La Union Del Pueblo Entero v. Gregory W. Abbott

• Court: District Court, W.D. Texas
• Decided: May 25, 2022
• Docket: 5:21-cv-00844
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

LA UNION DEL PUEBLO ENTERO, et § al., § Plaintiffs § SA-21-CV-00844-XR § -vs- § § GREGORY W. ABBOTT, et al., § Defendants §

ORDER On this date, the Court considered Plaintiff League of United Latin American Citizens’ (“LULAC”) motion to compel (ECF No. 391). After carefully considering the parties’ briefing, holding a hearing on the motion, and conducting an in camera review of the requested documents, the Court issues the following order. BACKGROUND This action arises out of an omnibus voting bill, Senate Bill 1 (“S.B. 1”), the State of Texas enacted on August 31, 2021. Plaintiffs claim, inter alia, that the Texas Legislature enacted S.B. 1 with the intent to discriminate against certain racial minorities, including Black and Latinx voters. ECF No. 207 at 52. On December 15, 2021, Plaintiffs served third-party subpoenas to the legislative sponsors of S.B. 1, Texas Representatives Briscoe Cain and Andrew Murr and Texas Senators Paul Bettencourt and Bryan Hughes (collectively, “the State Legislators”). ECF No. 392 at 5, 23, 41, 59. The subpoenas sought documents and communications from the State Legislators concerning claims of criminal conduct in Texas elections, the anticipated effects of S.B. 1, and communications with third-party organizations concerning S.B. 1. See, e.g., id. at 8– 17. Subsequently, counsel for the State Legislators sent Plaintiffs a letter asserting various objections to the subpoenas, including assertions of legislative, investigative, deliberative- process, and attorney-client privileges. Id. at 77–79. After numerous meet-and-confer sessions, the Parties were unable to resolve their disagreements concerning the State Legislators’

assertions of privilege. Plaintiff LULAC filed the instant motion to compel, seeking discovery of various documents over which the State Legislators have asserted legislative, attorney-client, work-product, and investigative privileges. DISCUSSION I. Legal Standard Pursuant to Rule 45 of the Federal Rules of Civil Procedure, a party to a litigation may serve a nonparty a subpoena to “produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control[.]” FED. R. CIV. P. 45(a)(1)(A)(iii). The nonparty may object to the subpoena within 14 days after the subpoena is served, and failure to serve written objections to a subpoena within 14 days “typically constitutes

a waiver of such objections, as does failing to file a timely motion to quash.” Total Rx Care, LLC v. Great N. Ins. Co., 381 F.R.D. 587, 592–93 (N.D. Tex. 2017). The subpoenaed party may object to the subpoena on the grounds that the sought discovery is privileged. FED. R. CIV. P. 45(e)(2). “Rule 45(e)(2) governs a non-party’s withholding of information on the grounds of privilege or work-product protections but is substantively identical to Rule 26(b)(5)’s requirements as to a responding party.” Am. Fed’n of Musicians of the U.S. & Can. v. Skodam Films, LLC, 313 F.R.D. 39, 46 (N.D. Tex. 2015). As such, when a nonparty withholds purportedly privileged information, the nonparty must: “(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5). Conclusory assertions of privilege are “insufficient to carry out the proponent’s burden of establishing” the relevant privilege. EEOC v. BDO USA, L.L.P., 876 F.3d 690, 696

(5th Cir. 2017). When the nonparty relies on a privilege log to assert the relevant privilege, the log must “must provide sufficient information to permit courts and other parties to ‘test[ ] the merits of’ the privilege claim.” Id. at 697 (quoting United States v. El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982)) (alteration in original). II. Analysis Plaintiffs seek to compel (1) 139 legislative documents over which Plaintiffs assert the State Legislators have failed to justify their assertion of legislative privilege; (2) 89 documents over which Plaintiffs contend the State Legislators have waived the legislative privilege; (3) 41 documents over which Plaintiffs argue the State Legislators have improperly asserted and/or waived attorney-client or work-product protection; and (4) 11 documents over which Plaintiffs

claim the State Legislators have improperly asserted an investigative privilege. To begin, the Court notes that the privilege log is defective. The log, in many instances, is devoid of information concerning where certain documents originated, whom the documents were shared with, and in many cases, only contains conclusory statements to support the assertion of the relevant privilege. Nonetheless, the Court will discuss each of these disputed assertions of various forms of privilege in turn. a. Legislative Privilege Legislative privilege 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. 2017) (quoting Perez v. Perry, No. SA- 11-CV-360-OLG-JES, 2014 WL 106927, at *1 (W.D. Tex. Jan. 8, 2014) (three-judge panel)). “Legislative privilege protects legislators from possible prosecution by an unfriendly executive and conviction by a hostile judiciary, and is one means for ensuring the independence of the

legislature, in other words, it serves to preserve the constitutional structure of separate, coequal, and independent branches of government[.]” Gilby v. Hughs, 471 F. Supp. 3d 763, 766–67 (W.D. Tex. 2020) (internal citations omitted). The privilege applies to “any documents or information that contains or involves opinions, motives, recommendations or advice about legislative decisions between legislators or between legislators and their staff.” Jackson Mun. Airport Auth. v. Bryant, No. 3:16-CV-246-CWR-FKB, 2017 WL 6520967, at *7 (S.D. Miss. Dec. 19, 2017) (quoting Hall v. Louisiana, No. 12-657-BAJ-RLB, 2014 WL 1652791, at *10 (M.D. La. Apr. 23, 2014)). The privilege does not apply, though, to “documents containing factually based information used in the decision-making process or disseminated to legislators or committees, such as committee reports and minutes of meetings,” or “the materials and information available

[to lawmakers] at the time a decision was made.” Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 11 C 5065, 2011 WL 4837508, at *9 (N.D. Ill. Oct. 11, 2011) (internal quotations and citations omitted) (alteration in original). The privilege is personal, and it may be waived or asserted by the individual legislator. Perez, 2014 WL 106927, at *1. “[C]ounsel for the State of Texas may not invoke the privilege on behalf of the legislator, legislative aide, or staff member.” Id. at *2. Nor can a legislator assert or waive the privilege on behalf of another legislator. Gilby, 471 F. Supp. 2d at 767. “To the extent . . . that any legislator, legislative aide, or staff member had conversations or communications with any outsider (e.g. party representatives, non-legislators, or non-legislative staff), any privilege is waived as to the contents of those specific communications.” Perez, 2014 WL 106927, at *2. Further, the privilege accorded to state legislators is qualified. United States v. Gillock, 445 U.S. 360, 373 (1980); Jefferson Cmty. Health Care Ctrs., Inc., 849 F.3d at 624. The

privilege “must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” Jefferson Cmty. Health Care Ctrs. Inc., 849 F.3d at 624 (quoting Perez, 2014 WL 106927, at *1). Accordingly, in determining whether and to what extent the legislative privilege must be honored, the Court “must balance the extent to which production of the information sought would chill the [Texas] Legislature’s deliberations . . . against any other factors favoring disclosure.” Rodriguez v. Pataki, 280 F. Supp. 2d 89, 100 (S.D.N.Y. 2003). The Rodriguez court articulated five factors to consider in making such a determination: “(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the ‘seriousness’ of the litigation and the

issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.” Id. at 101; see also Veasey v. Perry, No. 2:13-CV-193, 2014 WL 1340077, at *2 (S.D. Tex. Apr. 3, 2014) (applying the Rodriguez five-factor analysis); Perez, 2014 WL 106927, at *2. The Court will first address whether the legislative privilege has been waived as to the documents identified in Table B of the privilege log. Next, the Court will address the remaining legislative privilege claims under the Rodriguez five-factor test. i. Waiver LULAC contends that the documents identified in Table B indicate a waiver of the legislative privilege on its face, as these documents were obtained from or disclosed to non- legislative parties. The Court agrees.1 The vast majority of documents identified in Table B are

communications between the State Legislators and non-legislative third parties. There are two categories of such communications: (1) communications between the State Legislators and third- party organizations, constituents, lobbyists, etc.; and (2) communications between the State Legislators and executive branch offices, such as the Office of the Attorney General (“OAG”), Secretary of State, and Lieutenant Governor. First, the legislative privilege was waived when the State Legislators communicated with parties outside the legislature, such as party leaders and lobbyists. As discussed, “[t]o the extent . . . that any legislator, legislative aide, or staff member had conversations or communications with any outsider (e.g. party representatives, non-legislators, or non-legislative staff), any privilege is waived as to the contents of those specific communications.” Perez, 2014 WL 106927, at *2; see

also Gilby, 471 F. Supp. 3d at 767; Favors v. Cuomo, 285 F.R.D. 187, 212 (E.D.N.Y. 2012); Jackson Mun. Airport Auth., 2017 WL 6520967, at *8; Lee v. Va. State Bd. of Elections, No. 3:15-cv-357 (HEH-RCY), 2015 WL 9461505, at *1 (E.D. Va. Dec. 23, 2015). Therefore, the Court finds that to the extent otherwise-privileged documents or information has been shared with third parties, the legislative privilege has been waived. Still, the State Legislators argue that the privilege has not been waived because these communications were made as part of the legislative “process of gathering facts for and

1 As identified in Table B, Documents 78 and 84 are communications between the State Legislators and the Texas Legislative Council. The Texas Legislative Council is a nonpartisan, legislative agency. As such, these communications do not constitute a waiver. These documents are subject Court’s analysis in balancing the Rodriguez factors, infra. considering election integrity legislation.” ECF No. 397 at 12. To support their assertions, the State Legislators rely on numerous authorities construing the federal Constitution’s Speech and Debate Clause and federal legislative immunity. See id. at 12–13 (citing Watkins v. United States, 354 U.S. 178, 187 (1957) (discussing Congress’s power to conduct investigations); Gov’t

of Virgin Islands v. Lee, 775 F.2d 514, 519–20 (3d Cir. 1985) (discussing the Speech and Debate Clause and 48 U.S.C. §1572(d), the Virgin Islands’ legislative immunity statute); Miller v. Transamerican Press, 709 F.2d 524, 530 (9th Cir. 1983) (discussing legislative privilege as applied to members of Congress); McSurely v. McClellan, 553 F.2d 1277, 1284 (D.C. Cir. 1976) (en banc) (discussing federal legislators’ immunity under the Speech and Debate Clause)). However, the Supreme Court has made it clear that the Speech and Debate Clause does not apply to state legislators. Gillock, 445 U.S. at 374. As such, these authorities are unpersuasive in this context. The State Legislators further cite three district court cases concluding that all third-party communications with state legislators are privileged: Puente Arizona v. Arpaio, 314 F.R.D. 64

(D. Ariz. 2016), Thompson v. Merrill, No. 2:16-cv-783-ECM, 2020 WL 2545317 (M.D. Ala. May 19, 2020), and Jeff D. v. Kempthorne, No. CV-80-4091-E-BLW, 2006 WL 2540090 (D. Idaho Sept. 1, 2006). All are unpersuasive. While Puente Arizona concluded that state legislators’ communications with third parties were protected, in reaching that conclusion, the court relied on Miller and Jewish War Veterans of the U.S. of Am., Inc. v. Gates, 506 F. Supp. 2d 30 (D.D.C. 2007). Both Miller and Jewish War Veterans concerned the application of the legislative privilege to members of Congress through the Speech and Debate Clause, not state legislators. Miller, 709 F.2d at 530; Jewish War Veterans, 506 F. Supp. 2d at 52. Thompson is no more availing. There, the court relied on, and was controlled by, the Eleventh Circuit’s decision in In re Hubbard, 803 F.3d 1298 (11th Cir. 2015), concluding that third-party communications were protected by the legislative privilege. However, Hubbard “is inconsistent with the Fifth Circuit view (and apparent majority view) of the legislative privilege as a limited, qualified privilege.”2 Jackson Mun. Airport Auth., 2017 WL 6520967, at *9. Finally, the court in Jeff D.

cites no authority for the proposition that a state legislators’ communications with third parties are privileged. See Jeff D., 2006 WL 2540090, at *3. Case law within the Fifth Circuit is clear that state legislators waive the legislative privilege when they communicate with outsiders. E.g., Gilby, 471 F. Supp. 3d at 767; Perez, 2014 WL 106927, at *2. This Court reaches the same conclusion here. Similarly, the legislative privilege is waived when a state legislator communicates with executive branch officials. Again, with respect to communications between state legislators and “any outsider (e.g. party representatives, non-legislators, or non-legislative staff), any privilege is waived as to the contents of those specific communications.” Perez, 2014 WL 106927, at *2 (emphasis added). At issue here are communications with the Office of the Attorney General,

Secretary of State, and the Lieutenant Governor. ECF No. 392 at 263–88. Each of these entities are members of the executive branch, and thus constitute “outsiders.” TEX. CONST. art. IV, § 1 (amended 1995) (“The Executive Department of the State shall consist of a Governor, . . . a Lieutenant Governor, Secretary of State, . . . and Attorney General.”); see also Perez, 2014 WL 106927, at *2. Further, expanding the privilege to protect state legislators’ communications with the executive branch is inconsistent with the purposes of the privilege: to protect the legislative branch from “intimidation” by the executive and judicial branches. Gilby, 471 F. Supp. 3d at

2 Indeed, as the Jackson court noted, “Hubbard does not recognize a distinction between the concepts of legislative privilege, legislative immunity, and the Speech and Debate Clause as applied to state legislators.” Jackson Mun. Airport Auth., 2017 WL 6520967, at *9 n.10. 767. As such, the Court concludes that the State Legislators’ communications with the executive branch are not protected by the legislative privilege.3 Nonetheless, the State Legislators have asserted that the privilege extends to officials outside the legislative branch when such officials perform legislative functions. ECF No. 397 at

20. The cases the State Legislators cite in support of this proposition concern legislative immunity from suit, not legislative privilege. See id. Legislative immunity and legislative privilege are related concepts, but they are distinct. Jackson Mun. Airport Auth., 2017 WL 6520967, at *4; see also Harding v. County of Dallas, No. 3:15-CV-0131-D, 2016 WL 7426127, at *2 (N.D. Tex. Dec. 23, 2016). The Rodriguez court offered a helpful explanation of the distinction: Closely related to the concept of legislative immunity is the concept of legislative privilege. Although the two doctrines are often discussed interchangeably, there is one key difference. Legislative immunity entitles a state legislator, in an appropriate case, to the dismissal of all of the claims against him or her in the complaint, much as judicial immunity entitles judges to the dismissal of suits against them arising out of the performance of their judicial functions. Legislative privilege, on the other hand, is not absolute. Thus, courts have indicated that, notwithstanding their immunity from suit, legislators may, at times, be called upon to produce documents or testify at depositions.

Rodriguez, 280 F. Supp. 2d at 95 (internal citations omitted). As legislative immunity and legislative privilege are distinct concepts, the Court declines to extend the privilege to executive branch officials assisting in the drafting of legislation. The State Legislators assert that these cases are relevant because “[legislative] immunity from suit derives from the testimonial privilege, not the other way around.” Id. (quoting Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 418 (D.C. Cir. 1995)). Yet again, the

3 The Court will analyze whether such communications with the OAG are protected by the attorney-client privilege infra. authority that the State Legislators present is wholly unpersuasive. Brown concerns the application of the Speech and Debate Clause, which, as stated, does not apply in this context. Further, if the Court were to accept that the evidentiary privilege afforded to state legislators derived from their testimonial privilege, as the State Legislators urge, then state legislators would have qualified immunity from suit for their legislative acts. That is not the law.4 Perez, 2014 WL

106927, at *2 (“While the common-law legislative immunity for state legislators is absolute, the legislative privilege for state lawmakers is, at best, one which is qualified.” (internal quotations and citations omitted)). Even assuming such cases are relevant, the State Legislators fail to meet their burden to establish that any individual from the executive branch was in fact performing a legislative function with respect to the communications at issue. Communications from legislators to the executive branch seeking guidance on formulating legislation “are not meaningfully different” from communications between legislators and constituents, lobbyists, or think-tanks. See Gilby, 471 F. Supp. 3d at 768. The privilege log does not explain how these communications were in

relation to a legislative function. Instead, the log merely asserts that the communications were “considered when drafting legislation” or consisted of “advice” concerning pending legislation. These assertions do not show how the communications are “meaningfully different” from the legislators’ communications with other outsiders, such as lobbyists. The State Legislators’ communications with the Lieutenant Governor’s office require closer examination. While the Lieutenant Governor is a member of the executive branch, he is

4 The State Legislators also urge this Court to adopt the court’s holding in Texas v. Holder, No. 12-128 (DST, RMC, RLW), 2012 WL 13070060 (D.D.C. June 5, 2012), concluding that communications between state legislators and executive agencies are privileged. Id. at *4. However, like the other cases the State Legislators cite, the court there relied on cases construing the Speech and Debate Clause. See id. at *4 (citing Jewish War Veterans, 506 F. Supp. 2d at 57; McSurely, 553 F.2d at 1287). The Court therefore declines to follow the Texas court’s holding. also the President of the Texas Senate. TEX. CONST. art. IV, § 16. His official duties include: (1) appointing the chairs and members of all committees and standing subcommittees; (2) announcing each reading of a bill; (3) referring each bill to a committee or standing subcommittee; (4) signing bills and joint resolutions passed by the whole legislature; (5) voting

on legislation in the event of a senate tie; and (6) presiding over the senate and running the operations of the senate chamber, including recognizing members for debate and scheduling most bills for debate. Tex. S. Rules 4.01, 5.08, 7.03, 7.06, 7.23, 11.01, 12.01, 87th Leg., 2d Spec. Sess. (2021). Further, when the senate resolves into a Committee of the Whole Senate, the Lieutenant Governor may participate in debate and vote on all questions, including bills pending before the Committee of the Whole. Id. at 13.01–.05. While the Lieutenant Governor has extensive, enumerated legislative functions, the State Legislators have not shown that the communications at issue involved any of these legislative functions. Rather, the communications involve the Lieutenant Governor’s input on drafting legislation. The Lieutenant Governor may exercise such a right as to legislation pending before

the Committee of the Whole Senate, but S.B. 1 and its predecessors were considered by the State Affairs Committee. See, e.g., S.J. of Tex. 87th Leg., 2d C.S. 4 (2021). Thus, the Lieutenant Governor’s communications are not meaningfully different than the State Legislators’ communications with lobbyists or other third parties. As such, the Court concludes the legislative privilege is waived. ii. Balancing of Interests The State Legislators have additionally asserted the legislative privilege as to several internal documents such as notes and drafts of election legislation as well as communications between the State Legislators and their staff. These documents and communications are subject to the legislative privilege. Thus, the Court will weigh the Rodriguez factors to determine if they should nevertheless be disclosed: “(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the ‘seriousness’ of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by

government employees who will be forced to recognize that their secrets are violable.” Id. at 101; see also Veasey v. Perry, No. 2:13-CV-193, 2014 WL 1340077, at *2 (S.D. Tex. Apr. 3, 2014) (applying the Rodriguez five-factor analysis); Perez, 2014 WL 106927, at *2. The first factor weighs in favor of disclosure. The LULAC Plaintiffs allege that “a racially discriminatory purpose was a motivating factor in the passage of SB 1” in violation of Section 2 of the Voting Rights Act. ECF No. 207 at 52. The evidence that the LULAC Plaintiffs seek to compel is highly relevant in proving their Section 2 claim, as the documents reflect the State Legislators’ contemporaneous thoughts and motivations in drafting and enacting S.B. 1. With respect to the second factor, the availability of other evidence, litigants may prove a Section 2 claim through circumstantial or direct evidence of a discriminatory purpose.5 Veasey v.

Abbott, 830 F.3d 216, 230–31 (5th Cir. 2016). Thus, the State Legislators’ private communications and notes are not the only evidence that would allow the LULAC Plaintiffs to prove their Section 2 claim. However, the Court concludes this factor weighs in favor of disclosure “given the practical reality that officials ‘seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority.’” Veasey, 2014 WL 1340077, at *3 (quoting Smith v. Town of Clarkton, 682 F.2d 1055, 1064 (4th Cir. 1982)).

5 Litigants may also prevail on a Section 2 claim by demonstrating that legislation has a discriminatory effect. Veasey, 830 F.3d at 243. The third and fourth factors also weigh in favor of disclosure. The LULAC Plaintiffs raise serious questions whether S.B. 1 complies with the Voting Rights Act and the First and Fourteenth Amendments. See ECF No. 207 at 52–61. Additionally, the state government played a direct role in the alleged unlawful conduct. See Comm. for a Fair & Balanced Map, 2011 WL

4837508, at *8. As the LULAC Plaintiffs have alleged that the Texas legislature intentionally discriminated against minority voters, “the decisionmaking process . . . is the case.” Id. (quoting United States v. Bd. of Educ. of the City of Chi., 610 F. Supp. 695, 700 (N.D. Ill. 1985) (emphasis in original)). The fifth and final factor, the possibility of future timidity by government officials, weighs against disclosure. “[C]ourts have long recognized that the disclosure of confidential documents concerning intimate legislative activities should be avoided.” Veasey, 2014 WL 1340077, at *3; see also Comm. for a Fair and Balanced Map, 2011 WL 4837508, at *9. Even so, “‘where important federal interests are at stake,’ the principle of comity, which undergirds the protection of legislative independence, yields.” Bensick v. Lamone, 263 F. Supp. 3d 551, 555

(D. Md. 2017) (quoting Gillock, 445 U.S. at 373). Courts have repeatedly recognized that such important federal interests include protecting the fundamental right to vote. See, e.g., id.; Veasey, 2014 WL 1340077, at *2. As such, the Court finds that the need for accurate fact finding outweighs any chill to the legislature’s deliberations. See Baldus v. Brennan, No. 11-CV-562, 11-CV-1011, 2011 WL 6122542, at *2 (E.D. Wis. Dec. 8, 2011) (concluding that the potential “chilling effect” on the state legislature “is outweighed by the highly relevant and potentially unique nature of the evidence.”). b. Attorney-Client Privilege The State Legislators have further asserted the attorney-client privilege protects several documents from disclosure. “[T]he attorney-client privilege protects communications made in confidence by a client to his lawyer for the purpose of obtaining legal advice. The privilege also

protects communications from the lawyer to his client, at least if they would tend to disclose the client’s confidential communications.” Hodges, Grant & Kaufmann v. U.S. Gov’t, Dep’t of the Treas., 768 F.2d 719, 720–21 (5th Cir. 1985) (internal citations omitted). “[D]isclosure of attorney-client communications to a third party lacking a common legal interest will result in a waiver of the attorney-client privilege.” S.E.C. v. Brady, 238 F.R.D. 429, 439 (N.D. Tex. 2006) (citing In re Auclair, 961 F.2d 65, 69 (5th Cir. 1992)). Parties have a “common legal interest” if they are “co-defendants in actual litigation” or “potential” co-defendants. United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002). “Communications between potential codefendants and their counsel are only protected if there is ‘a palpable threat of litigation at the time of the communication, rather than a mere awareness that one’s questionable conduct might

some day result in litigation.’” Id. (quoting In re Santa Fe Int’l Corp., 272 F.3d 705, 711 (5th Cir. 2001)). The LULAC Plaintiffs argue that the privilege log shows many instances of waiver. In response, the State Legislators argue that no waiver occurred as all parties to the communications shared a common legal interest in drafting legislation. ECF No. 397 at 21. However, the State Legislators have not presented, and the Court has not found, any Fifth Circuit case law concluding that parties may have a common legal interest in anything other than “actual litigation.” See In re Santa Fe Int’l Corp., 272 F.3d at 710–13 (discussing cases within the Fifth Circuit addressing the common-interest doctrine). Nor can the State Legislators plausibly claim that a threat of litigation existed at the time of the communications. These communications concerned advice in drafting legislation that was still being debated and amended, and the legislation was not guaranteed to pass. In some cases, the legislation did in fact fail. See H.J. of Tex., 87th Leg., R.S. 5466 (2021) (recording SB 7’s failure because the House of

Representatives lacked a quorum). Consequently, the State Legislators cannot assert that the common-interest doctrine protects the communications from disclosure. Even beyond the numerous instances of waiver, many of the communications at issue do not concern legal advice. Several of the communications concern “solicited information about incidents of voting misconduct.” See ECF No. 392 at 284–85. Facts within the client’s knowledge are not protected by the attorney-client privilege, “even if the client learned those facts through communications with counsel.” Thurmond v. Compaq Comput. Corp., 198 F.R.D. 475, 483 (E.D. Tex. 2000). As these communications relayed facts, not legal advice, they are not privileged. c. Work-Product Protection

The State Legislators have also asserted work-product protection as to several documents. However, “[d]ocuments prepared for one who is not a party to the present suit are wholly unprotected by Rule 26(b)(3) even though the person may be a party to a closely related lawsuit in which he will be disadvantaged if he must disclose in the present suit.” 8 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 2024 (3d ed. 1998). The State Legislators are not parties to the underlying suit, nor can they be. Thus, any assertions of work-product protection are improper. d. Investigative Privilege Finally, the State Legislators have asserted an investigative privilege over eleven documents. The Fifth Circuit recognizes an investigative privilege, often referred to as a law enforcement privilege. In Re U.S. Dep’t of Homeland Sec., 459 F.3d 565, 568–69 (5th Cir. 2006). The

privilege protects government documents relating to an ongoing criminal investigation from release. Id. at 569 n.2. However, the privilege “is bounded by relevance and time constraints,” and [s]everal types of information probably would not be protected, including documents pertaining to: (1) people who have been investigated in the past but are no longer under investigation, (2) people who merely are suspected of a violation without being part of an ongoing criminal investigation, and (3) people who may have violated only civil provisions. Furthermore, the privilege lapses after a reasonable period of time.

Id. at 571. It is unclear if the State Legislators may properly assert an investigatory privilege. See id. at 569 n.2 (observing that the law enforcement privilege is a “subcategory” of the executive privilege). However, even assuming they may assert the privilege, the State Legislators have not met their burden to show that an investigatory privilege is applicable. Jonathan White, Chief of the Elections Integrity Division at the Office of the Attorney General, avers that the documents concern “potential election code violations.” ECF No. 397-11 at 3. Nowhere in the privilege log or elsewhere do the State Legislators assert that these documents concern an ongoing criminal investigation or that any investigation even occurred. As such, the Court concludes that the State Legislators have failed to show the documents are subject to an investigatory privilege. CONCLUSION For the foregoing reasons, Plaintiff LULAC’s motion to compel (ECF No. 391) is GRANTED. The State Legislators are ORDERED to produce all documents, with the exception of DOC_0000477, as specified in Appendix A below, by June 3, 2022. It is so ORDERED. SIGNED this 25th day of May, 2022.

XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

APPENDIX A Doc. ID Number Document Description To/Cc/From Privilege Asserted Ruling DOC_0000149 Draft of HB3 (predecessor of SB1) Unknown Legislative PRODUCE. For the with Representative Andrew Murr’s reasons stated in the redlines and annotations. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0000629 Report from Crime Prevention Unknown Legislative PRODUCE. The report Research Center on mail-in ballots itself is not subject to the and voter fraud. Two handwritten legislative privilege notes are on the first page of the because it originated from report. outside the legislature. The handwritten notes are privileged, but for the reasons stated in the Court’s order the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0000798 Bill Analysis of SB 1509 Unknown Legislative PRODUCE. For the (predecessor of SB1) from reasons stated in the Representative Cain’s files. Court’s order, the Court Document has some handwritten finds that the legislative marks and annotations. privilege is excused under the Rodriguez five-factor balancing test. PDOC_0000899 Typed summary of Secure Unknown Legislative PRODUCE. For the Democracy’s opinion on HB 6 and reasons stated in the SB 7 (predecessors of SB1). Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0000973 Draft of HB 6/SB 7 with redlining. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0001053 Drafts of proposed committee Unknown Legislative PRODUCE. For the amendments to SB 7 with reasons stated in the handwritten annotations. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0001217 Draft of HB 6 with Representative Unknown Legislative PRODUCE. For the Cain’s handwritten notes. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0001218 Draft of unspecified election bill with Unknown Legislative PRODUCE. For the Representative Cain’s handwritten reasons stated in the notes and redlining. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0001251 Draft of HB 6 with handwritten notes Unknown Legislative PRODUCE. For the and redlining. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor 19 balancing test. PDOC_0001463 Draft script written in for floor Unknown Legislative PRODUCE. For the speech concerning passage of SB 7. reasons stated in the First page of the document is Court’s order, the Court missing. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0001464 Notes and bulleted talking points for Unknown Legislative PRODUCE. For the Representative Cain’s use regarding reasons stated in the unspecified elections bill. Contains Court’s order, the Court handwritten annotations. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0001487 Redlined draft of an unspecified Unknown Legislative PRODUCE. For the elections bill. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000207 Draft script written in preparation of Unknown Legislative PRODUCE. For the the legislator’s layout of SB 7 given reasons stated in the on the house floor. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000209 Notes and bulleted talking points for Unknown Legislative PRODUCE. For the Representative Cain’s use regarding reasons stated in the HB 6. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor 20 balancing test. DOC_0000218 Redlined draft of HB 6. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000219 Redlined draft of HB 6. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000220 Redlined draft of HB 6. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000224 Redlined draft of committee Unknown Legislative PRODUCE. For the substitute of HB 6. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000225 Redlined draft of unspecified Unknown Legislative PRODUCE. For the elections bill. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor 21 balancing test. DOC_0000226 Redlined draft of HB 2478 prepared Unknown Legislative6 PRODUCE. For the by the Texas Legislative Council. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000227 Redlined draft of unspecified Unknown Legislative PRODUCE. For the elections bill. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000235 Typed notes regarding proposed Unknown Legislative PRODUCE. For the interim changes to SB1. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000238 Notes and bulleted talking points for Unknown Legislative PRODUCE. For the Representative Cain’s use regarding reasons stated in the HB 6. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000247 Notes and talking points for Unknown Legislative PRODUCE. For the Representative Cain’s use regarding reasons stated in the an unspecified election bill. Court’s order, the Court

6 The State Legislators initially asserted that this document was also protected by the attorney-client privilege and work-product doctrine but have withdrawn their assertions. ECF No. 417. 22 finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000248 Email between Representative Cain To: Justin Williamson Legislative PRODUCE. For the and his Chief of Staff concerning SB (Rep. Cain Chief of Staff) reasons stated in the 7 with PDF attachment of redlined From: Rep. Cain Court’s order, the Court election legislation concerning drive- finds that the legislative thru voting. privilege is excused under the Rodriguez five-factor balancing test. DOC_0000259 Redlined draft of an unspecified Unknown Legislative PRODUCE. For the elections bill related to curbside reasons stated in the voting. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000269 Redlined draft of HB 6 containing Unknown Legislative PRODUCE. For the legislator’s handwritten notes. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_00003746 SB 1 conference committee report. Unknown Legislative PRODUCE. For the Comparison of House and Senate reasons stated in the Bills with the Committee updates. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_00003951 Testimony via email to the Senate To: The Senate Committee Legislative. PRODUCE. This Committee on State Affairs stating on State Affairs document is not subject to opposition to SB 1’s poll-watcher legislative privilege as it provisions. Document contains From: Zenobia Joseph was authored by a non- 23 handwritten annotations. legislative third party. Rep. Murr’s annotations are privileged, though, and subject to the five- factor balancing test under Rodriguez. PDOC_000039587 Email from Patty Ducayet, an HHS To: Logan Harrison Legislative PRODUCE. This employee, stating concerns with HB Cc: Kristen Mills document is not subject to 3. Document has handwritten notes at From: Patty Ducayet legislative privilege as it the top. was authored by a non- legislative third party. The handwritten notes are privileged, but for the reasons stated in the Court’s order the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_00003961 Representative Bucy’s bulleted Unknown Legislative PRODUCE. For the talking points concerning HB 3. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_00004651 Representative Murr’s typed notes, Unknown Legislative PRODUCE. For the document entitled “Recommended reasons stated in the Technical Amendments to HB 3.” Court’s order, the Court Contains handwritten annotations. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test.

7 The State Legislators informed the Court that the document was not completely withheld, but produced with redactions. ECF No. 417 at 3. 24 PDOC_00004658 Handwritten annotations to Unknown Legislative PRODUCE. For the Representative Turner’s proposed reasons stated in the floor amendments to HB 3. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_00004669 Coalition of Texas with Disabilities Unknown Legislative. PRODUCE. This Report to Representative Murr document is not subject to concerning notice-and-cure language legislative privilege as it in SB 1018 (predecessor to SB 1). was authored by a non- Report has Representative Murr’s legislative third party. handwritten notes. The handwritten notes are privileged, but for the reasons stated in the Court’s order the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_00004690 Representative Murr’s unofficial HB Unknown Legislative PRODUCE. For the 3 workup that analyzes and reasons stated in the summarizes various provisions of the Court’s order, the Court bill. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_00005253 Proposed amendment to SB 1 with Unknown Legislative PRODUCE. For the redlining. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_00005316 Representative Murr’s notes and Unknown Legislative PRODUCE. For the draft script concerning conference reasons stated in the 25 committee report on SB 1. Contains Court’s order, the Court handwritten notes and annotations as finds that the legislative well as a copy of the conference privilege is excused under committee report. the Rodriguez five-factor balancing test. PDOC_00005385 Draft script prepared for SB 1’s Unknown Legislative PRODUCE. For the layout that contains handwritten reasons stated in the notes and annotations as well as a Court’s order, the Court redlined version of the SB 1 layout. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_00005402 Comparison table analyzing, section- Unknown Legislative PRODUCE. For the by-section, SB 1 as introduced and reasons stated in the the committee substitute, with Court’s order, the Court highlights and redlining. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_00005481 Typed notes on potential Unknown Legislative PRODUCE. For the amendments to SB 1 and draft reasons stated in the language. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_00005488 Representative Murr’s handwritten Unknown Legislative PRODUCE. For the notes concerning floor debate and reasons stated in the possible remarks. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_00005488 Document from Representative From: Zachary Cochran Legislative PRODUCE. For the Murr’s briefing book concerning (Rep. Bernal’s Chief of reasons stated in the drafting election legislation. Includes Staff) Court’s order, the Court 26 email correspondence between To: finds that the legislative Representative Murr and dbernal.docs@gmail.com privilege is excused under Representative Bernal as well as a the Rodriguez five-factor handwritten note. balancing test. DOC_0001032 Senator Bettencourt’s typed notes Unknown Legislative PRODUCE. For the concerning election-fraud reasons stated in the prosecutions in the state as well as Court’s order, the Court election security concerns in Harris finds that the legislative County. privilege is excused under the Rodriguez five-factor balancing test. DOC_0001071 Email containing 9/24/2020 press To: Don Barber Legislative PRODUCE. This release from OAG announcing joint From: Office of the document is not subject to prosecution of mail-in ballot scheme. Attorney General legislative privilege as it was authored by a non- legislative third party. DOC_0001092 Data concerning “JA request Unknown Legislative PRODUCE. Documents tracking, unsolicited mail-in ballot containing factually based applications” kept in Senator information used in the Bettencourt’s personal file. decision-making process are not privileged. DOC_0001154 Heritage Foundation report Unknown Legislative PRODUCE. This concerning election integrity. document is not subject to legislative privilege as it was authored by a non- legislative third party. PDOC_0000015 Letter from Election Integrity Project Unknown Legislative PRODUCE. This concerning HB 3 and SB 1 with a document is not subject to comparison of the two bills and legislative privilege as it comments from the organization. was authored by a non- Also includes an attachment of a legislative third party. draft bill of SB 1 with Senator Senator Hughes’ Hughes’ comments. handwritten notes are privileged, though, and subject to the five-factor balancing test under 27 Rodriguez. PODC_0000045 Redlined draft of HB 3 with Senator Unknown Legislative PRODUCE. For the Hughes’ handwritten notes and reasons stated in the annotations. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0000067 Redlined draft of unspecified election Unknown Legislative PRODUCE. For the bill. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0000110 Notes from Senator Hughes’ office Unknown Legislative PRODUCE. For the regarding pending election reasons stated in the legislation and priorities for said Court’s order, the Court legislation. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PODC_0000114 Handwritten and typed notes Unknown Legislative PRODUCE. For the regarding SB 1 conference reasons stated in the committee report. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0000198 Letter from Texas Association of To: LG Dan Patrick, Legislative PRODUCE. This Elections Administrators to LG Dan Speaker Dade Phelan document is not subject to Patrick and Speaker Dade Phelan Cc: Gov. Abbott, Sec. legislative privilege as it concerning SB 7 (predecessor to SB Esparza, Texas House, was authored by a non- 1). Contains Senator Hughes’ Texas Senate legislative third party. annotations. From: Texas Association The handwritten notes are 28 of Elections privileged, but for the Administrators reasons stated in the Court’s order the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002351 Senator Hughes’ typed notes Unknown Legislative PRODUCE. For the summarizing certain provisions of reasons stated in the SB 1. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002357 Redlined draft of unspecified Unknown Legislative PRODUCE. For the elections bill, containing comments, reasons stated in the notes, and other annotations. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002393 Redlined draft of unspecified Unknown Legislative PRODUCE. For the elections bill, containing comments, reasons stated in the notes, and other annotations. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002426 Draft amendment to SB 7 containing Unknown Legislative PRODUCE. For the Senator Hughes’ handwritten reasons stated in the annotations and notes. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. 29 PDOC_0002431 Draft amendment to SB 7 containing Unknown Legislative PRODUCE. For the Senator Hughes’ handwritten reasons stated in the annotations and notes. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002441 Redlined draft of SB 7. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002464 Senator Hughes’ notes concerning Unknown Legislative PRODUCE. For the amendments to SB 7 that contain reasons stated in the handwritten notes and markings. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002467 Draft amendment to SB 7 containing Unknown Legislative PRODUCE. For the handwritten notes by Senator reasons stated in the Hughes. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002520 Redlined proposed amendment to Unknown Legislative PRODUCE. For the unspecified election legislation, reasons stated in the containing Senator Hughes’ Court’s order, the Court handwritten notes and annotations. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. 30 PODC_0002530 Typed notes concerning election Unknown Legislative PRODUCE. For the legislation with handwritten reasons stated in the annotations and markings by Senator Court’s order, the Court Hughes. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002540 Typed notes Senator Hughes Unknown Legislative PRODUCE. For the prepared for meeting with reasons stated in the Representative Murr regarding HB 3 Court’s order, the Court and SB 7. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002542 Typed notes summarizing content of Unknown Legislative PRODUCE. For the proposed election legislation. reasons stated in the Contains some handwritten notes. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test.. PDOC_0002546 Typed notes concerning amendment Unknown Legislative PRODUCE. For the to SB 7 with a handwritten note. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002569 Redlined draft of SB 7 with Unknown Legislative PRODUCE. For the handwritten annotations. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. 31 PDOC_0002609 Redlined draft of SB 7 with Unknown Legislative PRODUCE. For the comments, notes, and other reasons stated in the annotations. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002632 Redlined draft excerpt of SB 7 with Unknown Legislative PRODUCE. For the comments, notes, and other reasons stated in the annotations. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002643 Typed notes, titled “Election Unknown Legislative PRODUCE. For the Integrity Bill Ideas.” Written ideas reasons stated in the for bills, suggestions were received Court’s order, the Court from third parties outside the finds that the legislative legislature. privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002660 Redlined draft excerpt of SB 7 with Unknown Legislative PRODUCE. For the comments, notes, and other reasons stated in the annotations. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002683 Redlined draft excerpt of SB 7 with Unknown Legislative PRODUCE. For the comments, notes, and other reasons stated in the annotations. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. 32 PDOC_0002708 Redlined draft of SB 7. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002774 A chart comparing HB 3 and SB 1 Unknown Legislative PRODUCE. For the containing handwritten notes and reasons stated in the comments. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002808 Redlined draft of SB 7 containing Unknown Legislative PRODUCE. The comments, notes, and other comments in this draft annotations. Many of the notes reveal show a waiver of the comments by Elizabeth Alvarez. privilege by disclosing the document to a non- legislative third party. PDOC_0002888 Data concerning numbers of Unknown Legislative PRODUCE. Documents Democratic voters requiring containing factually based assistance in Gregg County. information used in the decision-making process are not privileged. PDOC_0002890 Typed notes concerning amendments Unknown Legislative PRODUCE. Documents to SB 1 as well as bulleted talking containing factually based points. information used in the decision-making process There is also data from an unknown are not privileged. The source concerning applications for notes and talking points mail-in ballots by Democratic voters. are privileged, but for the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under 33 the Rodriguez five-factor balancing test. PDOC_0002907 Legislator’s notes and talking points Unknown Legislative. PRODUCE. For the for floor speech concerning election reasons stated in the legislation. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0002910 A document that cross-references Unknown Legislative PRODUCE. Documents provisions of SB 1 with the Texas containing factually based Election Code. information used in the decision-making process are not privileged. PDOC_0002920 A document that cross-references Unknown Legislative PRODUCE. Documents provisions of SB 1 with the Texas containing factually based Election Code. information used in the decision-making process are not privileged. PDOC_0002929 A document that cross-references Unknown Legislative PRODUCE. Documents provisions of SB 1 with the Texas containing factually based Election Code. information used in the decision-making process are not privileged. PDOC_0002936 A document that cross-references Unknown Legislative PRODUCE. Documents provisions of SB 1 with the Texas containing factually based Election Code. information used in the decision-making process are not privileged. PDOC_0002948 A document that cross-references Unknown Legislative PRODUCE. Documents provisions of SB 1 with the Texas containing factually based Election Code. information used in the decision-making process are not privileged. 34 PDOC_0002960 A document that cross-references Unknown Legislative PRODUCE. Documents provisions of SB 1 with the Texas containing factually based Election Code. information used in the decision-making process are not privileged. PDOC_0002980 A document that cross-references Unknown Legislative PRODUCE. Documents provisions of SB 1 with the Texas containing factually based Election Code. information used in the decision-making process are not privileged. PDOC_0002990 A document that cross-references Unknown Legislative PRODUCE. Documents provisions of SB 1 with the Texas containing factually based Election Code. information used in the decision-making process are not privileged. PDOC_0003034 Redlined draft of SB 7 containing Unknown Legislative PRODUCE. For the comments, notes, annotations, and reasons stated in the markings. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0003119 Redlined draft of SB 7 containing Unknown Legislative PRODUCE. For the comments, notes, annotations, and reasons stated in the markings. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. PDOC_0003199 Redlined draft of SB 7. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. 35 DOC_00000437 Redlined draft of conference Unknown Legislative PRODUCE. For the committee report of SB 7 that reasons stated in the contains markings and notes. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000438 Redlined draft of conference Unknown Legislative PRODUCE. For the committee report of SB 7 that reasons stated in the contains markings. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000439 Redlined draft of conference Unknown Legislative PRODUCE. For the committee report of SB 7 that reasons stated in the contains markings. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000440 Redlined draft of conference Unknown Legislative PRODUCE. For the committee report of SB 7 that reasons stated in the contains markings. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000441 Redlined draft of SB 7. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. 36 DOC_0000442 Chart prepared by Senator Hughes’ Unknown Legislative PRODUCE. For the staff outlining certain provisions of reasons stated in the SB 7. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000443 Typed notes concerning possible Unknown Legislative PRODUCE. For the amendments to SB 7. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000447 Notes and comments concerning Unknown Legislative PRODUCE. For the objections to SB 7. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000455 Typed notes summarizing SB 7. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000457 Draft press release pertaining to SB Unknown Legislative PRODUCE. For the 7. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. 37 DOC_0000458 Draft press release pertaining to SB Unknown Legislative PRODUCE. For the 7. Contains track changes. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000462 Redlined draft of SB 7 for purposes Unknown Legislative PRODUCE. For the of the Conference Committee. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000463 Redlined draft of SB 7 for purposes Unknown Legislative PRODUCE. For the of the Conference Committee. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000464 Redlined draft of SB 7 for purposes Unknown Legislative PRODUCE. For the of the Conference Committee. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000465 Redlined draft of SB 7 for purposes Unknown Legislative PRODUCE. For the of the Conference Committee. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. 38 DOC_0000484 Redlined draft of SB 7. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000485 Redlined draft of SB 7. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000486 Redlined draft of SB 7. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000497 Email correspondence concerning To: Terry Snelson (TLC); Legislative; attorney- PRODUCE. The proposed changes to SB 7. Hope Shelton (Sen. client; work-product legislative privilege has Hughes GC); Elizabeth been waived, as the Alvarez (Private attorney) communication extends Cc: Adam Moses (TLC); to the executive branch. Carey Eskridge (TLC); Further, any attorney- Drew Tedford (State client privilege has been Affairs Comm. Director); waived by disclosure to a Alix Morris (Lt. Gov); third party (Alix Morris). Justin Williamson Work-product protections From: Jessica Hart do not apply as the (Elections Comm. Staffer) documents were not prepared by parties to the underlying suit. 39 DOC_0000508 Email correspondence concerning To: Terry Snelson; Hope Legislative; attorney- PRODUCE. The proposed changes to SB 7. Shelton; Elizabeth Alvarez client; work-product legislative privilege has Cc: Adam Moses; Carey been waived, as the Eskridge; Drew Tedford; communication extends Alix Morris; Justin to the executive branch. Williamson Further, any attorney- From: Jessica Hart client privilege has been waived by disclosure to a third party (Alix Morris). Work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000554 Legislator’s typed notes regarding Unknown Legislative PRODUCE. For the proposed changes to SB 7. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000555 Map showing Harris County drive Unknown Legislative PRODUCE. Documents thru and 24-hour voting locations. containing factual information used in the decision-making process are not privileged. DOC_0000556 Map showing Harris County drive Unknown Legislative PRODUCE. Documents thru voting locations. containing factual information used in the decision-making process are not privileged. DOC_0000557 Map showing Harris County drive Unknown Legislative PRODUCE. Documents thru and 24-hour voting locations. containing factual information used in the decision-making process are not privileged. 40 DOC_0000539 Typed notes concerning legislative Unknown Legislative PRODUCE. For the testimony taken on SB 7. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000576 Typed, section-by-section summary Unknown Legislative PRODUCE. For the of SB 7. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000603 Notes and talking points, including a Unknown Legislative PRODUCE. For the draft Q&A as well as a summary of reasons stated in the negotiations with other legislators. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000603 Legislator’s typed notes concerning Unknown Legislative PRODUCE. For the federal law on voter assistance (VRA reasons stated in the section 208). Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000606 Legislator’s typed notes concerning Unknown Legislative PRODUCE. For the an audit of Maricopa County, AZ’s reasons stated in the election process and how to utilize Court’s order, the Court those results to inform SB 1. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. 41 DOC_0000607 Memorandum on voting assistance in Unknown Legislative PRODUCE. For the the vote-by-mail context. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000628 Memorandum and draft Q&A Unknown Legislative PRODUCE. For the concerning SB 1’s effects. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000629 Talking points and draft Q&A on SB Unknown Legislative PRODUCE. For the 1. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000640 A document that cross-references Unknown Legislative PRODUCE. Documents provisions of SB 1 with the Texas containing factually based Election Code. information used in the decision-making process are not privileged. DOC_0000640 Notes and talking points for layout of Unknown Legislative PRODUCE. For the SB 1 floor amendment. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000664 Legislator’s typed section-by-section Unknown Legislative PRODUCE. For the summary of SB 1. reasons stated in the Court’s order, the Court 42 finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000665 Legislator’s typed section-by-section Unknown Legislative PRODUCE. For the summary of SB 1. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000675 Notes and talking points, including Unknown Legislative PRODUCE. For the draft Q&A on SB 1. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000695 Redlined draft of SB 7. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000696 Legislator’s typed notes concerning Unknown Legislative PRODUCE. For the federal law on voter assistance. reasons stated in the Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000697 Legislator’s typed section-by-section Unknown Legislative PRODUCE. For the summary of HB 3. reasons stated in the Court’s order, the Court finds that the legislative 43 privilege is excused under the Rodriguez five-factor balancing test. DOC_0000702 Notes and bulleted talking points for Unknown Legislative PRODUCE. For the an amendment to an unspecified reasons stated in the election bill. Court’s order, the Court finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000737 Text correspondence between To: Senator Hughes Legislative PRODUCE. For the Senator Hughes and his general From: Hope Shelton reasons stated in the counsel concerning pending Court’s order, the Court legislation. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000739 Text correspondence between From: Senator Hughes Legislative PRODUCE. The Senator Hughes and an unknown To: Unknown8 legislative privilege is party concerning pending election waived as the Court legislation. cannot confirm the identity of the recipient. DOC_0000742 Text correspondence between From: Senator Hughes Legislative PRODUCE. The Senator Hughes and an unknown To: Unknown legislative privilege is party concerning pending election waived as the Court legislation. cannot confirm the identity of the recipient. DOC_0000743 Text correspondence between From: Senator Hughes Legislative PRODUCE. The Senator Hughes and an unknown To: Unknown legislative privilege is party concerning pending election waived as the Court legislation. cannot confirm the

8 The text messages were provided to the Court in PNG and JPEG format, and the privilege log does not contain any specification as to whom these communications were sent. Though the log submits the text messages are correspondence between Senator Hughes and “legislative staff,” the Court has no way of confirming this. The Court also notes that it is unable to confirm the identity of the recipient because the text messages provided to the Court are, for the most part, illegible. As such, the Court finds the privilege is waived. 44 identity of the recipient. DOC_0000747 Text correspondence between From: Unknown Legislative PRODUCE. The Senator Hughes’ general counsel and To: Hope Shelton legislative privilege is an unknown party. waived as the Court cannot confirm the identity of the sender. DOC_0000748 Text correspondence between From: Senator Hughes Legislative PRODUCE. The Senator Hughes and an unknown To: Unknown legislative privilege is party concerning pending election waived as the Court legislation. cannot confirm the identity of the recipient. DOC_0000750 Text correspondence between From: Senator Hughes Legislative PRODUCE. The Senator Hughes and an unknown To: Unknown legislative privilege is party concerning pending election waived as the Court legislation. cannot confirm the identity of the recipient. DOC_0000755 Text correspondence between Drew To: Drew Tedford (State Legislative PRODUCE. The Tedford, Jordan Berry, and Matt Affairs Comm. Director) legislative privileged is Murdoch. Cc: Jordan Berry9; Matt waived with respect to Murdoch (Angela Paxton communications with a Staffer) non-legislative party. From: Unknown DOC_0000756 Text correspondence between To: Senator Hughes Legislative PRODUCE. The Senator Hughes, Jordan Berry, and Cc: Jordan Berry; Matt legislative privileged is Matt Murdoch. Murdoch From: Unknown waived with respect to communications with a non-legislative party.

9 The privilege log does not specify what Mr. Berry’s employment status is within the legislature. In his affidavit, Senator Hughes states that Mr. Berry is “employed by myself for communications.” ECF No. 397-7 at 5. Given that legislative staffers are expressly designated as “legislative staffers” in the log and in Senator Hughes’ affidavit, the Court finds that Mr. Berry is not a legislative staffer. Thus, the Court concludes the privilege is waived in communications involving Mr. Berry. See ACORN v. County of Nassau, No. CV05-2301(JFB)(WDW), 2007 WL 2815810, at *6 (E.D.N.Y. Sept. 25, 2007) (concluding that where a government entity retains an outside advisor, communications between the advisor and legislative actor are not subject to legislative privilege). 45 DOC_0000757 Text correspondence between To: Senator Hughes Legislative PRODUCE. The Senator Hughes, Jordan Berry, and Cc: Jordan Berry; Matt legislative privileged is Matt Murdoch. Murdoch waived with respect to From: Unknown communications with a non-legislative party. DOC_0000250 Analysis of an unspecified elections Unknown Legislative PRODUCE. The bill. Log states the document was document is not received by legislative staff from a privileged as it was “third party not employed by the produced by a non- legislature.” legislative third party. DOC_0000251 Analysis of an unspecified elections Unknown Legislative PRODUCE. The bill. Log states the document was document is not received by legislative staff from a privileged as it was “third party not employed by the produced by a non- legislature.” legislative third party. DOC_0000252 Analysis of an unspecified elections Unknown Legislative PRODUCE. The bill. Log states the document was document is not received by legislative staff from a privileged as it was “third party not employed by the produced by a non- legislature.” legislative third party. PDOC_00003286 Texas Public Policy Foundation Unknown Legislative PRODUCE. The report on election integrity and document is not policy kept in Representative Murr’s privileged as it was files. produced by a non- legislative third party. PDOC_00003329 Texas Public Policy Foundation Unknown Legislative PRODUCE. The report on election integrity and document is not policy kept in Representative Murr’s privileged as it was files. produced by a non- legislative third party. PDOC_00003366 Texas Public Policy Foundation Unknown Legislative PRODUCE. The report on election integrity and document is not policy kept in Representative Murr’s privileged as it was files. produced by a non- legislative third party. 46 PDOC_00003406 Texas Public Policy Foundation Unknown Legislative PRODUCE. The report on election integrity and document is not policy kept in Representative Murr’s privileged as it was files. produced by a non- legislative third party. PDOC_00003446 Texas Public Policy Foundation Unknown Legislative PRODUCE. The report on election integrity and document is not policy kept in Representative Murr’s privileged as it was files. produced by a non- legislative third party. PDOC_00003887 Fiscal note concerning SB 1. From: Jerry McGinty Legislative PRODUCE. This (Director of the document is not Legislative Budget Board) privileged. Fiscal notes To: Lt. Gov. Patrick; produced by the Speaker Dade Phelan Legislative Budget Board are public information and published on Texas Legislature Online. PDOC_00003889 Criminal justice impact statement From: Jerry McGinty Legislative PRODUCE. This concerning SB 1. To: Lt. Gov. Patrick; document is not Speaker Dade Phelan privileged. Criminal justice impact statements produced by the Legislative Budget Board are public information and published on Texas Legislature Online. PDOC_00003940 Letter to Representative Murr From: Catherine Learoyd Legislative PRODUCE. The letter is concerning recommendations for HB (President of the League not privileged as it was 3. Contains Representative Murr’s of Women Voters) authored by a non- handwritten markings and To: Representative Murr legislative third party. annotations. Handwritten notes on the letter are privileged, though, and should be redacted. 47 DOC_0000822 Email correspondence from a party From: Alan Vera Legislative PRODUCE. Any chairman concerning pending (Chairman of the privilege has been waived election litigation. Republican Party Ballot as the communication is Security Committee) with a non-legislative To: Sonya Aston (Sen. third-party. Bettencourt’s general counsel) DOC_0000824 Letter from Keith Ingram to OAG From: Keith Ingram Legislative; Investigative PRODUCE. This D1 criminal investigation unit (Office of the Secretary of document is not subject to concerning alleged election-law State, Elections Division legislative privilege as it violation. Director) was authored by an To: Jason Anderson executive branch (Office of the Attorney employee. Further, the General) State Legislators have not Cc: Alan Vera met their burden to show that the investigative privilege applies. DOC_0000834 Email correspondence concerning From: Bill Sargent Legislative10 PRODUCE. The proposed amendments to SB 7. To: Sonya Aston (Sen. legislative privilege has Bettencourt’s general been waived as the counsel) communication is with a non-legislative third party. DOC_0000835 Attachment to the email From: Bill Sargent Legislative PRODUCE. This correspondence above (B15). To: Sonya Aston document is not subject to Document contains proposed legislative privilege as it amendments to SB 7. was authored by a non- legislative third party. DOC_0000840 Email correspondence concerning From: Alan Vera Legislative PRODUCE. The drive-thru voting in Harris County. To: Sonya Aston legislative privilege has been waived as the communication is with a non-legislative third

10 The State Legislators originally asserted both work-product and attorney-client privilege as to Documents DOC_0000834, DOC_0000840, DOC_0000845, DOC_0000850, DOC_0000865, DOC_0000868, and DOC_0000869, but have since withdrawn such assertions. ECF No. 417. 48 party. DOC_0000845 Email correspondence concerning From: Alan Vera Legislative PRODUCE. The election security in Harris County. To: Sonya Aston legislative privilege has been waived as the communication is with a non-legislative third party. DOC_0000850 Email correspondence concerning From: Alan Vera Legislative PRODUCE. The Harris County Elections To: Sonya Aston legislative privilege has Administrator Longoria. been waived as the communication is with a non-legislative third party. DOC_0000865 Email correspondence concerning From: Alan Vera Legislative PRODUCE. The complaints Mr. Vera had lodged To: Sonya Aston legislative privilege has against certain individuals with the been waived as the Secretary of State. communication is with a non-legislative third party. DOC_0000868 Email correspondence concerning From: Alan Vera Legislative PRODUCE. The talking points for lobbyists on drive- To: Sonya Aston legislative privilege has thru voting. been waived as the communication is with a non-legislative third party. DOC_0000869 Email forwarding contents of From: Alan Vera Legislative PRODUCE. The communications from lobbying To: Sonya Aston legislative privilege has groups. been waived as the communication is with a non-legislative third party. DOC_0000961 Heritage Foundation report Unknown Legislative PRODUCE. This concerning instances of election document is not subject to fraud. legislative privilege as it was authored by a non- 49 legislative third party. DOC_0000967 Letter sent via email to County Clerk To: Lori Bohannon Legislative PRODUCE. The of Wichita County concerning voter (County Clerk, Wichita legislative privilege has registration in Wichita County. County) been waived as the Cc: Senator Springer communication is with a From: Senator Bettencourt non-legislative third party. DOC_0000968 Letter sent via email to County Clerk To: Lori Bohannon Legislative PRODUCE. The of Wichita County concerning voter Cc: Senator Springer legislative privilege has registration in Wichita County. From: Senator Bettencourt been waived as the communication is with a non-legislative third party. DOC_0001000 Letter sent via email to County Clerk To: Lori Bohannon Legislative PRODUCE. The of Wichita County concerning voter Cc: Senator Springer legislative privilege has registration in Wichita County. From: Senator Bettencourt been waived as the communication is with a non-legislative third party. DOC_0001001 Letter sent via email to County Clerk To: Lori Bohannon Legislative PRODUCE. The of Wichita County concerning voter Cc: Senator Springer legislative privilege has registration in Wichita County. From: Senator Bettencourt been waived as the communication is with a non-legislative third party. DOC_0001055 Email correspondence from To: Ryan Fisher (OAG) Legislative; PRODUCE. The legislator’s staff to OAG concerning Cc: Benjamin Barkley investigative11 legislative privilege has an election complaint. (Sen. Bettencourt staffer); been waived as the Marc Salvato (Sen. communication is with a Bettencourt staffer) non-legislative third- From: Don Barer (Sen. party. Bettencourt staffer) Further, the State

11 The State Legislators initially asserted that this document was also subject to attorney-client privilege, but have since withdrawn their assertion. ECF No. 417. 50 Legislators have not met their burden to show that the investigative privilege applies. DOC_0001056 Email correspondence with To: Don Barber; Benjamin Legislative; investigative PRODUCE. The D3 attachments relating to alleged Barkely legislative privilege has election law violations. From: Alan Vera been waived as the communication is with a non-legislative third- party. Further, the State Legislators have not met their burden to show that the investigative privilege applies. DOC_0001057 Attachment to correspondence To: Don Barber; Benjamin Legislative; investigative PRODUCE. The D4 discussed above (B29). Attachment Barkely legislative privilege has is a video of Rep. Eastman speaking From: Alan Vera been waived as the to voters. communication is with a non-legislative third- party. Further, the State Legislators have not met their burden to show that the investigative privilege applies. DOC_0001058 Attachment to correspondence To: Don Barber; Benjamin Legislative; investigative PRODUCE. The D5 discussed above (B29). Attachment Barkely legislative privilege has is an election complaint to the From: Alan Vera been waived as the Secretary of State. communication is with a non-legislative third- party. Further, the State Legislators have not met their burden to show that the investigative privilege applies. DOC_0001059 Attachment to correspondence To: Don Barber; Benjamin Legislative; investigative PRODUCE. The D6 discussed above (B29). Attachment Barkely legislative privilege has 51 is an informational pamphlet from From: Alan Vera been waived as the Rep. Eastment on mail-in voting. communication is with a non-legislative third- party. Further, the State Legislators have not met their burden to show that the investigative privilege applies. DOC_0001062 Email correspondence with To: Don Barber; Benjamin Legislative; investigative PRODUCE. The D7 attachments relating to alleged Barkely legislative privilege has election law violations. From: Alan Vera been waived as the communication is with a non-legislative third- party. Further, the State Legislators have not met their burden to show that the investigative privilege applies. DOC_0001063 Attachment to correspondence To: Don Barber; Benjamin Legislative; investigative PRODUCE. The D8 discussed above (B33). Attachment Barkely legislative privilege has is an application for a mail-in ballot. From: Alan Vera been waived as the communication is with a non-legislative third- party. Further, the State Legislators have not met their burden to show that the investigative privilege applies. DOC_0001064 Attachment to correspondence To: Don Barber; Benjamin Legislative; investigative PRODUCE. The D9 discussed above (B33). Attachment Barkely legislative privilege has is an election complaint to the From: Alan Vera been waived as the secretary of state. communication is with a non-legislative third- party. Further, the State Legislators have not met their burden to show that 52 the investigative privilege applies. DOC_0001066 Email correspondence concerning To: Don Barber; Benjamin Legislative; investigative PRODUCE. The D10 alleged election-law violations in Barkely legislative privilege has requests for mail-in ballots. From: Alan Vera been waived as the communication is with a non-legislative third- party. Further, the State Legislators have not met their burden to show that the investigative privilege applies. DOC_0001067 Attachment to correspondence To: Don Barber; Benjamin Legislative; investigative PRODUCE. The D11 discussed above (B36). A Barkely legislative privilege has spreadsheet containing the names, From: Alan Vera been waived as the addresses, dates of birth, gender, communication is with a voter IDs, and notes concerning non-legislative third- partisanship of persons suspected of party. Further, the State election-law violations in requesting Legislators have not met a mail-in ballot. their burden to show that the investigative privilege applies. DOC_0001071 Emailed copy of a press release from To: Don Barber Legislative PRODUCE. This Attorney General Paxton’s office From: Office of the document is not subject to concerning prosecution of alleged Attorney General legislative privilege as it election-law violations. was authored by an executive branch employee. DOC_0001128 Heritage Foundation report Unknown Legislative PRODUCE. The concerning election fraud cases. document is not privileged as it was produced by a non- legislative third party. DOC_0001151 Public Interest Legal Foundation Unknown Legislative PRODUCE. The report concerning best practices for document is not achieving integrity in voter privileged as it was 53 registration. produced by a non- legislative third party. DOC_0001154 Heritage Foundation report Unknown Legislative PRODUCE. The concerning election integrity. document is not privileged as it was produced by a non- legislative third party. DOC_0000287 Survey of county clerks concerning Unknown Legislative PRODUCE. Documents voting at residential-care facilities containing factual contained in the Senate Committee information used in the on Election Security’s file. decision-making process are not privileged. DOC_0000289 Letters on behalf of the Senate Select To: Jose Salvador Tellez; Legislative PRODUCE. The Committee on Election Security to Kathryn Nealy; Kara legislative privilege has numerous county elections Sands; Toni Pippins- been waived as the administrators requesting a precinct- Poole; Brenda Samples; communication is with a by-precinct breakdown of the mail Lupe Torres non-legislative third- ballot results for the March 6, 2018 From: Sen. Bettencourt, on party. election in the administrator’s behalf of the Senate Select respective county. Committee on Elections Security DOC_0000290 Letters on behalf of the Senate Select To: Toni Pippins-Poole; Legislative PRODUCE. The Committee on Election Security to From: Sen. Hughes, on legislative privilege has Dallas County Elections behalf of the Senate Select been waived as the Administrator requesting a precinct- Committee on Elections communication is with a by-precinct breakdown of the mail Security non-legislative third- ballot results for the March 6, 2018 party. election in the Dallas County. DOC_0000321 Forwarded email from Starr County To: Drew Tedford Legislative; attorney- PRODUCE. The DA with proposed election From: Jonathan White client legislative privilege has legislation. been waived as the communication is with a non-legislative third- party. Additionally, this communication was not 54 for the purpose of obtaining legal advice so the attorney-client privilege does not apply. DOC_0000329 Forwarded email that Keith Ingram To: Drew Tedford Legislative PRODUCE. The previously sent to Alan Vera From: Keith Ingram legislative privilege has concerning election procedures. been waived as the communication is with a non-legislative third party. DOC_0000369 Letters on behalf of the Senate Select To: Jose Salvador Tellez; Legislative PRODUCE. The Committee on Election Security to John Lee Rodriguez; legislative privilege has numerous county elections Kathryn Nealy; Kara been waived as the administrators requesting a precinct- Sands; Toni Pippins- communication is with a by-precinct breakdown of the mail Poole; Brenda Samples; non-legislative third ballot results for the March 6, 2018 Lupe Torres party. election in the administrator’s From: Sen. Bettencourt, on respective county. behalf of the Senate Select Committee on Elections Security DOC_0000371 Email correspondence concerning To: Drew Tedford Legislative PRODUCE. The complaints of election-law violations From: Keith Ingram legislative privilege has pending with the SOS and referred to been waived as the the OAG. communication is with an executive branch official. DOC_0000372 Attachment to email correspondence To: Drew Tedford Legislative PRODUCE. The discussed above (B48). Report From: Keith Ingram legislative privilege has containing pending complaints of been waived as the election-law violations reported to communication is with an the SOS. executive branch official. DOC_0000394 Email from Dallas County To: Drew Tedford Legislative PRODUCE. The responding to Senator Hughes’ From: James R. Palomo legislative privilege has request for a precinct-by-precinct (ADA for Dallas County) been waived as the breakdown of the mail ballot results communication is with a in the March 6, 2018 primary non-legislative third elections. party. 55 DOC_0000395 Attachment to email correspondence To: Drew Tedford Legislative PRODUCE. The discussed above (B50). Precinct-by- From: James R. Palomo legislative privilege has precinct breakdown of mail-in votes been waived as the for the March 2018 Democratic communication is with a primary election. non-legislative third party. DOC_0000396 Attachment to email correspondence To: Drew Tedford Legislative PRODUCE. The discussed above (B50). Precinct-by- From: James R. Palomo legislative privilege has precinct breakdown of mail-in votes been waived as the for the March 2018 Republican communication is with a primary election. non-legislative third party. DOC_0000397 Letters on behalf of the Senate Select To: Toni Pippins-Poole; Legislative PRODUCE. The Committee on Election Security to From: Sen. Hughes, on legislative privilege has Dallas County Elections behalf of the Senate Select been waived as the Administrator requesting a precinct- Committee on Elections communication is with a by-precinct breakdown of the mail Security non-legislative third ballot results for the March 6, 2018 party. election in the Dallas County. DOC_0000449 Data assessing early voting statistics. Unknown Legislative PRODUCE. Documents containing factual information used in the decision-making process are not privileged. DOC_0000501 Email correspondence concerning To: Elizabeth Alvarez; Legislative; attorney- PRODUCE. The drafting instructions and proposed Tracy Snelson client; work-product legislative privilege has language for SB 7. Cc: Adam Moses; Carey been waived as the Eskridge; Drew Tedford; communication includes Alix Morris; Hope non-legislative third Shelton; Justin Williamson parties. Additionally, the From: Jessica Hart attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the 56 documents were not prepared by parties to the underlying suit. DOC_0000503 Email regarding draft language for To: Drew Tedford Legislative PRODUCE. The SB 7 with attachment. From: Alix Morris legislative privilege has been waived as the communication is with a non-legislative third party. DOC_0000504 Attachment to email correspondence To: Drew Tedford Legislative PRODUCE. The discussed above (B57). Attachment From: Alix Morris legislative privilege has is a redlined draft of SB 7. been waived as the communication is with a non-legislative third party. DOC_0000512 Email correspondence concerning To: Elizabeth Alvarez; Legislative; attorney- PRODUCE. The drafting instructions and proposed Tracy Snelson client; work-product legislative privilege has language for SB 7. Cc: Adam Moses; Carey been waived as the Eskridge; Drew Tedford; communication includes Alix Morris; Hope non-legislative third Shelton; Justin Williamson parties. Additionally, the From: Jessica Hart attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000517 Email correspondence concerning To: Jessica Hart Legislative; attorney- PRODUCE. The drafting instructions and proposed Cc: Adam Moses; Carey client legislative privilege has language for SB 7. Eskridge; Drew Tedford; been waived as the Alix Morris; Hope communication includes Shelton; Justin Williamson non-legislative third From: Elizabeth Alvarez parties. Additionally, the 57 attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000518 Email correspondence concerning To: Jessica Hart Legislative; attorney- PRODUCE. The drafting instructions and proposed Cc: Adam Moses; Carey client legislative privilege has language for SB 7. Eskridge; Drew Tedford; been waived as the Alix Morris; Hope communication includes Shelton; Justin Williamson non-legislative third From: Elizabeth Alvarez parties. Additionally, the attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000519 Email correspondence concerning To: Jessica Hart; Elizabeth Legislative; attorney- PRODUCE. The drafting instructions and proposed Alvarez; Tracy Snelson client; work-product legislative privilege has language for SB 7. Cc: Adam Moses; Carey been waived as the Eskridge; Drew Tedford; communication includes Alix Morris; Justin non-legislative third Williamson parties. Additionally, the From: Hope Shelton attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the 58 documents were not prepared by parties to the underlying suit. DOC_0000520 Email correspondence concerning To: Hope Shelton; Legislative; attorney- PRODUCE. The drafting instructions and proposed Elizabeth Alvarez; Tracy client; work-product legislative privilege has language for SB 7. Snelson been waived as the Cc: Adam Moses; Carey communication includes Eskridge; Drew Tedford; non-legislative third Alix Morris; Justin parties. Additionally, the Williamson attorney-client privilege From: Jessica Hart has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000521 Email correspondence concerning To: Hope Shelton; Legislative; attorney- PRODUCE. The drafting instructions and proposed Elizabeth Alvarez; Jessica client; work-product legislative privilege has language for SB 7. Hart been waived as the Cc: Adam Moses; Carey communication includes Eskridge; Drew Tedford; non-legislative third Alix Morris; Justin parties. Additionally, the Williamson attorney-client privilege From: Tracy Snelson has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000522 Email correspondence concerning To: Hope Shelton; Legislative; attorney- PRODUCE. The drafting instructions and proposed Elizabeth Alvarez; Tracy client; work-product legislative privilege has language for SB 7. Snelson been waived as the 59 Cc: Adam Moses; Carey communication includes Eskridge; Drew Tedford; non-legislative third Alix Morris; Justin parties. Additionally, the Williamson attorney-client privilege From: Jessica Hart has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000523 Email correspondence concerning To: Hope Shelton; Legislative; attorney- PRODUCE. The drafting instructions and proposed Elizabeth Alvarez; Tracy client; work-product legislative privilege has language for SB 7. Snelson; Jessica Hart been waived as the Cc: Carey Eskridge; Drew communication includes Tedford; Alix Morris; non-legislative third Justin Williamson parties. Additionally, the From: Adam Moses attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000524 Email correspondence with To: Hope Shelton; Legislative; attorney- PRODUCE. The attachment concerning drafting Elizabeth Alvarez; Tracy client; work-product legislative privilege has instructions and proposed language Snelson; Adam Moses been waived as the for SB 7. Cc: Carey Eskridge; Drew communication includes Tedford; Alix Morris; non-legislative third Justin Williamson parties. Additionally, the From: Jessica Hart attorney-client privilege has been waived as third parties are included in the 60 communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000525 Attachment to email correspondence To: Hope Shelton; Legislative; attorney- PRODUCE. The discussed above (B68). Attachment Elizabeth Alvarez; Tracy client; work-product legislative privilege has is draft of SB 7. Snelson; Adam Moses been waived as the Cc: Carey Eskridge; Drew communication includes Tedford; Alix Morris; non-legislative third Justin Williamson parties. Additionally, the From: Jessica Hart attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000527 Email correspondence concerning To: Jessica Hart Legislative; attorney- PRODUCE. The drafting instructions and proposed Cc: Alix Morris; Drew client; work-product legislative privilege has language for SB 7. Tedford; Hope Shelton been waived as the From: Elizabeth Alvarez communication includes non-legislative third parties. Additionally, the attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. 61 DOC_0000528 Email correspondence concerning To: Elizabeth Alvarez Legislative; attorney- PRODUCE. The drafting instructions and proposed Cc: Alix Morris; Drew client; work-product legislative privilege has language for SB 7. Tedford; Hope Shelton been waived as the From: Jessica Hart communication includes non-legislative third parties. Additionally, the attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000529 Email correspondence with To: Elizabeth Alvarez Legislative; attorney- PRODUCE. The attachment concerning drafting Cc: Alix Morris; Drew client; work-product legislative privilege has instructions and proposed language Tedford; Hope Shelton been waived as the for SB 7. From: Jessica Hart communication includes non-legislative third parties. Additionally, the attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000530 Attachment to email correspondence To: Elizabeth Alvarez Legislative; attorney- PRODUCE. The discussed above (B72). Attachment Cc: Alix Morris; Drew client; work-product legislative privilege has is typed notes concerning proposed Tedford; Hope Shelton been waived as the edits and amendments to SB 7. From: Jessica Hart communication includes non-legislative third parties. Additionally, the 62 attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000531 Email correspondence concerning To: Elizabeth Alvarez Legislative; attorney- PRODUCE. The drafting instructions and proposed Cc: Alix Morris; Drew client; work-product legislative privilege has language for SB 7. Tedford; Hope Shelton been waived as the From: Jessica Hart communication includes non-legislative third parties. Additionally, the attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000532 Attachment to email correspondence To: Elizabeth Alvarez Legislative; attorney- PRODUCE. The discussed above (B74). Attachment Cc: Alix Morris; Drew client; work-product legislative privilege has is typed notes concerning proposed Tedford; Hope Shelton been waived as the edits and amendments to SB 7. From: Jessica Hart communication includes non-legislative third parties. Additionally, the attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the 63 documents were not prepared by parties to the underlying suit. DOC_0000533 Email correspondence concerning To: Elizabeth Alvarez Legislative; attorney- PRODUCE. The drafting instructions and proposed Cc: Alix Morris; Drew client; work-product legislative privilege has language for SB 7. Tedford; Hope Shelton been waived as the From: Jessica Hart communication includes non-legislative third parties. Additionally, the attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000534 Attachment to email correspondence To: Elizabeth Alvarez Legislative; attorney- PRODUCE. The discussed above (B76). Attachment Cc: Alix Morris; Drew client; work-product legislative privilege has is typed notes concerning proposed Tedford; Hope Shelton been waived as the edits and amendments to SB 7. From: Jessica Hart communication includes non-legislative third parties. Additionally, the attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000538 Draft of SB 7 prepared by TLC. Unknown Legislative PRODUCE. For the reasons stated in the Court’s order, the Court 64 finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000539 Email correspondence with To: Adam Moses; Carey Legislative; attorney- PRODUCE. The attachment concerning drafting Eskridge client; work-product legislative privilege has instructions and proposed language Cc: Drew Tedford; been waived as the for SB 7. Elizabeth Alvarez; Alix communication includes Morris; Hope Shelton; non-legislative third Justin Williamson parties. Additionally, the From: Jessica Hart attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000540 Attachment to email correspondence To: Adam Moses; Carey Legislative; attorney- PRODUCE. The discussed above (B79). Attachment Eskridge client; work-product legislative privilege has is typed notes concerning proposed Cc: Drew Tedford; been waived as the edits and amendments to SB 7. Elizabeth Alvarez; Alix communication includes Morris; Hope Shelton; non-legislative third Justin Williamson parties. Additionally, the From: Jessica Hart attorney-client privilege has been waived as third parties are included in the communication. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000541 Email correspondence to legislative To: Alexander Hammond; Legislative PRODUCE. The staffers concerning proposed Marc Salvato; Anna legislative privilege has 65 changed to SB 7 during Barnett; Josh Reyna; been waived as the reconciliation process. Aaron Harris; Carrie communication includes a Smith; Tara Clements; non-legislative third Peter Einhorn; Margaret party. Wallace; Amy Lane; Stacey Chamberlin; Luis Moreno; Molly K Spratt; Cody Terry; Deisy Jaimes; Chris Steinbach; Ruben O’Bell; Pearl Cruz; Robert Borja; Dave Nelson; Angus Lupton; Randy Samuelson; Matthew Dowling; Garry Jones; Drew Graham; Johanna Kim; Terry Franks; Cari Christman; Laujana Barton; Lara Wendler; Jorge Ramirez Cc: Alix Morris; Hope Shelton From: Drew Tedford DOC_0000546 Email correspondence with To: Jessica Hart; Sloan Attorney-client; PRODUCE. The attachment between private attorney Byerly; Alix Morris; Drew Legislative legislative privilege has and legislative staffers concerning Tedford been waived as the proposed changes to SB 7. From: Elizabeth Alvarez communication includes non-legislative third parties. Additionally, the attorney-client privilege has been waived as third parties are included in the communication. DOC_0000547 Attachment to correspondence To: Jessica Hart; Sloan Attorney-client; PRODUCE. The discussed above (B82). Attachment Byerly; Alix Morris; Drew Legislative legislative privilege has is redlined draft of SB 7. Tedford been waived as the From: Elizabeth Alvarez communication includes 66 non-legislative third parties. Additionally, the attorney-client privilege has been waived as third parties are included in the communication. DOC_0000602 Unknown legislator’s typed notes Unknown Legislative PRODUCE. For the regarding Texas election system, reasons stated in the citizenship verification, and Court’s order, the Court enforcement of election laws. finds that the legislative privilege is excused under the Rodriguez five-factor balancing test. DOC_0000619 Email correspondence providing To: Drew Tedford Legislative; attorney- PRODUCE. The information regarding an alleged From: Jonathan White client; work-product legislative privilege has instance of election fraud in Hidalgo (OAG) been waived as the in 2016. communication is with a non-legislative third- party. Additionally, this communication was not for the purpose of obtaining legal advice, so the attorney-client privilege does not apply. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000624 Attachment to email correspondence To: Drew Tedford Legislative; attorney- PRODUCE. The discussed above (B85). Attachment From: Jonathan White client; work-product legislative privilege has is a court transcript from the criminal been waived as the trial on the alleged election fraud. communication is with a non-legislative third- party. 67 Additionally, this communication was not for the purpose of obtaining legal advice, so the attorney-client privilege does not apply. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000715 Email correspondence concerning SB To: Alix Morris Legislative; attorney- PRODUCE. The 9 and compliance with federal law. Cc: Drew Tedford client; work-product legislative privilege has From: Jonathan White been waived as the communication is between non-legislative third parties. Additionally, the State Legislators have not shown the existence of an attorney-client relationship between Senator Hughes and/or his staff and the OAG or the Lieutenant Governor and his staff. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_0000734 Text correspondence concerning To: Unknown Legislative; attorney- PRODUCE. The solicited information about election From: Jonathan White client; work-product legislative privilege has fraud. been waived as the communication is with a non-legislative third- 68 party. Additionally, the communication was not for the purpose of obtaining legal advice and the attorney-client privilege does not apply. Finally, work-product protections do not apply as the documents were not prepared by parties to the underlying suit. DOC_000070 Text correspondence concerning To: Unknown Legislative; attorney- PRODUCE. The solicited information about election From: Jonathan White client legislative privilege has fraud. been waived as the communication is with a non-legislative third- party. Additionally, the communication was not for the purpose of obtaining legal advice and the attorney-client privilege does not apply. DOC_0000477 Comparison chart prepared by an Unknown Legislative; attorney- PRIVILEGED.12 The unknown legislator’s general counsel client; work-product document was prepared summarizing changes made to SB 7 by counsel for the and suggestions to amend certain purpose of providing provisions. legal advice, and it is subject to the attorney- client privilege.

12 The Court construes this assertion of attorney-client privilege liberally on behalf of the State Legislators. Neither the log nor document itself indicate the name of the author, with whom the document was shared, or any other relevant information. The log merely indicates that the document was created “by general counsel [for] legislator’s use at Conference Committee[.]” ECF No. 392 at 285. 69