Mi Familia Vota v. Fontes

• Court: District Court, D. Arizona
• Decided: October 2, 2024
• Docket: 2:21-cv-01423
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Mi Familia Vota, et al., No. CV-21-01423-PHX-DWL

10 Plaintiffs, ORDER

11 v.

12 Larry Noble, et al.,

13 Respondents. 14 15 Pending before the Court is Plaintiffs’ motion to compel “certain third parties who 16 communicated with non-party Arizona legislators to produce documents responsive to the 17 Rule 45 subpoenas that Plaintiffs served on or about August 28, 2023.” (Doc. 283.) For 18 the reasons that follow, the motion to compel is denied. 19 RELEVANT BACKGROUND 20 I. The Earlier Dispute Over The State Legislative Privilege 21 This action involves a challenge to an Arizona voting law, Senate Bill 1485 (“S.B. 22 1485”). In 2022, Plaintiffs served several current and former Arizona legislators 23 (“Legislators”) with Rule 45 subpoenas seeking documents concerning S.B. 1485 and 24 related legislation. The requested documents included, inter alia, certain communications 25 between Legislators and third parties outside the legislature. 26 The service of those subpoenas led to a protracted privilege dispute. Legislators 27 opposed compliance by invoking the state legislative privilege while Plaintiffs argued that 28 the “state legislative privilege does not extend to legislators’ communications with third 1 parties outside the legislature” in light of “the significant difference between internal 2 discussions among legislators, which the privilege is meant to protect, and legislators’ 3 communications with outside parties.” (Doc. 209 at 1.) 4 On July 18, 2023, the Court rejected Plaintiffs’ position and concluded that 5 Legislators could “invoke the state legislative privilege in relation to communications with 6 third parties outside of the legislature.” (Doc. 237 at 7.) In reaching that conclusion, the 7 Court acknowledged that “[t]he Ninth Circuit has not, unfortunately, addressed whether 8 the state legislative privilege extends to communications between state legislators and third 9 parties outside the legislative branch” and that other “federal courts have come to differing 10 conclusions on this issue.” (Id. at 9-12.) On the merits, the Court deemed it significant 11 that in Lee v. City of Los Angeles, 908 F.3d 1175 (9th Cir. 2018), the Ninth Circuit indicated 12 that the “rationale for the [state legislative] privilege” is not “limited to maintaining 13 confidentiality” and also encompasses legislators’ “interest in minimizing the distraction 14 of diverting their time, energy, and attention from their legislative tasks to defend the 15 litigation.” (Id. at 13, cleaned up.) Thus, the Court joined “the Fifth Circuit, the Eighth 16 Circuit, and Judge Campbell in [Puente Arizona v. Arpaio, 314 F.R.D. 664 (D. Ariz. 17 2016)]” in concluding that “the state legislative privilege may apply to communications 18 between legislators and third parties outside the legislative branch.” (Id. at 15.) 19 This determination did not end the analysis, because “the state legislative privilege 20 is a qualified privilege that may be overcome.” (Id.) Accordingly, the Court proceeded to 21 consider the five factors that “courts often consider” when determining whether a claim of 22 state legislative privilege should be upheld. (Id. at 15-28.) One of those factors is “the 23 availability of other evidence.” (Id. at 20.) As to that factor, the Court noted that “Plaintiffs 24 may have other tools at their disposal to obtain the documents at issue” because “during 25 oral argument, both sides seemed to agree that it would be possible for Plaintiffs to issue 26 additional subpoenas to other third parties identified in Legislators’ privilege log and that 27 the state legislative privilege would not be implicated by such an approach (although the 28 recipients might have other grounds for resisting compliance). The seeming availability of 1 alternative avenues for obtaining communications between Legislators and third parties— 2 which would not raise the significant concerns raised by a subpoena issued directly to 3 Legislators—is another reason why the second factor weighs against disclosure.” (Id. at 4 22-23.) However, in an accompanying footnote, the Court clarified that it did not intend 5 “to express any definitive conclusions about whether the state legislative privilege would 6 be implicated by a subpoena issued to a third party to obtain that party’s communications 7 with a member of a state legislature. This issue has not been the subject of briefing by the 8 parties and does not appear to have been addressed in any of the decisions discussed in Part 9 I of this order, which confront the distinct question of whether the state legislative privilege 10 applies when a state legislature or individual state legislator receives a subpoena (or other 11 discovery demand) seeking communications with third parties that relate to the legislative 12 process.” (Id. at 23 n.10.) 13 After assessing the five factors, the Court determined that “[t]wo of the relevant 14 factors favor disclosure, two other factors favor non-disclosure, and the final factor is 15 essentially neutral.” (Id. at 25.) Because both sides agreed that in camera review of the 16 withheld documents could be helpful in evaluating their relevance (one of the applicable 17 factors), the Court agreed to perform an in camera review before making a final decision 18 as to whether Legislators’ claim of privilege should be upheld. (Id. at 25-28.) 19 On August 1, 2023, Legislators provided the withheld documents to the Court for 20 in camera review. (Doc. 240.) 21 On August 4, 2023, the Court issued an order explaining that it had “completed its 22 in camera review of the documents that Legislators withheld pursuant to the state 23 legislative privilege. Based on that review, the withheld documents are not more relevant 24 and/or valuable to Plaintiffs’ claims than the Court assumed when considering them in the 25 abstract. The in camera review thus confirms that the balancing test supports applying the 26 state legislative privilege in this case and that Legislators should be allowed to withhold 27 the documents based on that privilege.” (Doc. 242.) 28 … 1 II. The Current Dispute 2 On August 28, 2023, Plaintiffs “issued 10 document subpoenas to individuals who 3 were listed on the Legislators’ privilege logs. Each of these subpoenas asked the recipients 4 to produce documents and communications identified on the Legislators’ privilege logs 5 (attached as Exhibit A to each of the subpoenas) as well as communications with Arizona 6 state legislators ‘related to SB 1485, SB 1003, or other potential or enacted voting 7 legislation introduced in the same legislative term related to the Permanent Early Voting 8 List.’” (Doc. 292 at 3, quoting Doc. 283-2 at 12.) “Several recipients responded that they 9 possessed responsive documents but declined to produce them, asserting legislative and 10 First Amendment privileges and other objections. Counsel for the Legislators also asserted 11 that the Court’s prior Orders foreclose production of the requested documents by third- 12 parties.” (Doc. 280 at 1.) 13 On March 11, 2024, following unsuccessful meet-and-confer efforts, Plaintiffs filed 14 the pending motion to compel. (Doc. 283.) 15 On April 19, 2024, a joint response was filed by two groups of non-parties: (1) 16 Legislators; and (2) Aimee Yentes, Mark Lewis, Dan Farley, and the Free Enterprise Club 17 (together, “the Free Enterprise Club Recipients”). (Doc. 292.) 18 On May 2, 2024, Plaintiffs filed a reply. (Doc. 293.) Neither side requested oral 19 argument. 20 DISCUSSION 21 I. Legislators’ Objections 22 A. The Parties’ Arguments 23 Plaintiffs argue that Legislators cannot invoke the state legislative privilege because 24 it is intended to protect the “two tenets” of “open discussion and freedom from distraction,” 25 neither of which is implicated here. (Doc. 283 at 7-11.) More specifically, Plaintiffs argue 26 that the first tenet is inapplicable because “protecting communications that the Legislators 27 chose to have with third parties does not facilitate candor in intra-legislator discussion.” 28 (Id. at 7-8.) Plaintiffs also reject any characterization of their litigation tactics as 1 “gamesmanship,” arguing that it was permissible for them to use the privilege log that 2 Legislators submitted as part of the earlier privilege dispute to discover the identities of the 3 current subpoena recipients. (Id. at 8.) As for the second tenet, Plaintiffs argue that “[a]ny 4 burden that the Legislators face by choosing to object to the Subpoenas is self-inflicted and 5 cannot be the basis to invoke legislative privilege. Legislators reached out to affirmatively 6 interject themselves into Plaintiffs’ meet-and-confer discussions with the subpoena 7 recipients.” (Id. at 9.) Plaintiffs also question the sincerity of Legislators’ claim of 8 distraction in light of one Legislator’s affirmative efforts to pursue other litigation related 9 to Arizona voting laws. (Id.) Finally, Plaintiffs argue that even if Legislators theoretically 10 could invoke the state legislative privilege here, it should be overcome based on the 11 balancing test. (Id. at 9-11.) 12 In response, Legislators argue that “when the Court issued its order on the motion 13 to compel documents directly from the legislators, it did not have the benefit of” La Union 14 del Pueblo Entero v. Abbott, 93 F.4th 310 (5th Cir. 2024), “which was issued a few days 15 after the Court allowed briefing on this dispute. La Union resolves all of the questions 16 posed by the Court in favor of upholding the legislative privilege against the discovery 17 sought here.” (Doc. 292 at 4.) According to Legislators, La Union recognizes that any 18 effort to inquire into legislators’ subjective motivation when drafting, supporting, or 19 opposing legislation—even a subpoena served on a non-legislator—interferes with 20 legislators’ ability to discharge their duties without inhibition. (Id. at 4-6.) Legislators 21 continue: “[A]lthough the Legislators do not bear the burden of directly producing the 22 subpoenaed documents, the disclosure and use of privileged legislator communications in 23 this case in response to Plaintiffs’ subpoenas will interfere with the legislative process by 24 chilling future dialogue between lawmakers and third parties. If a legislator knows that his 25 or her written communications will not be protected from use in a lawsuit even if the Court 26 upholds the legislator’s privilege claim, he or she will likely choose not to engage in those 27 communications going forward so as to protect their preliminary opinions from public 28 disclosure and critique.” (Id. at 6.) Legislators also dispute whether the state legislative 1 privilege can ever be overcome based on the five-factor test discussed in the July 2023 2 order, arguing that the relevant test is narrower and more restrictive. (Id. at 7-9.) Finally, 3 Legislators argue that the motives of a single legislator have “de minimis relevance” in a 4 case involving a constitutional challenge to legislation. (Id. at 9-10.) 5 In reply, Plaintiffs fault Legislators for “rely[ing] on an extreme and poorly reasoned 6 2-1 decision by the Fifth Circuit, [La Union], that is out of step with the law in this circuit. 7 As the dissenting opinion in that case recognizes, La Union extraordinarily expands the 8 scope of the legislative privilege . . . . This Court should decline to adopt such a radical 9 and sweeping expansion of the privilege.” (Doc. 293 at 1, 4-5.) Plaintiffs also contend 10 that Legislators’ objections are “premised upon the suggestion that there is an objective 11 and legitimate expectation of privacy in legislator and third-party communications any time 12 those communications concern the ‘legislative process.’ But this Court and others have 13 observed that confidentiality concerns are not the driving force behind the legislative 14 privilege.” (Id. at 3.) Next, Plaintiffs argue that La Union is factually distinguishable 15 because the third-party subpoena recipient in that case had been “brought into the 16 legislative process” at the behest of legislators. (Id. at 5-6.) Finally, Plaintiffs disagree 17 with Legislators’ contention that the five-factor test discussed in the July 2023 order is 18 inapplicable. (Id. at 6-8.) 19 B. Analysis 20 The Court concludes that Legislators may invoke the state legislative privilege here 21 even though they are not the individuals and entities being subpoenaed. Although the July 22 2023 order reached a different tentative conclusion on that issue, the issue had not been 23 briefed at that time and the legal landscape has changed in the interim. 24 The most significant development is the Fifth Circuit’s decision in La Union, which 25 was decided in February 2024. In that case, which involved a challenge to a Texas voting 26 law, the plaintiff sought to compel the Harris County Republican Party (“HCRP”) to 27 disclose certain of its communications with the members of the Texas legislature. 93 F.4th 28 at 313-14. After an HCRP representative declined to answer certain questions on the 1 ground that they “appeared potentially to encompass [his] communications with the 2 legislators,” the plaintiff moved to compel. Id. at 314-15. The district court granted the 3 motion to compel but the Fifth Circuit reversed. Id. at 314. As an initial matter, the court 4 held that the members of the Texas legislature had standing to challenge the compulsion 5 order in part because “[w]hile [the] discovery request may be directed at HCRP, the 6 materials it seeks go to the content of the legislators’ communications. Discovery requests 7 that reveal such communications, even if served on non-legislators, nonetheless burden— 8 and therefore deter—legislators from the uninhibited discharge of their legislative duty.” 9 Id. at 317-18 (cleaned up). In reaching this conclusion, the court rejected the plaintiff’s 10 argument—similar to Plaintiffs’ argument here—that the members of the Texas legislature 11 had no reason to complain because the “discovery request does not impose cost or burden 12 on [them],” explaining: “True, one purpose is to protect legislators from the cost, burden, 13 and inconvenience of trial. But that’s not all. Equally important is the privilege’s function 14 to guard against judicial interference by protecting legislators from courts’ seeking to 15 inquire into the motives of legislators and uncover a legislator’s subjective intent in 16 drafting, supporting, or opposing proposed or enacted legislation.” Id. at 317 (cleaned up). 17 On the merits, the court held that the materials at issue were covered by the state legislative 18 privilege because “[t]he legislative privilege applies to documents shared, and 19 communications made, between the legislators and [the HCRP’s representative]. That 20 includes [his] emails, which contain the legislators’ communications with a third party who 21 was brought into the legislative process. [Those] emails are part and parcel of the modern 22 legislative process through which legislators receive information possibly bearing on the 23 legislation they are to consider. Because they were created, transmitted, and considered 24 within the legislative process itself, they are protected by legislative privilege.” Id. at 323 25 (cleaned up). 26 It is also notable that, in an even more recent decision issued after the briefing on 27 Plaintiffs’ motion became complete, another court reached a similar conclusion. In 28 Milligan v. Allen, 2024 WL 3666369 (N.D. Ala. 2024), decided on July 12, 2024, a three- 1 judge panel consisting of one circuit judge and two district judges considered a request by 2 the plaintiffs in a redistricting challenge to compel non-party RedState Strategies to 3 produce “documents and information about RedState’s work for and communications 4 with” certain Alabama state legislators “in connection with the Alabama Legislature’s 5 adoption of a congressional redistricting plan in the summer of 2023.” Id. at *1. Although 6 the panel acknowledged that “[n]either the Supreme Court nor the Eleventh Circuit . . . has 7 decided whether the legislative privilege may be invoked by a third party acting on behalf 8 of a legislator,” it concluded that “logic, common sense, and precedent counsel in favor of 9 finding that third parties may invoke the legislative privilege in appropriate 10 circumstances.” Id. at *3. As for logic and common sense, the panel noted that “third 11 parties, no less than a legislator’s aides and assistants, sometimes perform acts that fall 12 within the sphere of legitimate legislative activity and as a part of the modern legislative 13 process,” and thus “[t]he scope of the privilege is defined by the nature of the act 14 performed, again, not by the privilege-seeker’s title.” Id. at *4 (cleaned up). As for 15 precedent, the panel noted that “[o]nly one Circuit,” the Fifth Circuit in La Union, “appears 16 to have considered whether the state legislative privilege also protects a third party from 17 complying with a subpoena seeking communications between the third party and state 18 legislators about the performance of legislative acts—and it reached the same conclusion 19 we do.” Id. 20 The Court acknowledges that La Union and Milligan are not the only decisions 21 addressing this issue. For example, the order in League of Women Voters of Fla., Inc. v. 22 Lee, 340 F.R.D. 446 (N.D. Fla. 2021), resembles, in many respects, this Court’s July 2023 23 order. There, the plaintiffs in a voting rights lawsuit served deposition subpoenas on 24 certain members of the Florida legislature. Id. at 452. Among other things, the subpoenas 25 sought to compel the Florida legislators to discuss their “interactions with third-party 26 groups like Heritage Action and the James Madison Institute,” and the Florida legislators 27 moved to quash by invoking the state legislative privilege. Id. at 452-53. Like the July 28 2023 order, the court in League of Women Voters concluded that “the legislative privilege 1 is not waived simply because a legislator has communicated with third parties.” Id. at 454 2 (cleaned up). Also like the July 2023 order, the court went on to suggest—even though the 3 issue was not squarely presented—that “because confidentiality is not the legislative 4 privilege’s animating concern, the privilege would not prevent Plaintiffs from asking the 5 third parties with which the Legislators communicated about those communications.” Id. 6 at 454 n.2. 7 Plaintiffs cite this footnote from League of Women Voters as one of the leading 8 authorities supporting their position. (Doc. 283 at 7.) Although this approach is 9 understandable, Plaintiffs overlook that the Florida legislators in League of Women Voters 10 apparently conceded, during the motion-to-quash process, that the state legislative 11 privilege would not apply if the plaintiffs subpoenaed the third parties with whom the 12 legislators were communicating: “The Legislators also argue that Plaintiffs can get much 13 of the information they seek from other parties, such as the Heritage Foundation.” Lee, 14 340 F.R.D. at 457. That concession presumably informed the conclusion expressed in the 15 cited footnote. Here, in contrast, Legislators have now clarified (although their position 16 was less than fully clear during the previous motion-to-compel process) that they do not 17 concede the inapplicability of the privilege in this context. 18 The other contrary decision cited by Plaintiffs is Cano v. Davis, 193 F. Supp. 2d 19 1177 (C.D. Cal. 2002). Similar to Milligan, Cano involved a three-judge panel (consisting 20 of one circuit judge and two district judges) considering several discovery disputes that 21 arose during a redistricting challenge. Although the terse decision in Cano does not 22 provide many background details, it appears that one of the discovery disputes involved an 23 attempt by members of the California legislature to bar the deposition of “Antonio 24 Gonzalez, a third party non-legislator.” Id. at 1179. The Cano panel held that “[t]he 25 legislative privilege does not bar [Gonzalez] from testifying to conversations with 26 legislators and their staffs.” Id. However, the Cano panel did not provide any reasoned 27 explanation in support of that conclusion and cited only one case, Gravel v. United States, 28 408 U.S. 606, 629 n.18 (1972), as a supporting authority. Id. 1 Given this lack of explanation, as well as the various dissimilarities between this 2 case and the situation addressed in footnote 18 in Gravel, the Court is hesitant to view 3 Cano as the definitive final word on this issue, particularly where it conflicts with the more 4 carefully reasoned decisions in La Union and Milligan. In a related vein, although La 5 Union and Milligan (like League of Women Voters and Cano) are obviously not binding 6 here, the Court views them as consistent with the applicable Ninth Circuit and Supreme 7 Court authorities. Although one of the purposes underlying the state legislative privilege— 8 the interest in shielding legislators from the time, expense, and hassle of responding to 9 discovery requests—is no longer implicated here (as it was in the Ninth Circuit’s decision 10 in Lee and in the July 2023 order), that is not the only purpose the privilege is intended to 11 effectuate. As La Union explains, because “lawmakers routinely meet with persons outside 12 the legislature—such as executive officers, partisans, political interest groups, or 13 constituents—to discuss issues that bear on potential legislation as part of the regular 14 course of the legislative process,” “[d]iscovery requests that reveal such communications, 15 even if served on non-legislators, nonetheless burden—and therefore deter—legislators 16 from the uninhibited discharge of their legislative duty.” 93 F.4th at 318, 323. See also 17 Puente Arizona v. Arpaio, 314 F.R.D. 664, 670 (D. Ariz. 2016) (“The Ninth Circuit has 18 held that because obtaining information pertinent to potential legislation or investigation is 19 a legitimate legislative activity, the federal legislative privilege applies to communications 20 in which constituents urge their congressperson to initiate or support some legislative 21 action and provide data to document their views. Other courts have held that the federal 22 legislative privilege applies more broadly to a congressperson’s communications with third 23 parties about legislation or legislative strategy. Courts have held that communications of 24 this type are also protected by the state legislative privilege and immunity doctrines.”) 25 (cleaned up). Cf. Almonte v. City of Long Beach, 478 F.3d 100, 107 (2d Cir. 2007) 26 (“[L]egislative immunity is not limited to the casting of a vote on a resolution or bill; it 27 covers all aspects of the legislative process, including the discussions held and alliances 28 struck regarding a legislative matter in anticipation of a formal vote. . . . Meeting with 1 persons outside the legislature—such as executive officers, partisans, political interest 2 groups, or constituents—to discuss issues that bear on potential legislation, and 3 participating in party caucuses to form a united position on matters of legislative policy, 4 assist legislators in the discharge of their legislative duty. These activities are also a routine 5 and legitimate part of the modern-day legislative process. The fact that such meetings are 6 politically motivated, or conducted behind closed doors, does not take away from the 7 legislative character of the process.”) (cleaned up). 8 The Court does not perceive any tension between this conclusion and its 9 observations in the July 2023 order that “the legislative privilege is distinct from other 10 recognized privileges in that . . . its animating purpose is not limited to the maintenance of 11 confidentiality” and that “confidentiality interests are less discernible in the context of 12 documents revealing communications between legislators and third parties than they are in 13 the context of internal communications within the legislative branch.” (Doc. 237 at 14.) 14 Those passages were simply intended to explain that the state legislative privilege’s goal 15 of protecting state legislators from the hassle and expense of responding to discovery 16 requests—which was the interest most directly implicated by Plaintiffs’ earlier effort to 17 subpoena Legislators directly—is separate and distinct from the privilege’s goal of 18 protecting certain confidentiality interests. They were not meant to definitively resolve the 19 scope of those confidentiality interests or suggest that the only other purpose of the 20 privilege is to protect confidentiality interests. Indeed, the Court ultimately concluded that 21 it was “not persuaded that the rationale for the legislative privilege identified in [United 22 States v. Gillock, 445 U.S. 360 (1980)] (i.e., “the need to insure legislative independence”), 23 is limited to maintaining confidentiality within the legislature.” (Id. at 13.) 24 Plaintiffs’ counterarguments, although not frivolous, do not require a different 25 conclusion. Although Plaintiffs argue that “there is no legitimate expectation of privacy in 26 documents that legislators send to third-parties (and vice versa)” (Doc. 293 at 3), the Court 27 is not convinced that only purpose of the state legislative privilege, apart from enabling 28 legislators to avoid the hassle and expense of discovery compliance, is to protect intra- 1 legislative confidentiality and privacy interests. In Lee, the Ninth Circuit explained that 2 “[t]he rationale for the privilege” is “to allow duly elected legislators to discharge their 3 public duties without concern of adverse consequences outside the ballot box.” 908 F.3d 4 at 1187. That conceptualization of the purpose of the privilege—although admittedly 5 vague and subject to interpretation—seems to go beyond protecting intra-legislative 6 confidentiality and privacy. See also La Union, 93 F.4th at 323; Milligan, 2024 WL 7 3666369 at *4; Puente Arizona, 314 F.R.D. at 670. Indeed, the Ninth Circuit has held, 8 albeit in the context of the federal legislative privilege, that “[o]btaining information 9 pertinent to potential legislation or investigation” from “constituents” is “one of the things 10 generally done in a session of the House concerning matters within the legitimate 11 legislative sphere” and that “[t]he possibility of public exposure could constrain these 12 sources. It could deter constituents from candid communication with their legislative 13 representatives and otherwise cause the loss of valuable information. . . . We [thus] 14 conclude that the privilege extends to questions about a Congressman’s sources of 15 information.” Miller v. Transamerican Press, Inc., 709 F.2d 524, 530-31 (9th Cir. 1983) 16 (cleaned up). Although Plaintiff correctly notes that Miller is factually distinguishable 17 from this case in certain respects (Doc. 293 at 3-4), it still espouses principles that are 18 consistent with the conclusions reached in La Union and Milligan. 19 Plaintiffs also argue that accepting La Union’s logic would lead to absurd 20 consequences, because “[i]t cannot be the case, for example, that public mailings that 21 legislators send to donors and/or constituents who might influence the legislative process 22 are covered by the privilege” or that the privilege applies “to any random party volunteer 23 or operative who ever communicated with a legislator on a given topic.” (Doc. 293 at 5, 24 cleaned up.) Although those hypothetical concerns might be more persuasive in a different 25 case, they fail to account for how the current dispute arose. As noted, Plaintiffs initially 26 attempted to subpoena Legislators directly for their communications with third parties. 27 Those subpoenas, in turn, prompted Legislators to create a privilege log identifying a subset 28 of 38 third-party communications being withheld pursuant to the state legislative privilege. 1 (Doc. 202-1.) Legislators avowed that all of these withheld communications “were 2 regarding bona fide legislative activity” that occurred “as part of the legislative process.” 3 (Doc. 202 at 7.) Notably, Legislators also declined to assert any claim of privilege with 4 respect to “approximately 33,000 documents” they produced to Plaintiffs pursuant to the 5 subpoenas, which “include[d] thousands of stock emails sent to the Legislators from 6 constituents or third-party groups advocating certain positions on pending bills or other 7 issues related to voting and mass emails sent by Legislators to members of the public 8 regarding those bills.” (Id. at 3.) At no point did Plaintiffs “challenge Legislators’ assertion 9 that the subjects discussed in the 38 [withheld] communications are related to legislative 10 activity.” (Doc. 237 at 5, citing Doc. 209 at 1-5.) It was only after their motion to compel 11 as to Legislators was denied that Plaintiffs turned around and used the recipient information 12 from Legislators’ privilege log to attempt to obtain the same documents, as well as certain 13 other related documents, directly from the recipients. (Doc. 283 at 1 [Plaintiffs’ 14 acknowledgement that they “did just that”].) This backdrop undermines any suggestion 15 that upholding the privilege claim here would lead to withholding of mass mailings or off- 16 the-cuff conversations with random party volunteers.1 17 For these reasons, the Court concludes that the documents at issue here are covered 18 by the state legislative privilege. Additionally, even assuming the five-factor test discussed 19 in the July 2023 order remains the valid test for deciding whether the privilege has been 20 overcome—a premise that Legislators dispute—Plaintiffs are not entitled to the documents 21 under that test. The Court already conducted an in camera review of many of the withheld 22 1 The Court also notes that it would create perverse incentives to allow Plaintiffs’ 23 discovery strategy to succeed. Legislators, to their credit, expended significant resources compiling a legally sufficient privilege log in response to the subpoenas they received— 24 something not all of the third-party subpoena recipients in this case have done. (Doc. 269 at 25 [“The RPA’s privilege log fails . . . because it provides no information whatsoever 25 about the contents of the 61,298 withheld documents or the identity of the creator/sender/recipient of each withheld document.”].) It would be anomalous if Plaintiffs 26 could then use the recipient information from that privilege log—information they did not possess before receiving the privilege log—to identify a new wave of third parties to 27 subpoena. The Court does not mean to suggest that Plaintiffs did anything wrong by pursuing this tactic, particularly in light of the July 2023 order’s discussion of its potential 28 validity. The point is simply that, on reflection, it would be odd to allow it to succeed. 1 documents in August 2023, as part of the earlier motion-to-compel proceedings, and 2 determined at the conclusion of that review that “the withheld documents are not more 3 relevant and/or valuable to Plaintiffs’ claims than the Court assumed when considering 4 them in the abstract. The in camera review thus confirms that the balancing test supports 5 applying the state legislative privilege in this case and that Legislators should be allowed 6 to withhold the documents based on that privilege.” (Doc. 242.) Also, although the 7 analysis of the second factor (“availability of alternative evidence”) in the July 2023 order 8 assumed that the subpoenas at issue here would be enforceable, the Court’s resolution of 9 the second factor in Legislators’ favor did not turn on that assumption. (Doc. 237 at 20- 10 23.) That assumption simply provided “another reason why the second factor weighs 11 against disclosure,” with the primary reasons being that Plaintiffs had already obtained 12 over 30,000 documents from Legislators and that Legislators had not asserted the privilege 13 in relation to a different subpoena to the Republican Party of Arizona that sought, inter 14 alia, certain of its communications with legislators. (Id., emphasis added.) Thus, the five- 15 factor balancing test continues to support applying the state legislative privilege here.2 16 II. The Free Enterprise Club Recipients’ Objections 17 The Free Enterprise Club Recipients raise an additional reason, separate and apart 18 from the state legislative privilege, why they should not be required to comply with the 19 subpoenas directed to them. (Doc. 292 at 3, 10-14.) According to the Free Enterprise Club 20 Recipients, “the subpoenas infringe upon [their] First Amendment rights because the 21 disclosure of the subpoenaed documents would unjustifiably burden [their] associational 22 and political activity.” (Id.) Plaintiffs disagree, arguing that the First Amendment privilege 23 only applies to an association’s internal communications and that the Free Enterprise Club 24 2 Although more Legislator/third-party communications are being withheld in 25 response to the current round of subpoenas than were withheld in response to the initial round of subpoenas to Legislators (Doc. 292 at 3 [“The Free Enterprise Club’s privilege 26 log identifies approximately 303 individual text messages with the Legislators concerning not just S.B. 1485, but also S.B. 1103, S.B. 1106, and S.B. 1713.”], neither side has asked 27 the Court to perform an in camera review of those additional communications before deciding the applicability of the privilege. In contrast, both sides agreed to in camera 28 review during the earlier motion-to-compel proceedings, which was in part why the Court agreed to perform that review. (Doc. 237 at 26-28.) 1 || Recipients have not, at any rate, “offered anything to explain how disclosure of Plaintiffs’ 2 || requested documents will chill associational speech.” (Doc. 283 at 11-13; Doc. 293 at 8- 3}, 11.) 4 The Court finds it unnecessary to resolve the Free Enterprise Club Recipients’ First Amendment objection because, as discussed in Part I above, the subpoenas are || unenforceable pursuant to Legislators’ assertion of the state legislative privilege. 7 Accordingly, 8 IT IS ORDERED that Plaintiffs’ motion to compel (Doc. 283) is denied. 9 Dated this 2nd day of October, 2024. 10 11 Lom ee” 12 f □□ □□ Dominic W. Lanza 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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