The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
STATE OF TEXAS, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-cv-1303
) (RMC)
UNITED STATES OF AMERICA, and )
ERIC HOLDER, JR., in his official capacity )
as Attorney General of the United States, )
)
Defendants, )
)
and )
)
WENDY DAVIS, et al., )
)
Defendant-Intervenors. )
)
__________________________________________)
MEMORANDUM OPINION ON PRIVILEGE CLAIMS
The State of Texas seeks preclearance of its redistricting plans for the U.S. House
of Representatives, State House of Representatives, and State Senate, pursuant to the Voting
Rights Act of 1965, as amended (“VRA”), 42 U.S.C. § 1973 et seq.1 Preparing for trial in
January 2012, the parties have reached a discovery impasse: Texas claims that the attorney-client
privilege, the attorney work-product doctrine, and State legislative and statutory privileges shield
various materials from production or testimony here. The parties filed simultaneous briefs, and
the Court treats those filed by Defendants and Defendant-Intervenors as motions to compel.
1
The Court’s December 22, 2011 Opinion recites the factual and statutory background of
this case. See Mem. Op. [Dkt. # 115].
The disputed material falls into three categories. First are communications
between key members of the State Legislature and the three legislative staffers who drew the
maps at issue: Doug Davis, counsel to State Senator Kel Seliger, Chair of the State Senate
Redistricting Committee; Ryan Downton, counsel to the State House Redistricting Committee
under Chair Burt Solomons; and Gerardo Interiano, counsel to Joe Straus, Speaker of the State
House of Representatives. Each staff counsel will be called as a witness for Texas at trial. Texas
claims all such communications are not subject to discovery. Second are communications
between the Texas Legislative Council and key members of the State Legislature or their staffs.
David Hanna, an attorney employed by the Council, has been identified as a witness for Texas
during trial. Texas claims that communications from Mr. Hanna are privileged. Last are
documents containing summaries of racially polarized voting analyses prepared by technical staff
of the Office of the Texas Attorney General (“OAG”). Mr. Giberson prepared the summaries; he
will be one of Texas’ witnesses at trial. Texas interposed the attorney-client privilege and
attorney work-product doctrine when it refused discovery requests from the United States for the
summaries.
The United States has asked the Court to resolve these claims by the morning of
January 4, 2012, when it has scheduled the depositions of David Hanna and Clare Dyer, another
employee of the Texas Legislative Council. Defendant-Intervenors, the Texas Latino
Redistricting Task Force and Wendy Davis, et al. (“Davis Intervenors”), and have also filed
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motions disputing Texas’ claims of privilege.2
Taking its cue from the District Court for the Western District of Texas, which
has a Section 2 VRA case before it,3 the Court will not decide whether a State legislative
privilege exists and follows into federal court, since Texas will provide all relevant documents
under seal. Publication of such documents, if necessary, can be determined at trial. The
evidence does not support the claimed attorney-client relationships or application of the attorney
work-product doctrine; if Texas wishes to pursue any such privilege, it must provide evidentiary
support. Finally, the Court sees nothing in the Texas Government Code or otherwise to support a
claim of a legal privilege — to be distinguished from confidentiality — between the State
Legislature and the Texas Legislative Council. Except as otherwise specified, Texas will be
ordered to produce the requested documents.
I
The proponent of a privilege in federal court bears the burden of demonstrating
facts sufficient to establish the privilege’s applicability. In re Subpoena Duces Tecum, 439 F.3d
740, 750 (D.C. Cir. 2006); see Alexander v. F.B.I., 192 F.R.D. 32, 33-34 (D.D.C. 2000) (a party
bringing a motion to compel bears the initial burden of showing that the information is relevant
and discoverable; then the burden shifts to the defendant to prove that the information is
privileged). The “basis of privilege” must be “adequately established in the record,” Liberty
2
The Court recognizes the unremitting work of the attorneys for all parties, on this matter
and others concerning Texas redistricting, and thanks them for their tremendous efforts —
especially on these briefs, filed in the midst of the holiday season and as they were preparing for
oral argument in the Supreme Court on January 9, 2012, and trial in this matter on January 17,
2012. No client could ask for more dedication to its interests.
3
See Perez v. Perry, Civ. No. 5:11-cv-360 (W.D. Tex.).
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Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1303 (D.C. Cir. 1988), through evidence
sufficient to establish the privilege “with reasonable certainty.” FTC v. TRW, Inc., 628 F.2d 207,
213 (D.C. Cir. 1980).
A. Attorney-Client Privilege
“The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389
(1981). 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.” Id. A party asserting the attorney-client privilege must demonstrate that: (1) the
asserted holder of the privilege is or sought to become a client; (2) the person to whom the
communication was made (a) is a member of the bar of a court or her subordinate and (b) in
connection with this communication is acting as a lawyer; (3) the communication relates to a fact
of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for
the purpose of securing primarily either (i) an opinion on the law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort;
and (4) the privilege has been (a) claimed and (b) not waived by the client. In re Sealed Case,
737 F.2d 94, 98-99 (D.C. Cir. 1984). The privilege attaches to an attorney’s communication with
his client “only insofar as the attorney’s communications disclose the confidential
communications from the client.” Evans v. Atwood, 177 F.R.D. 1, 4 (D.D.C. 1997) (quoting
Brinton v. Dep’t of State, 636 F.2d 600, 603-04 (D.C. Cir. 1980)). “A blanket assertion of the
privilege will not suffice. Rather, the proponent must conclusively prove each element of the
privilege.” In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998) (internal citation and quotation
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omitted).
The attorney-client privilege does not protect any and all communications
between a client and a lawyer. Courts tend to apply the privilege narrowly because it blocks full
disclosure of relevant information. Routine routing of information through counsel, for instance,
may not result in a privileged communication. See S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d
1377, 1383 (Fla. 1994). The privilege does not ordinarily protect a client’s identity. United
States v. BDO Seidman, 337 F.3d 802, 811 (7th Cir. 2003). While the privilege may protect the
content of an attorney-client communication from disclosure, it may not protect the facts
communicated. Mackey v. IBP, Inc., 167 F.R.D. 186, 200 (D. Kan. 1996). Both clients and
lawyers can waive the attorney-client privilege. See, e.g., Alexander v. FBI, 186 F.R.D. 128, 134
(D.D.C. 1998).
If a party intentionally waives the attorney-client privilege for part of a
conversation or communication, the privilege as to rest of that communication and for any
communication related to the same subject matter also is waived, if in fairness they ought to be
considered together. See Fed. R. Evid. 502(a); Williams & Connolly v. S.E.C., No. 10-5330,
2011 WL 6118584, *2 (D.C. Cir. Dec. 9, 2011). A court “retains broad discretion in deciding the
appropriate scope of a waiver.” In re United Mine Workers of Am. Employee Benefit Plans
Litig., 159 F.R.D. 307, 309 (D.D.C. 1994). Once a privilege has been waived and privileged
information made public, the information remains public for all purposes. See Navajo Nation v.
Peabody Holding Co., Inc., 209 F. Supp. 2d 269, 284-84 (D.D.C. 2002) (to the extent documents
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were made public, any claim of privilege must fail).4
B. Attorney Work-Product Doctrine
The Federal Rules of Civil Procedure protect from discovery “documents and
tangible things that are prepared in anticipation of litigation or for trial by or for another party or
its representative.” Fed. R. Civ. P. 26(b)(3). The purpose of the doctrine is to protect the
adversary process by ensuring that lawyers work with a “degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495,
510 (1947). The work-product doctrine “protects factual materials prepared in anticipation of
litigation.” Tax Analysts v. Internal Revenue Service, 117 F.3d 607, 620 (D.C. Cir. 1997).
Thus, “[a]ny part of [a document] prepared in anticipation of litigation, not just the portions
concerning opinions, legal theories, and the like, is protected by the work[-]product doctrine
. . . .” Id. It is “not necessary that litigation be threatened or imminent, as long as the prospect of
litigation is identifiable because of claims that have already arisen.” Nat’l Tank Co. v.
Brotherton, 851 S.W.2d 193, 205 (Tex. 1993). Work-product immunity is held by the lawyer,
not the client, although either may assert the doctrine during discovery. “The party invoking the
privilege, however, has the burden of proving that the memoranda qualify as work product.”
Hager v. Bluefield Regional Medical Center, Inc., 170 F.R.D. 70, 76 (D.D.C. 1997). “In
reviewing the documents claimed to be protected by the work-product privilege, the court must
determine whether, in light of the nature of the document or the factual situation in a particular
4
Federal Rule of Evidence 502, effective September 19, 2008, eased the waiver doctrine
regarding the scope of waiver upon inadvertent disclosure, see Williams v. Dist. of Columbia, No.
06-02076(CKK), 2011 WL 3659308, *3 (D.D.C. Aug. 17, 2011), but did not change the waiver
principles cited here.
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case, the document can fairly be said to have been prepared or obtained because of the prospect
of litigation.” Jinks-Umstead v. England, 231 F.R.D. 13, 15 (D.D.C. 2005).
Because protection for attorney work-product is based on a legal doctrine, and not
a “privilege,” the protection is qualified and not absolute; it can be overcome if a party “shows
that it has substantial need for the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii); see
also Equal Rights Ctr. v. Post Properties, Inc., 247 F.R.D. 208, 211-12 (D.D.C. 2008). Courts
do not recognize the privilege where to do so would undermine the discovery process and
deprive the Court of important evidence. Ex rel. Fago, 242 F.R.D. 16, 19 (D.D.C. 2007). The
work-product doctrine relies, in the first instance, on the existence of an attorney-client
relationship.
Texas claims the work-product doctrine protects from discovery three documents
reflecting communications between Mr. Hanna of the Texas Legislative Council and unidentified
members of the Legislature on April 6, 12, and 20 of 2011. See Texas Br. [Dkt. #122] at 6 n.2.
Texas reports that the first redistricting lawsuit was Teuber v. State of Texas, Civ. No. 4:11-cv-
00059 (E.D. Tex.), filed on February 10, 2011, a necessary precursor to applicability of the
doctrine. The Teuber suit challenged the Texas’ former voting districts and sought to require the
Census Bureau to adjust the census figures used in redistricting to account for undocumented
aliens; it did not involve any challenge to 2011 redistricting efforts by the State Legislature. See
U.S. Resp. [Dkt. #125], Ex. 4 (Teuber Complaint).
C. State Legislative Privilege
There is no state legislative privilege identified in the Federal Rules of Evidence
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and the D.C. Circuit has never recognized one.5 The United States urges the Court to avoid
recognizing such a privilege in this case. Equating immunity for legislative acts to privilege for
legislators’ communications, Texas asserts that “state legislators enjoy common-law immunity
from liability for their legislative acts, an immunity that is similar in origin and rationale to that
accorded Congressmen under the Speech or Debate Clause.” See Supreme Court of Virginia v.
Consumers Union of the U.S., Inc., 446 U.S. 719, 732 (1980). Texas argues that “[e]ffectuating
the intentions of the legislative immunity doctrine, legislators acting within the realm of
legitimate legislative activity, should not be required to be a party to a civil action concerning
legislative activities, nor should they be required to testify regarding those actions.” Texas Br. at
9 (quoting Miles-Un-Ltd., Inc. v. Town of New Shoreham, 917 F. Supp. 91, 98 (D.N.H. 1996)).
Texas particularly relies on Supreme Court dicta, noting that “[i]n some extraordinary instances
the members [of the decisionmaking body] might be called to the stand at trial to testify
concerning the purpose of the official action, although even then such testimony will frequently
be barred by privilege.” Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 268 (1977).
D. Texas Government Code § 323.017
Under Texas State law, the Texas Legislative Council is “an agency of the
legislative branch of state government.” Tx. Gov’t Code § 323.001(a). The Council consists of
the Lieutenant Governor, the Speaker of the State House of Representatives, the Chair of the
5
A legislative privilege has been recognized by the Circuit for members of the U.S.
House of Representatives and Senate, rooted in the Speech and Debate Clause of the Constitution
and federal statutes. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C.
Cir. 1995).
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State House Administration Committee, six State senators and five other members of the State
House of Representatives. Id. § 323.001(b). “The lieutenant governor and the speaker act as the
council during a regular legislative session.” Id. § 323.001(f). State law establishes the duties of
the Texas Legislative Council as follows:
(a) The Council shall:
(1) study and investigate the functions and problems of
state departments, agencies, and officers;
(2) conduct investigations and studies and make reports that
may be considered useful to the legislative branch of state
government;
(3) gather and disseminate information for the legislature’s
use;
(4) meet and perform council functions during the
legislative interim;
(5) make periodic reports to all members of the legislature
and keep the legislature fully informed of all issues that
may come before the council, any action taken on an issue,
and the progress made on an issue;
(6) report council recommendations to the legislature and,
if appropriate, provide drafts of legislation with the report;
(7) assist the legislature in drafting proposed legislation;
(8) provide data-processing services to aid members and
legislative committees in accomplishing their legislative
duties.
(b) By agreement with either house of the legislature or a
legislative agency, the council may perform other services or
functions for or on behalf of the house or agency.
Id. § 323.006. Many of these duties are non-legal.
Section 323.017 directly speaks to Confidential Communications between
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members of the State Legislature and the Texas Legislative Council. It provides:
Communications, including conversations, correspondence, and
electronic communications, between a member of the legislature or
the lieutenant governor or an assistant or employee of the council
that relate to a request by the official for information, advice, or
opinions from an assistant or employee of the council are
confidential. Information, advice, and opinions given privately by
an assistant or employee of the council to a member of the
legislature, or the lieutenant governor, acting in the person’s
official capacity, are confidential. However, the member or
lieutenant governor may choose to disclose all or a part of the
communications, information, advice, or opinions to which this
section applies, and such a disclosure does not violate the law of
this State.
Id. § 323.017. Section 323.020 deals with statistical or demographic analyses performed by the
Texas Legislative Council. See id. § 323.020. Notably, subsections (c) through (g) “do not apply
in relation to a statistical or demographic analysis of information related to the redistricting
process,” id. § 323.020(a), despite the otherwise-applicable provision in subsection (c) that
“information the council acquires or produces in relation to a statistical or demographic analysis
. . . is confidential and not public information.” Id. § 323.020(c).6
II
Privilege claims raise complicated issues in litigation. Some aspects of the
6
Subsection (c) broadly speaks to working drafts and papers; contracts and subcontracts;
internal and interagency correspondence; data, data files, data programs, and the like; subsection
(d) recognizes that any entity, including a State agency, “does not waive any exception from
required disclosure or any privilege not to disclose” because information was provided to the
Texas Legislative Council; subsection (e) specifies that a “final report containing a statistical or
demographic analysis” by the Council and its cover letter or memorandum are not confidential;
subsection (f) provides that contracts or agreements between the council and any state agency are
not confidential; and subsection (g) requires that information submitted to the council for a
statistical or demographic analysis by the council not be used against the person submitting it in a
State agency enforcement proceeding. Tx. Gov’t Code § 232.020 (c) - (g).
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current disputes are easier than others, and the Court will start there.
A. Davis Intervenors’ Motion
The Davis Intervenors seek copies of emails or other written communications
between Doug Davis, who drew the State Senate redistricting map, and individual senators.
Texas asserts a broad, across-the-board response that all such communications are privileged by
the attorney-client and legislative privileges.
Texas does not “claim[] that any individual senators have asserted either
legislative or attorney-client privileges in response to [their] discovery requests” and “five Anglo
senators [Seliger, Huffman, Birdwell, Shapiro and Carona] and the [State S]enate map drawer
himself (Doug Davis) have already been deposed and none of them asserted any privileges.”
Davis Br. [Dkt. #119] at 4-5. Importantly, Senator Seliger, for whom Mr. Davis works directly,
already has provided testimony and did not assert a privilege. Texas cannot claim an attorney-
client privilege between Mr. Davis and any other legislator because, as Texas recognizes, he does
not have an attorney-client relationship with the entire legislature. See Texas Resp. at 4 (“Texas
does not contend that the map-drawers share an attorney-client relationship with every member
of the Texas Legislature.”).
The Davis Intervenors also contend that the State’s legal counsel, David Mattox,
already has represented to the District Court for the Western District of Texas that any privileges
have been waived with regard to numerous State legislators.
The depositions identify certain legislators who had conversations
with Mr. Downton; also other witnesses have been deposed that
identified other legislators. . . . We have contacted those
legislators and indicated that [their] names would be revealed. I
have heard no objections. I have seen nothing filed with this Court
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from those legislators, so I believe there is not going to be an
assertion of legislative privilege by those legislators in respect to
those depositions in this matter.
Accordingly, we have no objection . . . .
Davis Br., Ex. 4 (Perry v. Perez trial transcript) at 5-6. Ryan Downton served as general counsel
to the State House Committee on Redistricting. Conversations concerning redistricting between
him and legislators identified in depositions in the Section 2 litigation are no longer privileged, if
they once were, because all such privileges have been waived.7
To the extent that Mr. Mattox attempted to limit a waiver to “this matter,” his
effort was unsuccessful. Where a person voluntarily waives the attorney-client privilege for part
of a communication, the privilege as to rest of that communication and for any communication
related to the same subject matter also is waived. See Fed. R. Evid. 502; Williams & Connolly,
2011 WL 6118584 at *2. When the privileged information was made public, the privilege was
waived for all purposes. See Navajo Nation, 209 F. Supp. 2d at 284-84.
7
See Davis Br., Ex. 5 [Dkt. #119-5] (identifying deposition testimony by Senators
Seliger, Corana, Hoffman and Mr. Davis concerning conversations on redistricting with Senators
Paul, Olson, Farenthold, Shapiro, Deuell, Harris, Nelson, Estes, Wendy Davis, Fraser, Patrick,
Jackson, Duncan, Eltife, Williams and Zaffarini, as well as staffer Jonathan Simpson and Mr.
Staples from the staff of the Senate Redistricting Committee, chaired by Senator Selinger). Mr.
Mattox informed the Court in the Western District of Texas that these Senators and other
legislators mentioned in deposition testimony were informed and made no objections; therefore,
any privilege covering conversations, emails and other documents between or among one or
more of them, between or among one or more of them and the map-drawers, and between or
among one or more of them and the Texas Legislative Council, has been waived. See also U.S.
Br. [Dkt. #122] at 10 n.6 (noting that Mr. Downton at trial in Perez v. Perry “purposefully
disclosed his conversations with” Reps. Veasey, Villareal, Castro, Kuempel, Pickett, and
Solomons; Dallas County House delegation; Tarrant County House delegation; Harris County
House delegation; and legal discussions with Texas Legislative Council). Texas does not dispute
Mr. Mattox’s broad statement, and the Court finds that these Representatives also waived any
applicable privilege.
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Texas argues that “[t]he map-drawers’ testimony in the Section 2 proceedings . . .
would not have effected a permanent waiver, particularly where the privilege belonged to other
legislators.” Texas Resp. [Dkt. # 126] at 5. The Court draws no conclusion here as to the
privilege that unnamed legislators may continue to possess, but Mr. Maddox’s broad waiver of
privilege for all legislators named in depositions in the Section 2 proceeding was without limit.
It was not limited to the Section 2 case, much less general VRA litigation involving the Texas
Plans, even if such a limited waiver were possible.
The Court therefore agrees that Texas must respond fully to the narrow request of
the Davis Intervenors for any email correspondence and other forms of communication, oral or
written, between Mr. Davis and any one or grouping of these five State senators, or among any
one or more of the five State senators themselves, about the redistricting process broadly
construed, and especially why Senate District 10 boundary lines were drawn as they were. These
subjects and persona are open to normal discovery because any privilege has been waived.
The Court also finds that the legislators mentioned in depositions and later court
testimony in the Section 2 proceeding were notified and had no objection to waiver of any
privilege they might have held, whether attorney-client, legislative or statutory. These persons
and subjects are also open to discovery here.
As suggested by the Davis Intervenors, the Court orders counsel for the State of
Texas to review its records to identify any other arguably-privileged communications and canvas
the remaining State Senators to ascertain whether any additional Senator wishes to invoke or
waive any privileges that may exist and, thereafter, produce such documents as to which no
privilege has been raised.
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B. Texas Latino Redistricting Task Force’s Motion
The Texas Latino Redistricting Task Force complains that Texas has not
responded to its discovery except by vague reference to its Internet postings. Texas has not
responded and the points are deemed conceded. Texas shall respond to the discovery requests of
the Task Force, as elucidated in its court filings, forthwith.
C. United States’ Motion
The United States served interrogatories that sought “[a]ll documents concerning,
addressing, or mentioning redistricting or the census between” three varied groupings of persons,
identified in the interrogatory by name but not position. Texas objected, broadly claiming that all
such communications between State legislators and Messrs. Davis, Downton, and Interiano (the
map-drawers) are protected by the attorney-client privilege, the work-product doctrine, and the
legislative privilege.8 Mr. Downton “had the primary responsibility (together with Gerardo
Interiano) during the most recent legislative session and subsequent special session for inputting
and processing proposed amendments to redistricting plans for the Texas House of
Representatives, State Board of Education and U.S. Congress.” U.S. Br., Ex. 27 (“Downton
Decl.”) at 1. Mr. Interiano’s “primary responsibility was the drafting and analyzing of proposed
maps for the Texas House of Representatives. I also assisted Ryan Downtown with the U.S.
Congressional map . . . .” Id., Ex. 28 (“Interiano Decl.”) at 1. Mr. Davis “had the primary
responsibility . . . for inputting and processing proposed amendments to redistricting plans for the
8
See Texas Resp. at 3 n.2. To aid in trial preparation, the Court issued a Minute Order on
December 30, 2011, ordering such production under seal forthwith. Since the parties are limited
in their use of such documents, the dispute is not mooted by this production.
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Texas House of Representatives, Senate, State Board of Education and U.S. Congress.” Id., Ex.
29 (“Doug Davis Decl.”) at 1.9
Texas similarly claimed attorney-client and legislative privileges, the attorney
work-product doctrine, and a statutory privilege based on Texas Government Code § 232.017,
for all communications with the Texas Legislative Council. After deposition testimony
mentioned the fact of summaries of racially polarized voting analyses prepared in the Office of
the Attorney General, the United States asked for copies of those documents as well, which
Texas refused to produce pursuant to the attorney-client privilege and attorney work-product
doctrine.
1. Communications by Messrs. Downton, Interiano, and Davis
Texas well recognizes that the three map-drawers do not share an attorney-client
relationship with every member of the Texas Legislature and claims it only for the individual
legislator for whom they act as counsel. That is, Texas asserts an attorney-client relationship
between Speaker Straus and Mr. Iteriano; Senator Seliger and Mr. Davis; and Chair Solomons
and Mr. Downton. The Court agrees that such a professional relationship may exist but it cannot
be determined on this record whether the combination of political/legislative and legal duties of
one or the other of these men rendered their positions less lawyerly and therefore without a
privilege. See In re Lindsey, 148 F.3d at 1106 (rejecting attorney-client privilege for an advisor
to the President who also served as a policy advisor). Because the privilege belongs to the
9
All three map-drawers declare that no one suggested any redistricting changes for the
purpose of harming voters “on account of race, ethnicity or national origin.” Downton Decl. at 1;
Interiano Decl. at 1; Doug Davis Decl. at 1. The Declarations do not address language
minorities, which is the specific grouping that protects Hispanics under the VRA. See 42 U.S.C.
§ 1973b(f)(2).
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client, not the lawyer, the Court is loath to disregard the possibility of an attorney-client privilege
even though Texas has not met its burden of demonstrating one for these relationships. See In re
Sealed Case, 737 F.2d at 98-99. It remains an open and undecided question; if Texas wishes to
preserve any privilege, it must submit further evidence in support beyond mere job titles.
Whether a privilege between the map-drawers and their bosses exists may not
matter because, as to 2011 redistricting, it has been waived. Messrs. Downton, Iteriano and
Davis have testified extensively about their conversations with various legislators, including
Speaker Straus, Senator Seliger, and Chair Solomons,10 and Mr. Maddox has informed the
federal court that no legislators mentioned in deposition in the Section 2 case, including these,
have asserted any privilege. Unless circumstances exist that are not shown in this record,11 the
testimony and documents on communications regarding redistricting between these staffers and
legislators — and between staffers and other legislators or other persons on the same subject
matter — are not barred from discovery by an attorney-client relationship.12 In the same vein,
Messrs. Downton, Iteriano, and Davis cannot interpose a privilege claim to avoid answering
10
While some of this deposition testimony was fairly general, it nonetheless spoke to
instructions and other conversations between the named legislators and these staff people. Many
further conversations with other legislators were also referenced. The Court has not combed all
the depositions submitted by the parties to discover which legislators had substantive
conversations with any of these map-drawers (and to which Mr. Mattox made reference) and
leaves it to the parties to identify them.
11
As noted above, voluntary waiver of the attorney-client privilege often extends to an
entire subject matter. See Fed. R. Evid. 502. However, there is no blanket privilege and it must
be claimed with respect to each specific communication at issue. See In re Lindsey, 148 F.3d at
1106.
12
Only a legislative privilege might shield communications between the map-drawers and
other State Legislators but Texas has indicated its willingness to produce relevant documents
under seal.
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questions or producing documents concerning redistricting that reflect their communications with
other staff persons on their own staffs.
The work-product doctrine is a limited one that shields a lawyer’s internal work
for a client from an opponent’s eyes. It protects materials prepared in anticipation of litigation or
trial and can extend to persons working with a lawyer, not just the attorney herself. Texas cites
Teuber v. State of Texas, Civ. A. No. 4:11-cv-00059 (E.D. Tex. Feb. 10, 2011), as a pending
redistricting lawsuit that made these lawyers work on redistricting and map-drawing in the
Spring of 2011 protected by the work-product doctrine. The Court declines to stretch the
doctrine that far; Teuber had only a very attenuated connection to the Texas redistricting process
in 2011 and did not touch on the later actions of the Texas Legislature when considering
redistricting plans. In addition, on this record, Texas has failed to show that Messrs. Downton,
Davis, and Interiano were acting in a primarily legal role as map-drawers instead of in political or
policy roles, as to which no work-product doctrine would apply in any event. See In re Lindsey,
148 F.3d 1106. The Court concludes that the work-product doctrine does not shield the relevant
documents sought by the United States.
Texas asserts a broad legislative privilege that would, if adopted, shield almost
everything that any Texas State Legislator or his staff ever does. Texas cites no State law —
statute or caselaw — that recognizes the privilege it claims here in federal court, which is at least
passing strange if such a privilege actually exists and is recognized within the State. Texas
cannot claim a privilege here that its own courts do not recognize.
At this juncture, the Court need not determine whether the State legislative
privilege applies. Texas will produce under seal all documents as to which it claims a legislative
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privilege. Should any party wish to rely on a sealed document at trial, it will be required to raise
the issue beforehand with specificity as to the document(s) at issue. The Panel will decide
whether to admit such documents on the public record or under seal.
2. Texas Legislative Council
The Texas Legislative Council is a creature of statute and can exist no further than
the Texas Legislature has decreed. Communications between the Texas Legislative Council and
members of the Legislature are “confidential.” They are not “privileged.” See Tx. Gov’t Code
§ 323.017 (“Communications . . . between a member of the legislature or the lieutenant governor
or an assistant or employee of the council . . . are confidential.”). The Texas Legislature knew
the difference. See id. § 323.020(d) (providing that giving information to the Council “does not
waive any exception from required disclosure or any privilege not to disclose” (emphasis
added)). In fact, while § 323.017 makes Legislative/Council communications “confidential,”
§ 323.020 appears to lift even that level of protection for “a statistical or demographic analysis of
information related to the redistricting process,” including internal and interagency
correspondence, data, data files, data programs, and the like.
Texas declares that the Texas Legislative Council “has an attorney-client
relationship with all members of the Legislature.” Texas Resp. at 8. It seeks to protect three
memoranda prepared by Attorney David Hanna which “contain[ed] legal analysis of the proposed
redistricting plans which clearly reflect material, mental impressions, opinion, conclusions,
strategy, and analyses developed in anticipation of possible legal disputes.” Id. at 7. The
argument reflects what appears to be customary and habitual thinking that assumes a legal
privilege between the Legislature and the legal division of the Council. The Court can find none.
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The Texas Government Code expresses no such relationship or expectation.13 Texas does not
explain why it agrees that the three map-drawers could not have an attorney-client relationship
with the entire Legislature but the lawyers at the Texas Legislative Council do have an attorney-
client relationship with every one of the individual members of the State House and Senate.
Without the threshold evidence of an attorney-client relationship, In re Sealed Case, 737 F.2d at
98-99, there can be no privilege. Texas offers no evidence to satisfy the elements of an attorney-
client relationship between the Council and the Legislature.
Further, Texas has not demonstrated that the work-product doctrine is applicable
in the absence of an attorney-client relationship. There is a paucity of information in the record
from which to find that Mr. Hanna’s early memos (dated April 6, 12, and 20, 2011) were
prepared in anticipation of litigation, that is, whether “the prospect of litigation [was] identifiable
because of claims that ha[d] already arisen.” See Nat’l Tank Co., 851 S.W.2d at 205. The Court
concludes that the Hanna memoranda from April 2011 are not protected by a privilege or the
work-product doctrine and must be produced.
3. OAG Summaries
Texas refuses to produce what it calls “racially polarized voting reports that were
generated during the legislative session by the Office of the Attorney General at the request of
counsel for every plan that may have been considered by the Legislature.” Texas Resp. at 10.
“[T]hese reports were generated at the request of counsel and reflect the mental impressions,
13
While Texas argues that the “statute provides strong evidence that the legislators
believed their communications with [the Texas Legislative Council] to be protected by the
attorney-client and legislative privileges,” Texas Resp. at 8-9, the statute says no such thing and
the habits of the years do not transform “confidentiality” to avoid public inquiry into “attorney-
client privilege” when demanded as part of litigation.
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strategy, and opinions of counsel developed in anticipation of possible legal disputes related to
the proposed redistricting plans.” Id. Texas also claims an attorney-client privilege for “any
communications transmitting racially polarized voting reports or summaries of such reports . . . .”
Id.
These descriptions are far too vague to make any determination of privilege. Does
Texas mean that legislative staffers (“counsel”) asked for the preparation of racially polarized
voting reports and that (non-lawyer) Todd Giberson in the OAG prepared the reports but the
reports themselves somehow reflect “opinions of counsel” (presumably in the OAG, not
legislative staffers) that were prepared at an unknown time but in anticipation of litigation? And
that “any communications” to forward such reports or summaries were sent by unnamed persons
in the OAG to unnamed persons in the Legislative Branch of State government who were within
an attorney-client relationship with the OAG? Attorney-client relationships in a government
environment are complicated. Government lawyers usually represent government institutions,
not persons. Texas may have a different set of relationships within its State Government but
none of these complexities is explained by the description Texas provides.
The information that Texas has presented to the Court cannot support any
conclusion as to whether the racially polarized reports and/or summaries are protected by the
attorney-client privilege or work-product doctrine. The question is too important for a hasty
conclusion. Thus, the Court invites Texas to support its argument, if it chooses to do so, with
more specificity — explaining the relationship of the OAG to the State Legislature generally and
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to individual legislators, the identities of authors and recipients,14 and the specific nature of the
communications that might make them privileged.
III
The motions of the Davis Intervenors and the Texas Latino Redistricting Task
Force will be granted. The motion of the United States will be granted in part and denied in part
without prejudice, subject to further evidentiary support from Texas on a schedule to be proposed
by the parties should Texas wish to proceed. A memorializing Order accompanies this
Memorandum Opinion.
Date: January 2, 2012 /s/
ROSEMARY M. COLLYER
United States District Judge
14
Again, the Court notes that the attorney-client privilege does not usually protect a
client’s identity. See BDO Seidman, 337 F.3d at 811.
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