Working on what is officially a federal holiday, the D.C. court ruled this afternoon that the bulk of the disputed documents sought by the Justice Department and redistricting plaintiffs from the State of Texas were not protected by privilege, as contended by the state.
On issues of legislative privilege, the court called the state’s claim of privilege overbroad:
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 in 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.
The court also rejected claims of work-product protection based on the filing of the (since dismissed) Teuber case in February 2011, finding that “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.”
Similarly, the court rejected the state’s assertion that an attorney-client relationship existed between the legal staff of the Texas Legislative Council and members of the Legislature, holding that the confidentiality provisions of the Texas Government Code dealt only with confidentiality and did not create an attorney-client relationship:
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,’ 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.
Last but not least, the court found that disclosure of communications between key legislative staffers and their bosses was not barred by privilege:
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,and [Texas Assistant Attorney General David] 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, 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 by an attorney-client relationship.
However, the court held that it did not have enough information to determine whether analyses of racially polarized voting prepared by the staff of the Texas Attorney General’s office, at the request of legislative staffers, were privileged. The court invited Texas “to support its argument, if it choses to do so, with more specificity- explaining the relationship of the OAG to the Texas Legislature generally and to individual legislators … and the specific nature of the communications that might make them privileged.”
Under the court’s order, the documents that must be turned over include:
- Communications between Doug Davis, who drew the state senate map, and Senators Birdwell, Carona, Huffman, Seliger, and Shapiro, or among the senators themselves about the senate map.
- Redistricting memos prepared in April 2011 by David Hanna of the Texas Legislative Council.
- Communications between legislators and the three staffers who drew the state’s maps - Doug Davis, Ryan Downton, and Gerardo Interiano.
Here the court’s order:
And here’s the court’s memorandum opinion: