285 F.R.D. 187
E.D.N.Y2012Background
- Discovery disputes over attorney-client/work-product privileges and legislative privilege in NY redistricting case Favors v. Cuomo; two groups of motions filed June 11 and June 18, 2012; Court to conduct in camera review of privileged documents; LATFOR structure and roles explained; 2012 Carvin Memorandum at issue for waiver; Court ordered privileged documents produced for in camera inspection by August 17, 2012; privilege logs and waiver theories debated; court applies Rodriguez balancing framework to legislative privilege; decision maintained pending in camera review.
- LATFOR’s composition and duties described; 2012 Senate Plan drafted within Senate LATFOR office; Assembly Plan drafted within Assembly LATFOR office; non-legislator LATFOR staff involved; communications with outside consultants and legislators discussed; parties request protective orders under Rule 26(c) for legislative privilege; Waik of waiver arguments examined.
- Judicial standard set: privileges require narrow construction; waiver may occur by publication, selective disclosure, or reliance on privileged material; five-factor Rodriguez test guides whether legislative privilege yields to discovery; in this case the court finds privilege is qualified, not absolute, and requires in camera review before final ruling on specific documents.
- Court acknowledges historical basis for legislative immunity and legislative privilege; distinguishes immunity (absolute for federal/state legislators) from privilege (qualified, balancing-based); discusses central-issue and public-policy considerations in redistricting contexts; emphasizes need to weigh confidentiality against need for discovery in anti-discrimination and equal-protection claims.
- Orders: give Senate Majority privilege logs and Nassau County Assembly logs for in camera inspection by August 17, 2012; require revised privilege logs and personnel lists by August 20, 2012; deny Senate Minority’s motion to compel without prejudice; reserve ruling on protective orders pending in camera review; warn of potential waiver if logs remain deficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to compel disclosure of privileged materials | Senate Minority seeks testing of privilege re: Senate size analysis | Senate Majority argues Carvin memo not confidential; if privileged, waiver not shown | Denied without prejudice pending in camera review |
| Is legislative privilege absolute or qualified in redistricting context | Privilege should yield to federal interests in VRA/EP claims | Privilege is absolute or highly protective to protect deliberations | Qualified privilege; balancing required; not absolute at this stage |
| Whether waiver occurs due to publication or selective disclosure | Publication of Carvin Memorandum in 2012 constitutes waiver | Not a waiver if not confidential; potential subject-matter waiver only under Rodriguez framework | Waiver issues reserved for in camera review; defer final ruling |
| Adequacy of privilege logs and need for in camera review | Logs lack detail necessary to assess privilege | Logs sufficient per rules; argue for later review | Logs require revision; in camera inspection to determine scope of privilege |
Key Cases Cited
- In re Cnty. of Erie, 473 F.3d 413 (2d Cir. 2007) (three-element test for attorney-client privilege; confidentiality and purpose to obtain legal advice)
- In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180 (2d Cir. 2007) (work product distinctions; highly persuasive for opinion work product protection)
- In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000) (principles on waiver and scope of privilege; case-by-case analysis)
- United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991) (recognizes limits of privilege and fair-testing of assertions)
- In re von Bulow, 828 F.2d 94 (2d Cir. 1987) (discusses implied and selective waiver of privilege)
- State Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71 (2d Cir. 2007) (parity of state legislative immunity and balancing for privilege)
- Rodriguez v. Pataki, 280 F.Supp.2d 90 (S.D.N.Y. 2003) (five-factor balancing test for legislative privilege; central-issue considerations)
- ACORN I, 2007 WL 2815810 (E.D.N.Y. 2007) (early treatment of legislative privilege; focus on confidentiality and scope)