some withheld documents are subject to disclosure despite the fact that they

contain the non-party city officials’ motives, impressions, and/or opinions of legislative

actions. The disclosure is nonetheless limited to the extent it poses an undue burden or is

covered by attorney-client privilege or work product protection.

E

The court next considers the extent to which the remaining discovery requests pose

an undue burden.

1

Rule 45(d)(3)(A)(iv) requires that, on timely motion, the court by which a subpoena

was issued must quash or modify the subpoena if it “subjects a person to undue burden.”

Rule 45(d)(3)(A)(iv). The movant has the burden of proof, see id.; Wiwa v. Royal Dutch

Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (citing Williams v. City of Dallas, 178

F.R.D. 103, 109 (N.D. Tex. 1998) (Fitzwater, J.)), and must meet “the heavy burden of

establishing that compliance with the subpoena would be ‘unreasonable and oppressive.’”

Williams, 178 F.R.D. at 109.

“Whether a burdensome subpoena is reasonable ‘must be determined according to the

¶ 2. RFP No. 4 makes an identical request concerning the ROW Final Plat Application. Yet

counsel for the non-party city officials only asserted legislative privilege in response to RFP

No. 4.

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facts of the case.’” Linder v. Dep’t of Def., 133 F.3d 17, 24 (D.C. Cir. 1998) (internal

quotation marks omitted)). Among the factors that the court may consider in determining

whether there is an undue burden are “relevance, the need of the party for the documents, the

breadth of the document request, the time period covered by it, the particularity with which

the documents are described and the burden imposed.” Wiwa, 392 F.3d at 818 (citing

Williams, 178 F.R.D. at 109). The status of a witness as a non-party entitles the witness to

consideration regarding expense and inconvenience. See Rule 45(c)(2)(B). Undue burden

can be found when a subpoena duces tecum is facially overbroad. See, e.g., Wiwa, 392 F.3d

at 818.

2

The non-party city officials assert that RFPs Nos. 7-15, 22, and 23 pose an undue

burden. The first category of requests (Nos. 7, 8, 9, 11, 14, and 15) concerns information

relating to the McLendon-Chisholm Portion Trilogy Development, MUD, and the Trilogy

Development as a whole. The second category of requests (Nos. 10, 12, and 13) concerns

information relating to the non-party city officials’ telephone records. The third category of

requests (Nos. 22 and 23) concerns information relating to the modification of Horizon Road

or any road adjacent to the Trilogy Development.

3

Category 1 RFPs (Nos. 7, 8, 9, 11, 14, and 15) pose an undue burden. As written, the

RFPs are facially overbroad because they make no attempt to limit production by any means.

The most egregious example is RFP No. 9, which requests production of “all

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communications between [subpoenaed non-party city official] and any other Person relating

to the Trilogy Development.” The request does not specify reasonable restrictions on time,

like dates Heath’s Planning and Zoning Commission met; relevant persons with whom the

non-party city officials communicated, like parties to the instant action; or particular

documentary descriptions. RFP No. 9 arguably encompasses almost all RFPs considered in

the instant subpoena. The status of the witnesses as non-parties only compounds the expense

and inconvenience of such a broad request because the non-party city officials are only part-

time citizen legislators. Modification of a subpoena is preferable, however, to quashing it.

See Wiwa, 392 F.3d at 818 (footnote and citations omitted). The court orders the parties to

meet and confer regarding the scope of RFPs Nos. 7, 8, 9, 11, 14, and 15. See infra §

II(E)(6). The court will then consider modifying the scope of any RFP that remains in

dispute.

4

Category 2 RFPs (Nos. 10, 12, and 13) also pose an undue burden. RFPs Nos. 10, 12,

and 13 seek documents between January 1, 2021 and September 27, 2022 sufficient to

evidence “all mobile phones [subpoenaed non-party city official] used,” and log or list all

incoming and outgoing “text messages” and “phone calls.” Non-Party Officials App. (ECF

No. 59) at 78-80, ¶¶ 10, 12, and 13). All the Fifth Circuit’s factors for quashing a subpoena

weigh against production. Regarding relevance and the need for the documents, MC Trilogy

asserts no reason why all text messages and phone calls from any of the subpoenaed non-

party city officials’ phones have a bearing on its claims. In fact, MC Trilogy admits that the

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search would be “a means to begin a determination to the probable existence” of “relevant

communications.” P. Resp. to Mot. to Quash (ECF No. 70) at 16. Such a request is “akin

to an impermissible attempt to ‘obtain every document which could conceivably be relevant

to the issues in the case.’” Williams, 178 F.R.D. at 110 (quoting Borden, Inc. v. Fla. E. Coast

Ry. Co., 772 F.2d 750, 756) (11th Cir. 1985)). Regarding the breadth of the request, it is

clear that a request for every incoming and outgoing text message and phone call from each

of the subpoenaed non-party city officials’ phones is overly broad. The time period covered

also weighs against production because MC Trilogy cannot justify why it needs telephone

records from January 1, 2021 to September 27, 2022 when the plat was denied in August

2021.

Taken as a whole, the burden imposed on the non-party city officials is too great when

compared to the negligible discoverable information that MC Trilogy may obtain. The court

is particularly concerned about the burden on non-party city officials’ privacy interests. See

Riley v. California, 573 U.S. 373, 393-96 (2014). Based on the preference for modifying

rather than quashing a subpoena, the court orders the parties to meet and confer regarding the

scope of RFPs Nos. 10, 12, and 13. See infra § II(E)(6). The court will then consider

modifying the scope of any RFP that remains in dispute.

5

Category 3 RFPs (Nos. 22 and 23) also pose an undue burden. RFPs Nos. 22 and 23

seek production regarding “all communications” “relating to” the modification of Horizon

Road and roads adjacent to the Trilogy Development since May 1, 2017. Overall, the Fifth

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Circuit’s factors for quashing a subpoena weigh against production. Factors one and

two—relevance and the need for the documents—weigh in favor of production. The court

agrees with MC Trilogy that the production is relevant and necessary because the non-party

city officials denied MC Trilogy’s plat in part because it was inconsistent with Heath’s

Thoroughfare Plan. Factors three and four—the breadth of the request and the time

period—weigh against production. Although RFP Nos. 22 and 23 are limited to Horizon

Road and roads adjacent to the Trilogy Development, the requests do not offer particular

documentary descriptions. MC Trilogy also does not explain why it chose the time frame

of May 1, 2017 to the present, especially when the plat was denied in August 2021. Taken

as a whole, the burden imposed on the non-party city officials outweighs MC Trilogy’s

discovery needs. The expense and inconvenience on the non-party city officials, as part-time

citizen legislators, to produce documents largely in Heath’s custody and control is great. As

written, the RFPs are improper; however, the court will modify rather than quash the

subpoenas. The non-party city officials must produce all communications relating to the

modification of Horizon Road and roads adjacent to the Trilogy Development in August

2021, when the action underlying the instant case occurred.

6

Within 21 days of the date this memorandum opinion and order is filed, counsel for

MC Trilogy, with authority to bind their client, and for the non-party city officials, with

authority to bind their clients, must meet face-to-face to fully confer regarding the scope of

RFPs Nos. 7, 8, 9, 11, 14, and 15, and RFPs Nos. 10, 12, and 13. At the face-to-face

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meeting, counsel must engage in an item-by-item discussion of each disputed issue or

discovery request and corresponding objection. If unresolved issues remain, counsel for the

non-party city officials must file a joint submission that identifies the RFP in question and

states the basis of the parties’ remaining disagreement. This joint submission must be filed

within 7 days of the date the meeting was held.

F

In summary, the motion is granted as to RFPs Nos. 4, 6, 17, and 20 based on

legislative privilege. The motion is denied as to RFPs Nos. 7-15, 22, and 23, and the

subpoenas are modified rather than quashed based on undue burden. The parties must meet

and confer regarding RFPs Nos. 7-15, and, if unresolved issues remain, counsel must file a

joint submission that identifies the RFP in question and states the basis for the parties’

remaining disagreement. The motion is denied as to RFPs Nos. 1-3, 5, 16, 18-19, 21, and 24-

25.

III

The court now considers Heath’s motion to quash and for a protective order.

A

A party’s standing to quash subpoenas served on non-parties pursuant to Rule 45 is

limited. The movant must “be in possession or control of the requested material; be the

person to whom the subpoena is issued; or have a personal right or privilege in the subject

matter of the subpoena.” Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979). “A party

challenging a subpoena issued to a non-party may not object on the grounds that it ‘violates

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another person’s privacy rights . . . , that the subpoena is overly broad, or that the subpoena

seeks information that is irrelevant because only the responding third party can object and

seek to quash a Rule 45 subpoena on those grounds.” Deitz v. Performance Food Grp., Inc.,

2021 WL 2715974, at *1 (W.D. Tex. Apr. 21, 2021) (citing River House Partners, LLC v.

Grandbridge Real Est. Cap. LLC, 2016 WL 3747613, at *3 (M.D. La. July 11, 2016)).

Nevertheless, “a party does have standing to move for a protective order pursuant to [Rule

26(c)] . . . even if the party does not have standing pursuant to Rule 45(d).” Field v.

Anadarko Petroleum Corp., 2020 WL 4937122, at *2 (S.D. Tex. Aug. 24, 2020).

Rule 26(c) provides, in pertinent part: “The court may, for good cause, issue an order

to protect a party or person from annoyance, embarrassment, oppression, or undue burden

or expense[.]” Rule 26(c). The burden is on the movant to show that good cause exists,

“which contemplates a particular and specific demonstration of fact as distinguished from

stereotyped and conclusory statements.” In re Terra Int’l, Inc., 134 F.3d 302, 306 (5th Cir.

1998) (per curiam) (internal quotation marks omitted) (quoting United States v. Garrett, 571

F.2d 1323, 1326 n.3 (5th Cir. 1978)). The movant “must show how the requested discovery

is overly broad, unduly burdensome, or oppressive by submitting affidavits or offering

evidence revealing the nature of the burden.” Samsung Elecs. Am. Inc. v. Yang Kun

“Michael” Chung, 325 F.R.D. 578, 590 (N.D. Tex. 2017) (Horan, J.) (first citing Merrill,

227 F.R.D. at 477; and then citing SEC v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006)

(Ramirez, J.)).

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B

The court need not address Heath’s motion insofar as it is mooted by the court’s

decisions supra at § II(E) regarding RFPs Nos. 4, 6-9, 11, 17, 20, 22, and 23. Regarding the

remaining RFPs (Nos. 1-3, 5, 16, 18, 19, 21, 24, and 25), Heath lacks standing to seek to

quash the non-party subpoenas. Heath asserts standing under Rule 45 on the ground that “the

subpoenas concern information which is legally under the City’s control.” D. Br. Mot. to

Quash (ECF No. 61) at 2. Heath cites the Texas Public Information Act (“TPIA” or “Act”),

Chapter 552 of the Texas Government Code, to support its assertion: a government officer

or employee does not have a “personal property right” to public information and thus must

“surrender” it “to the governmental body” when the officer or employee has “control” of

information requested under the Act. See Tex. Gov’t Code Ann. §§ 552.203(4)(B),

552.233(a). In other words, Heath asserts that it has “control” over the subpoenaed

documents because government officers or employees surrender “control” of public

information to a governmental body pursuant to information requests under the TPIA.

But the TPIA does not apply here. MC Trilogy’s complaint does not raise a claim that

makes the Act relevant. Even if the TPIA were relevant to the issue of standing, the brief

“control” that the government may have over documents before making a comprehensive

public disclosure under the Act is insufficient to confer standing. Heath does not cite (and

the court has not found) any case where a government’s “control” of documents made or

used by government officials or employees conferred standing to quash a non-party subpoena

personally served on those officials or employees. Other courts have held that the

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government has standing to quash a non-party subpoena served on government officials or

employees based only on some personal right or privilege with regard to the documents

sought. See Perez v. Kazu Constr., LLC, 2017 WL 628455, at *10-11 (D. Haw. Feb. 15,

2017); Zhou v. Pittsburg State Univ., 2002 WL 1932538, at *1 (D. Kan. July 25, 2002); Kan.

Health Care Ass’n v. Kan. Dep’t. of Soc. & Rehab. Servs., 1990 WL 255000, at *1 (D. Kan.

Dec. 18, 1990). Heath’s only assertion of personal privilege is that “given the breadth of [the

document] requests . . . [attorney-client privilege and work product protection] are clearly

implicated.” D. Br. Mot. to Quash (ECF No. 61) at 7. Such a blanket assertion is insufficient

to confer standing to move to quash a non-party subpoena. Accordingly, the court denies

Heath’s motion to quash for lack of standing.

Regarding the motion for a protective order, Heath has not met its burden of

demonstrating that a protective order is warranted. In a single sentence, Heath asserts that

“the requests [] are duplicative, harassing, burdensome, redundant[,] and completely

unnecessary.” Id. at 4. A party must do more than make such conclusory statements to

persuade the court that the discovery MC Trilogy seeks is unduly burdensome, oppressive,

or the like. Accordingly, the court denies Heath’s motion for a protective order.

IV

The court now considers MC Trilogy’s motion to compel.

A

A party seeking discovery can move to compel production where the opposing party

fails to comply with a Rule 34 RFP. See Rule 37(a)(3)(B)(iv). An incomplete response to

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an RFP “must be treated as a failure to disclose, answer, or respond.” Rule 37(a)(4). The

burden is on the party resisting discovery—here, Heath—to establish why the motion to

compel should not be granted. See Merrill, 227 F.R.D. at 470; see also Lozano v. Dorel Juv.

Grp., 2010 WL 11619687, at *1 (N.D. Tex. May 26, 2010) (Means, J.) (“Generally, the

burden is on the party seeking to avoid compliance with a discovery request to show that the

request is improper[,]” such that “in the context of a motion to compel, the party who

opposes discovery must ‘show specifically how [the request] is not relevant or how [the

request] is overly broad, burdensome, or oppressive.’” (second and third alterations in

original) (quoting McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485

(5th Cir. 1990))).

B

Heath’s only response to the motion to compel is to request that the court establish a

date by which litigation was reasonably anticipated for the purposes of work product

protection. The federal work product protection found in Rule 26(b)(3) provides for the

qualified protection of documents and tangible things prepared by or for a party or that

party’s representative “in anticipation of litigation or for trial.” “The burden is on the party

who seeks work product protection to show that the materials at issue were prepared by its

representative in anticipation of litigation or for trial.” Harding, 2016 WL 7426127, at *11.

Absent a merits-related motion, the court will not make a substantive ruling regarding the

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date by which litigation was reasonably anticipated.’ Heath has failed to establish that the

discovery MC Trilogy seeks is improper. Accordingly, MC Trilogy’s motion to compel is

granted.

No later than 21 days after the date of this memorandum opinion and order is filed,

Heath must either produce any documents that are responsive to MC Trilogy’s RFPs, or, if

Heath withholds production of any responsive document based on a privilege or protection,

produce a privilege log that includes all such documents.

* * *

The non-party city officials’ July 13, 2023 motion to quash (ECF No. 57) is granted

in part and denied in part. Heath’s July 13, 2023 motion to quash and for a protective order

(ECF No. 60) is denied. MC Trilogy’s August 3, 2023 motion to compel production of

documents (ECF No. 67) is granted.

SO ORDERED.

September 11, 2023.

ile. A. eee ‘<<

SENIOR JUDGE

‘Heath misinterprets Rule 26(b)(3), which provides for a fact intensive inquiry into

the “primary motivating purpose” behind the creation of the materials at issue. See Jn re

Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000). Heath merely asks the

court to confirm that August 31, 2021 is the date by which litigation was reasonably

anticipated, while simultaneously admitting that “there are other dates by which litigation

would have been reasonably anticipated.” D. Br. Mot. to Compel (ECF No. 95) at 3.

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