United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART NON-PARTY
MOVANTS' MOTIONS TO QUASH [#27; #46]
Page Hood, J
matter is before the Court on two motions to quash
Plaintiffs' subpoenas instructing non-party legislative
bodies (“Legislative Bodies”),  officials and
staff (“Legislative Personnel”) (collectively,
“Non-party Movants”) to produce documents related
to the introduction, consideration, or passage of
Michigan's current apportionment plan. [Doc # 27; Doc #
46] The Non-party Legislative Personnel filed a Motion to
Quash on March 8, 2018. [Doc # 27] The Non-party Legislative
Bodies' Motion was filed on March 30, 2018. [Doc # 46]
All Responses and Replies have been filed.
reasons that follow, the present Motions to Quash are
GRANTED IN PART and DENIED IN
suit was brought against Ruth Johnson, in her official
capacity as Michigan Secretary of State, on December 22,
2017. [Id.] Plaintiffs claim that Michigan's
current apportionment plan-constituting three redistricting
maps adopted from the passage of Michigan Senate Bill 498
(2011) and Michigan House Bill 4780 (2011) (“2012
Michigan Redistricting Legislation”)-violates
Plaintiffs' First Amendment free speech and association
rights and Fourteenth Amendment equal protection rights. [Doc
# 1, Compl. ¶ 1] Specifically, Plaintiffs allege that
the apportionment plan intentionally places Michigan
Democrats in voting districts that reduce or eliminate the
power of Democrat votes and burdens their representational
rights because of their political party affiliation.
of the Federal Rules of Civil Procedure governs the service
of subpoenas. Rule 45(d)(3)(A) dictates that a court, upon a
timely motion, must quash or modify a subpoena if the
subpoena: (i) fails to allow a reasonable time for
compliance, (ii) requires a non-party to travel more than 100
miles from where they reside, (iii) requires disclosure of
privileged or other protected matter and no exception or
waiver applies, or (iv) subjects a person to undue burden.
“The party seeking to quash a subpoena bears a heavy
burden of proof.” United States v. Wells, No.
06-10589, 2006 WL 3203905, at *2 (E.D. Mich. Nov. 3, 2006)
(citing Irons v. Karceski, 74 F.3d 1262, 1264, 316
(D.C. Cir. 1995)).
26(b) defines the scope of discovery for tools of discovery,
including subpoenas issued pursuant to Rule 45. Sys.
Prod. & Sols., Inc. v. Scramlin, No. 13-CV-14947,
2014 WL 3894385, at *9 (E.D. Mich. Aug. 8, 2014). “Rule
26(b) allows a party to obtain discovery concerning any
non-privileged matter that is relevant to any party's
claim or defense.” Id.; Fed.R.Civ.P. 26(b).
“Evidence is relevant if it has any tendency to make
a fact [of consequence] more or less probable than it would
be without the evidence.” Fed.R.Evid. 401. If, however,
a district court determines that “the burden or expense
of the proposed discovery outweighs its likely benefit,
considering the needs of the case, the amount in controversy,
the parties' resources, the importance of the issues at
stake in the action, and the importance of the discovery in
resolving the issues, ” the court must limit the scope
of discovery. Fed.R.Civ.P. 26(b)(2)(C)(iii).
26(c) governs the issuance of protective orders. “The
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed.R.Civ.P. 26(c). Such an order
may forbid discovery or disclosure altogether or limit
discovery to certain matters. Id. “The burden
of establishing good cause for a protective order
rests” with the party seeking the order. Nix v.
Sword, 11 Fed.Appx. 498, 500 (6th Cir. 2001). “To
show good cause, a movant for a protective order must
articulate specific facts showing clearly defined and serious
injury resulting from the discovery sought and cannot rely on
mere conclusory statements.” Id. (citations
and internal quotation marks omitted).
mailed subpoenas duces tecum to the Legislative
Personnel on February 21, 2018, and to the Legislative Bodies
on March 15, 2018. [Doc # 27-2; Doc # 46-2] Plaintiffs seek,
in part, all documents, notes, data and analysis related to
the 2012 Michigan Redistricting process. Non-party Movants
argue that the legislative privilege granted under the Speech
or Debate Clause of the United States Constitution and the
Michigan Constitution, other Michigan constitutional and
statutory law, and the legislative privilege granted under
federal common law, mandate quashing the subpoenas or
granting a protective order. [Doc # 27, Pg. 17-18; Doc # 46,
Pg. 16] They also contend that the subpoenas seek information
that is irrelevant to the present case, are overly burdensome
and without temporal limitation, and will have a chilling
effect on legislative activity. [Doc # 27, Pg. 17; Doc # 46,
Pg. 16] The Legislative Personnel assert that the subpoenas
directed toward them seek information that is protected by
the attorney-client privilege. [Doc # 27, Pg. 17] The
Legislative Bodies assert that the subpoenas sent to them are
vague. [Doc # 46, Pg. 16] Plaintiffs argue, among other
things, that the present issues are governed by federal
common law and the Court should apply a qualified legislative
privilege balancing test. [Doc # 41, Pg. 6; Doc # 49, Pg.
3-5] Plaintiffs add that the factors under the balancing test
favor denying the present Motions, the subpoenas are not
overly broad or unduly burdensome, and not all of the
information sought is subject to privilege. [Doc # 41, Pg. 6;
Doc # 49, Pg. 1-6]
Federal Common Law Governs the Claims of Legislative
of Congress “shall not be questioned in any other
Place” for “any Speech or Debate in either
House.” U.S. Const. art. I, § 6, cl. 1. The
purpose of the Speech or Debate Clause is to preserve the
separation of powers. See Powell v. McCormack, 395
U.S. 486, 502 (1969) (“[T]he purpose of this clause was
to prevent intimidation (of legislators) by the executive and
accountability before a possibly hostile judiciary.”).
“Congress enjoys absolute privilege from testimony and
absolute immunity from liability under the Speech or Debate
Clause.” Jackson Municipal Airport Authority v.
Bryant, No. 3:16-cv-246-CWR-FKB, 2017 WL 6520967, at *4
(S.D.Miss. Dec. 19, 2017) (citing Eastland v. U.S.
Servicemen's Fund, 421 U.S. 491, 502-04 (1975)).
When construing the legislative privilege, a legislator and
her aide are to be “treated as one.” Gravel
v. United States, 408 U.S. 606, 616 (1972). The Michigan
Constitution contains a clause affording state legislators
similar protections. Mi. Const. art. IV, § 11.
recent case before the United States District Court for the
Eastern District of Michigan, Michigan State A. Philip
Randolph Inst. v. Johnson, No. 16-CV-11844, 2018 WL
1465767 (E.D. Mich. Jan. 4, 2018), addressed which law
governs the existence of legislative privilege for state
legislators in federal question cases. In that case, the
district court determined that federal common law governs
claims of legislative privilege for state legislators in
federal question cases because neither the federal Speech or
Debate Clause nor the Michigan Speech or Debate Clause
protects state legislators from interference by the federal
government. Id. at *3. This Court agrees. Federal
common law governs the existence of legislative privilege in
this case. See Fed. R. Evid. 501 (In federal
question cases, “[t]he common law--as interpreted by
United States courts in the light of reason and
experience--governs a claim of privilege unless” the
U.S. Constitution, a federal statute, or rules prescribed by
the Supreme Court provide otherwise.). See also United
States v. Gillock, 445 U.S. 360, 374 (1980) (“The
Federal Speech or Debate Clause, of course, is a limitation
on the Federal Executive, but by its terms is confined to
federal legislators. The [state] Speech or Debate Clause is
in terms a limit only on the prosecutorial powers of that
Federal Courts Apply a Qualified Legislative
Movants argue that state legislators enjoy an absolute
legislative privilege. Plaintiffs argue that state
legislators have only a qualified legislative privilege under
federal common law. This Court agrees with Plaintiffs.
common law extends the absolute legislative immunity granted
by the Federal Speech or Debate Clause to state legislators.
Bradley v. Mallory, 871 F.2d 1087 (6th Cir. 1989)
(citing Tenney v. Brandhove, 341 U.S. 367 (1951)).
Legislative privilege is related to legislative immunity, but
is a distinct concept.Favors v. Cuomo, 285 F.R.D. 187,
209 (E.D.N.Y. 2012). For state legislators involved in
federal question cases, legislative privilege protects state
legislators and their legislative staff from compelled
disclosure of documentary or testimonial evidence relating to
actions taken within the scope of legitimate legislative
activity. Id. (citing Kay v. City of Rancho
Palos Verdes, No. CV 02-03922 MMM RZ, 2003 WL 25294710,
at *9-11 (C.D. Cal. Oct. 10, 2003) and Rodriguez v.
Pataki, 280 F.Supp.2d 89, 93-94, 95 (S.D.N.Y. 2003)).
The privilege, however, is not absolute.
legislators are afforded a qualified legislative privilege
against being required to provide records or testimony
concerning legislative activity. Michigan State A. Philip
Randolph Inst., 2018 WL 1465767, at *4. The privilege
can be overcome where important federal interests are at
stake. Id. Federal courts have applied a qualified
legislative privilege in cases involving constitutional
challenges to state legislation. See, e.g.,
Nashville Student Org. Comm. v. Hargett, 123
F.Supp.3d 967, 969 (M.D. Tenn. 2015); Rodriguez, 280
F.Supp.2d at 100; Florida v. United States, 886
F.Supp.2d 1301, 1303-04 (N.D. Fla. 2012) (“To be sure,
a state legislator's privilege is qualified, not
absolute; a state legislator's privilege is not
coterminous with the privilege of a member of Congress under
the Constitution's Speech and Debate Clause.”);
Bethune-Hill v. Va. State Bd. of Elections, No.
3:14CV852, 2015 WL 3404869, at *9 (E.D. Va. May 26, 2015);
N. Carolina State Conference v. McCrory, No.
1:13CV658, 2015 WL 12683665 (M.D. N.C. Feb. 4, 2015)
(“legislative privilege is not absolute, but rather
requires a flexible approach that considers the need for the
information while still protecting legislative sovereignty
and minimizing any direct intrusion into the legislative
process.”); Perez v. Perry, No. SA-11-CA-360,
2014 WL 106927, at *2 (W.D. Tex. Jan. 8, 2014) (“While
the common-law legislative immunity for state legislators is
absolute, the legislative privilege for state lawmakers is,
at best, one which is qualified.”) (citations and
internal quotation marks omitted); Favors, 285
F.R.D. 187, 211 (E.D.N.Y. 2012); Comm. for a Fair &
Balanced Map v. Ill. State Bd. of Elections, No. 11 C
5065, 2011 WL 4837508, at *7 (N.D. Ill. Oct. 12, 2011).
But see In re Grand Jury, 821 F.2d 946, 958 (3d Cir.
1987) (rejecting ...