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Fish v. Kobach

United States District Court, D. Kansas

May 10, 2017

STEVEN WAYNE FISH, ET AL., Plaintiff,
v.
KRIS KOBACH, KANSAS SECRETARY OF STATE, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE.

         This case is before the Court on a Motion for Review of the Magistrate's Rule [sic] Order Compelling Disclosure Under Rule 72(a) and Local Rule 72.1(a) (Doc. 326), filed on April 26, 2017. The briefing deadlines for this motion were expedited to facilitate a prompt ruling before the parties' proposed pretrial order submission is due. The matter is now fully briefed and the Court is prepared to rule. As described more fully below, Defendant's motion for review is denied. Defendant shall produce the redacted documents identified by Magistrate Judge O'Hara in his April 17, 2017 Order by May 12, 2017.

         I. Background

         The individual Plaintiffs in this case are United States citizens who attempted to register to vote at the time they applied for a Kansas driver's license. Under a 2011 Kansas Documentary Proof of Citizenship (“DPOC”) law, Plaintiffs' voter registration applications were deemed “incomplete, ” and under a 2015 regulation passed by Kansas Secretary of State Kris Kobach, some of these applications were cancelled in the Kansas voter registration database. These Plaintiffs, along with the Kansas League of Women Voters, bring several claims against Secretary Kobach for constitutional violations under 42 U.S.C. § 1983, and for statutory violations of the National Voter Registration Act (“NVRA”). On May 17, 2016, the Court issued an extensive Memorandum and Order granting in part Plaintiffs' motion for a preliminary injunction barring enforcement of the Kansas DPOC law until this case could be decided on the merits.[1] It was effective on June 14, 2016.[2] The Tenth Circuit affirmed that ruling on October 19, 2016, in an extensive opinion.[3]

         Discovery had completed in June 2016, but because the Tenth Circuit's comprehensive opinion clarified the standards that apply to Plaintiffs' claim under § 5 of the NVRA, this Court granted Defendant's motion to reopen discovery. Based on the Tenth Circuit's opinion, the undersigned and presiding United States Magistrate Judge James P. O'Hara permitted additional discovery on two issues:

(1) whether a substantial number of noncitizens have successfully registered to vote in Kansas under the NVRA's attestation-of-citizenship requirement (showing that attestation falls below the minimum necessary for Kansas to carry out its eligibility-assessment and registration duties); and
(2) whether DPOC is the minimum amount of information necessary for Kansas to carry out its eligibility-assessment and registration duties.[4]

         On November 22, 2016, Plaintiffs served their Sixth Request for Production of Documents.[5] This request, as modified during counsel's meet-and-confer discussion, seeks: “all documents and communications regarding potential amendments or changes to the National Voter Registration Act affecting how officials may assess the eligibility of a voter registration applicant” (“Sixth Request”).[6] Plaintiffs moved to compel production of two documents that they argued were responsive to this request: (1) a draft of a possible future amendment to the NVRA that was created by Defendant and shared only with counsel in Defendant's office and Bryan Caskey, who is the head of the Elections Division of the Secretary of State's office (“the draft amendment”); and (2) a document created by Defendant to share with then President-elect Donald Trump referencing a possible amendment to the NVRA, which was photographed by the Associated Press in late November 2016 as Defendant was walking into a meeting with President-elect Trump (“the photographed document”). Defendant refused to produce these documents, asserting that they are beyond the scope of discovery, do not seek relevant information, and are protected by the attorney-client, deliberative-process, and executive privileges.

         On April 5, 2017, Judge O'Hara issued an Order ruling that the Sixth Request was within the scope of discovery, as limited by this Court's order reopening discovery.[7] Judge O'Hara acknowledged that the scope objection was a very close call, but concluded that Plaintiffs' request could be relevant to the issues for which discovery was reopened. First, they could be relevant because “a responsive document indicating defendant has lobbied or attempted to change the eligibility-assessment standards or procedures mandated by the NVRA ‘in the wake of an adverse preliminary injunction ruling may constitute evidence that there is no current problem of substantial noncitizen registration in Kansas.'”[8] Second, “if a responsive document shows defendant suggested an alternative means for assessing voter qualifications, such information would bear on whether DPOC is the least restrictive method for evaluating voter eligibility.”[9] These materials could relate to “whether defendant can satisfy the current standard for demonstrating DPOC is the least burdensome method of preventing substantial numbers of noncitizens from registering to vote.”[10] Judge O'Hara rejected Defendant's argument that the documents did not in fact demonstrate either component of the Tenth Circuit's standard for demonstrating that the DPOC requirement satisfies § 5's minimum amount of information requirement-a relevance objection. Instead, the court ordered Defendant to produce both of the documents to him for in camera review before he ruled on the remainder of Plaintiffs' motion to compel.

         After reviewing the two documents in camera, Judge O'Hara issued a second Order on April 17, 2017.[11] The April 17 Order explained that the documents (in redacted form) are relevant to the issues for which discovery was reopened. He further ruled on Defendant's assertions of privilege, finding none of the asserted privileges apply to these documents. Judge O'Hara ordered Defendant to produce redacted versions of the draft amendment and the photographed document to Plaintiffs by April 19, 2017.

         On April 19, 2017, Defendant moved for a stay of Judge O'Hara's Order pending review of the April 17 decision by the undersigned. The motion to stay was denied on April 23, 2017, and Judge O'Hara expedited deadlines for filing the motion to review in order to facilitate a ruling by this Court before the parties' scheduled pretrial conference. On April 26, 2017, Defendant filed his motion to review and twenty-eight page memorandum in support, asking this Court to review both of Judge O'Hara's orders regarding the two subject documents.

         II. Discussion

         Fed. R. Civ. P. 72 allows a party to provide specific, written objections to a magistrate judge's order. With respect to a magistrate judge's order relating to nondispositive pretrial matters, the district court does not conduct a de novo review; rather, the court applies a more deferential standard by which the moving party must show that the magistrate judge's order is “clearly erroneous or contrary to the law.”[12] “The clearly erroneous standard ‘requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'”[13] The district judge is only required to consider timely objections under Rule 72.[14] Defendant objects to Judge O'Hara's rulings that the two documents at issue are within the scope of discovery, are relevant, and are not privileged. The Court addresses each in turn.

         A. Scope

         As to scope of discovery, the Court overrules and denies Defendant's motion for review, primarily because his objection is untimely. Judge O'Hara ruled in an April 5, 2017 Order that Plaintiff's document request was within the scope of the limited discovery ordered by the Court after Tenth Circuit's ruling. Defendant's April 26 motion for review was filed outside of the fourteen-day time limit for filing objections to this earlier order. This Court is not required to consider untimely objections under Rule 72.

         The Court also denies the objection because Judge O'Hara's decision as to scope was not clearly erroneous or contrary to the law. He carefully considered the issues for which this Court reopened discovery in the wake of the Tenth Circuit's order affirming the Court's preliminary injunction order, and concluded that Plaintiff's request for production, although “a very close call, ” falls within those parameters. The Court agrees that the request is within the scope of discovery because (1) a responsive document may be able to demonstrate that Defendant sought to change the eligibility-assessment standards or procedures mandated by the NVRA in response to the Tenth Circuit's ruling; and (2) a responsive document may be able to demonstrate whether DPOC is the least restrictive means of evaluating voter eligibility. Such documents would be well within the scope of discovery, as discussed in this Court's ruling reopening discovery, and under the broad discovery rules applied by Judge O'Hara.[15]

         B. Relevance

         Next, Defendant objects to Judge O'Hara's finding that Plaintiff's Sixth Request is not relevant. Under Rule 26(b)(1), Plaintiffs “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.” A document is relevant if it “‘bears on, or . . . reasonably could lead to other matter that could bear on' any party's claim or defense.”[16] The evidence need not be admissible to be discoverable.[17]

         Defendant repeatedly characterizes the sought-after discovery as relating to a “hypothetical amendment” or “hypothetical future law, ” and contends that because such a draft could have no preclusive effect, it could not be relevant to Plaintiffs' claim that the NVRA preempts the DPOC law in this case. He further argues over several pages that a hypothetical amendment could not support the argument that Defendant is unable to meet the standards set forth by the Tenth Circuit for rebutting the presumption in favor of attestation under the NVRA. Defendant's arguments misapply the relevance standard. The question before Judge O'Hara was not about the weight of the evidence before him under the formula set forth by the Tenth Circuit. The question before Judge O'Hara was not whether the proposed NVRA changes referenced in the subject documents would preempt the DPOC law. The question for Judge O'Hara was simply whether the documents bear on or could reasonably lead to other information that bears on whether attestation is the minimum amount of information necessary for Defendant to assess voter registration applicants' citizenship eligibility. Judge O'Hara, after reviewing the subject documents in camera, concluded they are “exactly the type of information contemplated by the court as relevant.”[18] This Court has also reviewed the two subject documents in camera and finds no factual or legal error in Judge O'Hara's relevance determination.

         C. Attorney-Client Privilege

         Defendant seeks review of Judge O'Hara's determination that the attorney client privilege does not apply to the draft amendment because: (1) Defendant did not meet his burden of showing that the document was disclosed for the purpose of imparting or receiving legal advice; and (2) Defendant failed to argue that Bryan Caskey, head of the Elections Division in the Secretary of State's office, was an agent of either client or attorney.

         The draft amendment was described on Defendant's privilege log as follows: “Preliminary, non-final, draft language to the National Voter Registration Act shared only with Brian Caskey and Garrett Roe.”[19] In order for the attorney-client privilege to apply to this document, Defendant bears the burden of demonstrating, among other things, that it was a communication relating to imparting or receiving legal advice.[20] First, Judge O'Hara found that the draft amendment itself does not evidence a request for, or the giving of, legal advice. The Court has reviewed this document in camera and finds that Judge O'Hara's conclusion is not clearly erroneous.

         Second, the privilege log description of the document does not denote that it was communicated for the purpose of seeking or imparting legal advice. Defendant suggests that because the privilege log indicates that he shared this document only with his lawyer, Garrett Roe, and Caskey, his agent, the court should have inferred that he was seeking legal advice that was intended to be kept confidential. But the mere fact that Defendant produced this document to Roe does not render it privileged, [21] and Defendant points to no other argument or evidence before Judge O'Hara that would have caused him to draw this inference. Defendant asserts for the first time in his motion for review that the document “was only presented for the purpose of discussing the legal impact of what changes might hypothetically be made to the NVRA in the future-an inherently legal question that also requires input from the individual charged with making those changes.”[22] To the extent Defendant raises new arguments in his motion for review that were not articulated in his response to the motion to compel, they are waived.[23] This Court does not conduct a de novo review under Rule 72(a).

         Third, Judge O'Hara found that Defendant failed to demonstrate in his response brief that the document relates to legal advice. Defendant made one general statement in the response about how, when seeking input about draft alterations to the NVRA, “the appropriate individuals would be” Roe and Caskey.[24] Defendant did not assert that he was seeking legal advice from Roe, nor did he assert that Caskey was an agent of either the client or attorney. And Defendant did not assert that he shared the document with Caskey for the purpose of obtaining an attorney's legal ...


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