THE CITY OF GREENSBORO, et al., Plaintiffs, v. THE GUILFORD COUNTY BOARD OF ELECTIONS, Defendant, MELVIN ALSTON, et al., Defendant-Intervenors 1:15cv559 United States District Court, M.D. North Carolina Filed December 20, 2016 Counsel Allison Jean Riggs, Jaclyn A. Maffetore, Jeffrey Loperfido, Southern Coalition For Social Justice, Durham, NC, D. Bryan Starrett, Jr., Jim W. Phillips, Jr., Brooks Pierce Mclendon Humphrey & Leonard, LLP, Greensboro, NC, Julia C. Ambrose, Brooks Pierce Mclendon Humphrey & Leonard, L.L.P., Raleigh, NC, for Plaintiffs. Alan W. Duncan, Stephen Mcdaniel Russell, Jr., Mullins Duncan Harrell & Russell, PLLC, John Mark Payne, Guilford County Attorney's Office, Greensboro, NC, for Defendant. Benton G. Sawrey, Narron O'Hale & Whittington, P.A., Smithfield, NC, for Defendant-Intervenors. Webster, Joe L., United States Magistrate Judge ORDER *1 This matter is before the Court upon Plaintiffs’ Lewis A. Brandon III, Joyce Johnson, Nelson Johnson, Richard Alan Koritz, Sandra Self Koritz, Charli Mae Sykes, and Maurice Warren II’s (collectively “Individual Plaintiffs”) motion to compel (Docket Entry 74) compliance with subpoenas served upon Senator Robert A. Rucho, Senator Trudy Wade, Representative John Faircloth, Representative Jon Hardister, Representative Charles Jeter, Representative Tim Moore, Representative David Lewis, and Attorney Erika Churchill. (collectively “Legislative Respondents”). Also before the Court is Senator Trudy Wade’s objections and motion to quash subpoena served on the state legislator. (Docket Entry 79.) For the reasons stated herein, the Court will grant in part and deny in part Individual Plaintiffs’ motion to compel, and grant Senator Wade’s motion to quash. I. BACKGROUND Plaintiffs filed this action challenging the constitutionality of House Bill 263 (hereinafter “Session Law 2015-138”). (Docket Entry 109 at 1-2.) Plaintiffs contend that the law “destroys the rights of the City of Greensboro and its citizens to govern themselves locally, while simultaneously redrawing the lines of city council districts to overpopulate certain districts while underpopulating others without a legitimate government purpose.” (Id.) Furthermore, Plaintiffs contend that “[t]he redistricting plan also splits precincts and pits incumbent council members against each other.” (Id.) Among other things, Plaintiffs assert that race was the predominate factor in the redistricting plan set forth by Session Law 2015-138. (Id.) During discovery, subpoenas were issued to Legislative Respondents regarding their “motives and intent behind the deviations in the challenged [redistricting] plan, a key issue in proving the constitutional violations.” (Docket Entry 74 at 2.) Legislative Respondents challenge such subpoenas on grounds of legislative privilege, legislative confidentiality, and attorney-client privilege. (Id.) A hearing was held on this matter on September 8, 2016. (Minute Entry Dated 9/8/2016.) The undersigned ordered Legislative Respondents to submit a privilege log within thirty (30) days for an in-camera inspection. (Id.) Legislative Respondents thereafter filed a motion for reconsideration of the undersigned’s previous order. (Docket Entry 92.) On November 1, 2016, the undersigned denied the motion for reconsideration and ordered Legislative Respondents to prepare a privilege log for an in-camera inspection. (Docket Entry 97.) In its order, the undersigned further noted that a privilege log would be found insufficient if it “lack[s] the information necessary to determine whether a privilege applies.” (Id. at 3 (citing Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 273 (E.D. Va. 2004)). Legislative Respondents thereafter submitted an insufficient privilege log. On November 23, 2016, the undersigned ordered Legislative Respondents to prepare another privilege log for an in-camera inspection that was in compliance with the Court’s previous order. (Docket Entry 101). Thereafter, a revised privilege log was submitted for the Court’s consideration. II. DISCUSSION *2 As a general rule, Federal Rule 26(b) provides general provisions regarding the scope of discovery: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1), Discovery rules are to be accorded broad and liberal construction. See Herbert v. Lando, 441 U.S. 153, 177 (1979); Hickman v. Taylor, 329 U.S. 495, 507 (1947). Nevertheless, a court may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense....” Fed. R. Civ. P. 26(c)(1). District courts generally have broad discretion in managing discovery, including whether to grant or deny a motion to compel. Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 929 (4th Cir. 1995); Erdmann v. Preferred Research, Inc. of Georgia, 852 F.2d 788, 792 (4th Cir. 1988). Additionally, “Rule 45 of the Federal Rules of Civil Procedure governs demands upon nonparties for the production of persons or documents.” Bell Inc. v. GE Lighting, LLC, No. 6:14-CV-12, 2014 WL 1630754, at *6 (W.D. Va. Apr. 23, 2014). It states that a subpoena may command a nonparty 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). Furthermore, “a court in the district of compliance is mandated by Rule 45(d)(3) to quash or modify subpoenas in certain circumstances on timely motions to quash.” Bell, 2014 WL 1630754, at *7. According to Rule 45(d)(3), “[o]n timely motion, the court for the district where compliance is required must quash or modify a subpoena that ... requires disclosure of privileged or other protected matter, if no exception or waiver applies.” Fed. R. Civ. P. 45 (d)(3)(A)(iii). A. Individual Plaintiffs’ Motion to Compel Individual Plaintiffs have filed a motion to compel requesting the production of “information available to Legislative Respondents and the circumstances surrounding enactment of Session Law 2015-138, such as documents that discuss the rationales for the bill or provide information about voting patterns in city elections.” (Docket Entry 74 at 4.) Individual Plaintiffs assert that the documents relate to “Legislative Respondents’ motives and intent behind the deviations in the challenged plan, a key issue in proving the constitutional violations.” (Id. at 3.) Furthermore, Individual Plaintiffs contend that they “have no recourse short of subpoenaing Legislative Respondents to ascertain facts and information relevant to their intent[.]” (Id.) Specifically, Individual Plaintiffs seek an order requiring Legislative Respondents to: *3 1) Produce all documents responsive to Individual Plaintiffs’ subpoenas duces tecum; 2) Conduct a more thorough search to ensure that proper search terms are being applied to Legislative Respondents’ personal emails; and 3) Produce, to the extent a recognizable privilege might apply, a privilege log identifying all responsive documents that Legislative Respondents refuse to produce based on privilege and the specific grounds claimed for such privilege. (Id.) Production of Documents First, Individual Plaintiffs request for the Court to order Legislative Respondents to produce documents responsive to Individual Plaintiffs’ subpoenas. (Id. at 7.) Legislative Respondents contend that they have complied with Individual Plaintiffs’ request and produced all responsive documents, with the exception of communications solely between legislators or between legislators and legislative staff. (Docket Entry 77 at 6.) Legislative Respondents also contend that the legislative privilege bars the disclosure of material relating to the legislative process. (Id. at 6-10.) Legislative Privilege “Our legal system has broadly recognized the right of legislators to be free from arrest or civil process for what they do or say in legislative proceedings.” E.E.O.C. v. Washington Suburban Sanitary! Comm’n, 631 F.3d 174, 180 (4th Cir. 2011) (quotations and citation omitted). In Tenney v. Brandhove, the Supreme Court explained the rationale encompassing legislative immunity: Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives. 341 U.S. 367, 377 (1951). “For that reason, the Supreme Court extended the protection in the speech and debate clause, U.S. Const. Art. I, § 6, for members of the United States Senate and House of Representatives, to state legislators, holding that state legislators are protected by the doctrine of legislative immunity for actions taken within the ‘sphere of legitimate legislative activity.’ ” Schlitz v. Com. of Va., 854 F.2d 43, 45 (4th Cir. 1988) overruled on other grounds by Berkley v. Common Council of City of Charleston, 63 F.3d 295 (4th Cir. 1995) (citing Tenney, 341 U.S. at 376); see also Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 405 (1979) (holding that “[the] reasoning [in Tenney] is equally applicable to federal, state, and regional legislators”). Legislative privilege derives from legislative immunity. U.S. E.E.O.C v. Washington Suburban Sanitary Comm’n, 666 F. Supp. 2d 526, 531 (D. Md. 2009), aff’d sub nom. E.E.O.C. v. Washington Suburban Sanitary Comm’n, 631 F.3d 174 (4th Cir. 2011), It “is an evidentiary and testimonial privilege that prohibits evidence of legislative acts from being used against legislators in proceedings.” Id. (citation omitted). The Fourth Circuit “has consistently held that state legislators enjoy legislative immunity and legislative privilege.” Lee v. Virginia State Bd. of Elections, No. 3:15CV357 (HEH-RCY), 2015 WL 9461505, at *4 (E.D. Va. Dec. 23, 2015). Its reasoning is articulated in Washington Suburban: *4 Legislative immunity’s practical import is difficult to overstate. As members of the most representative branch, legislators bear significant responsibility for many of our toughest decisions, from the content of the laws that will shape our society to the size, structure, and staffing of the executive and administrative bodies carrying them out. Legislative immunity provides legislators with the breathing room necessary to make these choices in the public’s interest, in a way [un]inhibited by judicial interference [and] [un]distorted by the fear of personal liability. It allows them to focus on their public duties by removing the costs and distractions attending lawsuits. It shields them from political wars of attrition in which their opponents try to defeat them through litigation rather than at the ballot box. And it increases the caliber of our elected officials by preventing the threat of liability [from] significantly deter[ring] service, particularly in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. Legislative immunity thus reinforces representative democracy, fostering public decisionmaking by public servants for the right reasons. 631 F.3d at 181 (internal quotations and citations omitted). In a criminal matter, the Supreme Court carved out a limited exception to absolute evidentiary privilege based in legislative immunity “where important federal interests are at stake[.]” United States v. Gillock, 445 U.S. 360, 373 (1980). It further held that “recognition of an evidentiary privilege for state legislators for their legislative acts would impair the legitimate interest of the Federal Government in enforcing its criminal statutes with only speculative benefit to the state legislative process.” Id. Relying upon Gillock, some district courts in redistricting cases have analyzed legislative privilege as a qualified privilege rather than absolute. As one court noted, “[l]egislative redistricting is a sui generis process.” Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292, 304 (D. Md. 1992) (emphasis in original). Thus, “[r]edistricting litigation presents a particularly appropriate circumstance for qualifying the state legislative privilege because judicial inquiry into legislative intent is specifically contemplated as part of the resolution of the core issue that such cases present.” Bethune-Hill v. Virginia State Bd. of Elections, 114 F. Supp. 3d 323, 337 (E.D. Va. 2015). In determining whether the qualified legislative privilege exists, courts have applied a five-factor balancing test: (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 government in the litigation; and (v) the possibility of future timidity by government employees. Page v. Virginia State Bd. of Elections, 15 F. Supp, 3d 657, 666 (E.D. Va. 2014) (citation omitted); see also Bethune-Hill, 114 F. Supp. 3d at 337(applying same five factors); Comm. for a Voir & Balanced Map v. Ill. State Bd. of Elecs., Case No. 11C5065, 2011 WL 4837508, at *7-*10 (N.D.Ill. Oct 12, 2011) (same); Favors v. Cuomo, 285 F.R.D. 187, 217-21 (E.D.N.Y. 2012) (same). In weighing the factors here, the Court finds that limited disclosure is necessary. First, the information sought to be protected is highly relevant to the issues in this case. Plaintiffs assert violations of the Equal Protection Clause of the Fourteenth Amendment and the North Carolina Constitution. (See Docket Entry 109.) “To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Thus, “proof of a legislative body’s discriminatory intent is relevant and extremely important as direct evidence[.]” Baldus v. Brennan, No. 11-CV-1011 JPS-DPW, 2011 WL 6122542, at *1 (E.D. Wis. Dec. 8, 2011), order clarified, No. 11-CV-1011 JPS-DPW, 2011 WL 6385645 (E.D. Wis. Dec. 20, 2011); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”). *5 Regarding the availability of other evidence, the Court recognizes that discriminatory intent may be inferred from circumstantial evidence. “[P]laintiffs are generally entitled to rely on circumstantial factors such as district shape, racial bloc voting, low minority registration, and minority retrogression when litigating redistricting decisions.” Page, 15 F. Supp. 3d 657, 667 (E.D. Va. 2014). However, “the second factor weighs slightly in favor of disclosure despite the existence of other evidence 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,” Bethune-Hill, 114 F. Supp. 3d at 341 (internal quotations and citation omitted). Likewise, the seriousness of litigation and issues involved weighs in favor of disclosure. Certainly the right to vote is fundamental “and once that right is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.... [A]llowing, through unequal apportionment amongst districts, a vote to be worth more in one district than in another would ... run counter to our fundamental ideas of democratic government.” Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 340 (4th Cir. 2016) (internal quotations and citation omitted). Moreover, in granting a preliminary injunction in the present case, District Judge Catherine C. Eagles found that “[t]he plaintiffs have shown a likelihood of success on the merits as to their claim that the [Session Law 2015-138] violates the Greensboro voters’ equal protection rights.” City of Greensboro v. Guilford Cty. Bd. of Elections, 120 F. Supp. 3d 479, 489 (M.D.N.C. 2015). As to the role of the government, “[t]he subjective decision-making process of the legislature is at the core of the Plaintiffs’ claims,” Page, 15 F. Supp. 3d at 666, thus “the legislature’s direct role in the litigation supports overcoming the privilege.” Bethune-Hill, 114 F. Supp. 3d at 341 (internal quotations and citation omitted). Considering the possibility of future timidity, “the need to encourage frank and honest discussion among lawmakers favors nondisclosure.” Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *8. The Court recognizes Legislative Respondents serious concerns of the chilling effect disclosure will have on the legislative process. However, “the threat to this interest is substantially lowered when individual legislators are not subject to liability.” Bethune-Hill, 114 F. Supp. 3d at 342; see also Owen v. City of Indep., Mo., 445 U.S. 622 (1980) (“The inhibiting effect is significantly reduced, if not eliminated, however, when the threat of personal liability is removed.”). Such is the case here; Legislative Respondents have not been sued. This factor too weighs in favor of Individual Plaintiffs. Nevertheless, “the threat of inhibiting legislative deliberations hangs in the air.” Favors, 285 F.R.D. at 220. In sum, the five-factor balancing test here weighs in favor of disclosure. However, “the extent to which inquiry into such sensitive matters is permitted should correspond with the degree to which the intrusion is absolutely necessary.” Veasey v. Perry, No. 2:13-CV-193, 2014 WL 1340077, at *3 (S.D. Tex. Apr. 3, 2014). As such, the Court will order limited disclosure of documents withheld pursuant to the legislative privilege as follows: 1. Objective factual information available to Legislative Respondents before the legislation’s date of enactment must be produced. See Bethune-Hill, 114 F. Supp. 3d at 343; Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *9 (internal quotations and citation omitted). 2. Additionally, “[a]ll documents or communications produced by legislators or their immediate aides before the re districting legislation was enacted ... may be withheld, except to the extent any such document pertains to, or ‘reveals an awareness’ of: racial considerations employed in the districting process,” implementation of discriminatory schemes as to the rights of Greensboro citizens to govern themselves, “or the impact of redistricting upon the ability of minority voters to elect a candidate of choice.” Bethune-Hill, 114 F. Supp. 3d at 344-45. 3. Any other documents that reflect a violation of the Equal Protection Clause of the Fourteenth Amendment shall also be produced. Legislative Confidentiality To the extent Legislative Respondents contend that “the information sought by [P]laintiffs is protected on the State level by legislative confidentiality pursuant to Article 17 of North Carolina General Statutes Chapter 120,” (Docket Entry 77 at 12), this argument is unpersuasive. Legislative confidentiality covers a wide range of documents not limited to: documents produced by legislative employees; drafting and information request made to legislative employees by legislators; and requests from legislative employees for assistance in the preparation of fiscal notes and evaluations reports. N.C. Gen. Stat. §§ 120-130, 120-131, 120-131.1. To the extent that Legislative Respondents contend that North Carolina state law entitles them to resist disclosure, North Carolina General Statute § 120-132(c) states that “the presiding judge may compel disclosure of [information obtained by legislative employees] ... if in the judge’s opinion, the disclosure is necessary to a proper administration of justice.” N.C. Gen. Stat. § 120-132(c). This includes information a legislative employee acquired while working for a particular committee or subcommittee on the floor of the General Assembly, or any other location of the state legislative buildings or grounds.. N.C. Gen. Stat. § 120-132 (a)(1)-(2). Here, the Court finds that disclosure is necessary to administer justice because the allegations of racial gerrymandering raised by Plaintiffs concern serious constitutional violations. Thus, the Court concludes that legislative confidentiality pursuant to Article 17 of North Carolina General Statutes does not protect Legislative Respondents from disclosing certain documents. Attorney-Client Privilege *6 Legislative Respondents have also asserted the attorney-client privilege with respect to a number of documents that have been withheld. Under North Carolina law, “[t]he attorney-client privilege operates to protect confidential communications between attorneys and their clients.” Evans v. United Servs. Auto. Ass’n, 142 N.C. App. 18, 31, 541 S.E.2d 782, 790 (2001). The privilege exists if (1) the relation of attorney and client existed at the time the communication was made, (2) the communication was made in confidence, (3) the communication relates to a matter about which the attorney is being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated and (5) the client has not waived the privilege. State v. McIntosh, 336 N.C. 517, 523-24, 444 S.E.2d 438, 442 (1994) (citing State v. Murvin 304 N.C. 523, 531, 284 S.E.2d 289, 294 (1981)). Upon reviewing the privilege log, the Court concludes that Legislative Respondents have properly asserted the attorney-client privilege for certain documents in their log. To such extent, disclosure of those documents designated as attorney-client privilege is not necessary. A More Thorough Search for Documents Next, Individual Plaintiffs request that the Court order “a more thorough search to ensure that proper search terms are being applied to Legislative Respondents’ personal emails.” (Docket Entry 74 at 3.) Legislative Respondents have repeatedly informed Individual Plaintiffs that all non-privileged emails have been produced. (Docket Entry 77 at 12.) Legislative Respondents also conducted a new search using new terms specifically identified by Individual Plaintiffs. Therefore, the Court will not order Legislative Respondents to conduct a more thorough search. Production of Privilege Log Lastly, Individual Plaintiffs request that the Court order Legislative Respondents to produce a privilege log. Under Rule 26 of the Federal Rules of Civil Procedure, when a party withholds information based upon a privilege, the party shall “expressly make the claim” and “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)(A); see also Anderson v. Caldwell Cty. Sheriff’s Office, No. 1:09CV423, 2011 WL 2414140, at *2 (W.D.N.C. June 10, 2011). The Court takes note of the difficulty of describing “the nature of the documents, communications, or tangible things” without violating the privilege itself. Fed. R. Civ. P. 26(b)(5)(A). This is especially the case where the attorney-client privilege is being asserted. The Court concludes that the most recent privilege log produced to the Court for in camera inspection satisfies the minimum requirements of Rule 26(b)(5)(A). Any arguments by Legislative Respondents as to non-production of the privilege log to Individual Plaintiffs is unpersuasive. To the extent the five-factor test is applicable, the balancing test weighs in favor of production of the log similar to production of certain documents in Legislative Respondents’ possession. The Court orders Legislative Respondents to produce this privilege log to Individual Plaintiffs. B. Senator Trudy Wade’s Motion to Quash *7 Senator Wade moves to quash a subpoena served requiring her to testify at a deposition regarding the enactment of Session Law 2015-138. (Docket Entry 79.) Senator Wade argues that Individual Plaintiffs “are not permitted to depose Senator Wade, [because she] is entitled to legislative immunity.” (Docket Entry 80 at 3.) Individual Plaintiffs contend that no court has held that “legislative immunity per se bars plaintiffs from compelling state legislators to sit for deposition.” (Docket Entry 86 at 7.) The undersigned acknowledges that some courts in other districts have applied the five factor test and found that legislators can be deposed. Nashville Student Org. Comm. v. Hargett, 123 F. Supp. 3d 967, 971 (M.D. Tenn. 2015) (applying the five factor test and permitting plaintiffs to “proceed with the depositions, as which the legislators [could] raise legislative privilege”); Perez v. Perry, No. SA-11-CV-360-OLG-JES, 2014 WL 106927, at *2 (W.D. Tex. Jan. 8, 2014) (allowing legislators to be deposed in redistricting case). However, upon applying the five-factor test to the facts of this particular case, the Court declines to order Senator Wade to be deposed. The Court recognizes the Supreme Court’s holding that “[i]n some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege.” Vill. of Arlington Heights, 429 U.S. at 268. This Court concludes that the circumstances here are not so extraordinary as to require Senator Wade to be deposed. The Court finds that the “cost and inconvenience [of deposition testimony] and distractions of a trial” would be far more burdensome than any benefit from such testimony, particularly in light of the documents that Legislative Respondents are ordered to produce. Tenney, 341 U.S. at 377; see also Fed. R. Civ. P. 26(b)(1) & 45(d)(3)(A)(iv). Moreover, requiring Senator Wade to testify at a deposition would be far more intrusive upon her duties and responsibilities as a legislator. The Court finds that prohibiting deposition testimony but requiring Legislative Respondents to produce certain documents strikes the appropriate balance between protecting the legislative process and the need to ensure that Individual Plaintiffs’ constitutional rights are not violated. Thus, Senator Wade’s motion to quash is granted. III. CONCLUSION For the reasons stated herein, Individual Plaintiffs’ Motion to Compel Compliance with Subpoenas (Docket Entry 74) is GRANTED IN PART AND DENIED IN PART. Legislative Respondents shall produce the documents and privilege log as ordered herein no later than Friday, January 6, 2017. IT IS FURTHER ORDERED that Senator Trudy Wade’s Motion to Quash Subpoena (Docket Entry 79) is GRANTED.