Cave v. Levy

1

DONNA CAVE, et al., PLAINTIFFS v. EUGENE LEVY, et al., CONSOLIDATED PLAINTIFFS THE SATANIC TEMPLE, et al., INTERVENORS v. JOHN THURSTON, Arkansas Secretary of State, in his official capacity DEFENDANT

No. 4:18-cv-00342-KGB

United States District Court, E.D. Arkansas, Central Division

September 30, 2022

ORDER

Kristine G. Baker, United States District Judge.

Before the Court are the following pending discovery motions:

(1) A motion for relief concerning remaining discovery issues filed by Arkansas Secretary of State John Thurston, in his official capacity (“Secretary Thurston”) (Dkt. No. 181). The Satanic Temple Intervenors (“TST”) responded in opposition to this motion (Dkt. No. 193).

(2) TST's motion to exclude Shane Bugbee or to permit a late subpoena and amended motion to exclude Bugbee or to permit a late subpoena (Dkt. Nos. 189; 190). Cave Plaintiffs responded (Dkt. No. 200). Secretary Thurston responded (Dkt. No. 201). TST replied (Dkt. No. 206).

(3) TST's motion to amend the scheduling order to allow the subpoenas and for Order to show cause (Dkt. No. 192). The Cave Plaintiffs responded (Dkt. No. 200). Secretary Thurston responded (Dkt. No. 201). TST replied (Dkt. Nos. 206; 207).

(4) A motion to quash intervenor's subpoena or, in the alternative, for a protective order filed by non-party witness Arkansas State Senator Jason Rapert (Dkt. No. 195). TST responded (Dkt. No. 204).

(5) A motion to quash intervenor's subpoena or, in the alternative, for a protective order filed by non-party witness American History and Heritage Foundation (“AHHF”) (Dkt. No. 196). TST responded (Dkt. No 204).

(6) TST's motion for order to show cause or to compel production directed to Arkansas State Senator Bob Ballinger (Dkt. No. 199). The Cave Plaintiffs responded (Dkt. No. 22). Arkansas Senator Ballinger responded (Dkt. No. 205).

(7) TST's motion to compel production of documents (Dkt. No 203). Secretary Thurston responded (Dkt. Nos. 208; 209; 210).

(8) Secretary Thurston's motion to compel responsive documents withheld by TST (Dkt. No. 212). TST responded (Dkt No. 217).

(9) TST's motion to compel state documents (Dkt. No. 218). Secretary Thurston responded (Dkt. No. 222). TST replied (Dkt. No. 223).

The Court conducted a status conference on November 23, 2021, with regard to matters then-pending and ripe (Dkt. No. 198). The Court also conducted a status conference on February 18, 2022, with regard to matters then-pending and ripe (Dkt. No. 229-230).

I. Procedural Background

In June 2017, a granite Ten Commandments Monument was erected on the grounds of the Arkansas State Capitol, but that monument was destroyed (Dkt. No. 1, ¶ 2). Another granite Ten Commandments Monument was installed April 26, 2018, “weighing three tons and standing over six feet high and three feet wide. . . on public property between the Arkansas State Capitol and Justice Building.” (Id.). The initial complaint in this action was filed on May 23, 2018 (Dkt. No. 1). On December 17, 2018, this Court granted TST's amended motion to intervene (Dkt. No. 38), and TST filed its amended complaint in intervention on December 24, 2018 (Dkt. No. 40). TST filed a second amended complaint in intervention on November 1, 2018 (Dkt. No. 89).

This Court substituted Secretary Thurston as successor to former Arkansas Secretary of State Mark Martin (Dkt. No. 48, at 1 n.1).

The Court entered a Final Scheduling Order on October 15, 2019, setting forth pretrial deadlines and a trial date during the week of March 16, 2020 (Dkt. No. 85). By Order dated January 3, 2020, the Court granted Secretary Thurston's motion for an extension to complete discovery and granted the parties' joint motion to move the case to a non-jury docket (Dkt. No. 103). On February 10, 2020, the Court entered an Amended Final Scheduling Order setting a bench trial sometime during the week of July 13, 2020, and extending the deadline for discovery to April 29, 2020; the Court also set additional pretrial deadlines (Dkt. No. 107). On May 11, 2020, the Court granted a motion for continuance, extending the motion deadline and trial date only (Dkt. No. 127).

II. Progress Of Discovery

In this Court's experience in cases pending in the Eastern District of Arkansas on its docket, in the vast majority of cases, this Court is not required to involve itself in discovery. This case does not fall within the vast majority; this case has involved numerous discovery disputes with the overwhelming majority of those disputes stemming from complaints by Secretary Thurston and TST. The Court has involved itself in these disputes to resolve them but recognizes that the discovery practices engaged in by Secretary Thurston, TST, and certain non-parties has unduly delayed the resolution of this litigation. The Court recites the history of the progress of discovery here.

The Court conducted a status conference on February 26, 2020 (Dkt. No. 115). The Court entered a discovery Order on certain matters on March 1, 2020 (Dkt. No. 116).

The Court convened a hearing during a deposition on March 11, 2020, due to a discovery dispute (Dkt. No. 117). The Court granted an agreed motion for protective order and entered such Order on April 16, 2020 (Dkt. No. 112).

On May 22, 2020, the Court conducted a status conference regarding then-pending and ripe discovery motions (Dkt. No. 134). On March 31, 2021, the Court entered an Order on then-pending discovery matters (Dkt. No. 145).

The Court conducted a status conference regarding then-pending and ripe discovery motions on September 8, 2021 (Dkt. No. 162). On September 9, 2021, the Court entered an Order setting a status conference for October 22, 2021, and directing the parties to submit a status report reporting to the Court their progress toward completing discovery, among other matters (Dkt. No. 163). All parties submitted a joint status report on October 12, 2021 (Dkt. No. 168). In that report, with respect to the status of discovery, all parties stated:

The discovery deadline has expired. The parties do not anticipate a need for further discovery. But the parties anticipate receiving the Court's ruling on two discovery motions [see Docs. 120, 124, 145]. That ruling, and any production ordered by the Court, may impact the proposed summary judgment briefing schedule set forth below.

The Court set and extended the discovery deadline several times. In its Order of January 3, 2020 [Doc 103], the Court extended the discovery deadline from January 13, 2020 to April 13, 2020. The Court has not entered any subsequent order related to the discovery deadline since that time.

(Dkt. No. 168, at 1-2).

The Court entered Orders ruling on then-pending and ripe discovery matters on October 22, 2021 (Dkt. Nos. 145; 172; 175). The Court conducted a status conference on October 22, 2021 (Dkt. No. 174). The Court, on October 22, 2021, set a status conference for November 23, 2021 (Dkt. No. 175).

The Court conducted a status conference on then-pending and ripe discovery matters on November 23, 2021 (Dkt. No. 198). When the November 23, 2021, status conference was conducted, there was only one ripe discovery motion pending (Dkt. No. 181). The Court, on January 31, 2022, set a status conference for February 18, 2022 (Dkt. No. 224). By February 18, 2022, there were ten ripe discovery motions pending (Dkt. Nos. 181; 189; 190; 192; 195; 196; 199; 203; 212; 218). The Court conducted a status conference on then-pending and ripe discovery matters on February 18, 2022 (Dkt. No. 229). The Court addresses each pending motion in turn.

III. Pending Discovery Motions

(1) Secretary Thurston's Motion For Relief Concerning Remaining Discovery Issues

Secretary Thurston seeks the Court's ruling on certain of Secretary Thurston's Third Requests for Production and seeks rulings on other requests not specifically addressed previously (Dkt. 181).

Secretary Thurston requests that the Court order TST to respond to certain of his Third Set of Requests for Production (Dkt. No. 181). He asserts that he moved initially on these requests on April 29, 2020 (see Dkt. No. 124, at 10). TST responded and objected to these requests (see Dkt. No. 124-6).

The Court observes that Secretary Thurston's initial motion as to these requests, to the extent he made one, was a parenthetical cite to these requests, with no real argument about the requests (Dkt. No. 124, at 10). As a result, when ruling on these issues initially, the Court stated that Secretary Thurston's motion and position on these requests was unclear (Dkt. No. 172, at 3334). The Court now examines Secretary Thurston's current motion as to these requests.

A. Third Set Of Requests For Production: Requests Nos. 1 To 3

Secretary Thurston moves to compel TST to respond to Requests for Production Nos. 1 to 3 in his third set of requests for production. The requests at issue, as initially propounded, state:

Request for Production No. 1: Please produce a copy of all United Federation of Churches, LLC, current and former governance documents (including, but not limited to, any articles of organization, operating agreement, bylaws, goal statement, leadership policy, or organizational policy).

Request for Production No. 2: Please produce a copy of all Satanic Temple, Inc., current and former governance documents (including, but not limited to, any articles of organization operating agreement, bylaws, goal statement, leadership policy, or organizational policy).

Request for Production No. 3: To the extent not covered by the above Requests for Production, please produce a copy of all Satanic Temple current and former governance documents (including, but not limited to, any articles of organization, operating agreement, bylaws, goal statement, leadership

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