15 F. Supp. 3d 657
E.D. Va.2014Background
- Non-party Marston moves to quash subpoenas and for protective order; case concerns redistricting of Virginia Congressional District 3 and equal-protection claims.
- Court conducted an in camera review of Marston’s documents; privilege asserted is legislative privilege, not attorney-client.
- Marston alleges he was Executive Director/Counsel to the Virginia House Republican Caucus and consulted for redistricting, paid by House GOP Campaign Committee.
- Virginia statutes (Va. Code) govern retention/pay of legislative staff; court finds no authorization for a consultant paid by a political committee to be treated as General Assembly staff.
- Court distinguishes between actual legislators/staff and partisan consultants; legislative privilege not extended to Marston under Virginia statutory framework.
- Court ultimately denies in part the privilege claim and orders document production with scope narrowed to exclude attorney-client protected documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eligible for legislative privilege? | Marston claims privilege as legislative consultant. | Marston’s role not within statutory staff authority; not the functional equivalent of a legislator. | Marston not eligible for legislative privilege. |
| Balancing of privilege vs. disclosure | If privileged, privilege should protect documents. | Even if privilege exists, discovery can proceed given public policy and case factors. | Disclosures warranted; privilege not controlling; documents required with scope limits. |
| Scope of production | Paragraph 1, 2, 7 narrowed; paragraphs 3–6 deemed reasonable; production limited to maps/drafts and communications about 2012 redistricting. |
Key Cases Cited
- Doe v. McMillan, 412 U.S. 306 ((1973)) (scope of Speech or Debate Clause for legislative consultants)
- McCray v. Md. Dep’t of Transp., 741 F.3d 480 ((4th Cir.2014)) (limits on extending legislative privilege to consultants)
- Tenney v. Brandhove, 341 U.S. 367 ((1951)) (legislative privilege rooted in Speech or Debate Clause)
- Gravel v. United States, 408 U.S. 606 ((1972)) (deliberative processes; staff as alter egos may be privileged)
- Wash. Suburban Sanitary Comm’n, 631 F.3d 174 ((4th Cir.2011)) (legislative privilege is an evidentiary privilege but not an absolute shield)
- Rodriguez v. Pataki, 280 F.Supp.2d 89 ((S.D.N.Y.2003)) (five-factor balancing for discovery in redistricting)
- United States v. Johnson, 383 U.S. 169 ((1966)) (legislative immunity scope)