United States District Court, D. Kansas
MEMORANDUM AND ORDER GRANTING MOTION TO TRANSFER
JULIE A. ROBINSON, District Judge.
Petitioners seek to compel non-party Kris Kobach to produce documents pursuant to two subpoenas duces tecum properly issued by the United States District Court for the District of Arizona in a civil action pending before that court, Valle del Sol, et al. v. Whiting, et al., No. 10-cv-01061-SRB (Doc. 1). The subpoenas call for compliance in Kansas, where Kobach resides, and Petitioners filed this motion in the District of Kansas. Petitioners also move to transfer the Motion to Compel to the United States District Court for the District of Arizona under Fed.R.Civ.P. 45(f) (Doc. 3). Respondent Kobach opposes both motions. For the reasons set forth in detail below, the Court grants Petitioners' motion and transfers the pending Motion to Compel to the District of Arizona.
These motions arise out of an ongoing constitutional challenge to Arizona Senate Bill 1070 ("S.B. 1070"), which created a comprehensive set of state immigration laws. The Whiting case is a massive class action that has been pending for nearly four years, and asserts multiple causes of action challenging the law on the ground that it was substantially motivated by anti-Latino and/or anti-Mexican animus.
Kobach has served in the elected office of Kansas Secretary of State since January 2011. Prior to then, Kobach was a professor of constitutional law. From 2004 to present, Kobach has maintained a part-time law practice specializing in the area of federal preemption. Kobach has served in his private capacity as counsel for S.B. 1070's "co-author" and principal sponsor, former Arizona state Senator Russell Pearce. Senator Pearce was open about the help he received from Kobach in drafting the law, as well as from two non-profit organizations with which Kobach is affiliated: the Federation for American Immigration Reform ("FAIR") and its legal arm, the Immigration Reform Law Institute ("IRLI").
In August 2013, Petitioners served FAIR and IRLI with subpoenas duces tecum for records of communications with Arizona state legislators regarding S.B. 1070 and similar legislation. FAIR and IRLI moved jointly to quash the subpoenas, arguing that their attorneys, including Kobach, advised Arizona legislators regarding the drafting of the legislation, and that these communications were protected by the attorney-client privilege. Petitioners opposed the motion to quash, arguing that the communications were, at best, for the purposes of policy-not legal-advice, which is not entitled to the privilege. In support of their opposition, Petitioners submitted emails between FAIR and IRLI attorneys and Senator Pearce, as representative examples of the types of communications for which FAIR/IRLI were claiming attorney-client privilege. Among those emails were twelve exchanged with Kobach.
The presiding judge in the underlying Whiting case, the Honorable Susan R. Bolton, denied the motion to quash in nearly all respects, holding that the attorney-client privilege was not available because FAIR and IRLI "were offering policy-not legal-advice." The court further held that FAIR and IRLI were "lobbying Arizona legislators during the process of formulating and enacting S.B. 1070." As a result, Judge Bolton held that FAIR and IRLI could not satisfy the Ninth Circuit's eight-part test to determine whether information is protected by the attorney-client privilege because "advice of the type given in lobbying efforts" is not "legal advice, " and therefore is ineligible for protection. Judge Bolton further held that "communications between Arizona legislators and the people advising them through the process of drafting the legislation that eventually became S.B. 1070" were relevant and discoverable, explaining "those communications are likely to contain admissible evidence or lead to the discovery of admissible evidence of those legislators' intent in drafting and supporting S.B. 1070 as contemporary statements by members of the decision making body.'" In denying FAIR and IRLI's motion for reconsideration, Judge Bolton noted that "they are arguing over semantics and disagree with the Court's use of the word policy.'"
FAIR and IRLI disclaimed any custody or control of communications Kobach exchanged with Arizona legislators. In October 2013 and March 2014, Petitioners served Kobach with subpoenas directly. Generally speaking, the subpoenas seek information that Petitioners contend is directly relevant to Petitioners' claims in the underlying Whiting case. Kobach has publicly acknowledged that he played a significant role in the drafting, editing, and advocacy for S.B. 1070, going so far as to refer to himself as either "a co-author" or "the principal author" of S.B. 1070. Petitioners served Kobach with subpoenas asking for his communications with Arizona legislators regarding S.B. 1070 and related legislation.
In response, Kobach, who represents himself, has produced seven (7) emails he received from Senator Pearce. Kobach has withheld another twenty-one (21) emails and email chains that he exchanged with Senator Pearce about how to draft S.B. 1070 and similar legislation on the ground that these communications are protected by the attorney-client privilege. Kobach argues that his relationship with Senator Pearce is entirely independent of, and distinct from, that between FAIR/IRLI and Senator Pearce, and disagrees with the characterization of his communications with Pearce as "policy advice." He has submitted a privilege log.
II. Legal Standard
Fed. R. Civ. P. 45, which governs the use of subpoenas, was significantly amended effective December 1, 2013, to explicitly permit the transfer of subpoena-related motions from the court where compliance is required to the court that issued the subpoena. Rule 45(f) states, "[w]hen the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances." The Advisory Committee Notes provide the following guidance as to when transfer is appropriate:
In the absence of consent, the court may transfer in exceptional circumstances, and the proponent of transfer bears the burden of showing that such circumstances are present. The prime concern should be avoiding burdens on local nonparties subject to subpoenas, and it should not be assumed that the issuing court is in a superior position to resolve subpoena-related motions. In some circumstances, however, transfer may be warranted in order to avoid disrupting the issuing court's management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts. Transfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion. Judges in compliance districts may find it helpful to consult with the judge in the issuing court presiding over the underlying case while addressing the subpoena-related motions.
The Advisory Comments also offer guidance as to how to minimize the burden on non-parties:
If the motion is transferred, judges are encouraged to permit telecommunications methods to minimize the burden a transfer imposes on nonparties, if it is necessary for attorneys admitted in the court where the motion is made to appear in the court in which the action is pending. The rule provides that if these attorneys are authorized to practice in the court where the motion is made, they may file papers and ...