Legislative Privilege in 2010s Redistricting Cases

Legislative Privilege in 2010s Redistricting Cases Peter S. Wattson Minnesota Senate Counsel (retired) The following summaries are primarily excerpts from Redistricting Case Summaries 2010- Present, a web page maintained by the National Conference of State Legislatures and available at: http://www.ncsl.org/research/redistricting/redistricting-case-summaries-2010-present.aspx Florida League of Women Voters v. House of Representatives (Apportionment IV), No. SC13-949, 132 So.3d 135 (Fla. Dec. 13, 2013) At the 2010 election, Florida voters added two Fair Districts Amendments to the state constitution, one setting standards applicable to congressional districts (art. III, 20), and the other setting standards applicable to state legislative districts (art. III, 21). The new constitutional standards are set out in two tiers. The first-tier standards have equal priority among one another: No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or incumbent; Districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; Districts shall consist of contiguous territory. The second-tier standards are subordinate to those in the first tier and have equal priority among one another: Districts shall be as nearly equal in population as is practicable; Districts shall be compact; Districts shall, where feasible, utilize existing political and geographical boundaries. In Romo v. Detzner, No. 2012-CA-412 (2 nd Cir. Leon County), plaintiff voters challenged numerous congressional districts and the plan as a whole under the Fair Districts Amendment. They alleged that the legislature intentionally favored the Republican Party and incumbents by drawing districts that preserved the cores of prior districts and avoided pairing incumbents, packed Democratic and African-American voters, created districts that were not compact, and did not utilize existing political and geographic boundaries where feasible. Second Amended Complaint (Apr. 3, 2012). The legislative defendants asserted an absolute privilege against testifying as to issues directly relevant to whether the legislature drew the 2012 congressional apportionment plan with unconstitutional partisan or discriminatory intent. Apportionment IV at 2. The Florida Supreme Court recognized a legislative privilege founded on the constitutional principle of 1

separation of powers, even though there is no legislative privilege explicitly stated in the state constitution. However, the privilege is not absolute where the purposes underlying the privilege are outweighed by the compelling, competing interest of effectuating the explicit constitutional mandate [in the Fair Districts Amendment] that prohibits partisan political gerrymandering and improper discriminatory intent in redistricting. Id. at 3. The Court approved the circuit court s order permitting the discovery of information and communications, including the testimony of legislators and the discovery of draft apportionment plans and supporting documents, pertaining to the constitutional validity of the challenged apportionment plan. Id. at 4. It concluded that legislators and legislative staff members may assert a claim of legislative privilege at this stage of the litigation only as to any questions or documents revealing their thoughts or impressions or the thoughts or impressions shared with legislators by staff or other legislators, but may not refuse to testify or produce documents concerning any other information or communications pertaining to the 2012 reapportionment process. Id. at 39-40. League of Women Voters v. Data Targeting, Inc. (Apportionment V), No. SC14 987 (May 27, 2014) Again, in Romo v. Detzner, non-party political consultants asserted that the First Amendment Privilege protected documents reflecting their communications. The plaintiffs contended that the documents would demonstrate the surreptitious participation of partisan operatives in the apportionment process, Apportionment V at 2, by submitting through public front persons draft redistricting maps for the legislature s consideration. Id. at 5. The trial court ruled that the privileged documents in possession of non-parties might be admitted as evidence under seal, but that court proceedings would remain open during any use of the documents at trial. The Florida Supreme Court, however, required the trial court to maintain the confidentiality of the documents by permitting disclosure or use only under seal, and in a courtroom closed to the public. Bainter v. League of Women Voters (Apportionment VI), No. SC14-1200, 150 So. 3d 1115 (Fla. Nov. 13, 2014) On appeal from the trial court s order to produce documents, the Florida Supreme Court held that the political consultants had waived any objection to production of the documents based on a qualified First Amendment privilege by not raising it during more than six months of hearings and filings regarding document production. The Court also rejected the consultants claim of a trade secrets privilege against production. It ordered the sealed documents and sealed portions of the trial transcript unsealed. Illinois Committee for a Fair & Balanced Map v. Ill. Bd. of Elections, No. 1:11-cv-5065 (N.D. Ill. Dec. 15, 2011) Plaintiffs challenged the Illinois congressional redistricting plan for violating 2 of the Voting Rights Act, the Equal Protection Clause of the Fourteenth Amendment, and rights protected by the Fifteenth Amendment, alleging that Congressional Districts 3, 4, and 5 as drawn intentionally diluted the Latino vote. They also alleged violation of the Equal Protection Clause in that Latino ethnicity was the predominant consideration in drawing District 4 and as such, was an intentional 2

and unjustified racial gerrymander. They also alleged that Districts 11, 13 and 17 demonstrated a blatant partisan gerrymander against Republican voters in violation of the First and Fourteenth Amendments. Plaintiffs subpoenaed various legislators, legislative committees, and legislative staff to produce documents and give testimony concerning the enactment of the plan. None of those subpoenaed were parties to the suit. The documents included (1) information concerning the motives, objectives, plans, reports, and/or procedures used by lawmakers to draw the 2011 map; (2) information concerning the identities of persons who participated in decisions regarding the 2011 map; (3) the identities of experts and/or consultants retained to assist in drafting the 2011 map and contractual agreements related to it; and (4) objective facts upon which lawmakers relied in drawing the 2011 map. Legislative leaders moved to quash the subpoenas. The three-judge federal district court ruled that immunity for state legislators under federal common law is not absolute (as it would be under state law). Rather, the federal interest in enforcing the Constitution and voting rights statutes must be weighed against the privilege of state legislators not to produce documents or testify concerning their legitimate legislative activities. The court said: In determining whether and to what extent a state lawmaker may invoke legislative privilege, the court will consider the following factors: (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the seriousness of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable. (Citations omitted.) 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. (Citations omitted.) Op. & Order at 14 (N.D. Ill. Oct. 12, 2011). The court quashed the subpoenas as to categories (1) and (2) above, and granted orders to compel discovery as to categories (3) and (4). Id. at 19. Maryland Benisek v. Lamone, No. 1:13-cv-3233 (D. Md.) Maryland voters challenged the state s congressional redistricting plan, saying it burdened their first amendment rights of political association by drawing partisan-based lines. In discovery, state senators and representatives asserted legislative privilege with respect to testimony and documents pertaining to the drawing of the 2011 congressional maps. Motion for Protective Order (Jan. 9. 2017). A three-judge federal district court granted the plaintiffs motion to compel the legislators to turn over documents and denied the state legislators motion for a protective order and to quash the subpoenas. The state legislators were ordered by the court to give depositions and to turn over documents regarding the drawing of congressional districts in 2011. Mem. & Order (Jan. 31, 2017). 3

In denying the claim of legislative privilege, the court applied a five-factor analysis that looked at: the relevance of the evidence sought, the availability of other evidence, the seriousness of the litigation and the issues involved, the role of the state in the case, and the purposes of the privilege. The court weighed the seriousness of the issues involved and concluded that the legislative privilege asserted by the state was overwhelmed by the important federal interests in the case. Where the State faces liability, the legislative privilege becomes qualified when it stands as a barrier to the vindication of important federal interests and insulates against effective redress of public rights. Mem. & Order at 3 (Jan. 31, 2017) (quoting Bethune-Hill v. Va. State Bd. of Elections, No. 3:14-cv-852, slip op. at 15, 114 F. Supp. 3d 323, 334 (E.D. Va. May 26, 2015) (three-judge court). New York Favors v. Cuomo, No. 1:11-cv-5632 (E.D. N.Y.) In November 2011, plaintiff voters complained that the legislative process for enacting legislative and congressional redistricting plans based on the 2010 Census had stalled and would not produce new districts in time for the 2012 elections. They demanded appointment of a Special Master to draw plans. When the legislature succeeded in enacting plans for the Senate and the state Assembly, plaintiffs challenged the plans for various violations of 2 of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment. Both the Senate Majority (Republicans) and Senate Minority (Democrats) intervened as defendants. The Senate Minority defendants sought discovery from the Senate Majority defendants of all documents determining of the size of the Senate following the 2010 Census. The Senate Majority, Assembly Majority (Democrats), and Assembly Minority (Republicans) defendants moved for an order denying discovery of documents and information protected by the legislative privilege. After surveying the use of the legislative privilege in previous redistricting cases and observing that the legislative privilege is a qualified one when raised by a state legislator in federal court, and that the disruption to the legislative process must be weighed against the need for the evidence and the seriousness of the issues involved, a U.S. magistrate judge applied a five-factor analysis and ordered the parties to submit for in camera inspection the documents for which they claimed a privilege. Mem. & Order, 285 F.R.D. 187 (E.D.N.Y. Aug. 10, 2012). Following the in camera inspection, the magistrate judge found that certain documents and communications were not legislative and thus not entitled to the privilege: (1) those categorized as public statements or concerning the preparation of public statements; (2) those prepared in anticipation of litigation; (3) inquiries from members of the public or media and responses thereto; (4) public remarks, statements crafted for public relations purposes, and public speeches made outside the legislature by legislators or their representatives; (5) public testimony; (6) efforts made in connection with negotiation for or securing of government contracts, and remuneration of contractors or service providers; (7) those concerning administrative tasks; (8) correspondence with or about national political organizations; (9) submissions to the Department of Justice related to compliance with section 5 of the VRA; and (10) any other means of informing those outside the legislative forum. Mem. & Order at 16-18 (E.D.N.Y. Feb. 8, 2013). After weighing plaintiffs need for the evidence and the seriousness of the issues involved against the disruption to the legislative process caused by disclosing the evidence, the magistrate 4

judge ordered that documents and communications relating to the following subjects be disclosed: (1) the reasons for population deviations in the Senate districts; (2) the reasons for adding and locating a 63 rd District; (3) the three traditional redistricting principles used by the Senate to justify its plan; (4) the analysis of third-party plans defendants submitted to the court; (5) the impact of prisoner reallocation on regional variations in district populations; (6) the consideration of race and ethnicity in prisoner reallocation; (7) awareness that the Senate plan may dilute minority votes; and (8) the identities of and contact information for those with relevant information. Id. at 23-37. North Carolina Dickson v. Rucho, 366 NC 332 (201PA12) (N.C. Jan. 25, 2013) Plaintiff voters challenged in state court the legislative and congressional redistricting plans enacted by the 2011 North Carolina General Assembly. In accordance with N.C. Gen. Stat. 1-267.1 (2011), the action was assigned to a panel of three judges of the Superior Court of Wake County appointed by the Chief Justice of the North Carolina Supreme Court. Plaintiffs sought from defendant members of the general assembly the production of a variety of communications concerning enactment of the redistricting plans. Defendants objected to the production of communications among legislators, staff, and outside counsel regarding legal requirements and legal advice for drafting and enacting redistricting plans based on the attorneyclient privilege, legislative privilege, and the work-product doctrine. Plaintiffs moved to compel discovery, citing N.C. Gen. Stat. 120-133 (2011), which read: Notwithstanding any other provision of law, all drafting and information requests to legislative employees and documents prepared by legislative employees for legislators concerning redistricting the North Carolina General Assembly or the Congressional Districts are no longer confidential and become public records upon the act establishing the relevant district plan becoming law. The three-judge panel granted the motion. Order, No. 11 CVS 16896 (N.C. Super Ct., Wake County Apr. 20, 2012). The North Carolina Supreme Court reversed, holding that, since the General Assembly had not clearly and unambiguously waived the attorney-client privilege and work-product doctrine, the Court would not conclude it had intended to do so. [The General Assembly amended the statute to codify the Supreme Court s decision. See 2013 N.C. Sess. Laws 410, 36.7.] Pennsylvania League of Women Voters of Pa. v. Pennsylvania, No. 261 M.D. 2017 (Pa. Commw. Ct.) On June 15, 2017, the League of Women Voters of Pennsylvania and a group of Democratic Pennsylvania voters challenged the state s 2011 congressional map in state court as an 5

unconstitutional partisan gerrymander under the state constitution. They plaintiffs sought a declaration that the plan discriminates against Democratic voters in violation of the Pennsylvania Constitution s Free Expression and Association Clauses (Art. I, 7, 20), Equal Protection Guarantees (Art I, 1, 26), and Free and Equal Clause (Art I, 5). In addition to asking that the state be blocked from using the map for future elections, the plaintiffs asked that the Pennsylvania General Assembly be enjoined from considering political data, including party membership, registration, affiliation, and political activities in drawing future maps if that would penalize or burden a group or individual voters based on their political beliefs. (Petition for Review). Legislative leaders asked the court to stay all proceedings pending the U.S. Supreme Court s ruling in Gill v. Whitford. The plaintiffs and several respondents filed an opposition to the motion to stay, arguing that postponing proceedings could delay a resolution before the 2018 elections. The Commonwealth Court of Pennsylvania granted the general assembly s application to stay all proceedings pending the Supreme Court s decision in Gill v. Whitford, except for briefing on claims of privilege. (Order, Oct. 16). On November 9, the Pennsylvania Supreme Court granted the plaintiffs' request for extraordinary relief. The high court ordered that the case be assigned to a judge of the Commonwealth Court with the directive that the assigned judge hold trial in the case and file findings of fact and conclusions of law by December 31, 2017. League of Women Voters of Pa. v. Pennsylvania, No. 159 MM 2017 (Order) (Pa.). On November 14, the senate president pro tempore filed a notice in federal district court removing the case from state court. League of Women Voters of Pa. v. Pennsylvania, No. 2:17- cv-5137 (Doc. 1, E.D. Pa.). After further discussion between the president pro tempore and the speaker of the house, on request of the president pro tempore, the federal court remanded the case to the Pennsylvania Supreme Court. (Order, Doc. 15) (E.D. Pa. Nov. 16, 2017). On November 22, 2017, the commonwealth court recognized an absolute privilege under the Speech or Debate Clause of the Pennsylvania Constitution, Art. 2, 15, against inquiry into anything said or done by legislators or legislative staff within the sphere of legitimate legislative activity. The state court recognized that federal courts are not compelled to honor state constitutional protections afforded to state legislators, but instead enforce a qualified privilege under federal common law. As a state court, it ruled against any compelled testimony or documentary disclosure regarding that activity, including the intentions, motivations, and activities of state legislators and their staff with respect to the consideration and passage of the 2011 congressional redistricting plan. It quashed subpoenas directed to current and former employees, aides, consultants, experts, and agents of the legislator defendants. It let stand subpoenas directed to third parties outside the legislature, but struck paragraphs requiring the production of communications between the third parties and legislators or legislative staff relating to the 2011 plan. (Mem. & Order). Trial in state court was set to begin December 11, 2017. (Order, Pa. Commonw. Ct., Nov. 13, 2017). 6

Agre v. Wolf, No. 2:17-cv-4392 (E.D. Pa.) Four Pennsylvania citizens challenged the state s 2011 congressional map in federal court as a partisan gerrymander. The plaintiffs asserted that the 2011 plan unlawfully placed citizens into congressional districts based upon their likely voting preferences. The plaintiffs also claimed that the Pennsylvania General Assembly s plan sought to influence the political identity of Pennsylvania s congressional representatives. Those actions, the plaintiffs contended, violate the Elections Clause of the U.S. Constitution, as well as the First and Fourteenth Amendments. The plaintiffs asked the court to redraw the districts before the 2018 congressional elections. (Complaint, Doc. 1, Oct. 2, 2017). The court dismissed the partisan gerrymandering claim under the Equal Protection Clause of the Fourteenth Amendment for failure to articulate a standard for reviewing the claim. (Order on Motion to Dismiss, Doc. 74, Nov. 7, 2017; Statement of Reasons for Dismissal, Doc. 83 at 2-3, Nov. 16, 2017). The Speaker of the Pennsylvania House moved for a protective order that he not be deposed at all or, if deposed, that he not be questioned about his deliberative process or subjective intent regarding the 2011 congressional map. His motion extended to any information relating to fact finding, information gathering, and investigative activities in consideration of redistricting legislation. The three-judge federal district court denied the motion, saying there was no legislative or deliberative process privilege as to documents and communications with third parties nor for questions about his own intent or motive, nor for communications with the public or outside of the members and staff of the legislature. (Order, Doc. 114, Nov. 22, 2017). In response to a later assertion of legislative or deliberative process privilege by the speaker, the court ordered that all documents for which he asserted the privilege be produced before or during his deposition, citing the five-factor balancing test used in Benisek v. Lamone, 241 F. Supp.3d 566, 575-76 (D. Md. 2017). (Order, Doc. 142, Nov. 28, 2017). The federal court further noted that, although the Pennsylvania state court in League of Women Voters v. Pennsylvania, No. 261 M.D. 2017, (Mem. & Order, Nov. 22, 2017), enforced an absolute privilege against discovery into legislative activity, the federal courts are guided by federal law in determining privilege issues. (Doc. 142 at 3). The court dismissed the partisan gerrymandering claim under the First Amendment for failure to articulate a standard for reviewing the claim. (Order Re: Motion to Dismiss Amended Complaint, Doc. 160, Nov. 30, 2011). The trial was scheduled to begin December 4, 2017. (Procedural Order Re: Trial, Doc. 154, Nov. 29, 2017). 7

Texas Perez v. Abbott, No. 5:11-cv-360 (W.D. Tex.) (formerly Perez v. Perry) Voters in Texas challenged the 2011 congressional and state House plans in multiple suits that alleged the Texas Legislature violated the Equal Protection Clause of the U.S. Constitution and 2 of the Voting Rights Act. Plaintiffs alleged that the legislature intentionally diluted Latino and African-American voting strength. As depositions were about to begin, Defendants asserted legislative privilege under federal common law, Doc. 62 (July 21, 2011), and moved for a protective order that no discovery shall be taken on the issue of individual legislators motives or purposes if the discovery is directed to witnesses who worked for, with, or as Members of the 82nd Texas Legislature, and if it is based on information or communications other than those contained in the journals and publiclyavailable reports and acts of the 82 nd Legislature. Id. The motion was denied as premature, since no witness had appeared and asserted privilege in the context of a specific question. Rather, the trial court required deponents to answer the question subject to privilege. Those portions of the transcript would be sealed and submitted to the court for in camera review and not be disclosed or used unless the court found that the privilege did not apply, had been waived, or should not be enforced. Doc. 102 (Aug. 1, 2011). Twenty-three of Texas members of Congress then asserted legislative privilege under the Speech and Debate Clause of the U.S. Constitution and moved to prevent disclosure of written communications between them, their staff, and counsel and Texas legislators, staff, and counsel relating to the Texas Legislature s redistricting. The communications had been submitted to the trial court under seal. The trial court denied the motion and unsealed the documents, holding that they fell outside the congressional members sphere of legislative duties, since the members would not deliberate, hold a hearing, or vote on this Texas legislation. Doc. 189 (Aug. 11, 2011). In preparation for trials on the merits of the 2011 congressional and House plans scheduled for July and August of 2014, Defendants the State of Texas, the governor, and the secretary of state moved to modify the trial court s order of August 1, 2011, requiring that a witness who asserted legislative privilege answer the question or provide documents under seal for the court s in camera inspection. They asked that the witness be permitted to refrain from answering the question, pending a motion to compel an answer. The court noted that none of the movants was a state legislator entitled to assert the privilege and denied the motion as premature, but provided guidance for proceeding with depositions. It noted that, even when the privilege is properly asserted: a court must balance the interests of the party seeking the evidence against the interests of the individual claiming the privilege. See ACORN I, 2007 WL 2815810, at *2 (citing Rodriguez, 280 F. Supp. 2d at 96). The court in Rodriguez identified five factors to aid in this determination, including: (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the seriousness of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to 8

recognize that their secrets are violable. 280 F. Supp. 2d at 101; see also Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *7. Conclusion In sum, counsel for the State of Texas may not invoke the legislative privilege; each legislator, legislative aide, or staff member must assert or waive the privilege individually. Any individual asserting the privilege must, however, provide enough facts so that a court, if necessary, can determine whether the information sought falls within the scope of the privilege. To the extent that any individual asserting the privilege has had communications or correspondence with any outside party or entity, such communications or correspondence waives the privilege as to the content of those communications. Any legislator, legislative aide, or staff member that asserts the privilege will be afforded the opportunity to comply with the protocol established by the August 1, 2011 Order. Under this scenario those portions of the deposition would be sealed and submitted for in camera review. Alternatively, the deponent may choose not to answer specific questions, citing the privilege. In that event, Plaintiffs may thereafter file a motion to compel and the Court will thereafter determine whether the privilege has been waived or is outweighed by a compelling, competing interest. Doc. 952 at 4-5 (Jan. 8, 2014). Virginia Vesilind v. Va. State Bd. of Elections, No. CL15-03886 (Cir. Ct. City of Richmond Mar. 31, 2017) Challengers filed suit in state court alleging that six Senate and five House districts were not as compact as the Virginia Constitution requires. Legislative members, staff, and consultants were subpoenaed to testify about their role in the redistricting process. They claimed legislative privilege. The defendants first requested the court to quash the discovery requests and subpoenas relating to the redistricting process, but then consented to be found in contempt of the trial court s order compelling discovery from some of the members, staff, and consultants in order to facilitate an appeal of the order to the Virginia Supreme Court. On appeal of the contempt order, the Virginia Supreme Court found for the defendants because the actions of the members, staff, and consultants fell within the sphere of legitimate legislative activity because they acted as an alter ego of the legislator in performing a legislative activity. They were deemed to be functioning in a legislative capacity on behalf of and at the direction of a legislator. Therefore, legislative privilege applied to these communications. Edwards v. Vesilind, No. 160643, 292 Va. 510 (Sept. 15, 2016). Personhuballah v. Alcorn (aka Page v. Va. State Bd. of Elections, Cantor v. Personhuballah, and Wittman v. Personhuballah), No. 3:13-cv-678 (E.D. Va.) 9

Plaintiffs alleged that their rights under the Equal Protection Clause of the U.S. Constitution were violated by the racial gerrymander of Virginia Congressional District 3 during the 2011-12 redistricting cycle. Plaintiffs subpoenaed, from a consultant retained as an independent contractor by the House Republican Campaign Committee, documents related to the 2012 Virginia redistricting process, including draft maps and communications about the maps. The consultant moved to quash the subpoena or for a protective order, asserting legislative privilege as to some of the documents. The federal district court held that, since the consultant was not an employee of the House, a committee, or an individual member, he was not so critical to the performance of the legislature that he should be treated as a legislative alter ego and extended the benefit of legislative privilege. Page v. Va. State Bd. of Elections, Mem. Op. at 13. (E.D. Va. May 8, 2014). Even if he were entitled to claim the privilege, the court used a five-factor analysis to determine that he would be entitled to withhold only those documents concerning the actual deliberations of the Legislature once the redistricting legislation had been formally introduced. Id. at 17-23. Wisconsin Baldus v. Brennan, No. 2:11-cv-562 (E.D. Wis. Mar. 22, 2012) Plaintiffs alleged that the Wisconsin legislative and congressional plans violated the Equal Protection Clause of the 14th Amendment and 2 of the Voting Rights Act in various ways. Plaintiffs sought to depose a consultant hired by the law firm hired by the Wisconsin Legislature to draw its redistricting plans, as well as a legislative aide to the Senate majority leader, who were commanded to produce the documents used by them to draw the 2011 redistricting maps. The Wisconsin Assembly and Senate, who were not parties to the suit, moved to quash the subpoenas. The motions were denied. Relying on Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 1:11-cv-5065, Op. & Order (N.D. Ill. Oct. 12, 2011), the court ruled that immunity for state legislators under federal common law is not absolute (as it would be under state law). Rather, the federal interest in enforcing voting rights statutes must be weighed against the privilege of a state legislator not to produce documents or testify concerning their legitimate legislative activities. The court applied a five-factor test. Since the evidence sought was highly relevant to proving plaintiffs claims of discriminatory intent, and any future chilling effect on the Legislature would be minimal, the legislative staff and consultants were commanded to produce it. Order (E.D. Wis. Dec. 8, 2011). When the Legislature refused to comply with the court s order of December 8, and a second order of December 20, 2011 WL 6385645, the court ordered the law firm hired by the Legislature to draw and defend its redistricting plans to pay the attorneys fees and costs incurred by plaintiffs in ensuring compliance with the court s orders. Order, 843 F. Supp.2d 955 (Jan. 3, 2012). When the Legislature asserted attorney-client privilege to avoid producing a series of email messages discussing the support of certain Hispanic community groups for redistricting legislation and also discussing the floor debates on a pending bill, the court found that they involved advice on political strategy, as opposed to legal strategy, and, therefore, [were] not afforded attorney-client privilege protection. Order (Feb. 16, 2012). 10