114 F. Supp. 3d 323
E.D. Va.2015Background
- Plaintiffs challenged twelve Virginia House of Delegates districts as racial gerrymanders under the Equal Protection Clause; Virginia House of Delegates and Speaker Howell intervened.
- Plaintiffs served broad document requests seeking communications about the 2011 redistricting, including legislators’ emails maintained on the House email system.
- The House produced some documents but withheld many on legislative privilege, attorney‑client privilege, and work‑product grounds; it sent a joint notice to 29 delegates asking them to assert or waive privilege.
- Responses: 21 delegates asserted legislative privilege (but made no factual showing), 4 delegates waived, and 4 did not respond. The House did not itself prove privilege on behalf of individual non‑party delegates.
- Plaintiffs moved to compel production. The Court held that the state legislative privilege is qualified in redistricting cases and ordered selective disclosure, set procedures for proving privilege, required revised privilege logs and in camera review, and limited certain attorney‑client and work‑product claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of state legislative privilege over legislators’ communications in redistricting litigation | Plaintiffs: privilege is qualified; contemporaneous documents and communications about race are highly relevant and must be produced | Intervenors: legislative privilege is absolute for legislative acts and protects withheld documents | Court: privilege is qualified in this context; balance favors disclosure given centrality of legislative intent in redistricting claims |
| Effect of delegates’ responses to notice (assertion, waiver, nonresponse) | Plaintiffs: failure to prove privilege or to respond waives it; House should produce | Intervenors/House: House cannot waive individual delegates’ privilege; nonresponse should not result in waiver by House | Court: nonresponse by the four delegates is deemed waiver; 21 who asserted must substantiate privilege with help from counsel; House must notify and assist but cannot unilaterally prove privilege for nonparties |
| Attorney‑client privilege and common‑interest doctrine for communications involving House, individual delegates, outside counsel, and AG | Plaintiffs: privilege logs insufficient; common‑interest not shown; communications with outsiders must be produced | Intervenors: broader attorney‑client protection and common‑interest applies to House and some legislators | Court: Jones test applies; privilege may protect House counsel communications to the House or to legislators when client relation and confidentiality exist; common‑interest not established; communications with parties outside the legislative branch (campaigns, parties, AG) generally not protected |
| Work‑product protection for materials from related litigation or outside counsel in counsel’s possession | Plaintiffs: listing on House privilege log waived protection; materials should be produced | Intervenors: materials not in House’s possession or control; no waiver occurred | Court: denied motion to compel for those work‑product materials where no waiver shown and House did not possess or control them (no waiver by mere review by counsel here) |
Key Cases Cited
- E.E.O.C. v. Washington Suburban Sanitary Comm’n, 631 F.3d 174 (4th Cir. 2011) (discusses state legislative privilege and its purposes)
- Gravel v. United States, 408 U.S. 606 (1972) (Speech or Debate Clause protects federal legislative acts and communications)
- Kilbourn v. Thompson, 103 U.S. 168 (1881) (defines legislative sphere)
- Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975) (absolute federal legislative immunity and privilege rationale)
- United States v. Gillock, 445 U.S. 360 (1980) (state legislative immunity is common‑law and qualified where important federal interests are implicated)
- Tenney v. Brandhove, 341 U.S. 367 (1951) (state legislators entitled to immunity for legislative acts)
- Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (discriminatory intent inquiry in constitutional claims)
- Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) (addresses race and districting and relevance of legislative intent)