MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, District Judge.

In this action alleging violations of § 2 of the Voting Rights Act of 1965 ("VRA"), 52 U.S.C. § 10301 et seq., and the Equal Protection Clause of the Fourteenth Amendment,1 plaintiffs move under Fed. R. Civ. P. 37 to compel depositions and the production of documents. Their motion presents questions involving legislative immunity, the legislative privilege, the deliberative process privilege, the attorney-client privilege, work product protection, and the availability of compelled depositions of high ranking government officials. For the following reasons, the court grants the motion in part and denies it in part.

I

This is an action by Anglo residents of Dallas County who allege that, as a result of the Dallas County Commissioners Court's ("Commissioners Court's") redistricting in 2011, Anglos who reside in Dallas County are being denied the opportunity to elect candidates of their choice to the Commissioners Court.2 Plaintiffs sue Dallas County, Dallas County Judge Clay Lewis Jenkins ("Judge Jenkins"), and Dallas County Commissioners Theresa Daniel, Mike Cantrell, John Wiley Price, and Elba Garcia (collectively, the "County Commissioners"),3 alleging claims under the VRA and the Equal Protection Clause of the Fourteenth Amendment.4

Plaintiffs move to compel the production of 335 documents containing communications between defendants and their outside redistricting consultants, Angle Strategies (the "Angle Strategies Documents"), which defendants have withheld on the basis of the "legislative privilege," the attorney-client privilege, and work product protection. Plaintiffs also seek to depose Judge Jenkins, the County Commissioners, and a representative of Dallas County, each of whom defendants have refused to produce on the basis of legislative immunity, the legislative privilege, and the apex doctrine.5 Defendants oppose the motion.

II

The court begins with plaintiffs' motion to compel the depositions of Judge Jenkins, the County Commissioners, and a representative of Dallas County.

A

Defendants oppose plaintiffs' motion to compel these depositions primarily on the basis of legislative immunity and the legislative privilege.

1 The doctrine of legislative immunity arises from the Speech or Debate Clause of the Constitution of the United States and provides absolute protection from liability when government officials take legislative actions and perform legislative duties.6 See U.S. Const. art. 1, § 6. ("The Senators and Representatives . . . for any Speech or Debate in either House. . . shall not be questioned in any other Place."); see also Gravel v. United States, 408 U.S. 606, 624 (1972). Legislative immunity extends to legislators at any level of government, including city and county actors. See Bogan v. Scott-Harris, 523 U.S. 44, 52-54 (1998) common-law legislative privilege imposes on plaintiffs' depositions of defendants. (making explicit that local legislators are entitled to absolute immunity); Hernandez v. City of Lafayette, 643 F.2d 1188, 1192 (5th Cir. Unit A May 1981) ("[T]he logical implication of the [Supreme] Court's opinion in [Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 406-09 (1979),] is that the reasoning for clothing federal, state and regional legislators with absolute immunity is equally applicable to affording local legislators with such immunity."). "Not all actions taken by an official with legislative duties, however, are protected by absolute immunity—only those duties that are functionally legislative." Hughes v. Tarrant Cnty., Tex., 948 F.2d 918, 920 (5th Cir. 1991) (citation omitted). "Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it." Bogan, 523 U.S. at 54.

2

The legislative evidentiary privilege is related to, but distinct from, the concept of legislative immunity. Favors v. Cuomo, 285 F.R.D. 187, 209 (E.D.N.Y. 2012). Although the Supreme Court has held that the Speech or Debate Clause provides an evidentiary privilege "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts," United States v. Gillock, 445 U.S. 360, 366-67 (1980) (quoting United States v. Helstoski, 442 U.S. 477, 489 (1979)), "the Supreme Court has unequivocally ruled that the embrace of the clause does not extend to a state legislator," Cole v. Gray, 638 F.2d 804, 810 (5th Cir. Mar. 1981) (citing Gillock, 445 U.S. at 367). As noted above, under federal common law, state and local legislators are absolutely immune from civil liability for their legislative activities. Bogan, 523 U.S. at 53-54. But the Supreme Court ruled in Gillock that, in contrast to the privilege enjoyed by federal legislators, there is no absolute "evidentiary privilege for state legislators for their legislative acts." Gillock, 445 U.S. at 373. Instead, the Court held that "where important federal interests are at stake, as in the enforcement of federal criminal statutes, comity yields." Id. "Gillock left open the question of when, if ever, state legislators could invoke an evidentiary legislative privilege in civil cases in federal court." Hobart v. City of Stafford, 784 F.Supp.2d 732, 764 (S.D. Tex. 2011) (citation omitted).7

Neither the Supreme Court nor the Fifth Circuit has directly addressed whether a testimonial privilege arising from the doctrine of legislative immunity applies to local legislators. District courts within this circuit have reached different decisions. Some courts have applied an absolute evidentiary privilege in civil cases for state and local legislators acting within the realm of legitimate legislative activity. For example, in Cunningham v. Chapel Hill, ISD, 438 F.Supp.2d 718 (E.D. Tex. 2006), the court held that the testimonial privilege afforded by the doctrine of legislative immunity protected the trustees of a local school board from having to testify regarding their vote to deny the plaintiff's Level III grievance and to ratify the school district's dissolution of its maintenance department. Id. at 723. The court concluded:

Id.; see also Villareal v. Dall. Cnty., 2011 WL 4850258, at *2-3 (N.D. Tex. Sept. 20, 2011) (Furgeson, J.) (holding that regional legislators' immunity "includes a testimonial privilege that protects legislators from being deposed against their will," and concluding that where gravamen of complaint centered around the passage of a budget item, and "regardless of the effort to interrogate witnesses about issues other than legislative matters, the issues are so intertwined that the dividing line cannot be thoughtfully maintained . . . any attempt to depose members of the Dallas County Commissioners Court in this case must be precluded by law.").

Other courts have held that the legislative privilege is qualified and can only be applied after balancing the interests of the party seeking disclosure against the interests of the party claiming the privilege. See, e.g., Perez v. Perry, 2014 WL 106927, at *2 (W.D. Tex. Jan. 8, 2014). Courts following the "qualified privilege" approach assess the following five factors in performing their balancing test:

Id. In considering these factors, "the court's goal is to determine whether the need for disclosure and accurate fact finding outweighs the legislature's `need to act free of worry about inquiry into [its] deliberations.'" Veasey v. Perry, 2014 WL 1340077, at *2 (S.D. Tex. Apr. 3, 2014) (alteration in original) (quoting Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, 2011 WL 4837508, at *7 (N.D. Ill. Oct. 12, 2011)), aff'd in part and vacated in part sub nom. Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Sept. 27, 2016) (No. 16-393); see also BBC Baymeadows, LLC v. City of Ridgeland, Miss, 2015 WL 5943250, at *5 (S.D. Miss. Oct. 13, 2015) (concluding that documents that are legislative in nature are privileged, but that plaintiff could obtain discovery of privileged documents by satisfying balancing test articulated in Perez); Hall v. Louisiana, 2014WL 1652791, at *8-9 (M.D. La. Apr. 23, 2014) (recognizing "common law state legislative privilege that may yield in certain circumstances," and applying five-factor balancing test set out in Perez).

B

With the foregoing principles in mind, the court turns to the parties' arguments.

1

As a preliminary matter, the court disagrees with defendants' assertion that they "are shielded from being deposed in their official capacities as members of the [Commissioners Court] pursuant to the protection of legislative immunity." Ds. Br. 9. Plaintiffs are suing Judge Jenkins and the County Commissioners only in their official capacities. It is clearly established that a suit against a government official in his official capacity is "only another way of pleading an action against an entity of which [the official] is an agent." Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 n.55 (1978). "As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is . . . treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985). Accordingly, because plaintiffs do not seek to hold any of the individual defendants liable in their personal capacities, the absolute legislative privilege does not immunize defendants from the requirement that they appear for their depositions. See, e.g., Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129, 134 (5th Cir. 1986) (noting that if "the individual [School] Board members are named defendants only in their official capacities, neither qualified nor absolute immunity would apply since the individual Board members would not be threatened by personal liability."); see also Cady v. Arenac Cnty., 574 F.3d 334, 342 (6th Cir. 2009) ("absolute immunity is a personal defense that is unavailable in an official-capacity action"); Roach v. Stouffer, 560 F.3d 860, 870 (8th Cir. 2009) (holding that legislature-defendants were not entitled to legislative immunity because they were sued only in their official capacities); Almonte v. City of Long Beach, 478 F.3d 100, 106 (2d Cir. 2007) (immunity, whether absolute or qualified, is a personal defense that is available only when officials are sued in their individual capacities).

2

The question whether legislative immunity provides defendants a legislative privilege against providing evidence or testimony is more difficult. The court begins its analysis by considering whether the topics on which plaintiffs seek depositions relate to a "legislative function," as is required for the legislative privilege to apply.

Plaintiffs seek to depose Judge Jenkins and the County Commissioners on the following topics:

Ps. Reply 15.8

The court concludes that topic (iii)—defendants' conduct of their own political campaigns over the past decade—does not relate to a legislative function. In the context of absolute legislative immunity

Minton, 803 F.2d at 135 (footnotes omitted). Topic (iii) concerns activities that are insufficiently connected with the legislative process to entitle defendants to a legislative privilege against testifying on that topic. Accordingly, the court concludes that the legislative privilege does not prevent plaintiffs from deposing Judge Jenkins or the County Commissioners on topic (iii).

As plaintiffs explain the discovery they seek under topics (i), (ii), and (iv), however, these areas of inquiry do relate to a legislative function. These topics are derived from the "totality of the circumstances" inquiry that the court must perform if plaintiffs meet the threshold Gingles9 test in relation to their VRA claim.10 But the evidence plaintiffs seek goes beyond a simple § 2 inquiry, focusing instead on Judge Jenkins' and the County Commissioners' subjective intent in passing the 2011 Commissioners Court district map. Plaintiffs seek to discover whether Judge Jenkins and the County Commissioners had knowledge of the racial polarization of the Dallas electorate, whether they had knowledge of the success of plaintiffs' racial group in electing its preferred candidates over the last decade, and whether they had knowledge of the particularized needs of plaintiffs' racial community "while preparing and voting on the contested map." Ps. Reply 10. In other words, plaintiffs are seeking to discover whether any defendant had a discriminatory motive in passing the contested map. To the extent topics (i), (ii), and (iv) require that defendants reveal their motives in preparing and voting on the 2011 Commissioners Court district map, these topics relate to a legislative function. See, e.g., Tenney v. Brandhove, 341 U.S. 367, 377 (1951) ("The holding of this Court . . . that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned.").

Topic (v) seeks the meaning of, and factual predicate for, any public statements regarding the 2011 Commissioners Court district map. Public statements per se have been held not to be legislative. See United States v. Brewster, 408 U.S. 501, 512 (1972) (noting that "preparing so-called `news letters' to constituents, news releases, and speeches delivered outside the Congress . . . are political in nature rather than legislative" and do not have the protection afforded by the Speech or Debate clause). But plaintiffs seek to question defendants regarding the meaning of, and factual predicate for, each of these statements. To the extent this line of questioning would require defendants to reveal their motivations regarding the enactment of the 2011 Commissioners Court district map, the court concludes that this also potentially relates to a legislative function.

3

Having determined that topics (i), (ii), and (iv) (to the extent plaintiffs seek to discover defendants' motivations in preparing and voting on the 2011 Commissioners Court district map) and (v) (to the extent the information plaintiffs seek would require defendants to reveal their motivations regarding the enactment of the 2011 Commissioners Court district map), relate to a legislative function, the court next considers whether defendants can rely on the legislative privilege to refuse to answer questions on these topics. Having reviewed the case law, the court concludes that, in the districting context, the balancing approach of Perez and Veasey is the one to follow when determining whether the legislative privilege precludes plaintiffs from deposing government officials on a particular topic. In Veasy the court explained:

Veasey, 2014 WL 1340077, at *2; see also, e.g., Favors, 285 F.R.D. at 214 (noting the "clear weight of authority holding that the legislative privilege is qualified and subject to a judicial balancing test"); Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *7. Accordingly, for the deposition topics that relate to a legislative function, the court will weigh the five Perez factors to determine whether the interests of the party seeking disclosure (here, plaintiffs) outweigh the interests of the party claiming the privilege (here, defendants). See Perez, 2014 WL 106927, at *2.

4

The court considers, together, topics (i), (ii), and (iv). The court concludes that Perez factors one and two weigh against allowing the discovery. To be sure, in deciding plaintiffs' VRA claim, the court can consider evidence of the racial polarization of the Dallas electorate, the success of plaintiffs' racial group in electing its preferred candidates over the last decade, and the degree of responsiveness on the part of elected officials to the particularized needs of the plaintiffs' racial community. See, e.g., Fabela v. City of Farmers Branch, Tex., 2012 WL 3135545, at *3 (N.D. Tex. Aug. 2, 2012) (Fitzwater, C.J.). But to the extent plaintiffs seek to discover defendants' personal knowledge regarding these topics, it is clearly established that an intent to discriminate on the part of individual legislators is not a required showing in connection with a VRA claim. Thornburg v. Gingles, 478 U.S. 30, 71 (1986) ("In amending § 2, Congress rejected the requirement . . . that § 2 plaintiffs must prove the discriminatory intent of state or local governments in adopting or maintaining the challenged electoral mechanism"); League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 849 (5th Cir. 1993) ("Congress intended `to make clear that proof of discriminatory intent is not required to establish a violation of Section 2.'" (citations omitted)).11 In other words, plaintiffs can prove their VRA claim without relying on the privileged information they seek in topics (i), (ii), and (iv). Accordingly, the court concludes that defendants' personal knowledge regarding topics (i), (ii), and (iv) is not sufficiently relevant to weigh in favor of discovery.

Regarding factor two, plaintiffs can obtain evidence regarding the "totality of circumstances" factors from other sources. For example, plaintiffs already have considerable information, including publicly available data and records, that they can rely on to establish that members of the Commissioners Court were or were not responsive to their needs. The court thus concludes that factors one and two weigh against disclosure.

The court concludes that factors three and four—the "seriousness" of the litigation and the issues involved and the role of the government in the litigation—weigh in favor of allowing the discovery. In Committee for a Fair & Balanced Map the court explained:

Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *8 (citations omitted). Applying the reasoning of Committee for a Fair & Balanced Map, the court concludes that factors three and four weigh in favor of disclosure.

Regarding the fifth factor—the possibility of future timidity among government employees (here, legislators)—"courts have long recognized that the disclosure of confidential documents concerning intimate legislative activities should be avoided." Veasey, 2014 WL 1340077, at *3 (citation omitted). The same rationale applies to compelled testimony concerning legislative activities. Accordingly, the court holds that the fifth factor weighs against disclosure.

The court concludes that the overall balance of factors weighs against compelling the depositions of Judge Jenkins and the County Commissioners regarding topics (i), (ii), and (iv). Although the court finds that the litigation and issues involved are serious, and the government's role is direct, topics (i), (ii), and (iv) relate only to plaintiffs' VRA claim, see supra note 11, and defendants' personal knowledge regarding these topics is not sufficiently relevant, in the context of that claim, to weigh in favor of disclosure. Accordingly, the court denies plaintiffs' motion to compel the depositions of Judge Jenkins and the County Commissioners to the extent plaintiffs seek deposition testimony on topics (i), (ii), and (iv) that is barred by the legislative privilege.

5

Regarding topic (v), plaintiffs seek the meaning of, and factual predicates for, the public statements made concerning the contested map, either by defendants or on their behalf. But they do not point to any particular public statement for which they seek the meaning and factual predicate. Without this information, the court cannot meaningfully assess the balancing test factors regarding topic (v). Accordingly, the court denies plaintiffs' motion to compel the depositions of Judge Jenkins and the County Commissioners to the extent plaintiffs seek deposition testimony on topic (v) that is barred by the legislative privilege.

C

To the extent plaintiffs seek deposition testimony on topics (i)-(v) that is not barred by the legislative privilege, the court concludes that plaintiffs have failed to show that "exceptional" or "extraordinary" circumstances justify compelling the depositions of these high ranking government officials.

1

In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995) (internal quotation marks, brackets, and citations omitted); see also Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007) ("[T]op executive department officials should not, absent extraordinary circumstances, be called to testify or deposed regarding their reasons for taking official action."); In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993) (per curiam) ("In order to protect officials from the constant distraction of testifying in lawsuits, courts have required that defendants show a special need or situation compelling such testimony"; high ranking government officials "should not, absent extraordinary circumstances, be called to testify regarding their reasons for taking official actions."); In re Office of Inspector Gen., 933 F.2d 276, 278 (5th Cir. 1991) (per curiam) ("[T]op executive department officials should not, absent extraordinary circumstances, be called to testify regarding their reasons for taking official actions." (quoting Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985))). "`[H]igh ranking government officials have greater duties and time constraints than other witnesses' and . . . without appropriate limitations, such officials will spend an inordinate amount of time tending to pending litigation." Bogan, 489 F.3d at 423 (quoting In re United States (Kessler), 985 F.2d at 512). Furthermore, assuming the information in question is discoverable, "[i]f other persons can provide the information sought, discovery will not be permitted against such an official." In re United States, 197 F.3d 310, 314 (8th Cir. 1999) (citing In re United States (Kessler), 985 F.2d at 513); see In re FDIC, 58 F.3d at 1062 ("We think it will be the rarest of cases . . . in which exceptional circumstances can be shown where the testimony is available from an alternate witness.").

2

In response to plaintiffs' motion, defendants maintain that the "apex doctrine" bars the requested depositions because Judge Jenkins and the County Commissioners are highlevel officials, plaintiffs have failed to show that any of these officials has unique or superior personal knowledge of discoverable information, and there are less intrusive means by which the information plaintiffs are seeking can be obtained.12 Plaintiffs respond that the "apex doctrine" does not apply to their request to depose a representative of Dallas County because Dallas County will be able to choose its representative, and that the doctrine does not apply to Judge Jenkins or the County Commissioners because these defendants' knowledge regarding plaintiffs' deposition topics is unique or superior.

3

The court concludes that plaintiffs have not demonstrated that "exceptional" or "extraordinary" circumstances justify the depositions of Judge Jenkins or the County Commissioners. Plaintiffs do not dispute that Judge Jenkins and the County Commissioners are high ranking government officials. This is their entire response to defendants' argument on this point:

Ps. Reply 14 (first alteration in original). But the court has already concluded that, to the extent plaintiffs seek to discover what defendants knew specifically regarding topics (i), (ii), and (iv) at the time they prepared and voted on the contested map, such evidence is entitled to protection under the legislative privilege. Plaintiffs do not offer any explanation for why defendants' knowledge is superior with regard to the portions of topics (i), (ii), and (iv) that Commissioners as if based on applicable federal authority. are not privileged (assuming that any portions of these topics are not privileged). Accordingly, the court holds that plaintiffs' conclusory assertion that defendants' knowledge is "unique" or "superior" is insufficient to establish that this case presents "exceptional" or "extraordinary" circumstances under which defendants' depositions should be compelled.

Regarding topic (iii)—defendants' conduct of their own political campaigns over the past decade—the court concludes that plaintiffs can obtain this information through less intrusive means than deposing Judge Jenkins and the County Commissioners. Defendants contend that they have produced items such as mailers and advertisements from their campaigns and that they will continue to produce more campaign advertisements if and when they are found. Moreover, as defendants point out, "the content and scope of circulated campaign advertisements can be discovered by less intrusive means such as through inquiry from campaign personnel, campaign consultants and mailer recipients in the community." Ds. Surreply 4. Accordingly, the court concludes that plaintiffs must seek information about defendants' political campaigns over the past decade through alternate, less intrusive means.

Regarding topic (iv)—Dallas County's responsiveness to the needs of plaintiffs' racial community, including its knowledge, if any, of that community's particularized needs—to the extent discovery on this topic is not barred by the legislative privilege, the court concludes that there are alternate, less intrusive means of discovering whether defendants have responded to the needs of plaintiffs' racial minority than deposing Judge Jenkins or the County Commissioners on this topic.

Finally, topic (v)—the meaning of, and factual predicate for, the public statements made concerning the contested map by or on behalf of the Defendants—does not seek testimony regarding any particular public statement. Nor do plaintiffs explain why some other person (for example, staff members charged with assisting Judge Jenkins and the County Commissioners in their public statements) cannot give testimony that would explain the meaning of, and factual predicate for, any public statement concerning the 2011 Commissioners Court district map. In fact, this request is sufficiently amorphous that it does not satisfy the "exceptional" or "extraordinary" circumstances requirement for compelling the depositions of high-ranking officials.

In sum, plaintiffs have failed to show that any of their requested deposition topics meets the "exceptional" or "extraordinary" circumstances required for the court to compel Judge Jenkins or the County Commissioners, all high-ranking government officials, to submit to depositions in this case. Accordingly, the court denies plaintiffs' motion to compel the depositions of Judge Jenkins and the County Commissioners.

D

Plaintiffs also request that defendants produce a representative to testify on behalf of Dallas County. As far as the court can determine, defendants have not presented any basis to deny this request. Defendants' legislative immunity/privilege and "apex doctrine" arguments are all directed at Judge Jenkins and the County Commissioners, and defendants have not presented any argument for why the court should deny plaintiffs' motion to compel the deposition of a Dallas County representative. Accordingly, the court grants plaintiffs' motion in this respect.

III

The court now turns to plaintiffs' motion to compel the production of the Angle Strategies Documents, which defendants have withheld on the basis of the attorney-client privilege, the work product protection, and the legislative and deliberative process privilege.

A

The court will address first whether the Angle Strategies Documents are privileged under the attorney-client privilege.

1

The attorney-client privilege exists to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).13 To achieve this goal, the privilege protects from disclosure "communications from the client to the attorney made in confidence for the purpose of obtaining legal advice." Wells v. Rushing, 755 F.2d 376, 379 n.2 (5th Cir. 1985). While the attorney-client privilege extends to all situations in which counsel is sought on a legal matter, it protects "only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege." Fisher v. United States, 425 U.S. 391, 403 (1976). Hence, the privilege does not protect documents and other communications simply because they result from an attorney-client relationship. See Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 473 (N.D. Tex. 2004) (Kaplan, J.). Moreover, courts generally construe the privilege narrowly because "assertion of privileges inhibits the search for truth." Id. (quoting Perkins v. Gregg Cnty., Tex., 891 F.Supp. 361, 363 (E.D. Tex. 1995)).

2

Defendants contend that the Angle Strategies Documents fall into two categories: (1) email communications between Angle Strategies and defendants, and (2) email communications between Angle Strategies and redistricting counsel (who hired Angle Strategies). They further explain:

Ds. Br. 28. On this basis, defendants maintain that the Angle Strategies Documents are entitled to protection under the attorney-client privilege.

In their reply, plaintiffs agree that the attorney-client privilege applies to "communications that `enabled the attorney to give legal advice' between a party's lawyer and third-party non-lawyers like Angle Strategies," and they "welcome an in camera review of the [Angle Strategies Documents] by the Court to remove any such documents from production." Ps. Reply 5. Plaintiffs also state that, "to the extent . . . specific [Angle Strategies Documents] relay legal advice to the Defendants that counsel merely asked Angle Strategies to pass along, the Plaintiffs do not ask the Court to compel the disclosure of such relayed communications," and again welcome "either the redaction of such relayed advice from the relevant [Angle Strategies Documents] before production or an in camera review of the [Angle Strategies Documents] to remove any documents that entirely relay such advice." Id. Plaintiffs seek production of the remaining Angle Strategies Documents, however, arguing that, aside from the appropriate "carve-outs," the attorney-client privilege does not apply. Id. at 6.

3

Because plaintiffs do not dispute that the attorney-client privilege applies to all communications between defendants' counsel and Angle Strategies that enabled defendants' counsel to give legal advice, the court will not compel the production of such communications. Nor will the court order the production of any documents that contain the communication of legal advice among defense counsel, Angle Strategies, and the members of the Commissioners Court. If the parties cannot agree as to which documents contain the communications described above (or whether otherwise privileged documents can be produced in redacted form), defendants must submit any disputed documents to the court for in camera inspection within 28 days of the date this memorandum opinion and order is filed.

Regarding the remaining Angle Strategies Documents—i.e., any Angle Strategies Documents that are not covered by the preceding paragraph—the court concludes that defendants have not met their burden of establishing that the attorney-client privilege protects these documents from disclosure.

B

The court now turns to the federal work product protection.

1

The federal work product protection found in Rule 26(b)(3) provides for the qualified protection of documents and tangible things prepared by or for a party or that party's representative "in anticipation of litigation or for trial." Rule 26(b)(3). Materials prepared by a consultant are expressly covered by the work product protection. Id.; see also Thomas v. Gen. Motors Corp., 174 F.R.D. 386, 388 (E.D. Tex. 1997). Determining whether a document is prepared in anticipation of litigation is a "slippery task." United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982). A document need not be generated in the course of an ongoing lawsuit in order to qualify for work product protection. But "the primary motivating purpose" behind the creation of the document must be to aid in possible future litigation. In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000); United States v. Davis, 636 F.2d 1028, 1039-40 (5th Cir. Unit A Feb. 1981). As the advisory committee notes to Rule 26(b)(3) make clear, "[m]aterials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision." Rule 26 advisory committee's note to 1970 amendment; see also El Paso Co., 682 F.2d at 542. Among the factors relevant to determining the primary motivation for creating a document are "the retention of counsel and his involvement in the generation of the document and whether it was a routine practice to prepare that type of document or whether the document was instead prepared in response to a particular circumstance." Navigant Consulting, Inc., 220 F.R.D. at 477 (quoting Elec. Data Sys. Corp. v. Steingraber, 2003 WL 21653414 at *5 (E.D. Tex. Jul. 9, 2003)). If the document would have been created without regard to whether litigation was expected to ensue, it was made in the ordinary course of business and not in anticipation of litigation. Id.

"Like all privileges, the work product doctrine must be strictly construed." Mims v. Dall. Cnty., 230 F.R.D. 479, 484 (N.D. Tex. 2005) (Kaplan, J.) (citing cases). The burden is on the party who seeks work product protection to show that the materials at issue were prepared by its representative in anticipation of litigation or for trial. Beasley v. First Am. Real Estate Info. Servs., Inc., 2005 WL 1017818, at *3 (N.D. Tex. Apr. 27, 2005) (Kaplan, J.); Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 219 F.R.D. 396, 400 (E.D. Tex. 2003). Once this initial burden is met, a party seeking disclosure of ordinary work product14 must demonstrate both "a substantial need for the information and an inability to obtain the substantial equivalent without undue hardship." SEC v. Brady, 238 F.R.D. 429, 443 (N.D. Tex. 2006) (Ramirez, J.) (emphasis added); Rule 26(b)(3)(A)(ii) (providing that party ordinarily may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative, but, subject to Rule 26(b)(4), "those materials may be discovered if . . . the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means").

2

Defendants include references to the "attorney-work product privilege" in their response to plaintiffs' motion to compel, but they do not support these references with any argument as to why the work product protection applies to any of the Angle Strategies Documents. Accordingly, to the extent defendants intend to rely on the work product protection, the court concludes they have not met their burden of establishing that this protection applies.

C

Finally, defendants assert that the legislative privilege and deliberative process privilege apply to the Angle Strategies Documents.

1

The Supreme Court has recognized a deliberative process privilege covering "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). "The purpose of the privilege is to protect the decision-making process from the inhibiting effect that disclosure of predecisional advisory opinions and recommendations might have on `the "frank discussion of legal or policy matters" in writing.'" Skelton v. U.S. Postal Serv., 678 F.2d 35, 38 (5th Cir. 1982) (quoting Sears, Roebuck & Co., 421 U.S. at 150) (discussing statutorily created deliberative process privilege in Freedom of Information Act). "The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations." In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (citations omitted); see also Norwood v. F.A.A., 993 F.2d 570, 577 (6th Cir. 1993) ("`[P]urely factual, investigative matters' that are `severable without compromising the private remainder of the documents' do not enjoy the protection of the exemption." (citation omitted)). Courts generally agree that the deliberative process privilege "protects only documents which are pre-decisional, deliberative and reflect the subjective intent of the legislators." Doe v. Nebraska, 788 F.Supp.2d 975, 985 (D. Neb. 2011) (citing cases).

As with the legislative privilege, courts have held that the deliberative process privilege is qualified and can be overcome "by a sufficient showing of need." In re Sealed Case, 121 F.3d at 737 (footnote omitted); see also Doe v. City of San Antonio, 2014 WL 6390890, at *2 (W.D. Tex. Nov. 17, 2014) ("Courts consider any number of factors when determining if the deliberative process privilege ultimately protects the information sought."); Favors, 285 F.R.D. at 210 n.22 ("Like the legislative privilege, the deliberative process privilege is a `qualified privilege which may be overcome upon a showing that the adverse party's need for disclosure outweighs the interest in confidentiality.'" (quoting Rodriguez v. Pataki, 280 F.Supp.2d 89, 98 (S.D.N.Y. 2003))). Similar to the legislative privilege, the court must balance the competing interests, taking into account factors such as the relevance of the evidence, the availability of other evidence, the seriousness of the litigation, the role of the government, and the possibility of future timidity by government employees. In re Sealed Case, 121 F.3d at 737-38; Doe, 788 F.Supp.2d at 985 ("Courts evaluating whether to apply the deliberative process privilege generally treat it as a qualified privilege and only protect documents from discovery after applying a balancing test based on the following factors: `(1) the relevance of the evidence; (2) the availability of other evidence; (3) the government's role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.'" (citations omitted)).

Defendants clarify in their surreply that the legislative privilege

Ds. Surreply 9-10.

To the extent defendants assert that the legislative or deliberative process privilege applies to communications from Judge Jenkins or the County Commissioners to Angle Strategies or defense counsel,15 the court will assume arguendo that defendants have met their burden of establishing that the communications were both pre-decisional and deliberative (for purposes of the deliberative process privilege) and that they relate to a legislative function (for purposes of the legislative privilege). Accordingly, the court considers whether plaintiffs have made a sufficient showing—as is required for both the deliberative process privilege and the legislative privilege—that their need for the Angle Strategies Documents outweighs the government's interest in non-disclosure.

3

The court concludes that the communications plaintiffs seek are relevant.16 In addition to their VRA claim, plaintiffs bring a claim under the Equal Protection Clause based on allegations of vote dilution and racial gerrymandering. The essence of a vote dilution claim under the Fourteenth Amendment is "that the State has enacted a particular voting scheme as a purposeful device `to minimize or cancel out the voting potential of racial or ethnic minorities.'" Miller v. Johnson, 515 U.S. 900, 911 (1995) (citation omitted). To obtain relief on a constitutional vote dilution claim, plaintiffs must "prove that the purpose and operative effect" of the challenged election scheme "is to dilute the voting strength of [minority] citizens." Voter Info. Project, Inc. v. City of Baton Rouge, 612 F.2d 208, 212 (5th Cir. 1980).17

Racial gerrymandering of electoral districts involves the "deliberate and arbitrary distortion of district boundaries . . . for [racial] purposes." Shaw v. Reno, 509 U.S. 630, 640 (1993) (alteration in original); see also Prejean v. Foster, 227 F.3d 504, 509 (5th Cir. 2000). "Given the presumption of the legislature's good faith in redistricting, showing that a redistricting plan intentionally discriminates is not ordinarily an easy task." Prejean, 227 F.3d at 509 (footnote omitted). The trial court "must `perform a sensitive inquiry into such circumstantial and direct evidence as may be available.'" Id. (internal quotation marks omitted) (quoting Hunt v. Cromartie, 526 U.S. 541, 546 (1999)). It is the plaintiff's burden to "show that traditional districting principles were subordinated to race, i.e., that race was `the predominant factor motivating the legislature's redistricting decision.'" Id. (brackets omitted) (quoting Miller, 515 U.S. at 916).

In support of their motion to compel the Angle Strategies Documents, plaintiffs contend that they

Ps. Br. 9-10 (footnotes omitted). The court agrees that defendants' communications with Angle Strategies concerning what map to draw and how to manipulate demographic factors in creating that map are relevant to plaintiffs' equal protection claim, especially insofar as these communications would tend to prove or disprove defendants' motivations in creating the allegedly discriminating map, and that the first Perez factor thus weighs in favor of disclosure. The court also concludes, for the same reasons explained above, see supra § II(B)(4), that the seriousness of the litigation and the role of the government weigh in favor of disclosure. Regarding the availability of information from other sources, it is unclear whether the information plaintiffs seek is or is not available from other sources. Accordingly, this factor does not weigh for or against disclosure. Finally, regarding the last factor, as explained above, "courts have long recognized that the disclosure of confidential documents concerning intimate legislative activities should be avoided." Veasey, 2014 WL 1340077, at *3 (citation omitted). Accordingly, this factor weighs against disclosure.

Considering all of the factors and weighing plaintiffs' need for the documents against the government's interest in non-disclosure, the court concludes that, despite the privileged nature of the Angle Strategies Documents, plaintiffs have made a sufficient showing of need. Although defendants vigorously object to the compelled depositions of Judge Jenkins and the County Commissioners, they fail to address the five factors in the context of the Angle Strategies Documents. Moreover, the sound policy reasons against compelling depositions of high ranking officials do not apply with equal force to the compelled production of documents. This is especially true when the documents have central relevance to plaintiffs' equal protection claim and there is no suggestion that plaintiffs could obtain the information the documents contain from other sources. Accordingly, considering all of the factors and weighing the totality of circumstances, the court concludes that, despite the privileged nature of the Angle Strategies Documents, plaintiffs have made a sufficient showing of need.18

D

In sum, the court denies plaintiffs' motion to compel production of the Angle Strategies Documents to the extent plaintiffs agree that the documents are protected under the attorney-client privilege (i.e., the Angle Strategies Documents that contain communications that enabled defendants' counsel to give legal advice, and that "relay legal advice," Ps. Reply 5). The court otherwise grants the motion.

* * *

For the foregoing reasons, the court denies plaintiffs' motion to compel the depositions of Judge Jenkins and the County Commissioners, grants plaintiffs' motion to compel the deposition of a representative of Dallas County, and grants in part and denies in part plaintiffs' motion to compel the production of the Angle Strategies Documents. The court directs the parties to confer and attempt in good faith to agree on the timing of the deposition and document discovery compelled under this memorandum opinion and order. Absent agreement, and after meeting and conferring on a proposed motion, a party may seek relief from the court.

SO ORDERED.