Honorable Terry Petteway v. Galveston County, Texas

UNITED STATES DISTRICT COURT May 15, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

GALVESTON DIVISION

TERRY PETTEWAY, et al., §

§

Plaintiffs. §

§

V. §

§ CIVIL ACTION NO. 3:22-cv-00057

GALVESTON COUNTY, et. al., §

§

Defendants. §

OPINION AND ORDER

Pending before me in this consolidated litigation are an array of privilege

disputes. See Dkts. 102, 103, 141, 148, 156, 159, 162–164. United States District

Judge Jeffrey V. Brown has already summarized the general factual background of

this litigation in his rulings on Defendants’ motions to dismiss. See Dkt. 123 at 1–

10; Dkt. 124 at 1–3; Dkt. 125 at 1–4. In the interest of efficiency, I will add to that

background only to the extent necessary to address the privilege issues that have

been referred to me.

The United States, NAACP Plaintiffs, and Petteway Plaintiffs (collectively,

“Plaintiffs”) challenge the Galveston County Commissioners Court redistricting

plan enacted on November 12, 2021 (the “2021 Redistricting Plan”). Plaintiffs

bring constitutional and Voting Rights Act claims, arguing that “the

Commissioners Court adopted the 2021 [Redistricting] Plan with the intent to

discriminate against Black and Latino voters,” and “that race predominated in the

drawing of the precinct lines.” Dkt. 102 at 3. Defendants answer that “[t]he County

Commissioners precincts were drawn without consideration of race”; that

Defendants “did not intend to discriminate with the adoption of the 2021

Redistricting Plan”; and Defendants deny that they attempted to “‘crack’ or ‘pack’

voters based on race in the County Commissioner redistricting plan.” Dkt. 142 at

19; Dkt. 143 at 22; Dkt. 144 at 14.

As part of the redistricting process, Galveston County—through its General

Counsel, Paul Ready (““Ready”)—engaged the law firm of Holtzman Vogel Josefiak

Torchinsky PLLC (““HVJT”) “to provide legal representation and advice regarding

redistricting in Galveston County, Texas, including provision of a technical expert

to draw the map.” Dkt. 103-4 at 2. That technical expert was Tom Bryan (“Bryan”).

HVJT also associated with attorney Dale Oldham (“Oldham”) in providing

redistricting services to Galveston County. HVJT attorneys Phil Gordon

(“Gordon”) and Jason Torchinsky (“Torchinsky”), assisted by Oldham, were

“primarily responsible for overseeing [HVJT’s] representation” of Galveston

County through its redistricting process. Id.

Plaintiffs have requested the “production of documents relating to the

redistricting process including the development of the 2021 [Redistricting] Plan.”

Dkt. 102 at 3. Defendants refuse to produce these documents, asserting attorney—

client privilege and/or the attorney work product doctrine protection. Many of the

documents that Defendants are withholding are communications to, from, or

between HVJT attorneys, Oldham, Bryan, Ready, Ready’s Chief of Staff Tyler

Drummond (“Drummond”), and Galveston County Geographic Information

System (“GIS”) Engineer Nathan Sigler (“Sigler”). Plaintiffs argue that

“Defendants have withheld as attorney-client privileged virtually all documents

that detail the development of the 2021 [Redistricting] Plan in a plain effort to

shield the legislative process from public view.” Id. Plaintiffs assert that “[m]any of

the documents concern underlying facts and data that the attorney—client privilege

does not cover,” and “because these documents were not created in anticipation of

litigation, the work product doctrine does not apply.” Dkt. 103 at 4.

Defendants’ assertions of attorney-client privilege and attorney work

product are the “main event,” but there are other substantive bouts on the card.

NAACP Plaintiffs have withheld 24 documents “on the basis of First Amendment

privilege” and one document on the basis of “First Amendment and attorney—

client privileges.” Dkt. 148 at 1. Separately, Commissioner Stephen O. Holmes

(“Commissioner Holmes”)—the Commissioner elected from the sole majority non-

Anglo precinct and the lone vote against the 2021 Redistricting Plan—has refused

to produce six responsive documents, asserting attorney-client privilege, the

attorney work product doctrine, and legislative privilege.

The parties have thoroughly briefed the attorney-client privilege and

attorney work product issues (see Dkts. 102, 103, 107—110, 141, 159, 164), and have

provided joint dispute letters regarding the First Amendment privilege (see Dkt.

148) and the legislative privilege (see Dkt. 156). Defendants provided two privilege

logs: a January 20, 2023 privilege log and an April 14, 2023 privilege log. NAACP

Plaintiffs and Commissioner Holmes have also provided me with privilege logs

describing the documents they are withholding from production. All of the

underlying documents in dispute have been provided to me for in camera review,

and I have reviewed them all. In addition to the documents on the various privilege

logs, my in camera review included an Excel spreadsheet subject to claw-back

notice by Defendants; four emails between Oldham and Bryan; and a text exchange

between Bryan and Gordon.3 See Dkt. 141 at 3.

On May 1, 2023, after undertaking my review of documents from

Defendants’ January 20, 2023 privilege log, I held a status conference and entered

an Order regarding deficiencies with that privilege log. See Dkt. 157. Defendants

have since revised their January 20, 2023 and April 14, 2023 privilege logs (see

Dkts. 162-2 and 162-3) and have narrowed the universe of documents to be ruled

upon; Plaintiffs have provided supplemental briefing (see Dkts. 159); and

Defendants have responded (see Dkt. 164).

I am ready to rule on each of the challenged documents that have been

provided to me for in camera review.

3 Based on my review, I believe that both the Excel spreadsheet and the emails between

Oldham and Bryan are duplicative (in substance, at least) of documents described on the

privilege log.

A. ATTORNEY–CLIENT AND WORK PRODUCT PRIVILEGES

1. Legal Principles

a. Attorney–Client Privilege

The federal common law governs the analysis of any claim of privilege in

federal court. See FED. R. EVID. 501. “The attorney–client privilege is the oldest of

the privileges for confidential communications known to the common law. Its

purpose is to encourage full and frank communication between attorneys and their

clients and thereby promote broader public interests in the observance of law and

administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)

(citation omitted). “The objectives of the attorney-client privilege apply to

governmental clients.” United States v. Jicarilla Apache Nation, 564 U.S. 162, 169

(2011). “Unless applicable law provides otherwise, the Government may invoke the

attorney-client privilege in civil litigation to protect confidential communications

between Government officials and Government attorneys.” Id. at 170 (citing

Restatement (Third) of the Law Governing Lawyers § 74, cmt. b (1998)).

Despite the common law reverence for the attorney–client privilege, not

every communication with an attorney is cloaked with the privilege. The Fifth

Circuit has explained the standard for determining whether the privilege applies

as follows:

For a communication to be protected under the privilege, the

proponent must prove: (1) that he made a confidential

communication; (2) to a lawyer or his subordinate; (3) for the primary

purpose of securing either a legal opinion or legal services, or

assistance in some legal proceeding. Determining the applicability of

the privilege is a highly fact-specific inquiry, and the party

asserting the privilege bears the burden of proof. Once the

privilege has been established, the burden shifts to the other party to

prove any applicable exceptions. Ambiguities as to whether the

elements of a privilege claim have been met are construed

against the proponent.

Because the attorney-client privilege has the effect of

withholding relevant information from the fact-finder, it is

interpreted narrowly so as to apply only where necessary

to achieve its purpose.

EEOC v. BDO USA, L.L.P., 876 F.3d 690, 695 (5th Cir. 2017) (emphasis added)

(cleaned up).

b. Attorney Work Product Doctrine

“The work product privilege applies to documents ‘prepared in anticipation

of litigation.’” In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir.

2000) (quoting FED. R. CIV. P. 26(b)(3)). “The law of our circuit is that the privilege

can apply where litigation is not imminent, as long as the primary motivating

purpose behind the creation of the document was to aid in possible future

litigation.” Id. (quotation omitted). “The work product doctrine is not an umbrella

that shades all materials prepared by a lawyer, however. . . . Excluded from work

product materials . . . are ‘(m)aterials assembled in the ordinary course of business,

or pursuant to public requirements unrelated to litigation.’” United States v. El

Paso Co., 682 F.2d 530, 542 (5th Cir. 1982) (quoting FED. R. CIV. P. 26(b)(3)

advisory comm. note to 1970 amendment). “This includes documents created in

the ordinary course of government business.” League of United Latin Am. Citizens

v. Abbott (“LULAC II”), No. 21-cv-00259, 2022 WL 3233406, at *6 (W.D. Tex.

Aug. 10, 2022). “Legislative counsel could not, for example, withhold documents

pertaining to pending legislation on the basis of the work product doctrine because

‘[t]he [l]egislature could always have a reasonable belief that any of its enactments

would result in litigation. That is the nature of the legislative process.’” Bethune-

Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323, 348 (E.D. Va. 2015) (quoting

Baldus v. Brennan, No. 11-cv-562, 2011 WL 6385645, at *2 (E.D. Wis. Dec. 20,

2011)).

“[D]etermining whether a document is prepared in anticipation of litigation

is a slippery task.” El Paso Co., 682 F.2d at 542. “It is admittedly difficult to reduce

to a neat general formula the relationship between preparation of a document and

possible litigation necessary to trigger the protection of the work product

doctrine.” United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. Unit A Feb. 1981).

Nevertheless, “[i]f the document would have been created without regard to

whether litigation was expected to ensue, it was made in the ordinary course of

business and not in anticipation of litigation.” Jolivet v. Compass Grp. USA, Inc.,

340 F.R.D. 7, 18 (N.D. Tex. 2021). Considering this legal framework, I will now

turn to address the privilege claims made by Defendants, Commissioner Holmes,

and NAACP Plaintiffs.

2. Application

a. Defendants’ Privilege Claims

Certain documents are categorically not protected by the attorney–client

privilege or the attorney work produce doctrine. As I have already explained,

“pre-existing documents—whether prepared by a third-party or even by the client,

so long as the client was not compelled to write it (aka, a testimonial

communication)—are underlying facts that are not protected by the attorney-client

privilege.” Dkt. 157 at 1 (citing Fisher v. United States, 425 U.S. 391, 403–04

(1976); United States v. Robinson, 121 F.3d 971, 975 (5th Cir. 1997)). Pre-existing

documents, however, are but a small subset of “underlying facts.” Underlying facts

may also include “documents created in the course of the attorney–client

relationship,” if the purpose of creating the documents was for the provision of

something other than legal advice. Davis, 636 F.2d at 1043 (The “privilege extends

only to legal advice given by a lawyer.”). Indeed, this is the heart of the parties’

privilege dispute. Although Gordon, Torchinsky, and Oldham are attorneys,

Plaintiffs maintain that the work that HVTJ attorneys and Oldham were hired to

do was “a quintessentially legislative and policy function” that was delegated to

them by Galveston County. Dkt. 103 at 11. Defendants, on the other hand, assert

that “Galveston County retained legal counsel to ensure compliance with the law’s

requirements, including the Voting Rights Act and the Constitution,” and thus

“their communications with clients and amongst themselves seeking and

providing legal advice are protected by the attorney-client privilege.” Dkt. 107 at 4.

We can find a useful comparator here by looking to one of life’s unfortunate

certainties: taxes. While “preparation of tax returns by itself may require some

knowledge of the law, it is primarily an accounting service. Communications

relating to that service should therefore not be privileged, even though performed

by a lawyer.” Davis, 636 F.2d at 1043. The same is true of redistricting. Defendants

correctly note that “[t]he redistricting process is a constitutionally required

legislative activity that the U.S. Supreme Court has described as a ‘legal obstacle

course.’” Dkt. 107 at 4 (quoting Abbott v. Perez, 138 S. Ct. 2305, 2315 (2018)). But

Defendants’ myopic focus on compliance with redistricting laws overlooks their

critical concession: that “[t]he redistricting process is a constitutionally required

legislative activity.” Id. (emphasis added). It is for this reason that the

three-judge panel in South Carolina State Conference of NAACP v. Alexander

ordered documents to, from, and by Patrick Dennis—the general counsel and chief

of staff to the speaker of the South Carolina House of Representatives—produced

despite claims of privilege. See No. 3:21-cv-3302, 2022 WL 2375798, at *5–6

(D.S.C. Apr. 27, 2022). The panel found emails containing “legal analysis and

offer[ing] legal opinions” to be privileged, but it found that emails that did nothing

more than forward correspondence, or documents that were merely drafts

concerning “normal legislative business,” were “political and not legal in nature.”

Id. at *5–6. The panel drew a sharp distinction between “correspondence

concern[ing] legislative, not legal strategy.” Id. at *6.

In our great state of Texas, it is the constitutional duty of County

Commissioners Courts to divide their counties into precincts “according to the

most recent federal census, from time to time, for the convenience of the people.”

TEX. CONST. art. V, § 18. Phrased differently, redistricting is part and parcel of the

ordinary course of business of County Commissioners Courts. For this reason, I

find that the vast majority of Defendants’ attorney–client privilege and attorney

work product assertions are lacking in merit.

Let me provide an example. Defendants wish to claw back a spreadsheet that

Bryan prepared at Gordon and Torchinsky’s request “in order for them to

understand the lay of the land and conduct an initial analysis of the legal

considerations at play in the 2021 redistricting process for the Galveston County

Commissioners Court.” Dkt. 141-3 at 2. This spreadsheet “is a breakdown of the

population in Galveston County, based on the 2020 U.S. Census data and the

2016–2020 American Community Survey (ACS) estimates.” Id. Defendants

maintain that “this document—and the analysis and discussions that it facilitated

between Mr. Bryan and redistricting counsel—were fashioned exclusively within

the attorney-client relationship” and are “thus entitled to the attorney-client

privilege.” Id. at 3 (quotations omitted). But the spreadsheet contains only “specific

factual information”—underlying facts that are classically outside the privilege’s

protection. Alexander, 2022 WL 2375798, at *5. Even if the discussions between

Bryan and redistricting counsel are privileged—and I’m not saying they are—this

spreadsheet merely reveals part of “legislative process without revealing the

substantive communications [Bryan] exchanged with attorneys.” League of United

Latin Am. Citizens v. Abbott (“LULAC V”), 342 F.R.D. 227, 234 (W.D. Tex. 2022).

Accordingly, documents like these are not protected by the privilege.

Defendants also claim this document is protected by the attorney work

product doctrine. Defendants’ assertion that “the primary motiving purpose of

using redistricting counsel while preparing these documents was undoubtedly to

aid in being prepared for such litigation” (Dkt. 108 at 26–27) misses the mark.

Defendants had a constitutionally imposed legislative duty to redistrict when they

prepared these documents, so the documents were unquestionably “made in the

ordinary course of business and not in anticipation of litigation.” Jolivet, 340

F.R.D. at 18. For this reason, I agree with Plaintiffs that “Bryan’s description of the

map he drew is not possibly privileged.” Dkt. 141-4 at 3. Defendants could have

easily created this spreadsheet themselves or hired Bryan directly to do it for them.

That they chose to funnel this process through attorneys is their choice; but that

choice does not require this court to transform ordinary legislative activities into

attorney work product. I cannot put it any better than the United States District

Judge Stadtmueller from the Eastern District of Wisconsin:

If [the Commissioners Court] did not retain [Bryan] in anticipation of

litigation, then his work-product is not privileged. While [the

Commissioners Court] may have reasonably believed that litigation

would result from its redistricting efforts, the Court declines to hold

that [Bryan]’s work-product is privileged. To do so would be a slap in

the face to [Galveston County]’s citizens: essentially, the Court would

be saying that the [Commissioners Court] could shield all of its actions

from any discovery. [The Commissioners Court] could always have a

reasonable belief that any of its enactments would result in litigation.

That is the nature of the legislative process: it often involves

contentious issues that the public may challenge as_ being

unconstitutional. As such, if the [Commissioners Court] wished to

obscure its legislative actions from the public eye then, conceivably,

all it would need to do would be to retain counsel or other agent that

it termed to be “in anticipation of litigation.” The Court is unwilling to

travel that road, for it would “be both unseemly and a misuse of public

assets” to permit an individual hired with taxpayer money “to conceal

from the taxpayers themselves otherwise admissible evidence” of

allegedly unconstitutional motives affecting their voting rights.

Baldus, 2011 WL 6385645, at *2 (citation omitted) (quoting In re Witness Before

the Special Grand Jury 2000-2, 288 F.3d 289, 293 (7th Cir. 2002)).

For this reason, I am also ordering the redacted October 26, 2021 text

message exchange between Bryan and Gordon (DEFS00031806) produced.4 This

text exchange is just a conversation between coworkers concerning client

management and Galveston County’s legislative strategy. Gordon asking Bryan to

clarify his deliverables is also part and parcel of the ordinary legislative process of

redistricting. Nothing in this text exchange represents the giving or receiving of

legal advice. That Gordon is an attorney does not magically cloak this conversation

with privilege or transform it into attorney work product.

4 This text exchange is not captured on Defendants’ privilege logs, so I am addressing it

individually.

Keeping the above principles in mind, I am ordering Defendants to produce

the vast majority of documents they are withholding as attorney–client privileged

and/or attorney work product. My specific rulings are captured in the tables below:

Defendants’ Revised January 20, 2023 Privilege Log (Dkt. 162-2)

Doc ID Ruling

3 This email merely restates underlying facts. The restatement of

these underlying facts was provided as part of the preclearance

process, which is a legislative, not a legal activity. This information

is neither privileged nor attorney work product.

7 This correspondence concerns whether Galveston County needed

to submit tapes of public hearings to the DOJ, or only minutes for

the public hearings. Preclearance is part of the normal legislative

process.

17, 19, 20 This correspondence (two of these emails are merely forwards of

the underlying correspondence) seeks pre-existing, non-

privileged documents concerning Galveston County’s “legislative,

not legal strategy” and this correspondence “neither . . . seeks nor

gives legal advice.” Alexander, 2022 WL 2375798, at *6. That this

email was crafted by an attorney in response to a request for

information from the DOJ as part of the preclearance process does

not transform it into attorney work product. Preclearance is part

of the ordinary course of the legislative process, not litigation.

22–26 Lists of current or historical voting precincts and splits are

underlying facts. A draft list is the provision of “legislative, not

legal strategy” that “neither . . . seeks nor gives legal advice.” Id.

52 The Texas Constitution is itself an underlying fact. Copying and

pasting the law, without saying anything else at all, is not the

giving or receiving of legal advice, nor is it attorney work product.

55, 57 Defendants have already produced much of this particular chain,

which primarily concerns Ready repeating Oldham’s political

speculation regarding the timing for release of census data. Asking

or confirming when Oldham thinks census data will be released is

neither seeking nor giving legal advice—it is just continued

speculation about an entirely political/bureaucratic decision.

58 PRIVILEGED. This email seeks a legal opinion.

59–60 This correspondence is Bryan seeking guidance from Gordon

about the objective in crafting “the least change approach,” and

whether he could split precincts. This discussion is an underlying

fact regarding Galveston County’s “legislative, not legal strategy.”

Id. This correspondence “neither . . . seeks nor gives legal advice.”

Id. This is not attorney work product because it was prepared for

the purpose of redistricting, not litigation.

61–65 This email and the consideration of the attachments to it are

underlying facts about Galveston County’s “legislative, not legal

strategy.” Id. This correspondence “neither . . . seeks nor gives

legal advice.” Id. This is not attorney work product.

66–69 This is an email titled “Galveston Deliverables.” The email itself

has no substance and only three attachments: two maps and an

Excel spreadsheet. That Galveston County or its agents considered

this data analysis and these maps are underlying facts about a

“legislative, not legal strategy” and this correspondence

“neither . . . seeks nor gives legal advice.” Id. This is not attorney

work product.

70, 71 That this email and the corresponding map were considered by

Galveston County or its agents during the redistricting process are

underlying facts about a “legislative, not legal strategy” and this

correspondence “neither . . . seeks nor gives legal advice.” Id. This

is not attorney work product.

72 This is an email with the subject line “Updated table” and no

substantive text. The attached Excel spreadsheet is titled

“Galveston_Analysis 10_17_21.” A document lacking substance

cannot be privileged, nor can it be attorney work product. The fact

that the attachment was considered during the redistricting

process is an underlying fact regarding the legislative process.

73, 77 These Excel spreadsheets contain data that Galveston County and

its agents considered during the redistricting process. That certain

splits or analysis of data were considered is reflective of

“legislative, not legal strategy” and this document

“neither . . . seeks nor gives legal advice.” Id. These documents

constitute underlying facts and are neither privileged nor work

product.

74, 75 This is an email with the subject line “Optimal Geo Map” and no

substance. The attached map is titled “Galveston Texas Optimal

Geo Plan.” A document lacking substance cannot be privileged,

nor can it be attorney work product. The fact that this map was

considered by Galveston County or its agents during the

redistricting process—and to the extent that the subject line means

anything at all—these are underlying facts about a “legislative, not

legal strategy” and this correspondence “neither . . . seeks nor

gives legal advice.” Id.

76 This document literally says nothing more than “For our call.” This

non-substantive communication “neither . . . seeks nor gives legal

advice.” Id.

78, 80, This correspondence concerns the timing and logistics of

83, 84 redistricting, and reflects a “legislative, not legal strategy.” Id. The

most current voter counts in precincts/districts and the fact that

the law requires precincts over a certain number of active voters to

be split is as much an underlying fact as the amount of one’s

income and the need to itemize deductions over the standard

amount on your tax returns. See Davis, 636 F.2d at 1043. This

correspondence “neither . . . seeks nor gives legal advice.”

Alexander, 2022 WL 2375798, at *6.

82 This correspondence concerns the timeline for deliverables

pursuant to a legislative function. Copies of prior adoptions are

underlying facts. This correspondence “neither . . . seeks nor gives

legal advice.” Id.

85, 86, 88 This correspondence is about how to represent precinct and block

splits. This discussion is quintessentially “legislative, not legal

strategy” and it “neither . . . seeks nor gives legal advice.” Id.

92, 94, 96 This correspondence concerns “legislative, not legal strategy” and

“neither . . . seeks nor gives legal advice.” Id.

98, 102, This chain is about timing/formatting/scheduling of a “legislative,

104, 107, not legal strategy”; it “neither . . . seeks nor gives legal advice.” Id.

111

115, 118, Ready’s displeasure with the quality of HVTJ’s deliverables and

123, 127, issues with formatting are underlying facts regarding a legislative

131, 136 activity. This correspondence “neither . . . seeks nor gives legal

advice.” Id. Drummond’s discussion of “strategy as per procedural

aspects [and timing] of the special [session]” is not privileged. Id.

121 This is a pre-existing, public document from 2012. To the extent

Defendants believe it is privileged because it was used as a “go-by,”

they overlook that drafting orders is a quintessentially “legislative,

not legal strategy” and this document “neither . . . seeks nor gives

legal advice.” Id.

140 This correspondence concerns “legislative, not legal strategy” and

“neither . . . seeks nor gives legal advice.” Id.

152 This correspondence concerns the timing of a legislative activity

and “neither . . . seeks nor gives legal advice.” Id.

154–155 That Galveston County’s GIS Engineer proposed descriptions of

voting precincts is an underlying fact about a legislative activity.

This document “neither . . . seeks nor gives legal advice.” Id.

156–157 This email and the attached map are not clearly seeking or giving

legal advice. That various iterations of maps were considered as

part of the redistricting process is an underlying fact about a

legislative activity.

201, 213, This correspondence concerns “legislative, not legal strategy” and

231, 233, “neither . . . seeks nor gives legal advice.” Id. Ready’s discussion of

235, 278, “strategy as per procedural aspects of the special [session]” is not

295–299, privileged. Id. Ready telling HVTJ what is required to complete a

308 legislative activity while disclaiming “expertise in the applicable

legal requirements” is neither a request for nor the provision of

legal advice. Ready describing how documents were assembled is

an underlying fact regarding a legislative activity. Ready’s

satisfaction (or lack thereof) with the performance of outside

redistricting counsel—paid for with taxpayer money—is no more

privileged than an engagement letter. See In re Grand Jury

Subpoena, 926 F.2d 1423, 1431 (5th Cir. 1991) (“As a general rule,

client identity and fee arrangements are not protected as

privileged.”). Re-circulating an engagement letter is also not

privileged. Communications regarding client satisfaction neither

give nor seek legal advice. Changing agenda items and deciding

what versions of documents to use are legislative/administrative

tasks and underlying facts, not privileged discussions regarding

the giving/receiving of legal advice.

225 This correspondence concerns “legislative, not legal strategy” and

“neither . . . seeks nor gives legal advice.” Alexander, 2022 WL

2375798, at *6.

257, 259 This correspondence “neither . . . seeks nor gives legal advice.” Id.

To the extent that saying shapefiles are “Good to go,” such

communication concerns “legislative, not legal strategy.” Id.

325 ATTORNEY WORK PRODUCT. This email contains attorney

thoughts and impressions regarding impending litigation.

327 ATTORNEY WORK PRODUCT. This email contains attorney

thoughts and impressions regarding impending litigation.

339–340 Clark’s request for and Ready’s “draft responses to a journalist’s

inquiries are political and not legal in nature.” Id.

448, 453 PRIVILEGED. These emails contain legal advice related to

Galveston County’s response to the DOJ.

Defendants’ Revised April 14, 2023 Privilege Log (Dkt. 162-3)

Document Ruling

2434381 This communication describes in layman’s terms what is required

to conduct redistricting. It is a “how to” description of a legislative

process. It is not legal advice.

2865149, This communication is about getting a Resolution or Order of the

2873023, Commissioners Court adopting the precincts to the County Clerk.

3094248, This is an entirely bureaucratic discussion and is not legal advice.

3096786,

3098298

2867350 Saying that you are “still working on how to save” files is a

technical discussion; it is not seeking or giving legal advice.

2867865, This data is an underlying fact; it is not legal advice.

2867870,

2867876

2872068, This correspondence concerns alternative map proposals. This is a

2895905, purely legislative function. It does not matter that it was

3132914, outsourced to a law firm; it concerns legislative, not legal strategy

3248345 and is prepared in furtherance of that legislative function.

3038819 The Secretary of State Official Hispanic Report is a pre-existing

document/underlying fact. Asking for it is not seeking legal advice.

3115542, This correspondence seeks and/or transmits pre-existing,

3295671, non-privileged documents concerning Galveston County’s

3297551, “legislative, not legal strategy” and this correspondence

3304871 “neither . . . seeks nor gives legal advice.” Alexander, 2022 WL

2375798, at *6.

3130356 A lawyer stating that he did not receive a file so he created one

himself is not giving legal advice; it is a mundane bureaucratic task

that is part of the legislative process.

3131025 Data regarding a map proposal is an underlying fact, not the

seeking or giving of legal advice.

3146188, The question itself—which we do not see in this correspondence—

3148876 could potentially be privileged (or it could simply be part of the

legislative process), but simply citing two legal authorities without

anything else is not legal advice.

3271781 Draft redistricting documents are part of the legislative process;

they are not legal advice.

3290352, Asking someone to call you is neither seeking nor giving legal

3298513, advice.

3300806,

3302104

3298210, This correspondence seeks pre-existing, non-privileged

3305253 documents and underlying facts concerning a legislative process.

It neither seeks nor gives legal advice.

b. Commissioner Holmes’s Privilege Claims

Commissioner Holmes asserts that three documents in his possession are

covered by both the attorney–client privilege and the attorney work product

doctrine. For the reasons I have already stated above, the attorney work product

doctrine does not apply simply because Galveston County outsourced its

constitutionally required legislative duty to a law firm. As for the attorney—client

privilege, I find that it does not apply either. With respect to Item 19—

Commissioner Holmes’s correspondence with his own outside redistricting

counsel, Chad Dunn—Commissioner Holmes has stated that he will produce this

document if Defendants produce “the Oldham and Bryan material.” Dkt. 156 at 3.5

Because I am ordering that material produced, Commissioner Holmes’s claim of

privilege with respect to Item 19 is moot.® With respect to Items 10 and 11—

“Commissioner Holmes’s handwritten notes from his conversations with outside

counsel, Paul Ready and Dale Oldham” (Dkt. 156 at 3)—I need not decide whether

the attorney-client privilege belongs to Galveston County or Commissioner

Holmes, because these documents are also not privileged. The privilege applies

only to communications made “for the primary purpose of securing either a legal

opinion or legal services, or assistance in some legal proceeding.” BDO USA, L.L.P.,

876 F.3d at 695 (quotation omitted). Nothing in these documents suggests that

Commissioner Holmes asked Ready or Oldham for legal advice or that they gave

him legal advice.” Rather, these notes show the same thing as all of Defendants’

non-privileged documents: discussions about the who, what, when, where, and

5 In making this concession, Commissioner Holmes has presumably waived any assertion

of legislative privilege over these documents, too.

6 Even if it were not moot, I would find this correspondence not covered by the attorney—

client privilege for the same reason that I have found the vast majority of Defendants’

documents not privileged: this correspondence concerns “legislative, not legal strategy”

and “neither... seeks nor gives legal advice.” Alexander, 2022 WL 2375798, at *6.

7 I am a tad confused as to which documents Commissioner Holmes is claiming are

attorney—client privileged. The dispute letter says that 000181—000191 are “Holmes’s

handwritten notes from his conversations with outside counsel, Paul Ready and Dale

Oldham.” Dkt. 156 at 3. But it looks like only 000181 and 000184 reflect conversations

with Ready and Oldham. Regardless, nothing in 000181-000191 reflects a

communication made “for the primary purpose of security either a legal opinion or legal

services, or assistance in some legal proceeding.” BDO USA, L.L.P., 876 F.3d at 695.

15

how of accomplishing the Commissioners Court’s legislative responsibility to

redistrict. These are not attorney–client privileged communications.

c. NAACP Plaintiffs’ Privilege Claims

NAACP Plaintiffs have withheld one document on the basis of attorney–

client privilege. In their log, NAACP Plaintiffs state that this document “mentions

[a] request for legal advice.” Dkt. 148-1 at 2. That’s true, but the mere mention of

requesting legal services is not itself privileged, particularly when that mention is

not even made to an attorney. In their dispute letter, NAACP Plaintiffs make no

further attempt to explain why this document is attorney–client privileged, and I

do not believe it is. Unless covered by some other privilege, which it is not, this

document must be produced.

B. LEGISLATIVE PRIVILEGE

1. Legal Principles

The legislative privilege “is an evidentiary privilege, ‘governed by federal

common law, as applied through Rule 501 of the Federal Rules of Evidence.’”

Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov’t (“Jefferson”), 849

F.3d 615, 624 (5th Cir. 2017) (quoting Perez v. Perry, No. 11-CV-360, 2014 WL

106927, at *1 (W.D. Tex. Jan. 8, 2014)). “The [legislative] privilege applies to any

documents or information that contains or involves opinions, motives,

recommendations or advice about legislative decisions between legislators or

between legislators and their staff.” La Union del Pueblo Entero v. Abbott, No. 21-

cv-00844, 2022 WL 1667687, at *2 (W.D. Tex. May 25, 2022) (quotation omitted).

“[A] primary purpose of the legislative privilege [is] shielding lawmakers from the

distraction created by inquiries into the regular course of the legislative process.”

In re Hubbard, 803 F.3d 1298, 1311 (11th Cir. 2015).

To understand what, precisely, the legislative privilege covers, it may be

helpful to understand what it should not cover:

Factual matter collected for the information and use of

legislators should not be privileged, even if collected and

communicated by a personal staff member. Factual summaries in an

advisory communication, if severable from confidential portions,

should also not be privileged. Further, information which does not

reveal the content of communications with a legislator should not be

privileged.

Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of Health & Rehab. Servs.

(“Florida”), 164 F.R.D. 257, 267–68 (N.D. Fla. 1995).

“Both [the Fifth Circuit] and the Supreme Court have confirmed that the

state legislative privilege is not absolute.” League of United Latin Am. Citizens v.

Abbott (“LULAC”), No. 22-50407, 2022 WL 2713263, at *1 (5th Cir. May 20, 2022).

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

Jefferson, 849 F.3d at 624. The Fifth Circuit has instructed:

The state legislative privilege must be protected when it arises;

at the same time, the privilege must not be used as a cudgel to prevent

the discovery of non-privileged information or to prevent the

discovery of the truth in cases where the federal interests at stake

outweigh the interests protected by the privilege.

LULAC, 2022 WL 2713263, at *2. The legislative privilege “must be strictly

construed and accepted only to the very limited extent that permitting a refusal to

testify or excluding relevant evidence has a public good transcending the normally

predominant principle of utilizing all rational means for ascertaining the truth.”

Jefferson, 849 F.3d at 624 (quoting Perez, 2014 WL 106927, at *1).

“[I]n deciding whether and to what extent the [legislative] privilege should

be honored, the Court must balance the extent to which production of the

information sought would chill the [legislature’s] deliberations concerning such

important matters as redistricting against any other factors favoring disclosure.”

Rodriguez v. Pataki, 280 F. Supp. 2d 89, 100 (S.D.N.Y. 2003), aff’d, 293 F. Supp.

2d 302 (S.D.N.Y. 2003). There are five factors a district court should weigh when

determining whether the legislative privilege should be honored:

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

availability of other evidence; (iii) the seriousness of the litigation and

the issues involved; (iv) the role of the government in the litigation;

and (v) the possibility of future timidity by government employees

who will be forced to recognize that their secrets are violable.

Id. at 101 (quotation omitted) (“the Rodriguez factors”). 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.” Veasey v. Perry, No. 13–193, 2014 WL 1340077, at

*2 (S.D. Tex. April 3, 2014) (cleaned up).

2. Application

Commissioner Holmes asserts that five documents—items 1, 2, 11, 19, and

27—are covered by the legislative privilege. I will start with the easy ones:

Holmes 000003 (part of Item 1). This page is Commissioner Holmes’s

handwritten notes reflecting a June 30, 2011 meeting between himself and

Galveston County’s outside redistricting counsel: Joe Nixon and Trey Trainor.

Redistricting counsel are outsiders. Communications with them are not covered by

the legislative privilege:

While legislators are certainly free to seek information from outside

sources, they may not assume that every such contact is forever

shielded from view. A contrary ruling would allow a legislator to cloak

any communication with legislative privilege by simply retaining an

outsider in some capacity. Thus, to the extent that [Commissioner

Holmes] relied on reports or recommendations generated by outside

consultants . . . [he] waived their legislative privilege as to these

documents.

Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 11 C 5065, 2011

WL 4837508, at *10 (N.D. Ill. Oct. 12, 2011) (cleaned up). This page must be

produced.

Holmes 000005–000034 (part of Item 2) and Holmes 000189–

000191 (part of Item 11). These pages are Commissioner Holmes’s handwritten

notes of public redistricting meetings from 2011 and 2021, respectively. They do

not reflect “opinions, motives, recommendations or advice about legislative

decisions between legislators or between legislators and their staff.” La

Union del Pueblo Entero, 2022 WL 1667687, at *2 (emphasis added). These notes

are not covered by the privilege and must be produced.

Holmes 000181, 000184 (part of Item 11). These pages are

Commissioner Holmes’s handwritten notes reflecting meetings between himself,

Oldham, and others. Oldham is an outsider and communications with him are not

covered by the privilege. See Comm. for a Fair & Balanced Map, 2011 WL

4837508, at *10. These pages must be produced.

Item 19. This is Commissioner Holmes’s correspondence with his

redistricting counsel, Chad Dunn. Commissioner Holmes’s communications with

his own outside redistricting counsel are no more protected by the legislative

privilege than his communications with Galveston County’s outside redistricting

counsel. See id. Additionally, Commissioner Holmes has waived any claim of

privilege as to Item 19 by agreeing to produce it if I order Defendants to produce

communications from Oldham and Bryan to Galveston County. See Dkt. 156 at 3.

As stated above, I am ordering Defendants to produce Oldham and Bryan’s

communications with Galveston County, so I expect Commissioner Holmes to

produce Item 19.

As an aside, I believe Commissioner Holmes may have also waived his

legislative privilege as to some of the remaining portions of Item 1 and Item 11.8

“Unlike a waiver of legislative immunity, the waiver of the [legislative] privilege

need not be explicit and unequivocal, and may occur either in the course of the

litigation when a party testifies as to otherwise privileged matters, or when

purportedly privileged communications are shared with outsiders.” Favors v.

Cuomo, 285 F.R.D. 187, 211-12 (E.D.N.Y. 2012) (cleaned up); see also Comm. for

a Fair & Balanced Map, 2011 WL 4837508, at *10 (“As with any privilege, the

legislative privilege can be waived when the parties holding the privilege share

their communications with an outsider.”). According to Defendants, the United

8 The remainder of Item 1 (Holmes 000001—000002, 000004) are Commissioner

Holmes’s handwritten notes from 2011 regarding his communications with other

Commissioners and their staff. The remainder of Item 11 (Holmes 000182-—000183,

000185—000188) are Commissioner Holmes’s handwritten notes from 2021 phone calls

and meetings with other Commissioners and/or their staff.

19

States has “produced a privilege log indicating two withheld documents described

as ‘Attorney notes and mental impressions of interview with Stephen Holmes

conducted for litigation purposes.” Dkt. 136 at 1. The United States’ First Amended

Complaint (“USA FAC”)? contains several allegations that are specific to

Commissioner Holmes and the extent of his participation in the 2021 Redistricting

Plan. See USA FAC at 9 (“None of the other members of the commissioners court

communicated with or otherwise involved Commissioner Holmes.”); id. at 10

(“Commissioner Holmes... has stated that throughout [the redistricting] process,

he was excluded from discussions with Defendant Henry and the other

commissioners.”). Because Defendants raised the issue of waiver in the joint

dispute letter, I asked Commissioner Holmes to confirm whether he provided

copies to, or had made any plaintiff or any plaintiff's counsel aware of the contents

of Items 1, 2, and 11. To his credit, Commissioner Holmes admits that he “did not

provide copies, but it is possible that he reviewed his notes and made the DOU,

through its counsel, aware of some of the contents of Items [1, 2, and

11].” Dkt. 166 at 1 (emphasis added). I am particularly struck by the fact that one

allegation in the USA FAC appears to parallel a page of notes—dated September

23, 2021—that Commissioner Holmes is withholding. Compare USA FAC at 11

(“During a September 23, 2021, meeting with the County’s redistricting counsel,

Commissioner Holmes provided the County’s redistricting counsel with his views

as to those changes to Precinct 3 that he believed to be necessary and

appropriate.”), with Holmes 000183 (appearing to capture these changes).

Nevertheless, I need not waste time and resources on the question of waiver,

because even if Commissioner Holmes has not waived the privilege, I still find that

the majority of these notes should be produced because the interests at stake

outweigh the interests protected by the legislative privilege.

9 This pleading was filed before the underlying cases were consolidated. It can be located

on the docket for United States v. Galveston County, No. 3:22-cv-93 (S.D. Tex. May 31,

2022), ECF No. 30.

20

As noted, the legislative privilege is not absolute. I must weigh the five

Rodriguez factors to determine if documents covered by the legislative privilege

must nevertheless be produced. The seriousness of the litigation (factor 3), the

government’s role in the litigation (factor 4), and the (low) possibility of future

timidity by governmental employees (factor 5) all weigh in favor of disclosure.

“Plaintiffs raise profound questions about the legitimacy of the redistricting

process and the viability of the [2021 Redistricting Plan]. Moreover, the legislators’

role in the allegedly unlawful conduct is direct. . . . These actions are under

scrutiny.” Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *8. “[T]his is

not the usual [legislative privilege] case in which a private party . . . seeks

documents . . . and the government tries to prevent its decisionmaking process

from being swept up unnecessarily into public. Here, the decisionmaking process

is not swept up into the case, it is the case.” United States v. Bd. of Educ. of Chi.,

610 F. Supp. 695, 700 (N.D. Ill. 1985) (quotation marks omitted). Nor is this a case

in which the redistricting process is being challenged solely on the basis of the

enacted maps. Rather, Commissioner Holmes voluntarily engaged the United

States to lament his exclusion from the process and, despite not being a party, he

is undoubtedly a central piece of this litigation. See Dkt. 156 at 2 (collecting

allegations regarding Commissioner Holmes from all three operative pleadings). I

cannot, with a straight face, say that disclosure would “chill legislative debate” or

“discourage earnest discussion within governmental walls,” when the allegations

here are that there was no legislative debate or earnest discussion. Comm. for a

Fair & Balanced Map, 2011 WL 4837508, at *9.

With three factors out of the way, I note that the factors of relevance (factor

1) and availability of other evidence (factor 2) vary from page to page. So, I will

address each of the remaining pages in turn.

Holmes 000001–000002, and 000004 are Commissioner Holmes’s

handwritten notes of communications he had with fellow legislators in 2011,

primarily Commissioner Clark. These notes predate this litigation by more than a

decade. Nevertheless, “to evaluate claims of racial vote dilution under the

Fourteenth Amendment, courts rely on the totality of the circumstances test.”

Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *3 (citing Rogers v.

Lodge, 458 U.S. 613, 618 (1982)). Under the totality of the circumstances,

“exclusion from the political process” and “historical background” matter. See id.

Thus, it is no surprise that the USA FAC discusses not only Commissioner

Holmes’s exclusion in 2021, but also in the creation of the 2013 justice of the peace

plan. See USA FAC at 9 (“None of the other members of the commissioners court

communicated with or otherwise involved Commissioner Holmes . . . in the

creation of this 2013 justice of the peace plan.”). Accordingly, this information is

relevant. The only question then is whether other evidence is available. Perhaps it

is, but stacked up against four other factors weighing in favor of disclosure, the

availability of other evidence is not, standing alone, enough to prevent disclosure

here. These pages must be produced.

Holmes 000182 (part of Item 11). This page is Commissioner Holmes’s

handwritten note reflecting a communication with “Engineering.” I am not

convinced that this page is even covered by the privilege because it does not reflect

“opinions, motives, recommendations or advice about legislative decisions

between legislators or between legislators and their staff.” La Union del Pueblo

Entero, 2022 WL 1667687, at *2. But even if this page were covered by the

privilege, “communications with technical employees who provide information to

legislators collectively, but who do not advise a particular legislator as his or her

personal staff, at best deserve weak deference in the balancing of competing

interests.” Favors, 285 F.R.D. at 212 (quotation omitted). This page should be

produced.

Holmes 000183, Holmes 000185–000188 (part of Item 11).

Holmes 000183 is Commissioner Holmes’s handwritten notes from September 23,

2021, regarding various precincts. The remaining pages are Commissioner

Holmes’s handwritten notes from calls or meetings with Drummond and

Commissioner Apffel in the fall of 2021. Based on the USA FAC, it seems

Commissioner Holmes has already discussed the content of his September 23,

2021 notes with the Department of Justice. See USA FAC at 11. Even if he has not,

any document tending “to make a fact more or less probable than it would be

without the evidence” is relevant. FED. R. EVID. 401(a). Relevance cuts both ways.

Whether Commissioner Holmes’s notes help or hurt one side or the other, they

unquestionably tend to make the allegations and defenses in this litigation more

or less probable. Yet, Commissioner Holmes argues that “Defendants have control

of the witnesses whom they claim kept Commissioner Holmes involved and

adequately responded to him. They can proffer those witness testimonies without

rummaging through Commissioner Holmes’ privileged materials.” Dkt. 156 at 4. It

is true that the testimony of other witnesses is available in addition to

Commissioner Holmes’s notes. But weighed against four other very compelling

factors, I must order these pages produced.

Item 27. Item 27 is an emailed screenshot of a text message from Annye

Watson (“Watson”), a member of Commissioner Holmes’s staff. This text message

is merely passing along factual information about Annye’s contact with an

outsider. Item 27 must be produced.

C. FIRST AMENDMENT PRIVILEGE

Defendants have asked that I review 24 documents that NAACP Plaintiffs

have withheld on the basis of First Amendment privilege. NAACP Plaintiffs first

respond that “Defendants’ challenge is untimely” because they waited six weeks to

raise this issue. Dkt. 148 at 2. Defendants point out that they began conferring with

NAACP Plaintiffs before the close of discovery. I agree with NAACP Plaintiffs that

Defendants’ challenge came at the “eleventh-hour.” Id. Nevertheless, once a

dispute is before me, I like to resolve it on the merits.

1. Legal Principles

The First Amendment “privilege protects against a forced ‘[d]isclosure[] of

political affiliations and activities’ that would have a deterrent effect on the exercise

of free speech or freedom of association rights.” La Union del Pueblo Entero, 2022

WL 17574079, at *6 (quoting Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th

Cir. 2010)); see also In re Motor Fuel Temperature Sales Pracs. Litig., 641 F.3d

470, 479 (10th Cir. 2011) (“[T]he First Amendment privilege generally guarantees

the right to maintain private associations when, without that privacy, there is a

chance that there may be no association and, consequently, no expression of the

ideas that association helps to foster.”).

First Amendment privilege claims are generally evaluated under a two-part

test. The party asserting the privilege must first make “a prima facie showing of

arguable First Amendment infringement.” La Union del Pueblo Entero, 2022 WL

17574079, at *6. “This prima facie showing requires the party to prove that

enforcement of the discovery requests will result in (1) harassment, membership

withdrawal, or discouragement of new members, or (2) other consequences which

objectively suggest an impact on, or chilling of, the members’ associational rights.”

Id. Upon making a prima facie showing, the burden shifts to the requesting party

to establish that the information sought “is sufficient to justify the deterrent effect

on the free exercise of the constitutionally protected right of association.” Id.

2. Application

Defendants contend that NAACP Plaintiffs have not made a prima facie

showing of First Amendment privilege. I agree. I allowed NAACP Plaintiffs to

submit whatever affidavits they thought relevant to their First Amendment

privilege claims, and they provided two declarations. See Dkts. 167-1, 167-2. These

declarations are self-serving and conclusory. But before I turn to the substance of

the declarations, I want to highlight how far afield Defendants’ request, and the

documents themselves, are from the cases on which NAACP Plaintiffs rely.

In Young Conservatives of Texas Foundation v. University of North

Texas—a case that NAACP Plaintiffs cite for the proposition that their interest here

is “self-evident”—the court was confronted with a discovery request for

“membership information.” No. 4:20-cv-973, 2022 WL 2901007, at *1, 3 (E.D.

Tex. Jan. 11, 2022) (emphasis added). Defendants here are expressly “not

requesting any membership lists. To the extent [membership] information is

included in the withheld documents, it can be redacted prior to production.” Dkt.

148 at 1. Similarly, in The Ohio Organizing Collaborative v. Husted, the court was

faced with “challenged requests [that] would require the disclosure of a wealth of

financial, donor, membership, and strategic information – information that goes

far beyond the issue of standing or even the merits of this action.” No. 2:15-CV-

01802, 2015 WL 7008530, at *3 (S.D. Ohio Nov. 12, 2015). Here, NAACP Plaintiffs

argue that “[t]he challenged documents consist of internal, deliberative and

strategic organizational communications.” Dkt. 148 at 3. I have a hard time taking

this statement seriously. At least one document is nothing more than the exchange

of internet links. See KD0222WF00005335. There is no substantive

communication whatsoever. Producing this document would not result in the

“compelled disclosure” of people’s “personal political and moral views.” Perry, 591

F.3d at 1163. And when you consider Defendants’ concession that member

identities be redacted, it is hard to see how disclosure of this document could result

in any consequence.

NAACP Plaintiffs seem to take the position that any disclosure of an

association’s internal communications is tantamount to the requests at issue in

Young Conservatives, Husted, and Perry, without regard to what the requested

documents actually say (or, in this case, don’t say). But NAACP Plaintiffs must

establish that disclosure of the documents on their privilege log would

result in harassment, a chilling of associational rights, or other consequences. This

they cannot do, particularly when Defendants have already conceded that

membership information be redacted, and there is a protective order in place. See

Dkt. 121. Against this backdrop, the declarations fall woefully short of a prima facie

showing. For example, stating that “forcing the disclosure of confidential

communications between NAACP members would violate our First Amendment

rights to free speech and association because it would have a chilling effect on the

ability of individuals and groups to engage in candid, frank discussions about

issues of importance to our communities” is a textbook example of a legal

conclusion. Dkt. 167-2 at 3. Importantly, neither of the declarations’ authors state

that they personally would be less inclined to take a leadership position or to speak

freely if these documents were disclosed." In fact, one author appears to not even

understand how little Defendants are asking to be disclosed, because “disclosure

of documents that reveal NAACP leaders’ names” is not even at issue. Id. This is

simply insufficient to make a prima facie showing. Accordingly, I am ordering all

of the documents on NAACP Plaintiffs’ privilege log produced. Any

membership-identifying information should be redacted and the documents can

be produced as CONFIDENTIAL, in accordance with the Protective Order. See Dkt.

121 at 2.

CONCLUSION

For the reasons stated above, Plaintiffs’ Motions to Compel (Dkts. 102, 103)

are DENIED as to the following privileged documents on Defendants’ January 20,

2023 privilege log: Doc IDs 58, 325, 327, 448, 453. In all other respects, Plaintiffs’

Motions to Compel (Dkts. 102, 103) are GRANTED. Defendants are ORDERED

to produce to Plaintiffs all documents that I have identified above as unprotected

by the attorney-client privilege or attorney work product doctrine no later than

Tuesday, May 16, 2023. Commissioner Holmes and NAACP should likewise

11 To the extent the declarations discuss harassment, the harassment is about a third party

who is an elected official. See Dkt. 167-1 at 3 (“I am aware that there is harassment of a

member of the Dickinson Bay Area NAACP who is a La Marque city counsellor.”); Dkt.

167-2 at 3 (“[A]n officer of my unit is a local elected official and spoke out about various

issues and had to face racialized attacks and a recall campaign. Her family was threatened

and called racial slurs, and her dog was poisoned.”). Yet, the authors make no attempt to

explain how this harassment is based on NAACP membership and not the third party’s

status as an elected official. Even if that third party had submitted a declaration, I would

still want to know how disclosing redacted copies of listserv emails about training events

or redacted emails showing nothing more than the exchange of internet links is likely to

lead to harassment or the chilling of associational rights.

26

produce all documents on their respective privilege logs no later than Tuesday,

May 16, 2023.

SIGNED this 15th day of May 2023.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE