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Jackson Municipal Airport Authority v. Bryant

United States District Court, S.D. Mississippi, Northern Division

December 19, 2017




         Before the Court is a Motion to Enforce Subpoenas [214] filed by Plaintiff-Intervenors Jackson Municipal Airport Authority (“JMAA”), the Board of Commissioners of the JMAA (“Board”), and each of the Board members (“Board Members”)[1] in their official and individual capacities (collectively “JMAA Plaintiffs”). The motion seeks an order compelling certain members of the Mississippi Legislature (collectively, “Legislators”)[2] to respond to subpoenas duces tecum served in this case. For the reasons stated below, the Court finds that the motion should be granted in part and denied in part.

         I. Factual Background

         This case presents a legal challenge to Senate Bill 2162 (“SB 2162”), a law passed by the Mississippi Legislature during the 2016 Legislative Session and signed by the Governor on May 4, 2016. See [42]. Plaintiffs challenge the law, arguing that it amounts to an unconstitutional takeover by the State of Mississippi of the JMAA. See Id. Plaintiffs' Complaint asserts claims under both Mississippi and federal law. The case is before the Court on federal subject matter jurisdiction. The JMAA Plaintiffs' motion [214] concerns a discovery dispute with non-party members of the Mississippi Legislature who played roles in the passage of SB 2162.[3]

         On March 7, 2017, JMAA and the Board served subpoenas on each of the Legislators. [130]-[137]. In April 2017, certain Board Members[4] served subpoenas on four of the Legislators.[5][205]-[208].

         At issue in this dispute is a request, Request #3, that was contained in each of the subpoenas. See [215] at 3. The subpoenas request the following:

3. Any and all documents, including but not limited to, email communications and text messages and any documents attached thereto (stored or otherwise) exchanged by (sent to and/or from) you and any person, including members of the Mississippi legislature and any governmental agency, body or its representative(s) regarding Senate Bill 2162 and / or the Jackson-Medgar Evers International Airport from January 1, 2014 to present. The responsive information is requested to be produced on a disk, in single page Tiff files, a summation load file, and OCR.

See id.

         The Legislators object to the request on the grounds of (1) relevance, and (2) privilege. See [225] at 7. They argue:

Documents responsive to category (3) include all correspondence and communications between the legislators and any other person with respect to the passage of Senate Bill 2162. The category seeks to obtain copies of communications between Members of the Mississippi Legislature and government officials regarding Senate Bill 2162's consideration and passage, but it extends to all other persons as well. The JMAA plaintiffs are not entitled to these documents because materials that pertain to the legislators' thought processes or the communications they had regarding legislation are privileged.

[225] at 9. Additionally, the Legislators contend that federal law does not require that they produce a privilege log. They argue that any documents responsive to the request are by their very nature privileged, rendering the creation of a privilege log, as normally required by Fed.R.Civ.P. 26, superfluous. They contend that the doctrine of “absolute [legislative] immunity” also protects them from having to produce a privilege log. See Id. at 12.[6]

         The JMAA Plaintiffs now ask the Court to (1) order the Legislators to produce any responsive, nonprivileged documents, and (2) require them to produce a privilege log for documents the Legislators claim are privileged.

         II. Analysis

         Rule 26 of the Federal Rules of Civil Procedure provides that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. . . ." Fed.R.Civ.P. 26(b)(1). See also, e.g., United States ex rel. Rigsby v. State Farm Fire & Cas. Co., 794 F.3d 457, 467 (5th Cir. 2015). “The Fifth Circuit has traditionally adhered to a broad and liberal treatment of the federal discovery rules.” Gilleylen v. City of Tupelo, Mississippi, No. 1:16CV94-SA-DAS, 2017 WL 3283863, at *1 (N.D. Miss. Aug. 2, 2017)(citing United States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991)). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1).

         a. Relevance.

         The Complaint in this case alleges, inter alia, that Defendants, through passage of SB 2162, violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. See [42] at 39-49. More specifically, the Complaint states, “Plaintiffs, in their individual capacities and as citizens and taxpayers of the City of Jackson and the State of Mississippi, . . . allege that Senate Bill 2162 was based, either in whole or in part, on discriminatory purposes.” Id. at 41. Courts, in reviewing Equal Protection Clause claims, have found that the motivations behind the allegedly discriminatory law are relevant in determining whether a violation has occurred. See Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997) (“The Supreme Court has instructed us time and again, however, that disparate impact alone cannot suffice to state an Equal Protection violation . . . . Thus, a party who wishes to make out an Equal Protection claim must prove the existence of purposeful discrimination motivating the state action which caused the complained-of injury.”) See also, Gaalla v. Brown, 460 Fed.Appx. 469, 477-78 (5th Cir. 2012) (citing Washington v. Davis, 426 U.S. 229, 243 (1976); Arlington Hts. v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977); and Hunter v. Underwood, 471 U.S. 222, 227 (1985)).

         Courts in the Fifth Circuit have found that statements by state legislators are relevant to show discriminatory intent in the passage of legislation. See Hall v. Louisiana, No. CIV.A. 12-657-BAJ, 2014 WL 1652791, at *9 (M.D. La. Apr. 23, 2014)(citing Village of Arlington, 429 U.S. at 268.)(“The legislators argue that the evidence requested is irrelevant to show discriminatory intent. Contrary to the legislators' argument, statements made by members of the lawmaking body are relevant to show discriminatory intent, which may be part of the proof used to establish Plaintiffs' substantive claims.”); see also Veasey v. Perry, No. 2:13-CV-193, 2014 WL 1340077, at *2 (S.D. Tex. Apr. 3, 2014)(“The evidence the United States seeks to compel [from the state legislators] is highly relevant to its claim because it bears directly on whether state legislators, contrary to their public pronouncements, acted with discriminatory intent in enacting SB 14.”).

         Request #3 appears reasonably tailored to seek documents which may shed light on the Legislators' motivations in drafting and passing SB 2162. Accordingly, the Court finds that Request #3 seeks material that may be relevant to the claims asserted in Counts VII and VIII of the Complaint.[7]

         b. Legislative Privilege

         In addition to requiring that discovery be relevant to the claims and defenses of the case, Rule 26 also requires that the discovery sought be “nonprivileged.” The Legislators assert that all documents which may be responsive to Request #3 are protected by “legislative privilege, ” and, therefore, protected from disclosure.

         The United States Constitution's Speech and Debate Clause states: “. . . for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” USCS Const. Art. I, § 6, Cl 1. However, because the Speech and Debate clause only applies to members of Congress, federal courts have had to determine in piecemeal fashion what protections should be afforded to state legislators. Consequently, determining whether a state legislator is entitled to invoke legislative privilege in federal court, or determining the scope of that privilege, is not as simple as it would be under either state law or if the legislator were a member of Congress.

         1. Federal Law Applies

         Federal law controls any assertion of legislative privilege the Legislators make in this case. The legislative privilege, as applied to claims to be decided under federal law, “is an evidentiary privilege ‘governed by federal common law, as applied through Rule 501 of the Federal Rules of Evidence.'” Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov't, 849 F.3d 615, 624 (5th Cir. ...

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