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[[COURTLISTENER_SUBOPINION {"id":"10421546","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
AMERICAN TRUCKING ASSOCIATIONS, )
INC.; CUMBERLAND FARMS, INC.; )
M&M TRANSPORT SERVICES, INC.; and )
NEW ENGLAND MOTOR FREIGHT, INC., )
)
Plaintiffs, )
)
v. ) C.A. No. 18-378-WES
)
PETER ALVITI, JR., in his official )
capacity as Director of the Rhode )
Island Department of Transportation;)
and RHODE ISLAND TURNPIKE AND )
BRIDGE AUTHORITY, )
)
Defendants. )
____________________________________)
OPINION AND ORDER
WILLIAM E. SMITH, District Judge.
Before the Court are Motions to Quash Subpoenas Duces Tecum
and Subpoenas for Deposition Testimony, ECF Nos. 85, 87, and 89,
filed by three non-parties, Governor Gina M. Raimondo, Speaker
Nicholas Mattiello, and Representative Stephen R. Ucci, as well as
Defendantsâ Motion to Quash Subpoena Duces Tecum and Subpoena for
Deposition Testimony from CDM Smith, Inc., ECF No. 120. For the
reasons explained herein, the Motions are DENIED.
I. Background1
In 2016, the Rhode Island General Assembly passed âThe Rhode
Island Bridge Replacement, Reconstruction, and Maintenance Fund
Act of 2016â, R.I. Gen. Laws § 42-13.1-1 et seq. (âRhodeWorksâ).
This statutory scheme permits tolling of certain âlarge commercial
trucks only,â limiting the daily maximum toll charge per individual
truck to forty dollars ($40.00) and the maximum toll for a single
âborder-to-border through trip on Route 95â to twenty dollars
($20.00). R.I. Gen. Laws § 42-13.1-4(c)-(d). Additionally, an
individual truck is subject to only one toll âper toll facility,
per day in each direction, or an equivalent frequency use
program[.]â Id. § 42-13.1-4(b).
Shortly after tolling under RhodeWorks began in June 2018,
Plaintiffs, various trucking and transport companies, brought suit
alleging that RhodeWorks violates the Commerce Clause of the United
States Constitution because it discriminates against interstate
commerce and out-of-state truckers in both intent and effect; the
tolls do not reflect a fair approximation of the use of the tolled
facility; and the tolls are excessive in relation to the benefits
conferred. Compl. ¶¶ 1, 3-10, ECF No. 1. Plaintiffsâ allegation
of discriminatory intent relied in part on a study commissioned by
1 The facts and procedural history of this case are covered
in greater detail in the Courtâs September 10, 2020 Memorandum and
Order, ECF No. 105.
the Rhode Island Department of Transportation (âRIDOTâ) and
completed by CDM Smith, Inc. (âCDM Smithâ) prior to the enactment
of RhodeWorks:
[The study] found that, absent the toll caps for
multiple trips in Rhode Island, trucks with Rhode
Island-issued license plates would pay approximately
45% of the RhodeWorks tolls, while trucks with out-of-
state license plates would pay approximately 55%. But
âafter adjusting for the multi-trip discounts, about 60
percent of truck tolls would be charged to out of state
trucks, while about 40 percent would be [charged to]
Rhode Island [trucks].â
Compl. ¶ 85 (quoting CDM Smith, Truck Traffic Count Summary Report
1-4 (Oct. 2015)). Plaintiffs also pointed to statements attributed
to the Governor, Speaker, and Representative prior to the passage
of RhodeWorks. For example, Governor Raimondo reportedly said,
âThe reason I prefer the tolling proposal is because the majority
of the burden is on out-of-state truckers and out-of-state
companies who are using â and I would say abusing â our roads.â
Compl. ¶ 80 (quoting Patrick Anderson & Katherine Gregg, Raimondo:
Plan shifts burden off R.I., Providence Journal (Oct. 29, 2015)).
Likewise, Speaker Mattiello is quoted as stating that âa lot of
the burden for the repair of our bridges, overpasses and
infrastructure is passed on to out-of-state truckersâ and that
â[a] lot of the cost gets shifted to out-of-state truckers[.]â
Compl. ¶ 80 (quoting Mary MacDonald, Improved business climate
positions R.I. for growth, Providence Business News (Dec. 23,
2015)). A similar statement is attributed to Representative Ucci:
âThe tolling relies on 60 percent revenue from out of state trucks
who would have never paid to come through this state.â Compl.
¶ 87 (quoting Patrick Anderson, R.I. House passes Raimondoâs
truck-toll plan, The Providence Journal (Feb. 11, 2016)).
In the first go-around, the Court dismissed the case for lack
of jurisdiction, but the case returned after Plaintiffs
successfully appealed to the United States Court of Appeals for
the First Circuit. See Mandate, ECF No. 37; Mar. 19, 2019 Opinion
and Order, ECF No. 33. The Court subsequently denied Defendantsâ
Motion for Judgment on the Pleadings, as well as Plaintiffsâ Motion
for a Preliminary Injunction. See July 20, 2020 Order, ECF No.
72; Sept. 10, 2020 Mem. and Order, ECF No. 105.
In July 2020, Plaintiffs issued subpoenas seeking deposition
testimony from Governor Raimondo, Speaker Mattiello, and
Representative Ucci, as well as subpoenas duces tecum seeking
(a) documents or communications regarding efforts to mitigate
economic impact on Rhode Island citizens; (b) documents regarding
the expected or actual impact of the toll caps on in-state vs.
out-of-state truckers; (c) documents regarding the expected or
actual impact of tolling only certain classes of trucks on in-
state vs. out-of-state truckers; (d) documents regarding the
potential impact on interstate commerce; (e) documents regarding
alternative methods for raising funds; (f) drafts of RhodeWorks
and related, failed bills, including mark-ups, comments, red-
lines, revisions, etc.; (g) communications between the Governor
and legislators regarding RhodeWorks or other methods of raising
funds; and (h) documents regarding the public statements made by
the movants and others. See Governor Raimondoâs Mot. to Quash
(âGov.âs Mot.â), Ex. B, ECF No. 85; Speaker Mattielloâs Mot. to
Quash (âSpkr.âs Mot.â), Ex. B, ECF No. 87; Representative Ucciâs
Mot. to Quash (âRep.âs Mot.â), Ex. B, ECF No. 89; ECF Nos. 75, 76,
77, 78, 80, 81.2 The three non-parties, represented by Defendantsâ
counsel, each filed a Motion to Quash the subpoenas. Following
extensive briefing, the Court held a hearing on September 25, 2020.
Shortly before the hearing, Plaintiffs issued subpoenas to
CDM Smith seeking deposition testimony and documents regarding the
contractual relationship between the Rhode Island Department of
Transportation (âRIDOTâ) and CDM Smith, the data and analysis
collected and produced by CDM Smith, and communications with CDM
Smith. See CDM Smith Mot. to Quash (âCDM Mot.â), Exs. A, B, ECF
No. 120. While the three initial Motions to Quash were under
advisement, Defendants filed a Motion to Quash the CDM Smith
subpoenas â[f]or the same reasons articulatedâ in the motions of
the Governor, Speaker, and Representative. CDM Mot. 6. The Court
now addresses the four Motions to Quash.
2 For the sake of brevity, the minor differences between the
three subpoenas duces tecum are not explained here.
II. Discussion
A party may serve a subpoena to obtain documents or deposition
testimony. See Fed. R. Civ. P. 45(a)(1). Upon the timely motion
of the recipient of a subpoena, the Court must quash any subpoena
that ârequires disclosure of privileged or other protected matterâ
or that âsubjects a person to undue burden.â Fed. R. Civ. P.
45(d)(3)(A).3
The Governor, Speaker, and Representative argue that their
subpoenas should be quashed based on legislative privilege and
undue burden. See Gov.âs Mot. 3, 38-39; Spkr.âs Mot. 3, 32-33;
Rep.âs Mot. 3, 32-33. Additionally, the Governor argues that she
is protected by the deliberative process privilege. See Gov.âs
Mot. 5-8. Lastly, Defendants contend that the CDM Smith subpoenas
should be quashed based on legislative privilege and deliberative
process privilege. See CDM Mot. 5. For the following reasons,
the Court concludes that the interests at play require breaching
3 A subpoena recipient asserting a privilege âmust[]
(i) expressly make the claim; and (ii) describe the nature of the
withheld documents . . . in a manner that . . . will enable the
parties to assess the claim.â Fed. R. Civ. P. 45(e)(2)(A). Here,
the State argues that any responsive documents would be covered by
privilege. The State therefore does not provide any description
of relevant documents in its possession; nor does it even state
whether any such documents exist. As discussed, infra Section
II(A)(2)(a), the Court agrees that any responsive documents would
fall within the ambit of the asserted privileges, so a privilege
log is unnecessary.
the privileges, and that compliance with the subpoenas would not
be unduly burdensome.
A. Legislative Privilege
Federal legislative privilege for state legislators derives
from the Speech and Debate Clause of the U.S. Constitution, which
provides absolute immunity in civil and criminal cases for members
of Congress. Natâl Assân of Soc. Workers v. Harwood,
69 F.3d 622,
630
(1st Cir. 1995).4 This immunity protects legislators from
liability for âspeech and debate [in the halls of Congress,]
voting, . . . circulation of information to other legislators,
. . . participation in the work of legislative committees, . . .
and a host of kindred activities.â
Id.
(citations omitted). To
safeguard this absolute immunity, the clause also entails absolute
evidentiary and testimonial privileges. See In re Grand Jury,
821
F.2d 946, 953
(3d Cir. 1987).
By its terms, the Speech and Debate Clause does not apply to
state legislators. See U.S. Const. art. I, § 6, cl. 1. The
Supreme Court, however, has determined that the basic protections
embodied in the Clause, which have âtaproots in the Parliamentary
struggles of the Sixteenth and Seventeenth Centuries,â are part of
4 Because Plaintiffsâ claims are based on federal law,
privilege protections contained within state law are inapposite.
See In re Admin. Subpoena Blue Cross Blue Shield of Massachusetts,
Inc.,
400 F. Supp. 2d 386, 389
(D. Mass. 2005) (citing Fed. R.
Evid. 501).
federal common law. Tenney v. Brandhove,
341 U.S. 367
, 372â75
(1951). In civil cases â but not criminal cases â this immunity
is absolute. See Acevedo-Cordero v. Cordero-Santiago,
958 F.2d
20, 22
(1st Cir. 1992). Here, the movants were not named as
defendants, so the question is not one of immunity; rather, at
issue is immunityâs close cousin, privilege.
The Supreme Court first addressed the topic of state
legislative privilege in United States v. Gillock,
445 U.S. 360
(1980). There, a state legislator had been charged with crimes
based on non-legislative activities, so immunity was not relevant.
Id. at 362
. But the government sought to introduce evidence of
his legislative activities, squarely raising the issue of
privilege.
Id.
Examining the two underpinnings of the Speech and
Debate Clause, the Court determined that the first rationale â
separation of powers â was inapplicable because of the federal
governmentâs supremacy over the states. See
id. at 369-71
. The
Court concluded, however, that the second rationale â avoiding
interference with the legislative process â did apply. See
id. at
371-73
. The Court thus held that a state legislative privilege
exists, at least in some circumstances, but that âwhere important
federal interests are at stake, as in the enforcement of federal
criminal statutes, comity yields.â
Id. at 373
.
1. Absolute vs. Qualified
Since Gillock, the Supreme Court has offered scant guidance
as to the contours of the state legislative privilege. See
Corporacion Insular de Seguros v. Garcia,
709 F. Supp. 288, 294
(D.P.R. 1989) (citing Hutchinson v. Proxmire,
443 U.S. 111, 124
(1979)). Lower courts have generally followed one of two paths.
The first, advocated here by the State, maintains that, apart from
certain discrete categories of cases, legislative privilege is
absolute. See Gov.âs Mot. 13. The second path, endorsed by
Plaintiffs, interprets Gillock and related cases to signify that
state legislative privilege is inherently qualified and requires
a case-specific balancing of interests. See Pls.â Oppân 3-9, ECF
No. 103. For the following reasons, the Court concludes that a
qualified privilege finds better support in the case law.
Legislative immunity for federal legislators, along with the
corresponding privilege protection, is absolute. See In re Grand
Jury,
821 F.2d at 953
. As for its state counterpart, the Supreme
Court has stated that state legislative immunity âis similar in
origin and rationale to that accorded Congressmen under the Speech
or Debate Clause.â Supreme Court of Virginia v. Consumers Union
of U. S., Inc.,
446 U.S. 719, 732
(1980); see Harwood,
69 F.3d at
629
(state legislative immunity is âessentially coterminousâ with
absolute immunity for members of Congress). Because state
legislative immunity bears close resemblance to federal
legislative immunity, and because privilege derives from immunity,
some courts reason that state legislative privilege must also be
absolute, at least in most types of cases. See Greater Birmingham
Ministries v. Merrill, No. 2:15-cv-02193-LSC, slip op. at 16 (N.D.
Ala. Mar. 13, 2017).5
But this line of reasoning can only be stretched so far.
Lacking the constitutional backing of the Speech and Debate Clause,
the common law privilege for state legislators is undeniably weaker
than that given to federal lawmakers. See United States v.
DiCarlo,
565 F.2d 802
, 806 n.5 (1st Cir. 1977) (state legislative
privilege is not âon a full parity with that of Congressâ);
Corporacion Insular de Seguros,
709 F. Supp. at 294
(citations
omitted) (Gillock âsignifies a retreat from the original concern
for the independence of state legislators expressed
in Tenney[], and reinforces the conservative stance of the Court
regarding privileges in general.â). Courts adopting the
absolutist approach must somehow account for the fact that state
legislative privilege, unlike federal privilege, yields âwhere
5 See also Clayland Farm Enterprises, LLC v. Talbot Cty.,
Maryland, No. CV GLR-14-03412,
2018 WL 4700191
, at *2 (D. Md. Oct.
1, 2018); Pulte Home Corp. v. Montgomery Cty., Maryland, No. GJH-
14-3955,
2017 WL 2361167
, at *3 (D. Md. May 31, 2017); Lee v.
Virginia State Bd. of Elections, No. 3:15CV357 (HEH-RCY),
2015 WL
9461505
, at *6 n.9 (E.D. Va. Dec. 23, 2015); MilesâUnâLtd., Inc.
v. Town of New Shoreham, R.I.,
917 F. Supp. 91, 98
(D.N.H. 1996);
2BD Associates Ltd. Partnership v. County Comârs for Queen Anneâs
County,
896 F. Supp. 528, 531
(D. Md. 1995); Small v. Hunt,
152
F.R.D. 509
, 512â13 (E.D.N.C. 1994).
important federal interests are at stake.â Gillock,
445 U.S. at
373
.
Two categories of cases are commonly exempted from a
purportedly absolute privilege. First, state legislators charged
with crimes are given no privilege, absolute or otherwise. See
Corporacion Insular de Seguros,
709 F. Supp. at 294
(citing In re
Grand Jury,
821 F.2d 946
). In addition, it is widely accepted
that the shield of privilege can sometimes be pierced in cases
involving voter redistricting. See, e.g., Marylanders for Fair
Representation, Inc. v. Schaefer,
144 F.R.D. 292, 304
(D. Md.
1992). Courts adopting an absolutist approach have reasoned that
such cases represent the only exceptions to absolute privilege
because they are the only circumstances in which the political
process is insufficient to rectify legislative malfeasance. See
Pulte Home Corp. v. Montgomery Cty., Maryland, No. GJH-14-3955,
2017 WL 2361167
, at *6 n.11 (D. Md. May 31, 2017). In all other
cases, these courts have concluded, the privilege is absolute, and
no inquiry can be made. See
id.
In this vein, the State relies heavily on two cases, one from
this Court and one from the District of New Hampshire. See Gov.âs
Mot. 16-18. Neither is convincing. The first case is largely
inapposite because it dealt exclusively with questions of
immunity, not privilege. See Healey v. Bendick,
628 F. Supp. 681,
697-99
(D.R.I. 1986).
The second case, Miles-Un-Ltd., Inc. v. Town of New Shoreham,
R.I.,
917 F. Supp. 91
(D.N.H. 1996), dealt with privilege, but the
courtâs discussion inexplicably focused on the question of
immunity. See
id. at 98
. The court identified a tightly
circumscribed range of legislative actions for which legislative
immunity can be breached: those taken âin bad faith, because of
corruption, or primarily in furtherance of personal instead of
public interests.â
Id. at 100
(emphasis in original) (quoting
Haskell v. Washington Tp.,
864 F.2d 1266
, 1278 (6th Cir. 1988)
(discussing immunity, not privilege)). To make relevant this broad
definition of immunity â in a decision about privilege â the court
had to treat immunity and privilege as equivalent. See Miles-Un-
Ltd.,
917 F. Supp. at 98
(ârationale for affording state, regional,
and local legislators a testimonial privilege is as compelling as
the rationale for providing immunity from civil liability.â).
But this equivalence is false. âThe Supreme Court has . . .
rejected the notion that the common law immunity of state
legislators gives rise to a general evidentiary privilege.â
McDonough v. City of Portland, No. 2:15-CV-153-JDL,
2015 WL
12683663
, at *2 (D. Me. Dec. 31, 2015) (citation omitted). See
Favors v. Cuomo,
285 F.R.D. 187, 209
(E.D.N.Y. 2012); Rodriguez v.
Pataki,
280 F. Supp. 2d 89
, 95â96 (S.D.N.Y. 2003), affâd,
293 F.
Supp. 2d 302
(S.D.N.Y. 2003). Thus, the reasoning in Miles-Un-
Ltd. is unconvincing.6
Moreover, the quasi-absolutist approach has undeniable
weaknesses. First, it is rather strange to say the privilege is
absolute except for situations where federal interests control.
By definition, that is a qualified privilege. Second, the quasi-
absolutist approach purports to draw a bright line circumscribing
cases which entail a qualified privilege, but no such rule is
delineated in Supreme Court or First Circuit precedent. Rather,
the guiding principle is that âthe public . . . has a right to
every manâs evidence.â Trammel v. United States,
445 U.S. 40, 50
(1980) (quotations and citation omitted). Thus, the Supreme Court
has warned that testimonial and evidentiary privileges should
apply âonly to the very limited extent that permitting a refusal
to testify or excluding relevant evidence has a public good
transcending the normally predominant principle of utilizing all
rational means for ascertaining truth.â
Id.
(quotations and
6 The State argues that Miles-Un-Ltd. is particularly on point
because it involves the dormant Commerce Clause. See Gov.âs Mot.
16-18. However, as Plaintiffs point out, the opinion does not
make clear whether the testimony was sought to support the dormant
Commerce Clause or another cause of action. See Pls.â Oppân. 8,
ECF No. 103 (citing Miles-Un-Ltd.,
917 F. Supp. at 101
).
Additionally, the court noted that while â[m]ere speculation [of]
improper motivesâ will not suffice, immunity can be breached where
âinfringement of the immunity rises to a level of public need,â
suggesting a qualified immunity (and therefore privilege) in
approach, if not by name. Miles-Un-Ltd.,
917 F. Supp. at 100
(citations omitted).
citation omitted). To this end, the Federal Rules of Civil
Procedure were designed to âprovide the courts with . . .
flexibility in developing rules of privilege on a case-by-case
basis.â Gillock,
445 U.S. at 367
; see also United States v.
Pineda-Mateo,
905 F.3d 13, 21
(1st Cir. 2018) (quotations and
citation omitted) (âprivilege should only apply in a particular
case if it promotes sufficiently important interestsâ). A blanket
rule in favor of privilege would contravene the preference for a
case-by-case development.
Heeding these warnings, most courts to address the issue have
determined that the privilege is qualified in all cases, requiring
a âbalancing of the legitimate interests on both sides.â7
7 See, e.g., Jefferson Cmty. Health Care Centers, Inc. v.
Jefferson Par. Govât,
849 F.3d 615, 624
(5th Cir. 2017) (citation
and quotation omitted) (âWhile the common-law legislative immunity
for state legislators is absolute, the legislative privilege for
state lawmakers is, at best, one which is qualified.â); In re Grand
Jury,
821 F.2d 946, 957
(3d Cir. 1987); Plain Local Sch. Dist. Bd.
of Educ. v. DeWine, No. 2:19-CV-5086,
2020 WL 4679015
, at *3 n.6
(S.D. Ohio June 2, 2020); Michigan State A. Philip Randolph Inst.
v. Johnson, No. 16-CV-11844,
2018 WL 1465767
, at *4 (E.D. Mich.
Jan. 4, 2018); Citizens Union of City of New York v. Attorney Gen.
of New York,
269 F. Supp. 3d 124, 154-55
(S.D.N.Y. 2017); N.
Carolina State Conference of the NAACP v. McCrory, No. 1:13CV658,
2014 WL 12526799
, at *2 (M.D.N.C. Nov. 20, 2014); Perez v. Perry,
No. SA-11âCAâ360,
2014 WL 106927
, at *2 (W.D. Tex. Jan. 8, 2014);
Favors v. Cuomo,
285 F.R.D. 187, 211
(E.D.N.Y. 2012); Florida v.
United States,
886 F. Supp. 2d 1301
, 1303â04 (N.D. Fla. 2012)
(âlegislatorâs privilege is qualified, not absoluteâ); Texas v.
Holder, No. CV12128DSTRMCRLW,
2012 WL 13070060
, at *1 (D.D.C. June
5, 2012); Doe v. Nebraska,
788 F. Supp. 2d 975, 985
(D. Neb. 2011);
Hobart v. City of Stafford,
784 F. Supp. 2d 732
, 764â65 (S.D. Tex.
2011); Comm. for a Fair & Balanced Map v. Ill. State Bd. of
Elections, No. 11 C 5065,
2011 WL 4837508
, at *7 (N.D. Ill., Oct.
McDonough, No. 2:15-CV-153-JDL,
2015 WL 12683663
, at *2 (citation
omitted). Contrary to the assertions of the State, these inquiries
are regularly conducted in cases not involving criminal
prosecutions or voter redistricting. See Plain Local Sch. Dist.
Bd. of Educ. v. DeWine, No. 2:19-CV-5086,
2020 WL 4679015
, at *3
n.6 (S.D. Ohio June 2, 2020) (âcourts have routinely found the
privilege to be a qualified one â regardless of the claim
broughtâ); see, e.g., Citizens Union of City of New York v.
Attorney Gen. of New York,
269 F. Supp. 3d 124, 139
(S.D.N.Y. 2017)
(challenging statute on First Amendment grounds). Furthermore, a
qualified privilege does not equal a feeble one; rather, courts
adhere to the warning that the privilege may be breached only in
âextraordinary instances . . . .â Rodriguez, 280 F. Supp. 2d at
95â96 (quoting Village of Arlington Heights v. Metro. Hous. Dev.
Corp.,
429 U.S. 252, 268
(1977)).
In light of the Supreme Courtâs preference for case-by-case
development of privilege law and the clear trend among lower
courts, it is evident that âthe cases applying a qualified
12, 2011); ACORN (N.Y. Assân of Comty. Orgs. for Reform Now) v.
County of Nassau, No. CV 05-2301(JFB)(WDW),
2007 WL 2815810
, at *2
(E.D.N.Y. Sept. 25, 2007); Rodriguez v. Pataki,
280 F. Supp. 2d
89
, 95â96 (S.D.N.Y.), affâd,
293 F. Supp. 2d 302
(S.D.N.Y. 2003);
Manzi v. DiCarlo,
982 F. Supp. 125, 129
(E.D.N.Y. 1997); Fla. Assân
of Rehab. Facs. v. Fla. Depât of Health & Rehab. Servs.,
164 F.R.D.
257, 266-68
(N.D. Fla. 1995); Corporacion Insular de Seguros,
709
F. Supp. at 294
.
privilege represent the better, and controlling, legal rule.â Kay
v. City of Rancho Palos Verdes, No. CV 02-03922 MMM RZ,
2003 WL
25294710
, at *12â14 (C.D. Cal. Oct. 10, 2003).
2. Applying the Qualified Privilege
To determine whether legislative privilege will block
disclosure, a court must first determine whether the documents or
testimony at issue lie within the ambit of the privilege. See
Puente Arizona v. Arpaio,
314 F.R.D. 664, 670
(D. Ariz. 2016). In
other words, is the evidence legislative in nature? If so, the
court balances the interests at stake to determine whether an
exception should be made to the default rule of privilege. See
id. at 671-72
. Although the privilege clearly applies here, the
relevant interests necessitate its breach.
a. Legitimate Legislative Activity
Legislative immunity and privilege apply only to conduct
âwithin the sphere of legitimate legislative activity.â Romero-
Barcelo v. Hernandez-Agosto,
75 F.3d 23
, 28â29 (1st Cir. 1996)
(citation and quotation marks omitted). Despite being called a
âlegislativeâ privilege, this protection can apply to the
Governor. â[I]t is the nature of the particular act rather than
the title of the office which governs[.]â AcevedoâCordero,
958
F.2d at 21
. See Bogan v. Scott-Harris,
523 U.S. 44, 55
(1998).8
8 Because the interests here require that the privilege give
way, it is unnecessary to address whether state legislative
Here, Plaintiffs seek documents and testimony regarding the
internal planning and development of the RhodeWorks legislation,
with the goal of proving that the Governor, who proposed
RhodeWorks, and the Speaker and Representative, who guided its
passage and sponsored the legislation, had discriminatory
intentions. See Gov.âs Mot. Ex. B; Spkr.âs Mot. Ex. B; Rep.âs
Mot. Ex. B; see generally Compl. These pieces of evidence deal
with quintessential legislative activities, see Citizens Union of
New York,
269 F. Supp. 3d at 160
(citations omitted), and
Plaintiffs wisely do not argue that the information at issue falls
outside of the sphere of legitimate legislative activity. See
generally Pls.â Oppân. Nevertheless, they contend that disclosure
is warranted. See
id.
b. Balancing Test
Without Supreme Court guidance, lower courts have been tasked
with determining when âimportant federal interestsâ tip the scale.
See Gillock,
445 U.S. at 373
. This inquiry involves âbalanc[ing]
the extent to which the production of the disputed evidence would
privilege properly applies to documents in the possession of third
parties such as CDM Smith. Compare Michigan State A. Philip
Randolph Inst.,
2018 WL 1465767
, at *7 (âcommunications between
legislators or their staff and any third party are not protectedâ)
with Bethune-Hill v. Virginia State Bd. of Elections,
114 F. Supp.
3d 323, 338-39
(E.D. Va. 2015) (question whether privilege applies
to communications with third parties should be âaddressed within
the qualified balancing analysis rather than with any kind of âper
seâ ruleâ).
have a chilling effect on the [state official] against those
factors favoring disclosure.â McDonough, No. 2:15-CV-153-JDL,
2015 WL 12683663
, at *2 (quoting ACORN (N.Y. Assân of Comty. Orgs.
for Reform Now) v. County of Nassau, No. CV 05-2301(JFB)(WDW),
2007 WL 2815810
, at *2 (E.D.N.Y. Sept. 25, 2007)). To strike the
proper balance, courts most often weigh the five factors from
Rodriguez,
280 F. Supp. 2d at 89
:
(i) the relevance of the evidence sought to be protected;
(ii) the availability of other evidence; (iii) the
âseriousnessâ of the litigation and the issues involved; (iv)
the role of the government in the litigation; and (v) the
possibility of future timidity by government employees who
will be forced to recognize that their secrets are violable.
Id. at 100-01
(citation and quotation omitted).9
i. Relevance
The best evidence of legislative intent comes from the text
of the statute. Wine & Spirits Retailers, Inc. v. Rhode Island,
481 F.3d 1, 13
(1st Cir. 2007); see also John Does 1-4 v. Snyder,
9 See, e.g., Michigan State A. Philip Randolph Inst.,
2018 WL
1465767
, at *5; Citizens Union of City of New York,
269 F. Supp.
3d at 155
; Nashville Student Organizing Comm. v. Hargett,
123 F.
Supp. 3d 967
, 969â70 (M.D. Tenn. 2015); Jackson Mun. Airport Auth.
v. Bryant, No. 3:16-CV-246-CWR-FKB,
2017 WL 6520967
, at *6 (S.D.
Miss. Dec. 19, 2017); Bethune-Hill, 114 F. Supp. 3d at 337â38;
Veasey v. Perry, No. 2:13-CV-193,
2014 WL 1340077
, at *2 (S.D.
Tex. Apr. 3, 2014); Perry,
2014 WL 106927
, at *2; Favors, 285
F.R.D. at 209â210; Page v. Viriginia State Bd. Of Elections,
15 F.
Supp. 3d 657, 666
(E.D. Va. 2014); Comm. for a Fair & Balanced Map,
2011 WL 4837508
, at *7; ACORN (N.Y. Assân of Comty. Orgs. For
Reform Now) v. County of Nassau, No. 05CV2301 (JFB) (WDW),
2009 WL
2923435
, at *2 (E.D.N.Y. Sept. 10, 2009).
932 F. Supp. 2d 803, 810
(E.D. Mich. 2013) (citation omitted)
(â[C]ourts are wary of considering the almost always cacophonous
comments of individual legislators in determining legislative
intent.â).10 Nonetheless, âcircumstantial evidence of an allegedly
discriminatory purposeâ is relevant in dormant Commerce Clause
cases if the party offering it âshow[s] the relationship between
the proffered evidence and the challenged statute.â Alliance of
Auto. Mfrs. v. Gwadosky,
430 F.3d 30, 39
(1st Cir. 2005); see
Bacchus Imports, Ltd. v. Dias,
468 U.S. 263, 270
(1984) (citations
omitted) (âA finding that state legislation constitutes âeconomic
protectionismâ may be made on the basis of either discriminatory
purpose . . . or discriminatory effect[.]â).11 Thus, if Plaintiffs
10 Moreover, âthere is some reason to question whether a
showing of discriminatory purpose alone will invariably suffice to
support a finding of constitutional invalidity under the dormant
Commerce Clause.â Alliance of Auto Mfs. v. Gwadosky,
430 F.3d 30
,
36 n.3 (1st Cir. 2005) (citation omitted). This consideration,
however, speaks more to the weight of the potential evidence than
to its relevance.
11 As the State notes, Apel v. Murphy,
70 F.R.D. 651
(D.R.I.
1976), arguably conflicts with this principle. See Gov.âs Mot.
26-28. The plaintiffs, who alleged that a statute violated the
dormant Commerce Clause case, sought discovery for the purpose of
showing invidious intent on the part of individual legislators.
See Apel,
70 F.R.D. at 654
. This Court refused, stating that â[i]t
serves no purpose . . . for the plaintiffs to prove that officials
and legislators also had in mind an illegitimate reason for
desiring the enactment of said laws.â
Id. at 655
. Nonetheless,
as Plaintiffs point out, this holding is inconsistent with more
recent Supreme Court and First Circuit precedent. See Pl. Aug.
17, 2020 Letter Br. 2-3 n.3,4, ECF No. 95 (citing Bacchus Imports,
468 U.S. at 270
, and Alliance of Auto. Mfrs.,
430 F.3d at 37
).
can show a sufficient link between evidence of legislative intent
obtained through these subpoenas and the resulting RhodeWorks
legislation â a high bar to meet - the evidence will be relevant.
In its attempt to render irrelevant any such evidence, the
State cites to cases in which legislative intent was held to be
immaterial. See United States v. OâBrien,
391 U.S. 367
, 382â83
(1968) (âthe purpose of Congress . . . is not a basis for declaring
this legislation unconstitutionalâ on First Amendment grounds);
South Carolina Educ. Assân. v. Campbell,
883 F.2d 1251, 1259
(4th
Cir. 1989) (holding breach of privilege to be impermissible in
First Amendment inquiry, and distinguishing constitutional
inquiries in which âCourts have expressly deemed [motive] a
substantive elementâ). These cases do not control here because,
as stated, the Supreme Court has held that intent is relevant to
the dormant Commerce Clause.
Of course, the mere possibility of relevance is clearly
insufficient to overcome the state legislative privilege.
Instead, the party seeking discovery must point to a âchain of
events or objective evidence from the outset supporting invidious
intent behind the legislative action.â Miles-Un-Ltd., Inc.,
917
F. Supp. at 100
(citing Village of Arlington Heights, 429 U.S. at
267â68). Otherwise, discovery inquiries into the motives of
individual legislators amount to âfishing expedition[s] into non-
public information[.]â Citizens Union of City of New York,
269 F.
Supp. 3d at 141
. Here, based on the public statements of the
individual movants, the discovery requests are not fishing
expeditions; rather, they are legitimate attempts to fully examine
and contextualize what appear to be patent statements of
discriminatory intent.
Moreover, Plaintiffs do not allege that the individual
movants simply voted for or signed the RhodeWorks bill. Rather,
they contend that the Governor spearheaded the drafting of the
legislation, and that the Governor, Speaker, and Representative
shepherded its passage with the assistance of CDM Smithâs report.
See Compl. ¶¶ 5, 71, 80, 85, 87, 91, 93, 99. Common sense dictates
that the intent of such individuals has greater relevance than
that of other legislative actors. See Circle Import-Export Co. v.
United States,
320 F. Supp. 1400, 1404
(Cust. Ct. 1970) (âintent
of the drafters of the legislation is of great significanceâ);
Marathon Oil Co. v. State, Depât of Nat. Res.,
254 P.3d 1078, 1082
(Alaska 2011) (quotation marks and citation omitted) (âWe
interpret statutes . . . taking into account . . . the intent of
the draftersâ); cf. Alliance of Auto. Mfrs.,
430 F.3d at 39
(citation omitted) (âstatements by a lawâs private-sector
proponents sometimes can shed light on its purposeâ); Davidson v.
Sandstrom,
83 P.3d 648, 657
(Colo. 2004) (quotation marks and
citation omitted) (âhistory of an amendmentâs drafting . . .
provides important insight into the electorateâs understanding of
the amendmentâ).12 Thus, Plaintiffs have articulated a plausible
theory of how discriminatory intent on the part of individual
legislative actors may have infected the legislative body at a
greater scale. This factor weighs strongly towards disclosure.
ii. Availability of Other Evidence
Where non-privileged evidence could easily take the place of
privileged evidence, a bid for discovery is weakened. See
Rodriguez,
280 F. Supp. 2d at 100-01
. Without further clues as to
contents of potential disclosures, though, this factor is not
particularly instructive. Plaintiffs already have the individual
movantsâ public comments regarding their interest in placing the
tolling burden on out-of-staters, which this Court is inclined to
admit absent testimony from the movants. See July 20, 2020 Order
8-12, ECF No. 72 (provisionally dispensing with hearsay
objections). To the extent that documents and testimony would
simply reiterate the motivations expressed in the public
statements, these hypothetical pieces of evidence might be
cumulative. But the public statements are presented without
context. See Compl. ¶¶ 80, 87. Isolated quotes in newspapers,
12 These considerations apply equally to the Governor when she
acts in her legislative capacity. See, e.g., State v. Rizzo,
303
Conn. 71, 200
(2011) (âgovernorâs approval of legislation may
provide evidence of the motivations underlying that legislationâ);
Perez v. Rent-A-Ctr., Inc.,
186 N.J. 188, 215
(2006) (quotation
marks and citation omitted) (âaction of the governor upon a bill
may be considered in determining legislative intentâ); State v.
Reis,
183 Wash. 2d 197, 213
(2015) (same).
presumably taken from longer statements or conversations, have
inherently limited import. Thus, given the lack of legislative
history, the requested discovery could help to illuminate the
public statements, either to the benefit or the detriment of
Plaintiffsâ case. See Nashville Student Organizing Comm. v.
Hargett,
123 F. Supp. 3d 967, 971
(M.D. Tenn. 2015) (â[G]iven the
dearth of available documentary evidence outside of the
legislative history, additional relevant information may come from
the legislators themselves.â).
Plaintiffs also have access to CDM Smithâs report on the
potential impacts of the legislation. Presumably the basis for
some or all of the above-mentioned public statements, this report
contains the estimates that 60 percent of the RhodeWorks burden
would fall on out-of-staters, and that absent the toll caps, only
55 percent would be borne by visitors to the Ocean State. See
Compl. ¶ 85 (citing CDM Smith, Truck Traffic Count Summary Report
1-4 (Oct. 2015)). Discovery may provide either helpful context or
cumulative material. This factor does not clearly point in either
direction.
iii. Seriousness of the Litigation
The âCommerce Clause . . . furthers strong federal interests
in preventing economic Balkanization.â Bacchus Imports,
468 U.S.
at 276
(citation omitted). The State admits as much. See Gov.âs
Mot. 35. This âoverwhelming federal interestâ is arguably âas
much a core attribute of the national government as the list of
important state interests are attributes of state sovereignty.â
Harper v. Pub. Serv. Commân of W.VA.,
396 F.3d 348
, 356 (4th Cir.
2005). Thus, the importance of the litigation provides moderate
support for breaching the privilege.13
iv. Role of the Government
âWhen the role of the legislators in the unlawful conduct is
âdirect,â the fourth factor weighs in favor of disclosure.â
Citizens Union of City of New York,
269 F. Supp. 3d at 169
(citation
omitted). The State argues that the roles of the Governor,
Speaker, and Representative, which it describes as simply voting
for and signing the RhodeWorks legislation, were minimal and weigh
in favor of applying the privilege. See Gov.âs Mot. 36-37 (citing
Citizens Union of New York,
269 F. Supp. 3d at 169
(âmerely voting
for a law or signing a bill does not render [an officialâs] role
âdirectââ)). This argument regurgitates the Stateâs relevance
argument: the intent of an individual legislative actor is
irrelevant to the intent of the legislature as a whole. But here,
13 Admittedly, most civil cases in which state legislative
privilege has been set aside have involved allegations of racial
gerrymandering or race-based disenfranchisement. See, e.g.,
Nashville Student Organizing Comm. v. Hargett,
123 F. Supp. 3d
967, 972
(M.D. Tenn. 2015). These allegations strike at the core
constitutional tenet against invidious racial classifications, and
âthreaten[] to deprive . . . the electorate of the power of their
vote to act as a check on legislators.â Citizens Union of City of
New York,
269 F. Supp. 3d at 168
. Dormant Commerce Clause
violations do not implicate this sort of malignancy.
Plaintiffs allege that the movants played outsized roles in the
development and passage of RhodeWorks. See Compl. ¶¶ 5, 71, 80,
87, 91, 93, 99. The Court finds that their public statements
emphasizing the burden placed on out-of-state truckers make their
roles more âdirectâ than simply voting for or signing the bill.
This factor favors Plaintiffsâ argument against privilege.
v. Possibility of Future Timidity
Any disclosure of non-public legislative materials runs the
risk of generating legislative fear of clear communication and
distracting officials from their duties. See Eastland v. United
States Servicemenâs Fund,
421 U.S. 491, 502
(1975); In re Hubbard,
803 F.3d 1298, 1310
(11th Cir. 2015). But see Benford v. Am.
Broad. Companies, Inc.,
98 F.R.D. 42, 46
(D. Md. 1983) (privilege
was ânot designed to encourage confidences by maintaining
secrecy[,] for the legislative process in a democracy has only a
limited toleration for secrecyâ) (quoting In re Grand Jury
Investigation, Etc.,
587 F.2d 589, 596-97
(3d Cir. 1978).
â[O]fficials seldom, if ever, announce that they are pursuing a
course of action because of an invidious discriminatory intent
. . . .â Nashville Student Organizing Comm.,
123 F. Supp. 3d
at 970
. Normally cautious to avoid such statements in public,
legislators may be assisted by the freedom to communicate candidly
while in private. Here, however, the movants clearly were not
concerned with shielding their intentions from prying eyes; in
fact, they publicly emphasized their desire to burden out-of-
staters. Thus, this factor lends only abstract support to the
State.
vi. Balancing the Factors
In sum, three factors support Plaintiffsâ position, and one
arguably (but weakly) favors the State. Most notably, the
relevance of the discovery sought is potentially significant, and
the circumstances do not indicate a significant risk of future
timidity. The Court therefore concludes that this is one of the
extraordinary circumstances in which the privilege must yield, at
least for the purposes of discovery. Of course, determinations
regarding trial admissibility are left for later, when the details
of the disputed evidence will be known.14
B. Deliberative Process Privilege
The State next argues that the subpoenas issued to the
Governor and CDM Smith should be quashed based on the deliberative
process privilege. See Gov.âs Mot. 5; CDM Mot. 6. Similar to the
14 Some courts have held that state legislative privilege
provides no bar against discovery because âlegislative privilege
is âone of non-evidentiary use [of legislative acts against a
legislator], not one of non-disclosure.ââ E.E.O.C. v. Washington
Suburban Sanitary Commân,
666 F. Supp. 2d 526, 532
(D. Md. 2009)
(quoting In re Grand Jury,
821 F.2d at 958
). This approach is
clearly in the minority. See In re Hubbard,
803 F.3d 1298, 1310
(11th Cir. 2015) (âprivilege extends to discovery requestsâ);
E.E.O.C. v. Washington Suburban Sanitary Commân,
631 F.3d 174, 181
(4th Cir. 2011) (same). Nonetheless, the relevant interests at
trial differ from than those during discovery and could potentially
yield a different outcome.
legislative privilege, â[t]he deliberative process privilege rests
on the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item of
discovery and front page news, and its object is to enhance the
quality of agency decisions . . . by protecting open and frank
discussion among those who make them within the Government.â Depât
of Interior v. Klamath Water Users Protective Assân,
532 U.S. 1
,
8â9 (2001) (citations omitted). This privilege protects only
executive branch officials, and therefore is inapplicable to the
Speaker and Representative. See N. L. R. B. v. Sears, Roebuck &
Co.,
421 U.S. 132, 150
(1975).
â[T]o qualify for the privilege, a document must be
(1) predecisional, that is, antecedent to the adoption of agency
policy, and (2) deliberative, that is, actually related to the
process by which policies are formulated.â Texaco Puerto Rico,
Inc. v. Depât of Consumer Affairs,
60 F.3d 867, 884
(1st Cir. 1995)
(citation and quotation omitted). The State argues convincingly
that all information sought in these subpoenas is necessarily
predecisional, as the entire purpose of this line of discovery is
to ascertain the intent that led to the passage of RhodeWorks.
See generally Gov.âs Mot. 8-13. Any post-decisional materials
would fall outside the scope of the discovery requests.
The State may hit a snag, however, with the requirement that
documents be deliberative. A document is deliberative if it â(i)
formed an essential link in a specified consultative process, (ii)
reflect[s] the personal opinions of the writer rather than the
policy of the agency, and (iii) if released, would inaccurately
reflect or prematurely disclose the views of the agency.â
Providence Journal Co. v. U.S. Depât of Army,
981 F.2d 552, 559
(1st Cir. 1992) (citation and quotation omitted). Purely factual
documents, âsegregable factual portionsâ of documents, and any
documents that would not inaccurately reflect the views of the
Governorâs office would not be covered. See id.; Bethune-Hill v.
Virginia State Bd. of Elections,
114 F. Supp. 3d 323, 335-39
(E.D.
Va. 2015). Without more information regarding the documents held
by the Governor and CDM Smith, it is impossible to know if all
responsive documents are deliberative.
This lack of information is immaterial, however, because the
privilege should nevertheless be overcome. Documents that are
predecisional and deliberative are not given blanket protection;
rather, the court has discretion to block access to them. See
Texaco Puerto Rico, Inc.,
60 F.3d at 885
. â[A]n inquiring court
should consider, among other things, the interests of the
litigants, societyâs interest in the accuracy and integrity of
factfinding, and the publicâs interest in honest, effective
government.â
Id.
This determination is quite similar to the
legislative privilege inquiry. See Bethune-Hill,
114 F. Supp. 3d
at 338
. In fact, the five-factor test analyzed above was
originally borrowed from the deliberative process test. See
Rodriguez,
280 F. Supp. 2d at 101
(quoting In re Franklin Natâl
Bank Secs. Litig.,
478 F. Supp. 577, 583
(E.D.N.Y. 1979)). The
documents at issue are the same, the factors are similar, and the
goals of the doctrines are similar. Thus, the deliberative process
privilege rises, and in this case falls, on the same
considerations.15 See In re Subpoena Duces Tecum Served on Off.
of Comptroller of Currency,
145 F.3d 1422, 1424
(D.C. Cir. 1998),
on rehâg in part,
156 F.3d 1279
(D.C. Cir. 1998) (âIf the
plaintiffâs cause of action is directed at the governmentâs intent,
. . . it makes no sense to permit the government to use the
privilege as a shield.â); Velazquez v. City of Chicopee,
226 F.R.D.
31, 34
(D. Mass. 2004) (âwhere the decision-making process itself
is the subject of the litigation, it is inappropriate to allow the
deliberative process privilege to preclude discovery of relevant
informationâ (citation and quotations omitted)).
C. Undue Burden
Lastly, the State contends that compliance with the subpoenas
would place an undue burden on the Governor, Speaker, and
Representative. See Gov.âs Mot. 39 (citing Fed. R. Civ. P.
45(d)(3)(A)(iv)); Spkr.âs Mot. 33; Rep.âs Mot. 33. A âparty
15 Again, due to this conclusion, there is no need to address
whether and to what extent the privilege applies to documents held
by CDM Smith. See supra note 8.
withholding discovery on the grounds of burden . . . bears the
burden of proving the discovery is in fact . . . unduly burdensome
and/or expensive.â Citizens Union of City of New York,
269 F.
Supp. 3d at 139
.
Regarding the subpoenas for deposition testimony, the State
notes that âthe practice of calling high ranking government
officials as witnesses should be discouraged.â Bogan v. City of
Bos.,
489 F.3d 417, 423
(1st Cir. 2007) (citing United States v.
Morgan,
313 U.S. 409, 422
(1941)).16 However, â[d]epositions of
high ranking officials may be permitted where the official has
first-hand knowledge related to the claim being litigated [and]
other persons cannot provide the necessary information.â Bogan,
489 F.3d at 423
(citations omitted). Here, the relevant subject
matter is the intentions of the individual movants and the ways in
which those intentions may have influenced the drafting and passage
of RhodeWorks. See Gov.âs Mot. Ex. B; Spkr.âs Mot. Ex. B; Rep.âs
Mot. Ex. B. These individuals clearly have first-hand knowledge
that cannot be fully supplied from anyone else. Thus, the Governor
and Speakerâs status as high ranking officials cannot alone create
an undue burden.
16 The State maintains that the Governor and Speaker require
greater protection as high ranking officials; it does not make
this argument regarding the Representative. See Gov.âs Mot. 40;
Spkr.âs Mot. 33.
The State rightly notes that the individual movants and their
staffers are busy dealing with matters of public importance,
including the coronavirus pandemic and its economic fallout. See
Gov.âs Mot. 41-42; Spkr.âs Mot. 35-36; Rep.âs Mot. 35. For this
reason, the Court will carefully monitor and strictly enforce its
directions that the depositions must be narrowly focused on the
context of the public statements, the CDM Smith report, and any
other documents obtained by Plaintiffs and specifically related to
RhodeWorks and tied to the deponents and their offices. The usual
seven-hour time limit is likely far more than is needed. See Fed.
R. Civ. P. 26(d).
As for document production, the State contends that certain
documents within the scope of the subpoenas are available from
RIDOT, a party to this litigation. See Gov.âs Mot. 41; Spkr.âs
Mot. 35; Rep.âs Mot. 34. Indeed, documents should be obtained
from RIDOT in the first instance. For any such documents, the
movants may withhold production and direct Plaintiffs to obtain
the documents from RIDOT.
Beyond these specific and reasonable objections, the Stateâs
assertions of undue burden are conclusory and largely dependent on
its privilege arguments. See Gov.âs Mot. 39-42; Spkr.âs Mot. 33-
36; Rep.âs Mot. 33-35. Thus, the State has failed to show that
compliance with the subpoenas will impose an undue burden.
III. Conclusion
For the reasons stated herein, the Motions to Quash subpoenas
duces tecum and subpoenas for deposition testimony, ECF Nos. 85,
87, 89, and 120, are DENIED.!?â
IT IS SO ORDERED.
William E. Smith
District Judge
Date: October 23, 2020
17 In the CDM Smith Motion to Quash, the State requests that,
if its motion is denied, the Court issue a certificate of
appealability pursuant to
28 U.S.C. §1292
(b). See CDM Mot. 15.
Additionally, the State indicates that if the motions of the
Governor, Speaker, and Representative are denied, they will make
equivalent requests. Td. at 15 n.l. Due to the significant
overlap between the four Motions to Quash, the Court will defer
addressing the question of a certificate of appealability for the
CDM Smith Motion until receiving the Stateâs forthcoming motion
regarding the Governor, Speaker, and Representative.
32Case Information
- Court
- D.R.I.
- Decision Date
- October 23, 2020
- Status
- Precedential