788 F. Supp. 2d 975
D. Neb.2011Background
- Consolidated cases challenge Nebraska SORA amendments LB97 and LB285 (2009).
- Judge Kopf resolved most issues on summary judgment; remaining factual issues identified for trial.
- Discovery disputes arise over interrogatories and production requests to state entities and the Douglas County Attorney.
- Questions concern ex post facto implications, Fourth Amendment, Due Process/First Amendment operations of Neb. Rev. Stat. §§ 29-4006 and 28-322.05.
- Plaintiffs seek documents and communications related to enforcement, drafting, and interpretation of LB 97 and LB 285; defendants object as overly broad or privileged.
- Magistrate Judge Zwart grants in part and denies in part, and orders further conference and possible privilege logs with extended discovery deadlines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relevance of requested discovery to ex post facto questions | Plaintiffs argue broader inquiry into legislative intent and enforcement aids ex post facto analysis | Defendants claim requests are overly broad and not tied to disputed statutes | Overruled relevancy objections; some discovery relevant to legislative intent and enforcement factors |
| Overbreadth of requests seeking all materials relating to Amended Complaint | Requests reasonably relate to LB 97/285 and record of deliberation | Requests are unbounded, fishing expeditions seeking all case materials | Denied to the extent requests seek all documents or past enforcement unrelated to the disputed statutes |
| Deliberative process and legislative privilege applicability | Plaintiffs contend privilege should be narrow and not shield all documents | Defendants invoke deliberative process privilege and attorney-client/work product protections | Deliberative process privilege is limited to pre-decisional, deliberative materials; other material should be produced; privilege logs required |
| Procedure for handling privilege log and protective measures | Plaintiffs require specifics to assess withheld materials | Defendants need protective measures and claw-back options | Parties must confer; if no agreement, defendants must produce detailed privilege log per Fed. R. Civ. P. 26(b)(5)(A) and consider protective orders; extend discovery deadline |
Key Cases Cited
- United States v. May, 535 F.3d 912 (8th Cir. 2008) (ex post facto and legislative intent considerations in statutory challenges)
- In re Grand Jury, 821 F.2d 946 (3d Cir. 1987) (deliberative process privilege; confidentiality in communications with legislators)
- Hofer v. Mack Trucks, Inc., 981 F.2d 377 (8th Cir. 1992) (discovery and relevance standards; broad but not fishing expeditions)
- Florida Ass’n of Rehabilitation Facilities, Inc. v. State of Florida Dept. of Health and Rehabilitative Services, 164 F.R.D. 257 (N.D. Fla. 1995) (deliberative process and confidentiality considerations in state legislative context)