Mi Familia Vota v. Fontes

Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 1 of 43 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mi Familia Vota, et al., No. CV-21-01423-PHX-DWL 10 Plaintiffs, ORDER 11 v. 12 Katie Hobbs, et al., 13 Defendants. 14 15 This action involves a challenge to a voting law, Senate Bill 1485 (“S.B. 1485”), 16 that was enacted by the Arizona legislature following the 2020 election. It provides that 17 voters who do not cast a mail-in ballot in two consecutive election cycles must be removed 18 from Arizona’s permanent early voting list. (Doc. 1.) 19 Plaintiffs in this action are four nonprofit groups. Additionally, the Democratic 20 Senatorial Campaign Committee and the Democratic Congressional Campaign Committee 21 have intervened as Plaintiffs. Defendants are Arizona Secretary of State Katie Hobbs, 22 Arizona Attorney General Mark Brnovich, and the recorders from all 15 Arizona counties. 23 Additionally, the Republican National Committee and the National Republican Senatorial 24 Committee have intervened as Defendants. For ease of reference, the Court will refer to 25 the various entities on each side of this dispute as Plaintiffs and Defendants. 26 Now pending before the Court is Plaintiffs’ motion to compel a non-party, the 27 Republican Party of Arizona (“RPA”), to comply with a subpoena for certain records. 28 (Doc. 161.) For the following reasons, Plaintiffs’ motion is granted in part. Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 2 of 43 1 RELEVANT BACKGROUND 2 I. Underlying Litigation 3 On August 17, 2021, Plaintiffs initiated this action, asserting three claims. (Doc. 1.) 4 In Count One, Plaintiffs allege that S.B. 1485 and Senate Bill 1003 (“S.B. 1003”), 5 “individually and collectively,” violate the First and Fourteenth Amendments because they 6 create an undue burden on the right to vote. (Id. ¶¶ 127-35.)1 In Count Two, Plaintiffs 7 allege that S.B. 1485 and S.B. 1003, “individually and collectively, violate the Fourteenth 8 and Fifteenth Amendments because they were adopted for the purpose of denying voters 9 of color full and equal access to the political process.” (Id. ¶¶ 136-41.) And in Count 10 Three, Plaintiffs allege that S.B. 1485 and S.B. 1003, “individually and collectively, violate 11 Section 2 of the Voting Rights Act because they were adopted for the purpose of denying 12 voters of color full and equal access to the political process.” (Id. ¶¶ 142-45.) 13 On November 24, 2021, Defendants moved to dismiss all of Plaintiffs’ claims. 14 (Docs. 76, 77.) 15 On December 15, 2021, the Court issued a Rule 16 scheduling order that, among 16 other things, set a November 18, 2022 deadline for completion of fact discovery. (Doc. 17 85.) The deadline has since been extended to May 18, 2023. (Doc. 182.) 18 On June 24, 2022, after full briefing on the motion to dismiss (Docs. 83, 99, 100, 19 118) and oral argument (Doc. 149), the Court dismissed Count One in its entirety. (Doc. 20 154 at 22, 34, 41, 60.) The Court also dismissed the challenges to S.B. 1003 in Counts 21 Two and Three. (Id. at 44, 60.) The Court denied the motion to dismiss with respect to 22 the challenges to S.B. 1485 in Counts Two and Three. (Id. at 52, 60.) The Court also 23 granted Plaintiffs leave to amend. (Id. at 59-60.) However, Plaintiffs declined to amend 24 their complaint by the amendment deadline. (Doc. 168.) 25 … 26 … 27 1 S.B. 1003, which was also enacted by the Arizona legislature following the 2020 28 election, clarifies that the deadline for a voter to attempt to “cure” a missing signature on an early ballot is 7:00 PM on election day. (Doc. 1 ¶ 1.) -2- Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 3 of 43 1 II. Discovery Dispute 2 On January 10, 2022, Plaintiffs served a subpoena on the RPA, a non-party. (Doc. 3 156-1 at 5-16.) The subpoena requires the RPA to produce discovery responsive to twelve 4 requests for production (“RFPs”), which are described in more detail in later sections of 5 this order. (Id.) 6 On January 24, 2022, the RPA served written objections to the subpoena. (Id. at 18- 7 23.) The RPA objected to all twelve RFPs on “the grounds of First Amendment privilege.” 8 (Id at 19.)2 The RPA also raised other objections to certain RFPs and argued that the 9 requested communications “can be obtained from the government/government officials if 10 at all. And any evidence that plaintiffs intend to present in support of their theory that race 11 bears a relationship with being an active voter, no matter how objectively repugnant that 12 theory may be, can presumably be obtained through other sources and without infringing 13 on the [RPA’s] First-Amendment protected activity.” (Id. at 19-22.) Finally, the RPA 14 asserted it had been “unable to conduct a search for responsive documents” thus far but 15 that it was “entirely possible if not likely that the [RPA] simply has no responsive materials 16 to any or all of these requests . . . .” (Id. at 19-20.) 17 Between January 24, 2022, and April 29, 2022, Plaintiffs’ counsel and counsel for 18 the RPA communicated via email and telephone about the RPA’s objections and the 19 possibility that the RPA would produce documents responsive to the subpoena. (See, e.g., 20 id. at 30-40 [emails between counsel].)3 The exhibits provided by the parties suggest these 21 2 The RPA did not identify any specific privileged documents, in a privilege log or 22 otherwise. (Id. at 18-23.) 3 At least some of these communications are attached as exhibits to the parties’ joint 23 summary of the discovery dispute. (Id. at 18-40.) Plaintiffs attached the same exhibits to their motion to compel. (Doc. 161-1 at 28-50.) The RPA does not challenge the validity 24 of any of these exhibits but argues “the first several pages of Plaintiffs’ Motion mischaracterize[] the extent to which the [RPA] attempted to ‘meet and confer’ with 25 Plaintiffs in regards to their subpoena, as belied by their own counsel’s Declaration. In addition to multiple letters and emails, counsel for both sides engaged in a lengthy phone 26 call to go over each and every item in the subpoena, during which [the RPA’s] counsel informed Plaintiffs’ counsel that there were no responsive documents to several of the 27 requests, and all counsel discussed the serious problems—both legal and practical—with the subpoena.” (Doc. 171 at 1-2.) In reply, Plaintiffs argue: “[The RPA] makes unspecified 28 claims that there is a ‘mischaracterization’ of the meet and confer process in Plaintiffs’ papers. Plaintiffs stand by their description of the record here, respectfully refer the Court -3- Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 4 of 43 1 meet-and-confer attempts fizzled quickly. (Id. at 18-40.) 2 After the parties conferred telephonically on February 7, 2022, Plaintiffs’ counsel 3 sent a follow-up letter. (Id. at 25-28.) The letter (1) addressed the relevance and breadth 4 of each RFP and offered to narrow certain RFPs; (2) expressed skepticism as to the RPA’s 5 claim that no responsive documents exist for certain RFPs and requested descriptions of 6 the searches conducted; and (3) challenged the RPA’s “blanket First Amendment 7 objection” and requested a “privilege log for any responsive documents that [the RPA] 8 intends to withhold so that we can consider whether such privilege assertions are 9 appropriate.” (Id.) 10 On March 15, 2022, after receiving no response, Plaintiffs’ counsel sent a follow-up 11 email. (Id. at 37-38.) In response, counsel for the RPA stated that Plaintiffs’ “letter appears 12 to change nothing,” reiterated the “obvious First Amendment problems here” as well as 13 “more conventional problems” like “relevance, expense, and the availability of information 14 from other sources,” and asserted that “[a]s a matter of law, political parties and other 15 members of the public do not control legislators’ judgment, and are clearly entitled to freely 16 exercise their free-speech rights without fear of subpoenas exactly like this one.” (Id. at 17 36-37.) In reply, Plaintiffs’ counsel again requested a privilege log and information about 18 the searches conducted, offered “to discuss these matters further,” and emphasized “we 19 cannot accept a blanket refusal by [the RPA] to respond to the subpoena.” (Id. at 35-36.) 20 On April 29, 2022, Plaintiffs’ counsel informed the RPA’s counsel of Plaintiffs’ 21 intent to “present this dispute to the Court for resolution.” (Id. at 34-35.) Plaintiffs also 22 asked if the RPA was “willing to provide its position” in a joint submission. (Id.) After 23 to copies of the parties’ correspondence attached to their Motion, and also note that [the 24 RPA] provides nothing to refute those materials. In any event, the Opposition makes clear that [the RPA] is resisting compliance with the Subpoena in any manner, as it has from the 25 very beginning. Plaintiffs are not aware of a material dispute about the meet and confer process that is relevant to resolution of the Motion.” (Doc. 172 at 6 n.4, internal citations 26 omitted.) Neither party argues this dispute over the substance of the parties’ meet-and- confer efforts is dispositive. At any rate, under the applicable rules, a motion to compel 27 must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with the party failing to make disclosure in an effort to obtain a 28 resolution without judicial intervention. Fed. R. Civ. P. 37(a)(1); LRCiv 7.2(j). Plaintiffs fulfilled this obligation. (Doc. 161-1 at 1-2.) -4- Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 5 of 43 1 some discussion (during which the parties agreed to postpone any filing until after the 2 Court ruled on Defendants’ motion to dismiss), on July 5, 2022, the parties filed a joint 3 summary of the dispute and Plaintiffs’ alternative request for leave to file a motion to 4 compel. (Doc. 156.) 5 On July 7, 2022, “given the seeming complexity of the issues,” the Court granted 6 Plaintiffs leave to file a motion to compel. (Doc. 158.) 7 On July 14, 2022, Plaintiffs filed the pending motion to compel. (Doc. 161.) The 8 motion is now fully briefed. (Docs. 171, 172.) Neither side requested oral argument. 9 DISCUSSION 10 I. Legal Standard 11 Rule 34(c) of the Federal Rules of Civil Procedure grants parties the ability to seek 12 the production of relevant, non-privileged documents from non-parties through a subpoena 13 issued in accordance with Rule 45 of the Federal Rules of Civil Procedure. Under Rule 14 45(d)(2)(B)(i), if the recipient of such a subpoena refuses to produce requested documents, 15 the proponent may move for an order compelling production. “To obtain such an order, 16 the proponent must first show that . . . the requested material . . . [is] discoverable.” Puente 17 Arizona v. Arpaio, 314 F.R.D. 664, 667 (D. Ariz. 2016). “If the proponent makes this 18 showing, the burden shifts to the recipient to establish that the requested discovery should 19 be denied.” Id. 20 “[T]he scope of discovery through a subpoena is the same as that applicable to Rule 21 34 and the other discovery rules.” Fed. R. Civ. P. 45, advisory committee notes on the 22 1970 amendments. Under Rule 34(a), the proper scope of discovery is the same as under 23 Rule 26(b). See also Aquastar Pool Prods. Inc. v. Paramount Pool & Spa Sys., 2019 WL 24 250429, *2 (D. Ariz. 2019) (“[T]he test for ‘relevance,’ in the context of a Rule 45 25 subpoena to a non-party, is no different than the test under Rules 26 and 34.”); Brown v. 26 Sperber-Porter, 2018 WL 4091696, *3 (D. Ariz. 2018) (“Rule 26 . . . defines the 27 permissible scope of discovery and that same scope of discovery applies to a Rule 45 28 subpoena.”). Under Rule 26(b)(1), in turn: -5- Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 6 of 43 1 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the 2 case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, 3 the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its 4 likely benefit. 5 Fed. R. Civ. P. 26(b)(1). 6 “[T]he party seeking to compel discovery has the initial burden of establishing that 7 its request satisfies the relevancy requirements of Rule 26(b).” Doe v. Swift Transp. Co., 8 2015 WL 4307800, *1 (D. Ariz. 2015). This “is a relatively low bar.” Continental Circuits 9 LLC v. Intel Corp., 435 F. Supp. 3d 1014, 1018 (D. Ariz. 2020). See also Fed. R. Civ. P. 10 26(b)(1) (“Information within this scope of discovery need not be admissible in evidence 11 to be discoverable.”). 12 Rule 26(b)(1) also requires that discovery be proportional to the needs of the case. 13 In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016) (“The 2015 14 amendments also added proportionality as a requirement for permissible discovery. 15 Relevancy alone is no longer sufficient . . . .”) “The parties and the court have a collective 16 responsibility to consider the proportionality of all discovery and consider it in resolving 17 discovery disputes.” Fed. R. Civ. P. 26, advisory committee notes on the 2015 18 amendments. In other words, Rule 26 “does not place the burden of proving 19 proportionality on the party seeking discovery.” In re Bard IVC Filters, 317 F.R.D. at 564. 20 See also id. (noting that the proportionality inquiry “requires input from both sides”). 21 Finally, non-parties are entitled to special consideration when it comes to subpoena 22 requests under Rule 45. See, e.g., Dart Industries Co., Inc. v. Westwood Chemical Co., 23 649 F.2d 646, 649 (9th Cir. 1980); Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st 24 Cir. 1998). As one treatise explains: 25 [W]hen used improperly or too zealously, subpoenas can cause significant 26 hardship to . . . nonparties. And while the discovery rules generally seek to avoid undue burdens, that concern is particularly important in the subpoena 27 context precisely because the nonparty targets of the subpoenas do not have 28 a direct stake in the lawsuit. . . . [Thus], we do not expect [nonparties] to shoulder the same types of discovery burdens as the parties and are therefore -6- Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 7 of 43 1 quicker to find that the burden or expense in question is undue and offer 2 protection as needed to alleviate it. 3 1 Gensler, Federal Rules of Civil Procedure, Rules and Commentary, Rule 45, at 1370 4 (2022). “The proper way to afford this special consideration is to ‘weigh the burden to the 5 subpoenaed party against the value of the information to the serving party. Generally, this 6 requires consideration of relevance, the need of the party for the documents, the breadth of 7 the document request, the time period covered by it, the particularity with which the 8 documents are described and the burden imposed.’” Aquastar Pool Prods., 2019 WL 9 250429 at *3 (quoting Soto v. Castlerock Farming & Transport, Inc., 282 F.R.D. 492, 504 10 (E.D. Cal. 2012)). See also Eichler v. Sherbin, 520 F. App’x 560, 562 (9th Cir. 2013) 11 (quoting Dart Indus., 649 F.2d at 649, for the proposition that “limitations on discovery 12 ‘may be broader when a nonparty is the target of discovery’”). As part of this inquiry, the 13 Court may evaluate whether information requested through a non-party subpoena is readily 14 available from a party. See, e.g., Duong v. Groundhog Enterprises, Inc., 2020 WL 15 2041939, *7 (C.D. Cal. 2020); Moon v. SCP Pool Corp., 232 F.R.D. 633, 638 (C.D. Cal. 16 2005). 17 II. Overview Of The Parties’ Arguments 18 Plaintiffs make a somewhat limited request for relief in their motion to compel. 19 (Doc. 161.) In lieu of seeking an unqualified order compelling RPA to comply with the 20 subpoena, Plaintiffs seek the more intermediate relief of an order compelling the RPA to 21 (1) “conduct a reasonable search for documents responsive to the Subpoena,” (2) “disclose 22 what files are searched and in what manner (e.g., through the use of search terms or 23 otherwise),” (3) “produce those responsive documents over which the [RPA] does not 24 claim any applicable privilege,” and (4) “provide a privilege log as to the balance.” (Id. at 25 12.) Plaintiffs contend that the First Amendment associational privilege does not allow the 26 RPA to refuse to comply with the subpoena. (Id. at 11-12.) Plaintiffs also contend the 27 requested discovery is relevant to Plaintiffs’ claims and proportional to the needs of the 28 case. (Id. at 6-10.) Finally, Plaintiffs argue “there is substantial basis to believe that [the -7- Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 8 of 43 1 RPA] has responsive documents” and they are not “required to take [the RPA’s] assertions 2 [to the contrary] at face value.” (Id. at 9-10.) 3 The RPA opposes Plaintiffs’ motion. (Doc. 171.) As discussed in more detail in 4 later sections of this order, the RPA contends that (1) the requested discovery is privileged 5 under the First Amendment because requiring the RPA to produce the materials at issue 6 would chill its members’ associational rights, and Plaintiffs cannot overcome this privilege 7 because they have not demonstrated that the information sought is “highly relevant” to 8 Plaintiffs’ claims and “otherwise unavailable”; (2) Plaintiffs’ basis for subpoenaing the 9 RPA, a non-party, is “plainly inadequate” in that “[n]obody should be hauled into Court 10 simply because they publicly support a law”; (3) for various reasons, each RFP is 11 irrelevant, overbroad, argumentative, and/or unduly burdensome; and (4) the Court should 12 award costs and fees to the RPA. (Id. at 2-9.) 13 III. First Amendment Privilege 14 A. The Parties’ Arguments 15 The RPA objected to the subpoena by asserting a First Amendment privilege in 16 response to all twelve RFPs. (Doc. 156-1 at 18-23.) 17 Plaintiffs contend the RPA has failed to make a threshold showing of an arguable 18 First Amendment privilege because it has not identified, “even in broad strokes, what 19 responsive documents exist whose disclosure could implicate the First Amendment.” 20 (Doc. 161 at 11-12. See also id. at 6 [“Plaintiffs are cognizant that First Amendment 21 concerns can apply in this context. But those concerns do not justify [the RPA’s] complete 22 stonewalling of Plaintiffs’ legitimate discovery requests . . . .”].) Plaintiffs further contend 23 that, even if the RPA could make a prima facie showing, the requested documents would 24 remain subject to disclosure because Plaintiffs have a “compelling need” for those 25 documents, which “very well could be crucial to vindicating an equally weighty 26 constitutional right: the right to vote.” (Id. at 11-12.) Finally, Plaintiffs note that courts 27 “routinely require privilege logs” in this context, but the RPA has not provided one. (Id. 28 at 12.) -8- Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 9 of 43 1 In response, the RPA argues that requiring it to produce its internal documents and 2 communications simply because it supported S.B. 1485 and S.B. 1003 is “chilling to free 3 speech” and “abusive.” (Doc. 171 at 2-5. See also id. at 3 [“Americans must be free to 4 exercise their important right to speak out in support of proposed legislation without fear 5 of being hauled into Court under threat of subpoena (or having to pay for attorneys to 6 review and rebut lengthy briefs) solely because of the content of their speech.”].) Without 7 addressing the absence of a privilege log, the RPA characterizes the subpoena as 8 “Kafkaesque” and contends that enforcing the subpoena would be tantamount “to a kind 9 of court-ordered ‘Spanish Inquisition.’” (Id. at 4.) 10 In reply, Plaintiffs argue the RPA failed to make a prima facie showing of arguable 11 First Amendment infringement because it has not provided evidence that “compliance with 12 the Subpoena would subject [it] to threats, harassment, or reprisals” or cause a “chilling” 13 of its members’ associational rights. (Doc. 172 at 1-4.) 14 B. Analysis 15 The RPA’s reliance on the First Amendment as a basis for categorically refusing to 16 comply with the subpoena fails for two independent reasons. 17 First, to claim this privilege, the RPA was required to provide a privilege log 18 describing the nature of the withheld documents or communications “in a manner that, 19 without revealing information itself privileged or protected, will enable other parties to 20 assess the claim.” Karnoski v. Trump, 926 F.3d 1180, 1195 (9th Cir. 2019). See also Fed. 21 R. Civ. P. 26(b)(5)(A)(ii). A blanket assertion, like the one made here, is insufficient. 22 Perry v. Schwarzenegger, 591 F.3d 1147, 1153 n.1 (9th Cir. 2010) (“The district court also 23 observed that Proponents [of the First Amendment privilege claim] had failed to produce 24 a privilege log required by Federal Rule of Civil Procedure 26(b)(5)(A)(ii). We agree that 25 some form of a privilege log is required and reject Proponents’ contention that producing 26 any privilege log would impose an unconstitutional burden.”). See also Burlington N. & 27 Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005) 28 (“We hold that boilerplate objections or blanket refusals inserted into a response to a Rule -9- Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 10 of 43 1 34 request for production of documents are insufficient to assert a privilege.”). 2 Second, in addition to failing to provide a privilege log, the RPA failed to provide 3 the sort of evidence that is a prerequisite to the successful assertion of a First Amendment 4 privilege claim under Ninth Circuit law. As the Ninth Circuit has explained, “a claim of 5 First Amendment privilege is subject to a two-part framework.” Perry, 591 F.3d at 1160.4 6 Under the first step, the party asserting the privilege must demonstrate a prima facie 7 showing of an arguable First Amendment infringement. Perry, 591 F.3d at 1160. If the 8 proponent makes this showing, “the evidentiary burden shifts to the plaintiffs to 9 demonstrate a sufficient need for the discovery to counterbalance that infringement.” Id. 10 at 1164. In other words, once the prima facie showing is made, the Court applies “a 11 balancing test to the dispute at issue, essentially requiring both a heightened degree of 12 relevance to the subject matter of the suit and a showing by the party seeking discovery 13 that it has made reasonable, unsuccessful attempts to obtain the information elsewhere.” 14 Wilkinson v. F.B.I., 111 F.R.D. 432, 436 (C.D. Cal. 1986). 15 To make the prima facie showing required under the first step, the privilege 16 proponent must demonstrate that enforcement of the discovery request will result in either 17 (1) “harassment, membership withdrawal, or discouragement of new members” or (2) 18 “other consequences which objectively suggest an impact on, or chilling of, the members’ 19 associational rights.” Perry, 591 F.3d at 1160 (internal quotations omitted). “The 20 existence of a prima facie case turns not on the type of information sought, but on whether 21 disclosure of the information will have a deterrent effect on the exercise of protected 22 activities.” Id. at 1162. The evidence offered need show only a “reasonable probability” 23 of such harm. Brock v. Loc. 375 Plumbers Int’l Union of Am., AFL-CIO, 860 F.2d 346, 24 350 n.1 (9th Cir. 1988). However, the showing requires “objective and articulable facts, 25 which go beyond broad allegations or subjective fears.” Id. See also Dole v. Serv. Emps. 26 Union, AFL-CIO, Loc. 280, 950 F.2d 1456, 1460 (9th Cir. 1991). Such evidence may 27 4 28 This privilege applies to discovery orders even if all of the litigants are private entities. Perry, 591 at 1160 n.5. - 10 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 11 of 43 1 include, for example, declarations from members attesting to the effect of compelled 2 disclosure on their associational rights or the possibility of membership withdrawal as 3 result of compelled disclosure. See, e.g., Perry, 591 F.3d at 1163 (prima facie showing 4 satisfied by “declarations from several individuals attesting to the impact compelled 5 disclosure would have on participation and formulation of strategy,” which created a 6 “reasonable inference that disclosure would have the practical effects of discouraging 7 political association”); Dole, 950 F.2d at 1460 (prima facie showing satisfied by “two 8 letters from members who stated that they would no longer attend meetings” due to privacy 9 concerns); Am. Fed’n of Lab. & Cong. of Indus. Orgs. v. F.E.C., 333 F.3d 168, 176-77 10 (D.C. Cir. 2003) (prima facie showing satisfied by affidavits attesting that disclosure would 11 “make it more difficult for the organizations to recruit future personnel” and “frustrate the 12 organizations’ ability to pursue their political goals effectively by revealing to their 13 opponents ‘activities, strategies and tactics [that] we have pursued in subsequent elections 14 and will likely follow in the future’”).5 15 Here, to support its privilege claim, the RPA includes the following passage in its 16 response brief: 17 18 5 See also Democratic Nat’l Comm. v. Ariz. Sec’y of State’s Off., 2017 WL 3149914, 19 *2 (D. Ariz. 2017) (prima facie showing based on a detailed affidavit from the Arizona Democratic Party’s chair explaining what the requested documents contained and why 20 disclosure would “reveal[] the viewpoints, political associations, and strategies” of strategic partners in such a way that would “chill such partners from associating with the 21 ADP in the future” and “reveal to ADP’s political opponents where and when it is likely to focus its activities in future elections, thereby severely impeding its ability to advocate 22 successfully for its candidates and causes”); Aldapa v. Fowler Packing Co. Inc., 2016 WL 3361807, *5 (E.D. Cal. 2016) (prima facie showing based on a declaration stating that the 23 intended class counsel conducted seven meetings at which putative class members expressed concern about suffering harassment if their participation was disclosed to their 24 employers); Puente Arizona, 314 F.R.D. at 672-73 (prima facie showing based on an affidavit from a third party stating that an email between the third party and a legislator 25 was confidential and disclosure would “undoubtedly induce members and organizations to withdraw their participation in our current strategy sessions”); Compare McLaughlin v. 26 Serv. Emps. Union, AFL-CIO, Loc. 280, 880 F.2d 170, 175 (9th Cir. 1989) (finding, in the context of a pending Department of Labor investigation, that the union “failed to make any 27 factual showing of past or threatened first amendment infringement” when it merely offered “the declaration of one of its attorneys . . . contain[ing] argument—not facts— 28 concerning the impact of an unrestricted administrative review of the minutes of union meetings”). - 11 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 12 of 43 1 Plaintiffs’ subpoena was occasioned solely by the content of [the RPA’s] political speech (and by its alleged exercise of associational rights). If the 2 [RPA] can be ordered to respond to intrusive subpoenas for all of its “Documents and Communications” “related to actual or potential changes to 3 Arizona law or regulations on voting,” or “aspects of Arizona’s voting system,” every time it/its members bother to speak out about such things— 4 which they do often—then that will obviously be deeply chilling to their First Amendment rights. This is self-evident—after all, nobody wants to be 5 subject to a kind of court-endorsed “Spanish Inquisition” simply because they engage in political activity and/or share their opinions about new laws. 6 7 (Doc. 171 at 4.) The RPA does not, however, submit any evidence in support of these 8 assertions. 9 This showing is insufficient. The Court does not quarrel with the proposition that 10 disclosure of a political association’s internal communications could, in general, deter 11 participation in protected activities. See, e.g., Perry, 591 F.3d at 1162 (“We have little 12 difficulty concluding that disclosure of internal campaign communications can have [a 13 deterrent] effect on the exercise of protected activities.”). The difficulty here is that the 14 RPA offers no evidence of such a chilling effect. At most, it provides broad, theoretical 15 arguments by its counsel about the “fear of being hauled into Court under the threat of 16 subpoena” harming its members’ ability to “freely associate and share thoughts and 17 opinions.” (Id. at 3, 6.) But conclusory statements, alone, do not establish a prima facie 18 showing of First Amendment infringement. See, e.g., Ward v. Thompson, 2022 WL 19 4386788, *8 (D. Ariz. 2022), aff’d Ward v. Thompson, No. 22-CV-16473 (9th Cir. 2022) 20 (unpublished) (finding that plaintiffs failed to demonstrate a cognizable First Amendment 21 privilege where they “allege[d] that the subpoena ‘must be declared violative of Plaintiffs’ 22 First Amendment associational rights’” but did not explain, “beyond conclusory 23 allegations,” how enforcement “will have a deterrent effect of the exercise of protected 24 activities”); United States v. Town of Colorado City, Ariz., 2014 WL 5465104, *2 (D. Ariz. 25 2014) (prima facie showing not made where the “showing of adverse consequences is both 26 speculative and conclusory”). 27 Additionally, here, only some of the RFPs seek information that might be 28 considered internal communications of the RPA. Other RFPs seek external - 12 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 13 of 43 1 communications, such as communications between members of the RPA and members of 2 the Arizona legislature. The RPA makes no effort to explain why such communications 3 could be considered privileged from disclosure under the First Amendment. Sol v. Whiting, 4 2014 WL 12519787, *4 (D. Ariz. 2014) (rejecting former Arizona legislator’s invocation 5 of a First Amendment privilege to redact “the names of people who had emailed him about 6 matters involving S.B. 1070,” because “Perry and its progeny have all dealt with the 7 disclosure of either the identity of association members or internal communications—not 8 communications with third parties”) (citation omitted). See also Ward, No. 22-CV-16473 9 at 4-5 (“That some of the people with whom Ward communicated may be members of a 10 political party does not establish that the subpoena is likely to reveal sensitive information 11 about [the party’s] members and supporters. . . . To prevail, Ward must therefore identify 12 some reason to think that compliance with this subpoena will burden association.”) 13 (internal quotations omitted). 14 For these reasons, the RPA’s blanket First Amendment privilege challenge to the 15 subpoena fails. Because the RPA has not made a prima facie showing of arguable First 16 Amendment infringement, it is unnecessary to address the second prong of the Perry test. 17 IV. Discoverability Under Rules 26 And 45 18 The parties also dispute whether the discovery sought by Plaintiffs is relevant, 19 proportional, and not unduly burdensome. 20 A. Background 21 Before turning to the parties’ arguments, it is helpful to summarize Plaintiffs’ 22 underlying claims and the governing legal framework because the “complaint guides the 23 parties’ discovery . . . .” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000). 24 1. Legal Framework 25 In their remaining claims in this action, Plaintiffs allege that S.B. 1485 was enacted 26 for the purpose of preventing voters of color from exercising the right to vote, in violation 27 of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act. (Doc. 28 1 ¶¶ 1-4.) A legislature acts in violation of the Fourteenth and Fifteenth Amendments when - 13 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 14 of 43 1 “a discriminatory purpose [is] a motivating factor” in the legislature’s action. Vill. Of 2 Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977). See also City 3 of Mobile, Ala. v. Bolden, 446 U.S. 55, 62 (1980). Similarly, Section 2 of the Voting Rights 4 Act prohibits voting laws and practices adopted with a discriminatory purpose. Chisom v. 5 Roemer, 501 U.S. 380, 394 n.21 (1991). Thus, a showing of intent “sufficient to constitute 6 a violation of the [F]ourteenth [A]mendment” also suffices “to constitute a violation of 7 [S]ection 2.” McMillan v. Escambia Cnty., 748 F.2d 1037, 1046 (5th Cir. 1984). See also 8 Democratic Nat’l Committee v. Hobbs, 948 F.3d 989, 1038 (9th Cir. 2020), rev’d on other 9 grounds by Brnovich v. Democratic National Committee, 141 S. Ct. 2321 (2021) 10 (“[Arlington Heights] provides the framework for analyzing a claim of intentional 11 discrimination under Section 2.”). 12 In Arlington Heights, “[t]he Supreme Court articulated the following, non- 13 exhaustive factors that a court should consider in assessing whether a defendant acted with 14 discriminatory purpose: (1) the impact of the official action and whether it bears more 15 heavily on one race than another; (2) the historical background of the decision; (3) the 16 specific sequence of events leading to the challenged action; (4) the defendant’s departures 17 from normal procedures or substantive conclusions; and (5) the relevant legislative or 18 administrative history.” Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015). A plaintiff 19 need not establish any particular element in order to prevail. Pac. Shores Properties, LLC 20 v. City of Newport Beach, 730 F.3d 1142, 1156 (9th Cir. 2013). “[A]ny indication of 21 discriminatory motive may suffice to raise a question that can only be resolved by a 22 factfinder.” Id. (quotations omitted). 23 … 24 … 25 … 26 … 27 … 28 … - 14 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 15 of 43 1 2. The Requests 2 In full, RFP Nos. 1 through 8 and 10 through 126 are as follows: 3 [RFP No. 1:] All Documents and Communications related to SB 1485 or SB 1003, including without limitation any analysis of whether SB 1485 or SB 4 1003 would impact particular groups of voters more than others, such as particular racial or ethnic groups (including Native Americans), disabled 5 voters, or voters of particular age groups. . . . 6 [RFP No. 2]: All Documents and Communications from January 14, 2019 to present related to any actual or potential changes to Arizona law or 7 regulations on voting, including without limitation any analysis of whether any actual or potential changes would impact particular groups of voters 8 more than others, such as particular racial or ethnic groups (including Native Americans), disabled voters, or voters of particular age groups. . . . 9 [RFP No. 3]: All Communications from January 14, 2019 to present between 10 You and Executive Branch officials (including without limitation the Governor, Secretary of State, and Attorney General), their employees or 11 campaign staff, federal or state legislators, county election officials, or any other public officials discussing any actual or proposed changes to Arizona 12 law or regulations relating to (1) the Permanent Early Voting List; (2) the process by which a voter may “cure” an unsigned or mismatched signature 13 Early Ballot; or (3) other aspects of Arizona’s voting system. . . . 14 [RFP No. 4]: Documents from January 14, 2019 to present related to budgeting, costs, or other burdens of administering the Permanent Early 15 Voting List, both before and after the passage of SB 1485, including projections thereof. 16 [RFP No. 5]: All Documents from January 14, 2019 to present related to 17 budgeting, costs, or other burdens of administering the process by which a voter may “cure” an unsigned or mismatched signature Early Ballot, both 18 before and after the passage of SB 1003, including projections thereof. . . . 19 [RFP No. 6]: All Documents from January 14, 2019 to present related to the demographics and/or partisan affiliation of voters on the Permanent Early 20 Voting List. . . . 21 [RFP No. 7]: All Documents from January 14, 2019 to present related to the demographics and/or partisan affiliation of voters who submit Early Ballots. 22 [RFP No. 8] . . . All Documents from January 14, 2019 to present related to 23 potential or actual risk of voter fraud related to the Permanent Early Voting List, an unsigned Early Ballot, or a mismatched signature Early Ballot. . . . 24 [RFP No. 10]: All Documents related to the Cyber Ninjas Audit. . . . 25 [RFP No. 11]: All Communications between You and third-party 26 organizations, including but not limited to the Heritage Foundation, regarding SB 1485 and SB 1003, including without limitation any analysis 27 of whether SB 1485 or SB 1003 would impact particular groups of voters 28 6 RFP No. 9 is identical to RFP No. 8 and is therefore omitted. (Doc. 156-1 at 16.) - 15 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 16 of 43 1 more than others, such as particular racial or ethnic groups (including Native Americans), disabled voters, or voters of particular age groups. . . . 2 [RFP No. 12]: All Documents discussing or reflecting the legitimate state 3 interests that SB 1485 and SB 1003 further. 4 (Doc. 156-1 at 15-16.) 5 B. Relevance And Overbreadth 6 1. The Parties’ Arguments 7 All told, the RFPs seek information related to S.B. 1485 and S.B. 1003 (and whether 8 these bills would affect particular groups more than others), the demographics of early 9 voters, the administrative burdens and voter-fraud risks related to early voting, and the 10 Cyber Ninjas audit. Plaintiffs contend these materials are relevant because they “bear on 11 whether Republican officials understood the legislation would disproportionately impact 12 voters of color and whether their election integrity claims were pretextual,” which are 13 “central to the question [of] whether the Court can infer discriminatory intent.” (Doc. 161 14 at 6-10.) Plaintiffs argue the RPA is a “natural source” of the information sought because 15 the legislation “was introduced and supported by Republican legislators, and [the RPA] 16 was involved in pressing for this and similar legislation.” (Id. at 6-8. See also id. [noting 17 that the RPA’s chairwoman, Dr. Kelli Ward, “made frequent public statements regarding 18 the prevalence of election fraud in the wake of the 2020 election” and the RPA “called for 19 new voting related legislation by the Arizona legislature” in social media posts].) 20 Plaintiffs’ more specific arguments related to each individual RFP are discussed in more 21 detail below. 22 In response, the RPA contends the requested discovery is categorically irrelevant 23 because the Supreme Court’s decision in Brnovich v. Democratic National Committee, 141 24 S. Ct. 2321 (2021), “put the focus in these cases squarely on the motivations of the 25 legislature as a whole, rather than individual legislators much less non-legislators or other 26 members of the public like the [RPA].” (Doc. 171 at 4-5.) According to the RPA, “[s]uch 27 an inquiry does not permit, or even naturally lead to, intrusive subpoenas to organizations 28 or members of the public who simply supported a law.” (Id. at 5.) The RPA also argues - 16 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 17 of 43 1 that Plaintiffs offer no evidence that it worked “‘hand in glove’ [with elected officials] to 2 get these laws passed” and that Dr. Ward’s advocacy is a “plainly inadequate basis on 3 which to start issuing subpoenas to non-parties, and it also presents a serious First 4 Amendment problem.” (Id. at 2.) The RPA also contends that if its support for S.B. 1485 5 and S.B. 1003 were, alone, sufficient to justify a subpoena, “Plaintiffs could subpoena 6 hundreds of organizations and millions of people that were also supportive of the laws at 7 issue.” (Id. See also id. at 2-3 [“And by demanding that the [RPA]—as well as its 8 ‘employees, staff, officers, agents or representatives,’ which arguably includes thousands 9 of precinct committeemen—produce responsive documents, that is exactly what the 10 Plaintiffs are trying to do.”].) The RPA also asserts specific objections to individual RFPs, 11 which are addressed in more detail below. 12 In reply, Plaintiffs contend that, even after under Brnovich, the Arlington Heights 13 test for intentional discrimination still applies and the “statements of individual legislators 14 are critically relevant. Documents responsive to this Subpoena would, at the very least, 15 bear on whether [the RPA]—and thus likely other Republican officials, who are among 16 [the RPA’s] members—understood the legislation would disproportionately impact voters 17 of color and whether their election integrity claims were pretextual.” (Doc. 172 at 5, 18 internal citations omitted.) Plaintiffs also reiterate that the RPA is “uniquely positioned to 19 provide evidence that goes to the core of Plaintiffs’ claims” as a “vocal, very public 20 advocate for SB 1485 and other voting restrictions in the wake of the 2020 election . . . 21 [that] worked closely with GOP legislators to push for these bills.” (Id. at 4.) Plaintiffs 22 specifically identify the so-called “fake elector plan” as evidence of the RPA’s 23 involvement: 24 At least 11 individuals—including current and former members of the Arizona legislature—are alleged to have met at the [RPA] headquarters to 25 “falsely declare themselves the [S]tate’s official presidential electors” in the wake of the 2020 election. According to an email from [RPA]’s counsel that 26 has been publicly reported, [RPA] Chair Dr. Ward wanted to keep [the RPA]’s plan to submit these “fake” electors to Congress “under wraps” until 27 January 6th. Such reports, relying on source emails that have come to light in recent days, belie claims that [the RPA] is just a fundraising booster 28 unlikely to have relevant documents, or as [the RPA] puts it, has nothing “to do with this case.” The “fake” elector plan—[the RPA’s] counsel’s words, - 17 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 18 of 43 1 not Plaintiffs’—just like SB 1485 and other “election integrity” initiatives pushed for by [the RPA], all stem from a refusal to accept the 2020 election 2 results and to ensure that candidates preferred by the [RPA] but opposed by the majority of voters of color are elected. This is not a situation where [the 3 RPA] received a Subpoena for merely expressing its views . . . . 4 (Id. at 4-5, internal citations omitted). 5 2. Analysis 6 a. Threshold Considerations 7 As an initial matter, the Court disagrees with the RPA’s interpretation of how 8 Brnovich affects relevance in the context of this discovery dispute. The RPA contends that 9 none of the requested discovery is relevant because Brnovich held that discriminatory 10 intent refers to the “motivation of the legislature as a whole” rather than individual 11 legislators or third parties (such as the RPA). (Doc. 171 at 6.) 12 The Court already addressed, and rejected, a variant of this argument in the order 13 resolving Defendants’ motion to dismiss. (Doc. 154 at 55-59.) As noted there, Brnovich 14 does not hold that contemporaneous statements made by legislators (or third parties) are, 15 as a matter of law, irrelevant when evaluating the presence or absence of discriminatory 16 legislative intent. Of course, “[c]ourts must use caution . . . when seeking to glean a 17 legislature’s motivations from the statements of a handful of lawmakers.” United States 18 v. Machic-Xiap, 552 F. Supp. 3d 1055, 1062 (D. Or. 2021). See also United States v. 19 Rodriguez-Arevalo, 2022 WL 1542151, *4 (M.D. Pa. 2022). But that does not mean 20 evidence of an individual legislator’s motive is irrelevant to the question of the legislature’s 21 motive, particularly for discovery purposes given the relatively low bar of relevance in 22 Rule 26(b)(1). See also League of United Latin Am. Citizens v. Abbott, 2022 WL 1410729, 23 *22 n.13 (W.D. Tex. 2022) (rejecting a similar reading of Brnovich as “somewhat 24 aggressive” and noting that “statements of discriminatory intent by a committee chair made 25 during floor debate would doubtless be of some weight in judging the intentions of the 26 body as a whole, particularly at this preliminary stage”); Am. Trucking Ass’ns, Inc. v. Alviti, 27 14 F.4th 76, 90 (1st Cir. 2021) (“[W]e do not hold that evidence of individual legislators’ 28 motives is always irrelevant per se; we mean only to point out that it is often less reliable - 18 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 19 of 43 1 and therefore less probative than other forms of evidence bearing on legislative purpose 2 . . . .”). 3 The Court also notes that the RPA argues each category of information sought in 4 the subpoena is not “highly relevant.” This purported requirement—that discovery be 5 “highly relevant” to the claim—is from the second step of the First Amendment privilege 6 framework. Perry 591 F.3d at 1161 (once a prima facie showing is made, “the party 7 seeking the discovery must show that the information sought is highly relevant to the 8 claims or defenses in the litigation—a more demanding standard of relevance than that 9 under Federal Rule of Civil Procedure 26(b)(1)”). Because the RPA has not made a prima 10 facie showing of arguable First Amendment infringement, the heightened relevance 11 standard does not apply here. 12 Finally, to the extent the RPA seeks to avoid compliance with the subpoena on the 13 ground that Plaintiffs lack a sufficient basis for suspecting the RPA possesses any of the 14 documents in question, this argument fails on both the law and the facts. Legally, the 15 argument fails because, although the RPA’s brief is not entirely clear on the point, the RPA 16 appears to be arguing that Plaintiffs’ purported lack of a basis for this belief poses a First 17 Amendment retaliation problem, as opposed to a relevance problem. (Doc. 171 at 2 [“[A]ll 18 that Plaintiffs are really saying is that the [RPA’s] Chairwoman publicly supported the 19 legislation that they are challenging. This is a plainly inadequate basis on which to start 20 issuing subpoenas to non-parties, and it also presents a serious First Amendment 21 problem.”].) But as discussed in Part III above, Plaintiffs have failed to establish a prima 22 facie case of First Amendment protection. 23 To the extent this argument was intended to be a relevance argument, it fares no 24 better. Relevance addresses whether the requested documents are relevant to the 25 underlying litigation, not the likelihood that the subpoenaed party possesses the documents 26 at issue. A subpoena recipient that lacks any responsive documents need not object to the 27 subpoena on the ground that the subpoena is unlikely to result in the production of any 28 responsive documents—it can simply respond to the subpoena by certifying that nothing - 19 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 20 of 43 1 responsive was found.7 2 At any rate, even assuming the issue has some bearing on the question of relevance, 3 the Court is satisfied that Plaintiffs had a sufficient factual foundation for suspecting the 4 RPA would possess the materials sought in the subpoena. Among other things, Plaintiffs 5 present evidence that the “legislation was introduced and supported by Republican 6 legislators” (including members of the RPA), that the RPA provided vocal advocacy in 7 support of S.B. 1485 and other voting restrictions (particularly through statements by Dr. 8 Ward), that the RPA made public statements about the proffered justifications for S.B. 9 1485 (i.e., voter fraud and administrative burdens), and that other Republican Party groups 10 have intervened in this matter. (Doc. 161 at 6-13; Doc. 172 at 5-6.)8 These are sufficient 11 bases for suspecting the RPA may possess the documents at issue. 12 b. RFP Nos. 1, 2, and 11 13 RFP Nos. 1, 2, and 11 request documents and communications related to S.B. 1485 14 and S.B. 1003. (Doc. 156-1 at 15-16.) 15 The inclusion of S.B. 1003 in these requests gives the Court some pause. Plaintiffs’ 16 claims regarding S.B. 1003 have now been dismissed. (Doc. 154.) Generally, “it is proper 17 to deny discovery of matter that is relevant only to claims or defenses that have been 18 stricken . . . unless the information sought is otherwise relevant to issues in the case.” 19 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 (1978) (citations omitted). 20 Despite this, Plaintiffs contend that because “SB 1485 and SB 1003 were introduced 21 7 It might be possible for a subpoena recipient to raise an undue burden objection in this circumstance, under the theory that conducting the sort of comprehensive search 22 necessary to certify the absence of responsive documents would pose an undue burden in light of the objective unlikelihood that any responsive documents exist. The RPA has not 23 made such an argument here, and such an argument would fail in any event because, as discussed elsewhere in this order, Plaintiffs have a sufficient factual foundation for their 24 belief that the RPA may possess responsive documents. 25 8 In particular, Plaintiffs reference various posts from the RPA’s Twitter account and Dr. Ward’s Twitter account, as well as news articles reporting Dr. Ward’s involvement in 26 the so-called “fake elector plan.” (Doc. 171 at 7-8 & nn.5-9; Doc. 172 at 4-5 & n.3.). Plaintiffs also allege that at least one Republican member of the Arizona House of 27 Representatives, Representative John Kavanaugh, made statements expressing the discriminatory trope that minorities are uneducated voters (Doc. 1 ¶ 67 & n.17) and note 28 that both S.B. 1485 and S.B. 1003 were sponsored by Republican Senator Ugenti-Rita (Doc. 161 at 8). - 20 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 21 of 43 1 and advanced through the legislature at almost the same time based on the same purported 2 need to enhance election integrity in the wake of the 2020 presidential election,” it follows 3 that “[RPA] documents relevant to the justifications for both Bills are relevant whether the 4 Arizona legislature was motivated by pretextual rationales when considering various 5 voting rights bills, including SB 1485, and thus would be central to Plaintiffs’ intentional 6 discrimination claim directed at SB 1485.” (Doc. 161 at 1 n.2. See also id. [arguing 7 documents regarding S.B. 1003 are “relevant to the intentional discrimination claim as to 8 SB 1485, as the fact that the legislature was contemporaneously considering other 9 legislation also designed to adversely impact minority groups is probative of the 10 legislature’s intent with respect to SB 1485”].) Notably, the RPA does not argue in its 11 response that documents related to S.B. 1003 are no longer relevant in light of the June 12 2022 dismissal order, despite discussing other “specific problems” with each request and 13 mentioning S.B. 1003 several times in the process. (See, e.g., Doc. 171 at 6, 8.) Nor does 14 the RPA argue that allowing discovery related to S.B. 1003 (as opposed to solely S.B. 15 1485) would substantially increase the burden of complying with the subpoena. Given this 16 backdrop, although the Court is cautious about allowing discovery that could be viewed as 17 intended to revive dismiss claims, it will not sua sponte excise the references to S.B. 1003 18 in RFP Nos. 1, 2, and 11. 19 On the merits, RFP Nos. 1, 2, and 11 request documents and communications related 20 to S.B. 1485 and S.B. 1003 and their effects on particular voter groups. (Doc. 156-1 at 21 15-16.) The Court agrees with Plaintiffs that such materials are relevant within the 22 meaning of Rule 26(b). First, given the RPA’s close relationship with relevant lawmakers 23 and advocacy in support of the bill, materials bearing on whether the RPA knew (or 24 expected) that S.B. 1485 would affect particular racial groups more than others could 25 provide circumstantial evidence that lawmakers (some of whom are members of the RPA) 26 possessed the same knowledge or opinion. Brnovich, 141 S. Ct. at 2349 (noting “the law’s 27 impact on different racial groups” is one of multiple factors courts must consider when 28 determining whether a challenged law was “enacted with a racially discriminatory - 21 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 22 of 43 1 purpose”). Second, as prominent supporters of S.B. 1485, the RPA’s own reasons for 2 supporting S.B. 1485 and S.B. 1003 (including, potentially, the effect on particular racial 3 groups) are, under Ninth Circuit law, potentially relevant to legislative intent. See, e.g., 4 Ave. 6 E Invs. LLC v. City of Yuma, 818 F.3d 493, 504 (9th Cir. 2016) (“The presence of 5 community animus can support a finding of discriminatory motives by government 6 officials, even if the officials do not personally hold such views.”); Ave. 6 E Invs. v. City 7 of Yuma, 2018 WL 2446482, *1 (D. Ariz. 2018) (evidence of widespread support for or 8 opposition to legislation “based on ethnic prejudice” may “support an inference that the 9 [legislators] acted to mollify their constituents’ prejudicial concerns,” even if certain 10 specific statements were not known to legislators). 11 The RPA’s arguments to the contrary are unavailing. In relation to RFP Nos. 1, 2, 12 and 11, the RPA relies heavily on Brnovich to establish irrelevance—otherwise, it resorts 13 to conclusory statements (e.g., “the [RPA’s] views on these bills are not ‘highly relevant’ 14 to this litigation”) that are devoid of specifics. (Doc. 171 at 7-8.) Because the Court 15 disagrees with the RPA’s interpretation of Brnovich for the reasons stated above, the RPA’s 16 relevance objections are unpersuasive. 17 The RPA also contends that RFP No. 2 is overbroad because it “would encompass 18 everything from communications that the [RPA] may have with the Secretary of State 19 about changes to the Secretary’s Elections Procedures Manual, to emails about new 20 elections laws with anyone apparently, all of which have nothing to do with this suit,” and 21 would require the RPA to “disclose all of its thoughts and communications and other free 22 speech surrounding new election laws and ‘Arizona’s voting system.’” (Doc. 171 at 5.) 23 This argument is unavailing because Plaintiffs have already agreed to “narrow this Request 24 to documents, communications, and analyses of SB 1485 and SB 1003 and their potential 25 impact on any groups of Arizona voters.” (Doc. 156-1 at 25.) So narrowed, the request 26 does not broadly encompass all of the RPA’s views on any matter related to elections but 27 instead focuses on the specific election law still at issue in this case. 28 … - 22 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 23 of 43 1 c. RFP No. 3 2 RFP No. 3 requests communications between the RPA and various government 3 officials9 discussing “any actual or proposed changes to Arizona law or regulations relating 4 to” the Permanent Early Voting List and the process for curing a mismatched (or missing) 5 signature on an early ballot. (Doc. 156-1 at 15.) The RPA objects to RFP No. 3 on the 6 same grounds as RFP No. 2—namely, that (1) the discovery sought is not “highly relevant” 7 under Brnovich and would encompass materials that “have nothing to do with this suit”; 8 and (2) the request is overbroad. (Doc. 171 at 5-6.) 9 These arguments are unpersuasive. The Permanent Early Voting List and the 10 process for curing a mismatched or missing signature on an early ballot are the subjects of 11 S.B. 1485 and S.B. 1003, respectively, and thus relevant to Plaintiffs’ claims.10 12 Communications with government actors are potentially relevant “contemporary 13 statements” under Arlington Heights. Arce, 793 F.3d at 979 n.5 (describing “emails from 14 legislators evincing animus against [a racial group] while advocating for this legislation” 15 as “highly relevant to the Arlington Heights analysis”).11 Also, RFP No. 3 encompasses 16 only communications with government actors and is limited in time from January 14, 2019 17 to present. As a result, and given that the RPA’s relevance objections to RFP No. 3 rely 18 heavily on Brnovich and otherwise lack detail, Plaintiffs have established that such 19 20 9 The officials included are: “Executive Branch officials (including without limitation the Governor, Secretary of State, and Attorney General), their employees or campaign 21 staff, federal or state legislators, county election officials, or any other public officials.” (Doc. 156-1 at 15.) 22 10 As noted, although the Court is wary of authorizing discovery related to S.B. 1003, Plaintiffs have offered arguments concerning the relevance of that discovery under Rule 23 26(b)(1) and the RPA did not meaningfully respond to those arguments. 24 11 See also Puente Arizona, 314 F.R.D. at 668 (finding that “emails between [a legislator] and various third party attorneys, lobbyists, and constituents regarding anti- 25 illegal immigration legislation [the legislator] was sponsoring” were relevant to “whether the Arizona Legislature acted with a constitutionally impermissible purpose in adopting 26 H.B. 2779 and H.B. 2745”); Sol, 2013 WL 12098752 at *3 (in the context of an Equal Protection challenge to legislation, noting that “communications between Arizona 27 legislators and the people advising them through the process of drafting the legislation that eventually became S.B. 1070” were “likely to contain admissible evidence or lead to the 28 discovery of admissible evidence of those legislators’ intent in drafting and supporting S.B. 1070 as ‘contemporary statements by members of the decisionmaking body’”). - 23 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 24 of 43 1 communications are relevant within the meaning of Rule 26(b). 2 Finally, the overbreadth objection to RFP No. 3 (Doc. 171 at 5) fails for the same 3 reason as the overbreadth objection to RFP No. 2—it ignores Plaintiffs’ subsequent 4 agreement to narrow the scope of RFP No. 3 to only encompass the specific election-related 5 disputes at issue in this case. (Doc. 156-1 at 26 [“We are also willing to further narrow 6 this Request to communications with the remaining Executive Branches relating to SB 7 1485 and SB 1003, and any claims of election fraud or irregularities in the 2020 8 election.”].) 9 d. RFP Nos. 4 and 5 10 RFP Nos. 4 and 5 request documents “from January 14, 2019 to present related to 11 budgeting, costs, or other burdens of administering” the Permanent Early Voting List and 12 the process by which a voter may cure a missing or mismatched signature on an early ballot. 13 (Doc. 156-1 at 15-16.) According to Plaintiffs, RFP Nos. 4 and 5 seek relevant information 14 because “[o]ne of the justifications proffered by prominent Republicans seeking changes 15 to Arizona’s voting laws is the purported burdens associated with the PEVL and cure 16 processes.” (Id. at 26.) In response, the RPA argues that, because it does not administer 17 any early voting procedures, it is an unlikely source for detailed analyses of the 18 administrative burdens associated with such procedures. (Doc. 171 at 6-7.) 19 This objection is unavailing because, as discussed in Part IV.B.2.a, it conflates the 20 relevance of the requested documents with the likelihood that the RPA actually possesses 21 any responsive documents. Additionally, although the RPA itself is not responsible for 22 administering the election processes in question, it is conceivable that the RPA possesses 23 documents touching upon these issues in light of Plaintiffs’ proffered evidence concerning 24 the RPA’s role in promoting the legislation at issue. Thus, to the extent the RPA possesses 25 documents that are responsive to RFP Nos. 4 and 5, the Court agrees with Plaintiffs that 26 such documents are relevant within the meaning of Rule 26(b). 27 e. RFP Nos. 6 and 7 28 RFP Nos. 6 and 7 request documents “from January 14, 2019 to present related to - 24 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 25 of 43 1 the demographics and/or partisan affiliation” of early voters. (Doc. 156-1 at 16.) Plaintiffs 2 contend these documents are relevant to the “purpose of the Bills” because they “shed light 3 on how [the RPA] and the Arizona Legislature understood such legislation would impact 4 different demographic groups and individuals with different partisan affiliations.” 5 (Doc. 161 at 3.) In response, the RPA’s only relevance-related arguments are (1) the 6 requests “are hopelessly broad on their face, since they call for all documents regarding the 7 information of millions of voters”; and (2) the requested documents are, for unexplained 8 reasons, “not ‘highly relevant’ to [this] case.” (Doc. 171 at 6.)12 9 These objections lack merit. Plaintiffs made clear during the meet-and-confer 10 process that they are not seeking every document that happens to mention the demographic 11 information of an individual voter, but rather are seeking “demographics data from the 12 State that are augmented in any way, or other demographics data not provided by the State,” 13 in which case Plaintiffs “request a description of that data along with the identification of 14 any fields in the database not available from the State of Arizona.” (Doc. 156-1 at 26.) 15 This is not a “hopelessly overbroad” request. 16 The requested information is also relevant within the meaning of Rule 26(b). As 17 noted in Brnovich, although partisan and racial motives are distinct, “racially polarized 18 voting can sometimes blur the lines.” 141 S. Ct. at 2335. “While racially polarized voting 19 alone does not signal a constitutional violation, it is a factor that increases the vulnerability 20 of racial minorities to discriminatory changes in voting law.” Shelby Cnty., Ala. v. Holder, 21 570 U.S. 529, 578 (2013). See also id. (“[W]hen political preferences fall along racial 22 lines, the natural inclinations of incumbents and ruling parties to entrench themselves have 23 predictable racial effects. Under circumstances of severe racial polarization, efforts to gain 24 political advantage translate into race-specific disadvantages.”). Thus, documents related 25 to the partisan affiliations of early voters are relevant, at least for discovery purposes, to 26 Plaintiffs’ claims. 27 12 28 The RPA also raises arguments related to undue burden and availability from other sources, which are addressed in Part IV.C of this order. - 25 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 26 of 43 1 The “demographics” portion of RFP Nos. 6 and 7 presents a bit closer call. The 2 relevance of early voters’ racial and ethnic demographics is clear—as discussed elsewhere 3 in this order, evidence that the RPA considered the relationship between early voting and 4 race or ethnicity may provide circumstantial evidence that lawmakers did the same. 5 However, it is less clear why evidence related to any demographic information about early 6 voters is relevant under Rule 26(b)(1). Nevertheless, because the RPA has not raised any 7 developed argument on this point, see United States v. Sineneng-Smith, 140 S. Ct. 1575, 8 1579 (2020) (under “the principle of party presentation,” courts “should not sally forth each 9 day looking for wrongs to right” and instead should “normally decide only questions 10 presented by the parties”) (cleaned up), and because Plaintiffs have made clear through the 11 meet-and-confer process that they are simply seeking evidence of any augmentation the 12 RPA performed on demographic data provided by the State, the Court is satisfied that Rule 13 26(b)’s relatively low bar for relevance is met. 14 f. RFP Nos. 8 and 10 15 RFP Nos. 8 and 10 request information about the risks of voter fraud related to early 16 voting and the Cyber Ninjas audit.13 In the June 24, 2022 order, the Court noted the 17 relevance of the Cyber Ninjas audit to Plaintiffs’ remaining claims. (Doc. 154 at 57-58 18 [“[T]his episode is plausibly (if indirectly) related to the enactment of S.B. 1485 because 19 one of the proffered justifications for that law was the need to enhance voter integrity and 20 combat electoral fraud. If that justification was pretextual, as Plaintiffs allege, this can 21 plausibly be viewed as circumstantial evidence supporting Plaintiffs’ contention that one 22 of the true, unexpressed motivations for the law was discriminatory.”].)14 Concerns about 23 voter fraud and election integrity in the context of the 2020 election are relevant, within 24 the meaning of Rule 26(b), for the same reasons. Cf. Reeves v. Sanderson, 530 U.S. 133, 25 147 (2000) (“Proof that the defendant’s explanation is unworthy of credence is simply one 26 13 RFP No. 9 is identical to RFP No. 8. (Doc. 156-1 at 16.) The Court assumes the duplication is an error and will ignore RFP No. 9. 27 14 In their complaint, Plaintiffs allege that, despite the Cyber Ninjas audit not revealing 28 any voter fraud, Arizona legislators continued to rely on fraud-related allegations to justify S.B. 1485 and related voting restrictions. (Doc. 1 ¶ 66.) - 26 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 27 of 43 1 form of circumstantial evidence that is probative of intentional discrimination, and it may 2 be quite persuasive.”). See also D.H.S. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 3 1915 (2020) (noting that, under Arlington Heights, departures from the normal procedural 4 sequence may be evidence of a discriminatory purpose);15 Ave. 6 E, 818 F.3d at 507 (“A 5 city’s decision to disregard the zoning advice of its own experts can provide evidence of 6 discriminatory intent, particularly when, as here, that recommendation is consonant with 7 the municipality’s general zoning requirements and plaintiffs proffer additional evidence 8 of animus.”). 9 At issue here, however, is whether the RPA’s documents related to voter fraud, 10 election integrity, and the Cyber Ninjas audit are relevant within the meaning of Rule 26(b) 11 to Plaintiffs’ claims. As evidence of the RPA’s role in these events, Plaintiffs note that the 12 RPA “frequently tweets about so-called election integrity matters” (Doc. 156-1 at 26-27),16 13 that Dr. Ward “made frequent public statements regarding the prevalence of election fraud 14 in the wake of the 2020 election” (Doc. 161 at 4),17 and that Dr. Ward “lobbied for so- 15 called ‘election integrity’ bills generally, for SB 1485 specifically, and seemingly accused 16 its sponsor of accepting a bribe when earlier restrictive voting legislation failed.” (Id. See 17 also id. at 7-8 & n.6. [referencing a video posted to the RPA’s Twitter account in which 18 Dr. Ward claims that “there were ‘almost innumerable episodes of potential fraud [and] 19 voting irregularities’ and that voter fraud ‘unquestionably exists and must be 20 investigated’”]; id. at 8 n.7 [referencing a tweet from the RPA identifying “election 21 15 22 Plaintiffs allege several procedural irregularities regarding the Cyber Ninjas audit. (Doc. 1 ¶¶ 58-63.) 23 16 Plaintiffs note statements by Dr. Ward “demanding a ‘full forensic audit’ following the 2020 election,” which the RPA amplified via social media, and allege the RPA 24 “signaled its support for the State GOP Senate ‘standing strong’ to pursue audits.” (Doc. 156-1 at 27.) Plaintiffs also describe statements by the RPA about voter fraud, “mischief 25 and malfeasance” in Arizona related to voting, and flaws in voting software following the 2020 election. (Id.) 26 17 Specifically, Plaintiffs reference tweets in which Dr. Ward suggested, after an 27 earlier voting bill failed, that Arizona State Senator Ugenti-Rita (who sponsored both S.B. 1485 and S.B. 1003) accepted bribes. (Doc. 161 at 8 n.8.) In later tweet referenced by 28 Plaintiffs, Dr. Ward expressed support for Senator Ugenti-Rita in relation to S.B. 1485. (Id. at 8 n.9.) - 27 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 28 of 43 1 integrity” as a top priority “this legislative cycle”].)18 In response, the RPA argues that its 2 public support is not evidence that the RPA “had anything to do with [the audit]” and what 3 it thinks about the audit is “not ‘highly relevant’ to this case.” (Doc. 171 at 7-8.) 4 The Court agrees with Plaintiffs that the RPA’s public support for the Cyber Ninjas 5 audit and statements about voter fraud and election integrity suggest that, although the audit 6 itself was state-run, the discovery requested by RFP Nos. 8 and 10 may be relevant within 7 the meaning of Rule 26(b) to the legislature’s intent when enacting responsive voting- 8 related legislation. Plaintiffs allege that election integrity concerns, including those leading 9 to the Cyber Ninjas audit, were pretext for enacting racially discriminatory legislation. 10 Because the RPA vocally supported the legislation (and its membership includes 11 lawmakers who voted for S.B. 1485, specifically), its documents related to how early 12 voting influences election integrity and the Cyber Ninjas audit meet Rule 26(b)’s relatively 13 low threshold for relevance in light of Plaintiffs’ claim in this case. 14 Finally, the RPA also raises an overbreadth challenge to RFP No. 10, arguing that 15 the “request for ‘[a]ll documents related to’ [the Cyber Ninjas audit] is . . . plainly 16 overbroad.” (Doc. 171 at 8.)19 This argument lacks merit. RFP No. 10 requests “All 17 Documents related to the Cyber Ninjas Audit.” (Doc. 156-1 at 16.) The subpoena defines 18 the Cyber Ninjas audit as “the audit of the Maricopa County 2020 general election 19 performed by Cyber Ninjas on behalf of the Arizona State Senate beginning in April 2021, 20 with results delivered on or around September 24, 2021.” (Id. at 8.) In other words, RFP 21 No. 10 is limited by subject matter (the audit) and by time. This is not overly broad. 22 g. RFP No. 12 23 RFP No. 12, which requests “Documents discussing or reflecting the legitimate state 24 interests that SB 1485 and SB 1003 further” (Doc. 156-1 at 15), is relevant for the same 25 reasons as RFP Nos. 1, 2, 3, and 11—the RPA’s relationship with the lawmakers who 26 18 Plaintiffs also identify statements by both the RPA and Dr. Ward describing S.B. 27 1485 as “important Election Integrity legislation.” (Doc. 161 at 8 n.9.) 19 28 The RPA also raises objections to RFA No. 8 based on undue burden and a lack of narrow tailoring, which are addressed in Part IV.C of this order. - 28 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 29 of 43 1 supported S.B. 1485, combined with its own advocacy for the legislation, suggests that its 2 members’ views about what state interests would be served by S.B. 1485 (and S.B. 1003) 3 are relevant to lawmakers’ intent, at least within the meaning of Rule 26(b).20 4 C. Proportionality/Burden 5 1. The Parties’ Arguments 6 Plaintiffs contend the discovery sought is proportional to the needs of the case 7 because “[c]ourts have permitted comparable third-party discovery in voting rights cases 8 like these.” (Doc. 161 at 8.) Plaintiffs also contend the RPA “has not even attempted to 9 show that the Subpoena would actually subject it to undue burden or expense” and when 10 Plaintiffs “offered to narrow their requests,” the RPA “never substantively responded to 11 that offer, other than [to] categorically refuse to respond to the Subpoena.” (Id. at 8-9.) 12 In response, the RPA argues the requests are “generally . . . burdensome.” (Doc. 171 13 at 5. See also id. at 4 [“Plaintiffs’ requests are a Kafkaesque exercise in overbroad, 14 irrelevant, and even argumentative demands . . . .”].) The RPA also raises specific 15 proportionality and burdensomeness objections to individual RFPs, which are addressed in 16 more detail below. 17 In reply, Plaintiffs argue the RPA “complains about the breadth of some of the 18 requests but fails to come forward with any factual basis to suggest that compliance with 19 the Subpoena would be disproportionately burdensome.” (Doc. 172 at 7.) Plaintiffs also 20 note that the RPA has not submitted “declarations or anything else to the Court providing 21 any details that indicate there would be an inordinate or disproportionate burden if it were 22 required to comply” and “instead rests on its own unilateral and untenable position that it 23 ‘has nothing to do with this case.’” (Id.) Plaintiffs characterize the RPA as “completely 24 stonewall[ing]” during discovery and “drag[ging] out the process in an effort to avoid 25 producing responsive information.” (Id. at 7-8.) Finally, and as discussed in more detail 26 27 20 The RPA’s assertion that “such things would not be ‘highly relevant’ to Plaintiffs’ suit as they would just contain the views or other thoughts of the [RPA], which are of no 28 relevance to their suit” (Doc. 171 at 7) is unpersuasive for the reasons stated elsewhere in this order. - 29 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 30 of 43 1 below, Plaintiffs respond to the RPA’s specific objections to individual RFPs. (Id. at 6-8.) 2 2. Analysis 3 a. Initial Considerations 4 Under Rule 26(b)(1), the proportionality analysis involves “considering the 5 importance of the issues at stake in the action, the amount in controversy, the parties’ 6 relative access to relevant information, the parties’ resources, the importance of the 7 discovery in resolving the issues, and whether the burden or expense of the proposed 8 discovery outweighs its likely benefit.” Assessing proportionality requires the input of 9 both parties: 10 A party claiming undue burden or expense ordinarily has far better information—perhaps the only information—with respect to that part of the 11 determination. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information 12 bears on the issues as that party understands them. The court’s responsibility, using all the information provided by the parties, is to consider these and all 13 the other factors in reaching a case-specific determination of the appropriate scope of discovery. 14 15 Fed. R. Civ. P. 26, advisory committee notes on the 2015 amendments. See also In re Bard 16 IVC Filters, 317 F.R.D. at 564 (“The inquiry to be conducted under the proportionality 17 requirement, therefore, requires input from both sides.”). Also, the special consideration 18 afforded to non-parties when it comes to subpoena requests under Rule 45 involves 19 weighing the burden to the subpoenaed party against the value of the information to the 20 serving party. Aquastar Pool Prods., 2019 WL 250429, at *3. This includes considering 21 whether the information is available elsewhere.21 22 As for the first factor of the proportionality analysis, there is no question that the 23 issues in this case are important. See, e.g., Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) 24 21 The RPA argues that many of the RFPs seek information that is “otherwise 25 available” (i.e., information that could be sought from a party to the litigation). The “otherwise available” requirement is from the second step of the First Amendment 26 privilege framework. Perry 591 F.3d at 1161. Here, because the RPA has not made a prima facie showing of arguable First Amendment infringement, whether the information 27 is otherwise available is not dispositive. Nevertheless, because the RPA is a non-party, whether information is available elsewhere, particularly from a party to the litigation, is 28 one relevant consideration when determining whether enforcing the request is appropriate. Moon, 232 F.R.D. at 638. - 30 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 31 of 43 1 (“Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic 2 society. Especially since the right to exercise the franchise in a free and unimpaired manner 3 is preservative of other basic civil and political rights, any alleged infringement of the right 4 of citizens to vote must be carefully and meticulously scrutinized.”). 5 The second factor, the amount in controversy, is inapplicable because Plaintiffs are 6 not seeking money damages. 7 Neither party addresses the third factor (relative resources) or the fourth factor (the 8 parties’ relative access to the information). As noted in the Court’s previous order, 9 however, “most of the relevant facts about . . . the purposes animating . . . SB 1485 are 10 possessed solely by the State, its counties, and other governmental actors. Discovery may 11 help illuminate those purposes.” (Doc. 154 at 57, internal quotations omitted.) 12 Most of the parties’ arguments bear on the fifth and sixth factors—the importance 13 of the information to resolving the issues and the relative burden on the RPA—and thus 14 significantly overlap with the special consideration afforded to the RPA as a non-party. As 15 for the fifth factor, for reasons summarized earlier in this order, Plaintiffs have established 16 the information sought is relevant to their remaining claims. This indicates the requested 17 discovery is important to resolving the issues. See also Arlington Heights, 429 U.S. at 266 18 (“Determining whether invidious discriminatory purpose was a motivating factor demands 19 a sensitive inquiry into such circumstantial and direct evidence of intent as may be 20 available.”). Nevertheless, because the RPA is a non-party, the necessity of the discovery 21 to Plaintiffs may need to be greater to justify compelling the RPA to bear the burdens of 22 discovery. In other words, the sixth factor—whether the burden or expense of the proposed 23 discovery outweighs its likely benefit, Fed. R. Civ. P. 26(b)(1)—is particularly important 24 here. See, e.g., Dart Indus., 649 F.2d at 649 (“[T]he word nonparty serves as a constant 25 reminder of the reasons for the limitations that characterize ‘third-party’ discovery.”) 26 (citation and quotations omitted). 27 … 28 … - 31 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 32 of 43 1 b. “Otherwise Available” 2 The RPA asserts that at least some of the information sought by Plaintiffs’ subpoena 3 is “otherwise available.” (Doc. 171 at 5-8.) 4 In general, “there is a preference for parties to obtain discovery from one another 5 before burdening non-parties with discovery requests.” Soto, 282 F.R.D. at 505. 6 “Consequently, where plaintiffs have not shown they attempted to obtain documents from 7 the defendant in an action prior to seeking the documents from a non-party, a subpoena 8 duces tecum places an undue burden on a non-party.” Id. See also Moon, 232 F.R.D. at 9 637-38 (holding that where the propounding party could “more easily and inexpensively 10 obtain the documents” from a party to the litigation, a non-party subpoena seeking those 11 documents is unduly burdensome); Hickman v. Mead, 2019 WL 3837784, *2 (D. Nev. 12 2019) (“The court also has an obligation to protect non-parties from being burdened with 13 subpoenas for documents that can more easily and inexpensively be obtained from the 14 opposing party.”).22 15 As an initial matter, many of the RPA’s arguments on this topic fail to account for 16 the manner in which Plaintiffs agreed to narrow the scope of the subpoena during the meet- 17 and-confer process. As discussed above, Plaintiffs have agreed that RFP No. 2 may be 18 limited to “documents, communications, and analyses of SB 1485 and SB 1003 and their 19 potential impact on any groups of Arizona voters” and that RPF No. 3 may be construed 20 as excluding any “communications in the possession, custody, or control of the Arizona 21 Attorney General or Secretary of State” and as further “limited to “communications with 22 the remaining Executive Branches relating to SB 1485 and SB 1003, and any claims of 23 election fraud or irregularities in the 2020 election.” (Doc. 156-1 at 25-26.) 24 As for RFP Nos. 4 and 5, the RPA contends information about the administrative 25 22 Many of the decisions regarding burden were issued before the 2015 amendments 26 to Rule 26(b)(1) and analyzed burden in the context of whether a subpoena should be quashed because it subjected a party to “undue burden” under Rule 45(d)(3)(A)(iv) (rather 27 than burden in the context of Rule 26(b)(1)). However, the undue burden analysis overlaps substantially with the special consideration afforded to non-party subpoenas in that both 28 require a court to weigh the value of the information to the propounding party against the burden imposed on the recipient. - 32 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 33 of 43 1 burdens related to early voting is “clearly available from the State.” (Doc. 171 at 7.) The 2 Court agrees with the RPA that the State is likely a better source for relevant financial data. 3 However, for reasons discussed earlier in this order, the RPA’s knowledge of and opinions 4 about such data may provide important circumstantial evidence of lawmakers’ knowledge 5 and opinions. Further, the RPA does not argue that responding to RFP Nos. 4 and 5 would 6 be burdensome—in fact, it offers no proportionality arguments related to these two requests 7 other than the conclusory statement that the requested information is available from the 8 State. Because the “otherwise unavailable” requirement is not dispositive here, and 9 Plaintiffs provide convincing explanations for why they believe the RPA’s documents on 10 these issues are important to their case, the Court is not persuaded that RFP Nos. 4 and 5 11 should be narrowed or stricken on proportionality and burdensomeness grounds. 12 For the same reasons, the RPA’s argument that documents responsive to RFP Nos. 13 8 and 12 are available from the State is unpersuasive. As Plaintiffs correctly note, these 14 requests “seek documents that are relevant to assessing what interests the legislation 15 supposedly furthers and whether claims by supporters—including the [the RPA]—that SB 16 1485 and similar legislation was necessary to prevent election fraud and promote election 17 integrity were legitimate, or merely pretextual.” (Id. at 161 at 3-4. See also Doc. 172 at 5 18 [“Documents responsive to this Subpoena would, at the very least, bear on whether . . . 19 their election integrity claims were pretextual.”]. In other words, the Court is not convinced 20 that the information available from the State regarding administrative burdens related to 21 early voting, voter fraud risks related to early voting, and state interests furthered by the 22 challenged legislation is identical to the information Plaintiffs are seeking from the RPA 23 in RFP Nos. 4, 5, 8, and 12. The RPA’s failure to discuss whether complying with these 24 requests would pose a burden further supports compelling compliance. See, e.g., Blemaster 25 v. Sabo, 2017 WL 4843241, *4 (D. Ariz. 2017) (“The Sabos’ boilerplate objections are 26 inappropriate, tantamount to no objection at all.”). 27 As for RFP Nos. 6 and 7, as discussed elsewhere in this order, Plaintiffs have offered 28 to limit these requests to any “demographics data from the State that are augmented in any - 33 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 34 of 43 1 way, or other demographics data not provided by the State,” in which case Plaintiffs 2 “request a description of that data along with the identification of any fields in the database 3 not available from the State of Arizona.” (Doc. 156-1 at 26.) Plaintiffs contend the RPA 4 “never substantively responded to that offer, other than to categorically refuse to respond 5 to the Subpoena.” (Doc. 161 at 9.) This contention is supported by the exhibits attached 6 to the parties’ joint summary of the dispute and to Plaintiffs’ motion to compel. (Doc. 7 156-1 at 30-40; Doc. 161-1 at 40-50.) The RPA disputes Plaintiffs’ characterization of its 8 meet-and-confer efforts but does not specifically disavow this allegation. (Doc. 171 at 9 1-2.) Nor does the RPA provide any details about its discovery efforts (other than alleging 10 there were “multiple letters and emails” and “a lengthy phone call to go over each and 11 every item in the subpoena”). (Id.) In the Court’s view, Plaintiffs’ offer during the meet- 12 and-confer process seems like a reasonable compromise and avoids any suggestion that 13 RFP Nos. 6 and 7 are disproportionate because they seek information that is otherwise 14 available from the State. 15 As for RFP Nos. 1 and 11, the Court is not convinced they seek communications 16 available from other sources. These requests seek all materials related to whether S.B. 17 1485 or S.B. 1003 affect particular groups more than others, not simply communications 18 with public officials (unlike RFP No. 3). Further, there is no indication (or argument) that 19 RFP Nos. 1 and 11 include primarily communications available from the State, such that 20 the burden of complying with these requests would be substantially reduced by adding 21 language that excludes information available from the State.23 Thus, the fact that some 22 unknown subset of the communications responsive to RFP Nos. 1 and 11 may be available 23 from the State does not establish that those requests are disproportionate under Rule 24 26(b)(1). 25 … 26 27 23 Also, given the parties’ inability to engage cooperatively in discovery thus far, the Court is concerned that adding a clause to RFP Nos. 1 and 11 to exclude “communications 28 with State officials that are otherwise available from the State” will lead to more, rather than less, disagreement. - 34 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 35 of 43 1 c. Particularity 2 The RPA also objects to three phrases within the RFPs as imprecise or ambiguous: 3 (1) “burdens of administering” (RFP Nos. 4 and 5); (2) “actual or potential voter fraud” 4 (RFP No. 8); and (3) “legitimate state interests” (RFP No. 12). 5 The “particularity with which the documents are described” is relevant to whether 6 a discovery request is unduly burdensome. Aquastar Pool Prods., 2019 WL 250429 at *3. 7 Unfortunately, the parties’ discussion of the phrase “burdens of administering” leaves 8 much to be desired.24 The RPA merely states it is “unclear”; Plaintiffs do not respond. 9 (Doc. 171 at 7; see generally Doc. 172.) In the Court’s view, the operative phrases are: 10 “budgeting, costs, or other burdens of administering the Permanent Early Voting List, both 11 before and after the passage of SB 1485, including projections thereof” (RFP No. 4) and 12 “budgeting, costs, or other burdens of administering the process by which a voter may 13 ‘cure’ an unsigned or mismatched signature Early Ballot, both before and after the passage 14 of SB 1003, including projections thereof” (RFP No. 5). (Doc. 156-1 at 15-16.) Cf. Deal 15 v. United States, 508 U.S. 129, 132 (1993) (noting it is a “fundamental principle of . . . 16 language itself . . . that the meaning of a word cannot be determined in isolation, but must 17 be drawn from the context in which it is used”) (internal ellipses omitted). With this added 18 context, RFP Nos. 4 and 5 are not unclear. The ordinary and common meaning of these 19 words indicates they refer to administrative costs related to early voting—for example, the 20 costs of mailing early ballots to all voters on the Permanent Early Voting List or the amount 21 of staff time required to process post-election cures of missing signatures. See, e.g., 22 Arizona Democratic Party v. Hobbs, 18 F.4th 1179, 1186, 1190-91 (9th Cir. 2021) 23 (discussing the evidence that “allowing a five-day grace period beyond Election Day to 24 supply missing signatures would indeed increase the administrative burdens on the State 25 24 26 Ideally, Plaintiffs would define all ambiguous terms in the Definitions section of the subpoena (“Attachment A”); perhaps a definition of “burdens of administering” would be 27 helpful. However, the Court notes Plaintiffs did include more than three pages of definitions (Doc. 156-1 at 8-11) and, based on the exhibits attached to the parties’ joint 28 dispute summary, Defendants do not appear to have voiced confusion during the meet-and- confer process about any specific terms (id. at 18-40). - 35 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 36 of 43 1 to some extent”). 2 As for RFP No. 8, the RPA contends that searching for responsive documents would 3 be difficult “as a practical matter” because the phrase “actual or potential voter fraud” is 4 unclear. (Doc. 171 at 7.) This argument is unavailing. RFP No. 8 does not request 5 documents related to “actual or potential voter fraud” in general—it requests documents 6 related to “potential or actual risk of voter fraud related to the Permanent Early Voting List, 7 an unsigned Early Ballot, or a mismatched signature Early Ballot.” (Doc. 156-1 at 16.). 8 The terms “Permanent Early Voting List” and “Early Ballot” are both defined. (Id. at 9- 9 10.) RFP No. 8 is also limited to documents from January 14, 2019 to present. (Id. at 16.) 10 Considering the RPA publicly (and frequently) voiced concerns about voter fraud and 11 election integrity during this period and that the same concerns were used to justify S.B. 12 1485, its argument that the terms are so unclear that it cannot “search for, as a practical 13 matter . . . documents that were responsive to these . . . requests” (Doc. 171 at 7, internal 14 ellipses omitted) is unconvincing. 15 The RPA next contends the phrase “legitimate state interests” in RFP No. 12 is 16 unclear such that it would be difficult to respond to the request. (Id. at 6.) The RPA’s 17 primary objection seems to be that “legitimate” is a subjective term. (Id. [“What Plaintiffs 18 consider to be ‘the legitimate state interests that SB 1485 and SB 1003 further’ is at once 19 argumentative and unclear.”].) Therefore, the Court will change the request to “state 20 interests” to remove the subjective element. In this context, it seems clear that Plaintiffs 21 are requesting documents related to why the RPA supported and advocated for S.B. 1485 22 and S.B. 1003—in other words, what state interests the RPA felt were served by the 23 legislation. 24 d. Time And Expense Required To Comply 25 “The Federal Rules . . . afford nonparties special protection against the time and 26 expense of complying with subpoenas.” Exxon Shipping Co. v. U.S. Dep’t of Interior, 34 27 F.3d 774, 779 (9th Cir. 1994). Accordingly, had the RPA provided any reasoned argument 28 or evidentiary support for its assertion that complying with the subpoena would be - 36 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 37 of 43 1 “burdensome,” the Court would have been particularly receptive. Unfortunately, the RPA 2 fails to articulate how the factors relevant to burden (i.e., cost of searching, time constraints, 3 lack of resources, inconvenience) play out in this case.25 See, e.g., Amazing Ins., Inc. v. 4 DiManno, 2020 WL 5440050, *4 (E.D. Cal. 2020) (“Plaintiff and third-party defendants 5 have not satisfied their burden to show that responding to the discovery requests poses an 6 undue burden. They have not submitted affidavits or other evidence to support their undue 7 burden argument, nor have they submitted summaries or other information about the 8 discovery already produced to establish that the requested ESI would be duplicative or 9 unreasonably cumulative.”). It is unclear how voluminous the RPA expects the responsive 10 discovery would be, how logistically difficult it would be for the RPA to comply to the 11 subpoena, and whether compliance would impose large costs on the RPA. The Court also 12 takes into account Plaintiffs’ offers to narrow several of the requests (particularly to avoid 13 requesting discovery that is available from a party to the litigation), the relevance of the 14 documents sought by Plaintiffs, and the fact that most of the relevant facts about the 15 purposes behind S.B. 1485 are not possessed by Plaintiffs. Thus, even considering the 16 RPA’s non-party status, the Court does not find that the burden imposed by compliance 17 with the subpoena (as narrowed by Plaintiffs and further modified by this order) outweighs 18 the value of the discovery to Plaintiffs. 19 V. Search Methodology 20 The parties dispute whether the RPA provided sufficient details about the searches 21 it conducted. 22 A. Background 23 Exhibits attached to the joint dispute summary (Doc. 156) suggest that, sometime 24 between January 24 and February 24, 2022, the RPA notified Plaintiffs that it had 25 “conducted some searches” for documents responsive to RFP Nos. 1, 3, 4, 5, 6, and 11 and 26 “that no responsive documents exist other than those that are publicly available.” (Doc. 27 25 If anything, the RPA’s insistence that it has “nothing to do with this suit” and 28 assertion that it has no documents responsive to certain RFPs (Doc. 171 at 5-8) suggests that compliance would not be too burdensome. - 37 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 38 of 43 1 156-1 at 27.) On February 24, 2022, Plaintiffs’ counsel sent a letter to the RPA that, among 2 other things, stated: 3 Given that there is no dispute that [the RPA] has created publicly available information on these bills, it naturally follows that there must have been at 4 least some non-public documents that were created before the publicly released versions of the documents you referenced. We request copies of 5 those documents if they exist. We also request a complete description of the searches that [the RPA] conducted, specifically, the names of the custodians 6 whose records were searched, their title and role, the search terms or other methods of search used, and the sources and file locations searched, along 7 with sufficient further detail about those sources such that we can assess whether the search was likely to identify responsive information. 8 9 (Id.) In follow-up emails, counsel for the RPA did not respond to this request. (Id. at 10 37-39.) Sometime between March 22, 2022 and April 8, 2022, Plaintiffs sent another email 11 renewing this request: “[G]iven the public statements we cited in our letter, it seems quite 12 unlikely that [the RPA] possesses no unique responsive documents, as was suggested 13 during our first discussion about the subpoena, and we have not received any of the 14 information we requested regarding any searches that may have been conducted.” (Id. at 15 36.) It appears the RPA again did not respond. 16 B. The Parties’ Arguments 17 Plaintiffs request an order compelling the RPA to “(1) conduct a reasonable search 18 for documents responsive to the Subpoena; [and] (2) disclose what files are searched and 19 in what manner (e.g., through the use of search terms or otherwise) . . . .” (Doc. 161 at 12.) 20 Plaintiffs challenge the RPA’s “claim[] that it has been unable to locate any responsive 21 documents other than (perhaps) documents publicly available on [the RPA’s] website” and 22 contend the RPA “almost certainly has information in its possession that is responsive to 23 the Subpoena” given its “social media accounts and similar publicly available information 24 demonstrate . . . [that the RPA] was instrumental in advocating for SB 1485 or other voting 25 restrictions in 2021. . . . [The RPA] and its Chairwoman, Dr. Kelli Ward, made frequent 26 public statements regarding the prevalence of election fraud in the wake of the 2020 27 election, lobbied for so-called ‘election integrity’ bills generally, lobbied for SB 1485 28 specifically, and seemingly accused its sponsor of accepting a bribe when earlier restrictive - 38 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 39 of 43 1 voting legislation failed.” (Id. at 6-8.) Plaintiffs contend they are not “required to take [the 2 RPA’s] assertions at face value. Requiring [the RPA] to provide additional detail about its 3 search methodology imposes virtually no burden on [the RPA] and will ensure that 4 Plaintiffs are not deprived of potentially critical discovery because of an inadequate search 5 for responsive material.” (Id. at 9.) 6 The RPA does not directly respond to this argument beyond agreeing that its counsel 7 “informed Plaintiffs’ counsel that there were no responsive documents to several of the 8 requests” during the meet-and-confer process. (Doc. 171 at 1-2. See also id. at 8 [“[T]he 9 [RPA] conducted a search for the bill numbers (SB 1485 and SB 1003) on its email server 10 and did not find anything responsive.”].) 11 In reply, Plaintiffs argue the RPA “does not describe that search in any detail. And 12 there is no reason to be believe that searching only for a bill’s number is sufficient to 13 identify responsive documents. Nor does [the RPA] represent that it searched in any 14 fashion for responsive text messages in its possession, custody, or control, which is critical 15 in a case like this.” (Doc. 172 at 6, internal citations omitted.) In a footnote, Plaintiffs 16 elaborate on the requested search description: “For example, i) why that email server was 17 the right one to check, ii) whether the search was done in a way likely to identify responsive 18 documents, iii) whose email accounts were searched, iv) during what time period, v) 19 whether any other keywords are likely to identify relevant information, vi) whether there 20 are other sources of potentially relevant information that were not checked, and vii) 21 whether responsive records were discarded but available on back-ups.” (Id. at 6 n.5.) 22 C. Analysis 23 Courts are hesitant to require discovery into a subpoena recipient’s search 24 methodology absent specific evidence that the methodology was inadequate. See, e.g., 25 Terpin v. AT&T Inc., 2022 WL 3013153, *6 (C.D. Cal. 2022) (“[W]hen courts have 26 allowed discovery into search terms after document production has already occurred, those 27 courts had concluded from specific evidence in the factual record that the producing party’s 28 searches and/or disclosures were facially inadequate. . . . Here, Plaintiff insists that it - 39 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 40 of 43 1 should be permitted to test the completeness of Defendant’s production, but Plaintiff offers 2 only speculation and unsupported assertions.”); FormFactor, Inc v. Micro-Probe, Inc., 3 2012 WL 1575093, *7 (N.D. Cal. 2012) (“Regarding Plaintiff’s alleged failure to produce 4 other documents, the Court finds that Micro-Probe has not made a sufficient showing that 5 responsive documents were withheld or that its objections were not well taken. Micro- 6 Probe states it has ‘grave doubts’ that Plaintiff has failed to produce all responsive 7 documents because Eldridge was not aware of any document searches after his initial 8 deposition and because Plaintiff’s document production was low relative to MicroProbe’s. 9 These facts alone, however, do not provide a colorable basis for Micro-Probe’s belief that 10 relevant, responsive documents exist and are being withheld.”). 11 Here, Plaintiffs have offered evidence that the RPA is likely to have responsive 12 materials. Nevertheless, given the RPA’s non-party status, the narrowed scope of the 13 subpoena, and the Court’s impression that the RPA has, to date, focused more of its efforts 14 on formulating objections to the subpoena than on searching for responsive documents, the 15 Court will simply order the RPA to comply with the parameters of the subpoena as 16 narrowed herein and will not, at least for the time being, order the RPA to provide specific 17 information regarding its resulting searches for responsive information. This ruling is 18 without prejudice to Plaintiffs’ ability to renew their request for compelled disclosure on 19 this topic should future disagreements about compliance arise. 20 VI. Fees And Costs 21 The parties’ final dispute concerns whether the RPA is entitled to cost-shifting 22 and/or an award of costs and fees. The RPA asks the Court to “shift the burden and expense 23 of such disclosure to Plaintiffs pursuant to Fed.R.Civ.P. 45(d)(2)(B)(ii)” and also “requests 24 an award of its fees and costs under any applicable authority.” (Doc. 171 at 8-9.) In reply, 25 Plaintiffs contend that “[n]o basis for cost shifting exists here because [the RPA’s] cursory 26 argument says nothing about, much less establishes, that any costs to comply with the 27 Subpoena would be significant, as required to support a cost-shifting claim.” (Doc. 172 at 28 8 n.6.) Plaintiffs also note that there is no “basis to suggest that Plaintiffs issued the - 40 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 41 of 43 1 Subpoena in bad faith, for an improper purpose, or in a manner inconsistent with existing 2 law such that an award of costs and fees could be even remotely appropriate.” (Id., internal 3 quotations omitted.) 4 Under Rule 45(d)(2)(B)(ii), when a court orders compliance with a subpoena over 5 an objection, “the order must protect a person who is neither a party nor a party’s officer 6 from significant expense resulting from compliance.” In Legal Voice v. Stormans, 738 7 F.3d 1178 (9th Cir. 2013), the Ninth Circuit held that the “plain language” of the Rule 8 45(d)(2)(B)(ii) “requires the district court to shift a non-party’s costs of compliance with a 9 subpoena, if those costs are significant.” Id. at 1184. 10 Despite the Court’s duty to protect non-parties like the RPA from significant 11 expense, the RPA is not entitled to cost shifting here for the simple reason that it has made 12 no factual showing in support of its request. “[T]he nonparty seeking cost shifting must 13 demonstrate that its costs are reasonable and resulted from compliance with the subpoena.” 14 Balfour Beatty Infrastructure, Inc. v. PB & A, Inc., 319 F.R.D. 277, 281-82 (N.D. Cal. 15 2017). See also United States v. McGraw–Hill Companies, Inc., 302 F.R.D. 532, 536 (C.D. 16 Cal. 2014) (“Rule 45 does not cut a blank check to non-parties—unnecessary or unduly 17 expensive services do not ‘result from compliance’ and, therefore, do not count as 18 ‘expenses.’’”). The RPA has not itemized (or even mentioned) its expenses, so the Court 19 has no way of knowing whether they were reasonably incurred and/or “significant.” See 20 also Hyundai Motor Am., Inc. v. Pinnacle Grp., LLC, 2016 WL 6208313, *2 (C.D. Cal. 21 2016). 22 The RPA also cites no law in support of its request for an “award of its fees and 23 costs.” (Doc. 171 at 8-9.) It is possible this request is in reference to Rule 45(d)(1), which 24 authorizes the imposition of sanctions (“which may include lost earnings and reasonable 25 attorney’s fees”) against a party or attorney for issuing a subpoena “imposing undue burden 26 or expense on a person subject to the subpoena.” Unlike Rule 45(d)(2)(B)(ii), Rule 27 45(d)(1) is discretionary. Legal Voice, 738 F.3d at 1185. “A court may . . . impose 28 sanctions when a party issues a subpoena in bad faith, for an improper purpose, or in a - 41 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 42 of 43 1 manner inconsistent with existing law.” Id. 2 Here, assuming the RPA was requesting Rule 45(d) sanctions, the Court cannot say 3 the subpoena was facially overbroad or that Plaintiffs acted in bad faith or with an improper 4 motive. Also, “when considering Rule 45(d) sanctions, we have put more emphasis on the 5 recipient’s burden than on the issue’s motives.” Id. at 1186 (internal quotations omitted). 6 The Court has already determined that the RPA provided little to no information indicating 7 that enforcement would impose an undue burden. See also Mount Hope Church v. Bash 8 Back!, 705 F.3d 418, 429 (9th Cir. 2012) (finding sanctions were not appropriate where the 9 party did not subpoena information in bad faith and “the demands of the subpoena were 10 focused and not unduly burdensome in terms of required production of documents”). Thus, 11 an award of attorneys’ fees and costs under Rule 45(d)(1) is unwarranted. 12 VII. Conclusion 13 The Court recognizes there is a significant risk of abuse when a political party 14 attempts to use a Rule 45 subpoena to gather materials, including internal analyses with 15 potential competitive ramifications, from an opposing political party. In a different case 16 with a different record, such concerns might very well counsel in favor of denying a motion 17 to compel. Nevertheless, here the RPA has failed to substantiate many of its contentions, 18 failed to provide a privilege log, and frequently resorted to boilerplate objections. See also 19 Ward, No. 22-CV-16473 at 5-6 (noting that if vague objections that the requested 20 information is “of a political nature” were sufficient to implicate the First Amendment 21 privilege, “it would mean that anyone could raise a First Amendment objection to any 22 subpoena for records of calls that included discussions of politics—or, presumably, of 23 ‘social, economic, religious, [or] cultural’ matters. . . . But that is not the law.”). Given 24 that backdrop, and in light of the limited nature of the relief sought in Plaintiffs’ motion— 25 Plaintiffs are not seeking a conclusive determination that the RPA has forfeited any claim 26 of First Amendment privilege and acknowledge the RPA may withhold documents in 27 response to this order by producing a privilege log—the Court agrees that Plaintiffs are 28 entitled to much of the relief they currently seek. - 42 - Case 2:21-cv-01423-DWL Document 184 Filed 10/27/22 Page 43 of 43 1 Accordingly, 2 IT IS ORDERED that Plaintiffs’ motion to compel (Doc. 161) is granted in part 3 and denied in part, as discussed herein. 4 Dated this 27th day of October, 2022. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 43 -