Mi Familia Vota v. Fontes

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Mi Familia Vota, et al., Plaintiffs, v. Adrian Fontes, et al., Defendant.

No. CV-21-01423-PHX-DWL

United States District Court, D. Arizona

November 8, 2023

ORDER

Dominic W, Lanza United States District Judge.

INTRODUCTION

This action involves a challenge to a voting law, Senate Bill 1485 (“S.B. 1485”), that was enacted by the Arizona legislature following the 2020 election. It provides that voters who do not cast a mail-in ballot in two consecutive election cycles must be removed from Arizona's permanent early voting list. According to Plaintiffs, S.B. 1485 is invalid because it was enacted with a discriminatory purpose in violation of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act.^[1]

In January 2022, Plaintiffs served the Republican Party of Arizona (“RPA”), a nonparty, with a Rule 45 subpoena seeking documents concerning S.B. 1485 and related legislation. (Doc. 156-1 at 5-16.) Since then-a period of over 21 months-the subpoena has generated no shortage of disputes between Plaintiffs and the RPA. The Court has repeatedly resolved those disputes in Plaintiffs' favor, in large part due to the RPA's failure to raise its objections in a timely or legally compliant manner.

Now pending before the Court is the latest iteration of subpoena-related litigation- specifically, Plaintiffs' motion to compel the RPA to produce certain documents the RPA has withheld on First Amendment and attorney-client privilege grounds. (Doc. 253.) For the following reasons Plaintiffs' motion is granted in part and denied in part.

BACKGROUND

I. Underlying Litigation

On August 17, 2021, Plaintiffs initiated this action, asserting three claims. (Doc. 1.) In Count One, Plaintiffs allege that S.B. 1485 and S.B. 1003, “individually and collectively,” violate the First and Fourteenth Amendments because they create an undue burden on the right to vote. (Id. ¶¶ 127-35.)^[2] In Count Two, Plaintiffs allege that S.B. 1485 and S.B. 1003, “individually and collectively, violate the Fourteenth and Fifteenth Amendments because they were adopted for the purpose of denying voters of color full and equal access to the political process.” (Id. ¶¶ 136-41.) In Count Three, Plaintiffs allege that S.B. 1485 and S.B. 1003, “individually and collectively, violate Section 2 of the Voting Rights Act because they were adopted for the purpose of denying voters of color full and equal access to the political process.” (Id. ¶¶ 142-45.)

On November 24, 2021, Defendants moved to dismiss all of Plaintiffs' claims. (Docs. 72, 76, 77.)

On December 15, 2021, the Court issued a Rule 16 scheduling order that, among other things, set a November 18, 2022 deadline for completion of fact discovery. (Doc. 85.) The deadline has since been extended multiple times, most recently to December 22, 2023. (Doc. 260.)

On June 24, 2022, after full briefing on the motion to dismiss (Docs. 83, 99, 100, 118) and oral argument (Doc. 149), the Court dismissed Count One in its entirety. (Doc. 154 at 22, 34, 41, 60.) The Court also dismissed the challenges to S.B. 1003 in Counts Two and Three. (Id. at 44, 60.) The Court denied the motion to dismiss with respect to the challenges to S.B. 1485 in Counts Two and Three. (Id. at 52, 60.) The Court also granted Plaintiffs leave to amend. (Id. at 59-60.) However, Plaintiffs declined to amend their complaint by the amendment deadline. (Doc. 168.)

II. The First Discovery Dispute Related To The Subpoena

On January 10, 2022, Plaintiffs served a subpoena on the RPA. (Doc. 156-1 at 516.) The subpoena requires the RPA to produce discovery responsive to 12 requests for production (“RFPs”). (Id.)

On January 24, 2022, the RPA served written objections to the subpoena. (Id. at 18-23.) The RPA objected to all 12 RFPs on “the grounds of First Amendment privilege.” (Id. at 19.)^[3] The RPA also raised other objections to certain RFPs and argued that the requested communications “can be obtained from the government/government officials if at all. And any evidence that plaintiffs intend to present in support of their theory that race bears a relationship with being an active voter, no matter how objectively repugnant that theory may be, can presumably be obtained through other sources and without infringing on the [RPA's] First-Amendment protected activity.” (Id. at 19-22.) Finally, the RPA asserted it had been “unable to conduct a search for responsive documents” thus far but that it was “entirely possible if not likely that the [RPA] simply has no responsive materials to any or all of these requests.” (Id. at 19.)

Between January 24, 2022, and April 29, 2022, Plaintiffs' counsel and counsel for the RPA communicated via email and telephone about the RPA's objections and the possibility that the RPA would produce documents responsive to the subpoena. (See, e.g., id. at 30-40 [emails between counsel].) As relevant here, after the parties conferred telephonically on February 7, 2022, Plaintiffs' counsel sent a follow-up letter. (Id. At 25-28.)

The letter (1) addressed the relevance and breadth of each RFP and offered to narrow certain RFPs; (2) expressed skepticism as to the RPA's claim that no responsive documents exist for certain RFPs and requested descriptions of the searches conducted; and (3) challenged the RPA's “blanket First Amendment objection” and requested a “privilege log for any responsive documents that [the RPA] intends to withhold so that we can consider whether such privilege assertions are appropriate.” (Id.)

On March 15, 2022, after receiving no response, Plaintiffs' counsel sent a followup email. (Id. at 37-38.) In response, counsel for the RPA stated that Plaintiffs' “letter appears to change nothing,” reiterated the “obvious First Amendment problems here” as well as “more conventional problems” like “relevance, expense, and the availability of information from other sources,” and asserted that “[a]s a matter of law, political parties and other members of the public do not control legislators' judgment, and are clearly entitled to freely exercise their free-speech rights without fear of subpoenas exactly like this one.” (Id. at 36-37.) In reply, Plaintiffs' counsel again requested a privilege log and information about the searches conducted, offered “to discuss these matters further,” and emphasized “we cannot accept a blanket refusal by [the RPA] to respond to the subpoena.” (Id. at 35-36.)

On April 29, 2022, Plaintiffs' counsel informed the RPA's counsel of Plaintiffs' intent to “present this dispute to the Court for resolution.” (Id. at 34-35.) Plaintiffs also asked if the RPA was “willing to provide its position” in a joint submission. (Id.) After some discussion (during which the parties agreed to postpone any filing until after the Court ruled on Defendants' motion to dismiss), on July 5, 2022, the parties filed a joint summary of the dispute and Plaintiffs' alternative request for leave to file a motion to compel. (Doc. 156.)

On July 7, 2022, “given the seeming complexity of the issues,” the Court granted Plaintiffs leave to file a motion to compel. (Doc. 158.)

III. The First Order Compelling The RPA To Comply With The Subpoena

On October 27, 2022, after full briefing on Plaintiffs' motion to compel (Docs. 161, 171, 172), the Court granted the motion in significant part. (Doc. 184.) More specifically, the Court first ruled that “[t]he RPA's reliance on the First Amendment as a basis for categorically refusing to comply with the subpoena fails for two independent reasons,” which were (1) the RPA's failure to provide a privilege log and (2) the RPA's failure to provide any cognizable evidence in support of its assertion that complying with the subpoena would result in a chilling effect. (Id. at 9-13.) As for the latter point, the Court specifically noted that “only some of the RFPs seek information that might be considered internal communications of the RPA,” whereas “[o]ther RFPs seek external communications,” and “[t]he RPA makes no effort to explain why such communications could be considered privileged from disclosure under the First Amendment.” (Id. at 1213.)

Next, the Court addressed the RPA's objections based on relevance and overbreadth, concluding that most of those objections lacked merit. (Id. at 16-29.) Along the way, the Court specifically held that “to the extent the RPA seeks to avoid compliance with the subpoena on the ground that Plaintiffs lack a sufficient basis for suspecting the RPA possesses any of the documents in question, this argument fails on both the law and the facts.” (Id. at 19.)

Next, the Court addressed the RPA's objections based on proportionality and undue burden, concluding for various reasons that those objections did not justify non-compliance with the subpoena. (Id. at 29-37.) In this portion of the order, the Court repeatedly acknowledged that because the RPA is a non-party, it is entitled to “special consideration” and “special protection” against the time and expense of complying. (Id. at 30-31, 36-37.) The Court thus explained that, “had the RPA provided any reasoned argument or evidentiary support for its assertion that complying with the subpoena would be ‘burdensome,' the Court would have been particularly receptive.” (Id. at 36-37.) The Court continued:

Unfortunately, the RPA fails to articulate how the factors relevant to burden (i.e., cost of searching, time constraints, lack of resources, inconvenience) play out in this case. It is unclear how voluminous the RPA expects the responsive discovery would be, how logistically difficult it would be for the RPA to comply to the subpoena, and whether compliance would impose large costs on the RPA. The Court also takes into account Plaintiffs' offers to narrow several of the requests

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