In re Ga. Senate Bill 202

1

IN RE GEORGIA SENATE BILL 202

No. 1:21-MI-55555-JPB

United States District Court, N.D. Georgia, Atlanta Division

May 9, 2023

ORDER

J. P BOULEE, UNITED STATES DISTRICT JUDGE

This matter is before the Court on the Republican National Committee, National Republican Senatorial Committee, Georgia Republican Party, Inc. and the National Republican Congressional Committee's (collectively “Intervenors”) Motion to Quash Subpoena to Depose Brad Carver [Doc. 493]. This Court finds as follows:

BACKGROUND

In this consolidated action, Plaintiffs challenge certain provisions of Georgia Senate Bill 202 (“SB 202”),^[1] bringing, among others, claims under Section 2 of the Voting Rights Act (“VRA”) and the Fourteenth Amendment of the United States Constitution. As to these claims, Plaintiffs contend that the Georgia Legislature (the “Legislature,” comprised of the Georgia General Assembly and the Georgia Senate) passed SB 202 with the intent to discriminate based on race. Discovery is ongoing.

The instant discovery dispute concerns Brad Carver. Currently Mr. Carver is one of Intervenors' counsel of record. Before this case began, however, Mr. Carver served as chairman of a committee on election reform led by the Georgia Republican Party (the “Georgia GOP”).^[2] [Doc. 504-2, p. 2]. When the committee was in its infancy, members of the Georgia GOP sent Mr. Carver suggestions for election law changes. Id. Using those recommendations, the committee developed a set of proposals to submit to the General Assembly. [Doc. 504-1, p. 2]. Ultimately, Mr. Carver lobbied the General Assembly to adopt these proposals, and many of the reforms for which Mr. Carver advocated became law when the General Assembly passed SB 202. [Doc. 493, p. 3].

On January 6, 2023, Plaintiffs issued a subpoena seeking to depose Mr. Carver about his activities as chairperson for the Georgia GOP committee on election reform. Id. at 4. On March 16, 2023, Intervenors filed the instant motion seeking to quash the deposition subpoena.

DISCUSSION

Under Federal Rule of Civil Procedure 45, a party may subpoena information from a nonparty to litigation. Jordan v Comm'r, Miss. Dep't of Corr., 947 F.3d 1322, 1329 (11th Cir. 2020). The subpoena may be quashed, however, if the subpoena “requires disclosure of privileged or other protected matter” or “subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3). A subpoena may also be quashed to the extent that it seeks irrelevant information. Jordan, 947 F.3d at 1329.

Intervenors argue that the subpoena should be quashed for three primary reasons: (1) Mr. Carver's testimony would have little, if any, relevance; (2) compelling Mr. Carver to testify would impose a substantial burden in light of his role as litigation counsel; and (3) the First Amendment privilege protects Mr. Carver from being deposed about Plaintiffs' proposed topics. The Court discusses these arguments below.

1. Relevance

Intervenors assert that the deposition should be quashed because “it is ‘very questionable' whether Mr. Carver's deposition testimony would be relevant at all.” [Doc. 493, p. 5]. The threshold for discovery to be relevant is relatively low. See Akridge v. Alfa Mut. Ins. Co., 1 F.4th 1271, 1276 (11th Cir. 2021) (holding that “a civil litigant is generally entitled to ‘any information sought if it appears reasonably calculated to lead to the discovery of admissible evidence'” (quoting Degen v. United States, 517 U.S. 820, 825-26 (1996))). The term “relevant” encompasses “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Funds Inc. v. Sanders, 437 U.S. 340, 351 (1978). Stated another way, information is relevant if it has a “tendency to make a fact more or less probable” and if “the fact is of consequence in determining the action.” Fed.R.Evid. 401. Significantly, whether information sought in discovery is relevant “depends on the claims asserted in the underlying action and the legal standards that govern those claims.” Jordan, 947 F.3d at 1329.

To prevail on their claims under the Fourteenth Amendment and the VRA, Plaintiffs must show, among other things, that SB 202 was passed with discriminatory intent. Greater Birmingham Ministries v. Sec'y of State for the State of Ala., 992 F.3d 1299, 1321 (11th Cir. 2021). Intervenors contend that the information Plaintiffs seek from Mr. Carver is not relevant because Mr. Carver's views on election reform are not probative of the Legislature's intent. In response, Plaintiffs argue that Mr. Carver's deposition is directly relevant to the factors that this Court must consider under Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).

In Arlington Heights, the Supreme Court of the United States held that determining legislative intent “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” 459 U.S. at 266. The Supreme Court identified the following examples of evidence that may show intent: (1) “the historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes”; (2) “the specific sequence of events leading up to the challenged decision”; (3) “[departures from the normal procedural sequence”; (4) “[s]ubstantive departures, . . . particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and (5) “[t]he legislative or administrative history . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. at 266-68.

The Court is not convinced that Mr. Carver's intent and motives are irrelevant simply because he is not a member of the Legislature. To be sure, Mr. Carver's own intent or his personal statements are not direct evidence of the Legislature's discriminatory intent. See Stout by Stout v. Jefferson Cnty. Bd. of Educ., 882 F.3d 988, 1007 (11th Cir. 2018). His views and associated lobbying efforts, however, could be circumstantial evidence of the Legislature's intent. See I.L. v. Alabama, 739 F.3d 1273, 1287 (11th Cir. 2014) (relying on evidence of “heavy support” from private lobbyists to affirm the district court's ruling that two state constitutional amendments were financially, and not discriminatorily, motivated); see also Fla. State Conf, of Branches & Youth Units of the NAACP v. Lee, 568 F.Supp.3d 1301, 1305 (S.D. Fla. 2021) (holding that documents relating to lobbying efforts about election reform were discoverable because the documents constituted circumstantial evidence of legislative intent).

It is undisputed that Mr. Carver played an important part in the formulation and passage of SB 202. As such, this Court finds that his testimony relates to the sequence of events underlying the legislation. Because evidence concerning the sequence of events is relevant to the Legislature's intent as explained in Arlington Heights, this Court finds that the information Plaintiffs seek surpasses the low bar for relevance. See Akridge, 1 F.4th at 1276 (emphasizing “the need to construe the [Federal] Rules liberally to allow for robust discovery”). To the extent that Intervenors argue that the deposition should be quashed based on relevance grounds, the motion is DENIED.

2. Substantial Burden

Intervenors contend that the deposition should be quashed because it subjects Mr. Carver to a substantial burden in light of his position as Intervenors' litigation counsel. As an initial matter, “[t]he Federal Rules of Civil Procedure do not prevent the deposition of another party's lawyer, so long as the deposition seeks relevant, non-privileged information.” Gaddy v. Terex Corp., No. 1:14-cv-1928, 2015 WL 13545486, at *2 (N.D.Ga. Oct. 28, 2015). Moreover, protective orders that prohibit a deposition are rarely granted “absent extraordinary circumstances.” Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979).^[3]Notwithstanding these principles, “[t]he deposition of a party's attorney calls for special scrutiny because ‘experience teaches that countenancing unbridled depositions of attorneys constitutes an invitation to delay, disruption of the case, harassment, and perhaps disqualification of the attorney.'” Gaddy, 2015 WL 13545486, at *2 (quoting N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 85 (M.D. N.C. 1987)).

The Eleventh Circuit Court of Appeals has not adopted a specific approach for evaluating when the deposition of a party's counsel is appropriate. As the parties acknowledge, courts that have considered the issue have formulated different tests. For example, the Eighth Circuit Court of Appeals adopted a three-part test that limits depositions to situations where (1) there are no other means to obtain the information, (2) the attorney actually possesses relevant and nonprivileged information and (3) the information is crucial to the preparation of the case. Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). The Second Circuit Court of Appeals-which called the Eighth Circuit's rule “rigid”- adopted a “more flexible approach to attorney depositions.” In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 67 (2d Cir. 2003). Under this framework, courts should consider “all of the relevant facts and circumstances to determine whether the proposed deposition would entail an inappropriate burden or hardship.” Id. at 72. “Such considerations may include the need to depose the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and...