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Fish v. Kobach

United States District Court, D. Kansas

June 23, 2017

STEVEN WAYNE FISH, et al., Plaintiffs,
v.
KRIS KOBACH, in his official capacity as Secretary of State for the State of Kansas, Defendant.

          ORDER

         In this voting-rights case challenging the Kansas documentary proof of citizenship (“DPOC”) law, [1] plaintiffs have moved for the entry of sanctions against defendant, Kansas Secretary of State Kris Kobach, for his conduct surrounding a dispute over the production of two documents (ECF No. 343). Plaintiffs seek three specific forms of relief: (1) their attorneys' fees incurred in connection with filing a motion to compel the documents, (2) removal of defendant's “confidential” designation on the documents, and (3) the re-opening of discovery for the limited purpose of deposing defendant about the documents. For the reasons discussed herein, the court grants plaintiffs' request for sanctions, albeit not in the form plaintiffs seek, grants the request for a limited deposition of defendant, and denies the request to remove the confidentiality designations.

         I. Background

         Plaintiffs allege Kansas's DPOC law, as enforced, violates § 5 of the National Voter Registration Act (“NVRA”).[2] In May 2016, the presiding U.S. District Judge, Julie A. Robinson, entered a preliminary injunction barring defendant's enforcement of the law until this case can be decided on the merits.[3] Defendant challenged the injunction in an interlocutory appeal to the Court of Appeals for the Tenth Circuit. In an opinion affirming Judge Robinson's ruling, the Tenth Circuit clarified the standards applicable to § 5 claims.[4]This clarification led the court to permit limited additional discovery.[5]

         Plaintiffs then served a discovery request for “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.”[6] The parties identified two documents arguably responsive to the request: (1) a draft of a possible future amendment to the NVRA that was created by defendant and shared by him with members of the Office of the Kansas Secretary of State (“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 as defendant was walking into a meeting with Mr. Trump (“the photographed document”) Defendant refused to produce these documents, asserting that they are beyond the scope of re-opened discovery, do not seek relevant information, and are protected by the attorney-client, deliberative-process, and executive privileges. Plaintiffs filed a motion to compel.[7]

         On April 5, 2017, the undersigned U.S. Magistrate Judge, James P. O'Hara, issued an order overruling defendant's scope-based objection and requiring in camera submission of the documents to facilitate the court's rulings on the remaining objections.[8] After reviewing the documents, the undersigned issued a second order on April 17, 2017, ruling that parts of the documents are unquestionably relevant and that defendant had not demonstrated a privilege protects their disclosure.[9] Defendant was directed to produce redacted versions of the draft amendment and the photographed document to plaintiffs.

         Defendant filed a motion to stay production of the documents pending review of the undersigned's order by Judge Robinson. On April 23, 2017, the undersigned granted the stay request.[10] Thereafter, Judge Robinson denied defendant's motion for review and ordered defendant produce the documents in compliance with the undersigned's order.[11] When defendant produced the documents to plaintiffs, the documents bore the designation “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER.” Plaintiffs requested defendant reproduce the documents with the designation removed, but defendant refused.

         In the instant motion, plaintiffs argue defendant should be sanctioned “for his failure to comply with his discovery obligations.”[12] Plaintiffs assert defendant delayed production of the documents by asserting frivolous arguments and taking unsupportable positions. They seek their attorneys' fees underlying their motion to compel and related filings. They also ask the court to order defendant to produce the documents without the confidentiality designation. Finally, they seek the reopening of discovery so that they may depose defendant about the two documents.

         II. Monetary Sanctions

         Plaintiffs ask the court to sanction defendant for his conduct in challenging production of the two documents that were the subject of plaintiffs' motion to compel. Plaintiffs argue, “Defendant's misleading conduct has not only unnecessarily prolonged this discovery dispute past the close of discovery, [] it has raised basic questions about the integrity of Defendant's representations to Plaintiffs and to the Court, and merits sanctions.”[13] The court agrees that defendant's deceptive conduct and lack of candor warrant the imposition of sanctions.

         As plaintiffs note, the court has the “inherent power to impose a variety of sanctions to regulate its docket, promote judicial efficiency and deter frivolous filings.”[14] “That authority includes ‘the ability to fashion an appropriate sanction for conduct which abuses the judicial process.'”[15] Under this authority, a court may assess a sanction “when a party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'”[16] The court's “inherent power to impose sanctions for . . . bad-faith conduct” exists even when that conduct could also be sanctioned by the Federal Rules of Civil Procedure, and it further exists “to fill in the interstices” left by those rules.[17]

         As mentioned above, plaintiffs served defendant a discovery request for “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.”[18] In an email accompanying the request, plaintiffs' counsel noted, “a document is responsive whether or not it is connected with an actual draft NVRA amendment. Documents that simply discuss the option or possibility of amending the NVRA should be produced.”[19] In multiple meet-and-confer discussions, the parties identified both the draft amendment and the photographed document, and discussed plaintiffs' demand that defendant produce them in response to this request. Defendant ultimately informed plaintiffs that he would not produce the documents because the request was beyond the scope of reopened discovery and, with respect to the photographed document, was “designed to harass” rather than obtain relevant documents.[20] Defendant further asserted the photographed document was subject to the executive privilege, and not in the custody or control of the Office of the Kansas Secretary of State.[21]

         Up to this point, the court finds nothing unscrupulous in defendant's positions.[22]Indeed, the court has recognized that whether the request was within the scope of reopened discovery was a “very close call.”[23] And, although the court ultimately rejected defendant's relevance and privilege arguments, defendant's objections on those grounds were substantially justified.[24] A discovery response or objection is “substantially justified” “if it is ‘justified to a degree that could satisfy a reasonable person' or if ‘reasonable people could differ as to [its] appropriateness'”[25] Here, defendant had a reasonable basis in law and fact to object that the documents were not relevant to the limited issues for which discovery was reopened, a question related to the issue of scope. Likewise, defendant raised plausible privilege arguments that the court did not dismiss out of hand, but instead spent ten pages analyzing.[26] Because defendant's objections were substantially justified, the court will not (and may not) impose sanctions under Fed.R.Civ.P. 37(a)(5).[27]

         Defendant's positions began to go awry, however, after plaintiffs filed a motion to compel production of the two documents.[28] In response to the motion, defendant made patently misleading representations to the court about the documents, which at the time had not been produced to either the court or plaintiffs, such that the court was required to take defendant at his word. For example, in discussing the text of the draft amendment, defendant stated, “that text does not propose to ‘amend or alter' an ‘eligibility-assessment procedures [sic] mandated by the NVRA.'”[29] A review of the draft amendment, however, indicates that the text proposed amending the NVRA's provisions governing the type of information a state could require voter-registration applicants provide to enable the state to assess the applicant's eligibility.

In another example, defendant's response brief states,
Plaintiffs theorize that ‘[A]ny alternative methods proposed by Defendant to alter the assessment of voter eligibility under the NVRA go directly to the second prong of the Tenth Circuit's analysis.' Pls. Memo. at 7. Plaintiffs suppose that, ‘efforts by Defendant to seek alternative means of assessing voter qualifications by amending the NVRA would suggest that a DPOC requirement is not the least restrictive method of verifying eligibility.' Pls. Memo. at 7. First, had Plaintiffs actually sought the documents that they now claim they are seeking, Defendant would have responded that no such documents exist.[30]

         This paragraph gives the strong impression that neither of the two at-issue documents relate to proposals by defendant to amend the NVRA's eligibility-assessment provisions. Upon in camera review of the documents, the undersigned learned this is clearly not the case.

         The court cannot say that defendant flat-out lied in representing the content of the disputed documents. In his response to the motion for sanctions, defendant attempts to defend his representations by thinly parsing the wording plaintiffs allegedly used. He states that the NVRA did not “mandate” attestation (but, actually, plaintiffs never said it did) and that he did not make “efforts” to amend the NVRA (which is certainly debatable). The fact remains, however, as the court noted in its order granting plaintiffs' motion to compel, that defendant's statements “can be construed as word-play meant to present a materially inaccurate picture of the documents.”[31] The court agrees with plaintiffs that it would have been obvious to any reasonable attorney that a request for “all documents and communications regarding potential amendments or changes to the [NVRA] affecting how officials may assess the eligibility of a voter registration applicant” would encompass draft language intended to alter core provisions of the NVRA and bear on defendant's efforts to alter those provisions.

         As officers of the court, defense counsel have a duty of candor to the court and to opposing counsel. Justice requires that all involved in our legal system work to ensure that a true and accurate picture of the facts is presented to the court. This means that parties and their attorneys must respond to discovery fairly and accurately, and that counsel assert only arguments that are supported by facts. “Most attorneys, of course, try to convey evidence in the best possible light for their clients. But there is a difference between putting evidence in the best possible light and blatantly misstating the evidence.”[32] When counsel's false references in a brief indicate “that he has been either cavalier in regard to his approach to this case or bent upon misleading the court, ” sanctions are appropriate.[33]

         To deter defense counsel and other members of the bar from deliberately attempting to mislead the court in the future, and to somewhat compensate the court for the “costs imposed on the judicial system” through the undersigned's time spent discovering defendant's misrepresentations and bringing the same to light, [34] the court fines defendant $1, 000, to be payable to the court.[35] Defense counsel shall submit the fine by July 21, 2017.

         On a final note, the undersigned reiterates the sentiment expressed in his April 17, 2017 order. Although conduct resulting in the imposition of sanctions typically has a negative, but short-term, financial impact on counsel or his client, it usually has a much more sustained impact on the reputation of counsel-both among judicial officers and the practicing bar. The court urges defense counsel to garner good reputations for themselves by taking care in the future to act honestly and graciously towards the court and opposing counsel.

         III. Confidentiality Designation

         Next, plaintiffs object that defendant designated the two produced documents “confidential” under the protective order, and ask the court to order defendant to re-produce the documents with the designation removed. The protective order states, in relevant part,

2. Definition of Confidential Information. As used in this Order, “Confidential Information” is defined as information that the producing party designated in good faith has been previously maintained in a confidential manner and should be protected from disclosure and use outside the litigation because its disclosure and use is restricted by statute or could potentially cause harm to the interests of the disclosing party or nonparties. For purposes of this Order, [] the Parties will limit their designation of “Confidential Information” to the following categories of information or documents . . .
(c) Information that is exempt from disclosure under the Kansas Open Records Act.[36]
Thus, to support his confidentiality designation on each document, defendant must prove[37]the document's disclosure is either restricted by statute or could potentially cause harm, and, in this instance, that the document is exempt from disclosure under the Kansas Open Records Act (“KORA”).[38] Because defendant has satisfied this burden, the court finds the documents subject to the protective order and denies plaintiffs' request to order the confidentiality designation removed.[39]

         Defendant asserts disclosure of the two documents is restricted by Kansas statute because they are exempt from disclosure under KORA. KORA provides that records in the possession of a public agency, such as the Office of the Kansas Secretary of State, [40] are subject to public disclosure unless they fall under an exception set forth in the Act.[41]

         KORA's exceptions are to be “narrowly interpreted, ” with the public agency opposing disclosure bearing the burden of proving the applicability of an exception.[42] But where an exception is not ambiguous, courts should not “resort to the rule of liberal construction.”[43]

Defendant contends the documents fall under the “preliminary working papers exception, ”[44] KORA section (a)(20), which exempts from disclosure “[n]otes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed.”[45] The Supreme Court of Kansas has described this exception as “self-explanatory.”[46] Under it, “records expressing opinions or containing proposed policies or actions need not be disclosed.”[47]

         documents at issue. First, the draft amendment has been shown to be a preliminary, non-final draft of amendments the Office of the Secretary of State was discussing internally with the intent of potentially suggesting the changes to Congress.[48] As such, it falls under the “preliminary draft” or “recommendations” language of section (a)(20). Second, the photographed document is similarly a memorandum containing a proposed policy or action, and it likewise falls under the plain language of section (a)(20). It is of no matter that the document was created by Secretary of State Kobach in his capacity as an advisor to the President-Elect and was not created by the Office of the Kansas Secretary of State because, as noted above, it falls under KORA's reach as “information . . . in the possession of” a state agency.[49]

         The court rejects plaintiffs' argument that the documents cannot meet the section (a)(20) exception because defendant does not have authority to introduce legislation as a member of Congress. Quite simply, section (a)(20), by its terms, encompasses records beyond those involved in the formal “legislative process.”[50] The court also flatly rejects plaintiffs' statement that the undersigned “confirmed” in the orders ruling on plaintiffs' motion to compel that the two documents are not “predecisional or deliberative.”[51] The orders did nothing of the sort. Rather, the court held defendant failed to meet his burden of demonstrating the applicability of the federal deliberative process privilege, and expressly noted the court was “not ruling that some manner of deliberative-process privilege” did not apply, as “[d]efendant never directly asserted a state-agency privilege.”[52]

         Plaintiffs next argue that even if the two documents are exempt from disclosure under KORA, defendant may not designate them “confidential” unless he also makes a particularized showing that public disclosure of the documents, now in their redacted form, would harm the interests of the disclosing party or nonparties as required by paragraph 2 of the protective order.[53] But plaintiffs misstate the order's standard. Paragraph 2 actually states that the producing party may designate a document confidential “because its disclosure and use . . . could potentially cause harm to the interests of the disclosing party or nonparties.”[54] And, as noted above, this basis for asserting confidentiality is in the alternative to showing that disclosure is restricted by statute, which the court has found satisfied. Were defendant required to satisfy this additional standard, however, the court would find he met his burden. The court accepts defendant's reasoning that his interests could potentially be harmed by the “chilling effect” public disclosure of the documents could bring. Specifically, their public disclosure would make it less likely that defendant would, in the future, seek or give candid advice on matters of public importance.[55]

         Finally, plaintiffs argue that even if the documents are exempt from disclosure under Kansas state law, “that would not render them confidential for purposes of the Protective Order” in this federal question case. This argument is odd for two reasons. First, in support, plaintiffs quote caselaw discussing privilege assertions in federal courts-an issue that considers whether a document is discoverable at all, not the wholly separate issue of whether a discoverable document is shielded by a protective order from disclosure beyond the confines of the litigation. Second, the protective order in this case specifically looks to Kansas state law in defining the limits on confidentiality. Plaintiffs' argument in this regard is rejected.

         The court concludes that the protective order governs the dissemination of the documents at issue. The protective order appears to have been fairly negotiated by the parties over multiple discussions.[56] Plaintiffs do not suggest otherwise. Nor do plaintiffs suggest any prejudice they would suffer if the protective order is enforced. The court will not now permit plaintiffs to change the terms to which they agreed, simply to satisfy whatever political interests plaintiffs may have in broad dissemination of the documents.[57]To be clear, however, as the undersigned explained in detail at the status conference on the protective order, documents designated confidential under the protective order are not necessarily (or even likely) subject to filing under seal when a party relies upon them in support of a motion (such as the upcoming summary judgment motions the parties anticipate filing).[58] “The fact that the exhibits are ‘confidential' within the meaning of the parties' protective order has no bearing on whether those exhibits should be sealed in the record.”[59]The disclosure analysis applicable to protective orders “generally balances the need for discovery against the need for confidentiality. But once such discovery material is filed with the court, it becomes a judicial record and the standard that applies when a party wants to keep such material under seal is much higher.”[60] “Courts have long recognized a common-law right of access to judicial records.”[61] “This right derives from the public's interest in understanding disputes that are presented to a public forum for resolution and is intended to assure that the courts are fairly run and judges are honest.”[62] Thus, a “strong presumption” exists that judicial records will not be sealed.[63] A party seeking to overcome this presumption “must articulate a real and substantial interest that justifies depriving the public of access to the records that inform our decision-making process.”[64] In weighing the interests, the court “works from the premise that the public's interests ‘are presumptively paramount against those advanced by the parties.'”[65] The parties are urged to keep these standards in mind should they seek to file a one of the documents at issue (or, for that matter, any document) under seal as an exhibit to the upcoming dispositive-motion briefings.

         IV. Deposing Defendant

         Finally, plaintiffs ask the court to reopen discovery for the limited purpose of allowing them to depose defendant about the draft amendment and the photographed document. Specifically, plaintiffs state they would like to depose Secretary Kobach about “when and why these documents were created, and by whom; the process that led to their creation; with whom they were shared, if anyone; how they were used or what information they relied upon; and other issues related to the responsive documents.”[66] Under the scheduling order, the discovery period ended April 26, 2017.[67] The court, however, may reopen discovery in its sound discretion.[68]

         Defendant does not oppose reopening discovery for the limited purpose of allowing plaintiffs to gain information about the draft amendment and the photographed document through written interrogatories or requests for admission, but asserts deposing defendant is inappropriate for two separate reasons: he is counsel of record and is a high-ranking government official. Because the court finds defendant is the only person with direct knowledge to answer certain questions about the documents and that a short deposition would be less intrusive than written discovery in this particular instance, plaintiffs' request is granted.

         Defendant correctly notes that, as a general matter, courts disfavor permitting the deposition of opposing counsel. “This district . . . has recognized the potential for abuse in deposing an opponent's attorney by inviting ‘delay, disruption of the case, harassment, and unnecessary distractions into collateral matters.'”[69] As a result, courts have applied a heightened standard, set forth in Shelton v. American Motors Corp., [70] in evaluating requests to depose an opposing party's attorney.[71] Significantly, however, when the attorney whose deposition is sought is a named party in the lawsuit with personal knowledge of relevant facts underlying the case, courts have found the Shelton criteria inapplicable and permit the deposition to go forward on that basis.[72] The rationale for the heightened standard simply does not apply to deposition topics regarding the attorney's role as a fact witness, rather than the attorney's role in representing the client.[73]

         Here, the information plaintiffs seek about the documents relates to Secretary Kobach's actions as a party to this case, not to his role as an attorney of record. The record indicates Secretary Kobach is the creator of the documents. Only he can explain his thought processes concerning their creation and his subsequent related actions-such as with whom he shared them and why. The factual information sought, then, is not why defendant took certain steps as counsel of record in this case, but rather as the state's chief election official (as pertains to the draft document) and as an advisor to the President-Elect (as pertains to the photographed document). It cannot be disputed that the information Secretary Kobach may have about the documents could reasonably lead to the discovery of admissible evidence, such as evidence bearing on whether defendant “sought to amend the NVRA to alleviate defendant's burdens under § 5.”[74] Further, plaintiffs have affirmatively represented that they do not intend to inquire about matters protected by attorney-client privilege or work product. “The court is unwilling to preclude plaintiff[s] from discovery of facts which may be relevant in this case ...


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