Case 5:21-cv-00844-XR Document 630 Filed 06/21/23 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

LA UNIÓN DEL PUEBLO ENTERO, et al.,

Plaintiffs,
CIVIL ACTION NO.
v. 5:21-cv-844-XR
[Consolidated Action: Lead Case]
STATE OF TEXAS, et al.,

Defendants.

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HARRIS COUNTY REPUBLICAN PARTY,

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et al.,

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Intervenor-Defendants.
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LUPE PLAINTIFFS’ OPPOSED MOTION TO COMPEL PRODUCTION OF

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DOCUMENTS FROM DEFENDANTS JANE NELSON AND JOHN SCOTT

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Plaintiffs La Unión del Pueblo Entero, et al. (“LUPE Plaintiffs”)1 file this motion to compel
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and request that the Court order that Defendants Jane Nelson and John Scott produce documents
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withheld based on improper assertions of the attorney-client privilege, deliberative process

privilege, and investigative privilege. Based on sweeping claims of privilege, Jane Nelson

(“SOS”) and John Scott (“OAG”)2 withheld or redacted 927 documents that largely contain factual

1
LUPE Plaintiffs are La Unión del Pueblo Entero, Friendship-West Baptist Church, Southwest Voter
Registration Education Project, Texas Impact, Mexican American Bar Association of Texas, Texas
Hispanics Organized for Political Education , Jolt Action, William C. Velasquez Institute , FIEL Houston
Inc., and James Lewin.
2
For ease of reference, throughout the brief, LUPE Plaintiffs refer to the Defendants by the respective
offices over which they are the chief official: the Office of the Secretary of State (Nelson) and the Office
of the Attorney General (Scott).

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information regarding election administration, or are reports that reflect neither agency

decisionmaking protected by the deliberative process privilege nor legal advice protected by the

attorney-client privilege. And to the extent that the deliberative process and investigative

privileges do apply, those qualified privileges must yield here to the needs of discovery,

particularly in light of the relevance of the evidence pertaining to the discriminatory effect of SB1’s

implementation and the unavailability of the evidence elsewhere.

During the meet and confer process, LUPE Plaintiffs identified and requested a narrowed

subset of those approximately 927 documents that it sought, but the parties have been unable to

resolve their disagreements over those privileges through the meet-and-confer process. LUPE

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Plaintiffs therefore respectfully seek relief from the Court.

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I. BACKGROUND
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This case involves a challenge by LUPE Plaintiffs to SB1, a 2021 law that makes
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significant changes to how Texas voters cast ballots in elections.

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On February 15, 2023, LUPE Plaintiffs propounded their second set of document requests
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to SOS and OAG. See Exs. A (requests to SOS) and B (requests to OAG). Following several
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meet-and-confer exchanges regarding search terms for those document requests, SOS and OAG

produced documents they determined were responsive and not privileged. In connection with

those productions, SOS served a privilege log on May 12, 2023, Ex. C, and OAG served a privilege

log on May 19, 2023, Ex. D.3

On June 5, 2023, LUPE Plaintiffs emailed counsel for OAG and SOS to schedule a meet

and confer regarding the privilege assertions in the respective privilege logs. On June 9, 2023,

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Under the parties’ Stipulated ESI Agreement, LUPE Plaintiffs’ original deadline to file a motion to compel
regarding the SOS privilege log was June 12, 2023. Dkt. 251. The Court granted the parties’ joint motion
to extend that deadline to June 20, 2023, the same deadline as any motion to compel regarding the OAG
privilege log. See Dkt. 625.

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LUPE Plaintiffs emailed a letter with accompanying exhibits that identified documents from the

privilege logs that were the subject of what LUPE Plaintiffs believed to be improper privilege

assertions. Exs. E (letter) and F (compilation of exhibits). In that letter, LUPE Plaintiffs also

specified a subset of documents for which they sought additional information to evaluate whether

they would challenge the privilege assertions by SOS and OAG.

On June 12, 2023, the parties held a meet and confer. During that meet and confer, counsel

for SOS and OAG indicated that they would provide additional information regarding some of the

documents over which the investigative privilege was asserted. On June 13, 2023, counsel for

LUPE Plaintiffs emailed counsel for SOS and OAG to clarify, among other things, which of the

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documents withheld based on the investigative privilege remained the subject of active ongoing

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criminal investigations. On June 16, 2023, counsel for LUPE Plaintiffs emailed counsel for SOS
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and OAG to specify which of the documents over which the investigative privilege was not
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asserted they still sought following the meet and confer.

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On June 20, 2023, counsel for LUPE Plaintiffs emailed counsel for SOS and OAG that,
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upon further review, all assertions of the investigative privilege identified in LUPE Plaintiffs’ June
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9, 2023 letter were improper. In that same email, LUPE Plaintiffs inquired whether, in light of the

meet and confer exchanges to that point, counsel for SOS and OAG would produce any of the

documents identified in LUPE Plaintiffs’ June 9, 2023 letter.4

Since the June 12, 2023 meet and confer, counsel for SOS and OAG have not sent any

emails regarding the privilege logs at issue, including to provide additional information after the

4
In an effort to obtain additional time to explore whether any disagreements could be narrowed, counsel
for LUPE Plaintiffs also sought whether, in the alternative, counsel for SOS and OAG would join a motion
requesting that the Court extend the deadline for the instant motion to compel to June 23, 2023.

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meet and confer or in response to LUPE Plaintiffs’ subsequent inquiries. Unable to resolve the

issues without Court intervention, LUPE Plaintiffs now respectfully file the instant motion.

II. LEGAL STANDARD

“A party seeking discovery may move for an order compelling an answer, designation,

production, or inspection” if the other party “fails to produce documents or fails to respond that

inspection will be permitted—or fails to permit inspection—as requested under Rule 34.” Fed. R.

Civ. P. 37(a)(3)(B)(iv). Rule 34 permits parties to serve upon each other “a request within the

scope of Rule 26(b)” to produce certain items “in the responding party’s possession, custody, or

control.” Fed. R. Civ. P. 34(a)(1). “Parties may obtain discovery regarding any nonprivileged

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matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”

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Fed. R. Civ. P. 26(b)(1). O
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Rule 26 requires a party that asserts a privilege to “describe the nature of the documents,
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communications, or tangible things not produced or disclosed—and do so in a manner that, without

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revealing information itself privileged or protected, will enable other parties to assess the claim.”
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Fed. R. Civ. P. 26(b)(5)(A)(ii). “It is well settled that the party asserting the privilege has the
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burden of establishing its applicability.” Perez v. Perry, No. SA-11-cv-360-OLG-JES-XR, 2014

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WL 3495414, at *2 (W.D. Tex. July 11, 2014) (citing Hodges, Grant & Kaufmann v. U.S. Gov’t,

Dep’t of the Treas., 768 F.2d 719, 721 (5th Cir. 1985)). Conclusory assertions are “insufficient to

carry out the proponent’s burden of establishing” privilege. E.E.O.C. v. BDO USA, L.L.P., 876

F.3d 690, 696 (5th Cir. 2017).

When a motion to compel “is granted—or if the disclosure or requested discovery is

provided after the motion was filed—the court must, after giving an opportunity to be heard,

require the party . . . whose conduct necessitated the motion, the party or attorney advising that

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conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including

attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A).

III. ARGUMENT

A. Improper Invocations of the Attorney-Client Privilege.5

SOS incorrectly withholds several documents based on a misapplication of the attorney-

client privilege. “A statement enjoys attorney-client privilege if it was made to a lawyer, in

confidence, and primarily for the purpose of seeking legal advice or services.” League of United

Latin Am. Citizens v. Abbott (“LULAC IV”), No. 3:21-cv-259-DCG-JES-JVB, 2022 WL 3656395,

at *3 (W.D. Tex. Aug. 23, 2022) (citing BDO USA, 876 F.3d at 695). “The privilege also protects

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communications from the lawyer to his client, at least if they would tend to disclose the client’s

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confidential communications.” La Union Del Pueblo Entero (“LUPE”) v. Abbott, No. 3:21-cv-
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00844-XR, 2022 WL 1667687, at *7 (quoting Hodges, 768 F.2d at 720-21), rev’d on other
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grounds, 68 F.4th 228 (5th Cir. 2023). Of note, “[w]hether a communication is privileged is fact-
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specific and depends on the nature of the statement and the context in which it was made.” LULAC
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IV, 2022 WL 3656395, at *2. “The burden of proof is on the individual asserting the privilege to
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demonstrate an attorney-client relationship.” United States v. Kelly, 569 F.2d 928, 938 (5th Cir.
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1978); see also League of United Latin Am. Citizens v. Abbott (“LULAC III”), No. 3:21-cv-259-

DCG-JES-JVB, 2022 WL 3353409, at *4 (W.D. Tex. Aug. 12, 2022).

“Because the attorney-client privilege has the effect of withholding relevant information

from the fact-finder, it is interpreted narrowly so as to appl[y] only where necessary to achieve its

purpose.” BDO USA, 876 F.3d at 695 (quotation omitted). To that end, “courts have stated that

simply describing a lawyer’s advice as ‘legal,’ without more, is conclusory and insufficient to

5
LUPE Plaintiffs refer to only SOS in this portion of their brief because they seek no documents over which
OAG asserted the attorney-client privilege in its May 19, 2023 privilege log. See Exs G, H, and I.

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carry out the proponent’s burden of establishing attorney-client privilege,” and that documents

sent from one staff member to another are not privileged “merely because a copy is also sent to

counsel.” Id. at 696.

SOS has invoked the attorney-client privilege over documents that (1) reflect

communications not sought primarily for the purpose of seeking legal advice or services (Exhibit

G), (2) contain underlying facts not subject to the privilege (Exhibit H), or (3) were never shared

with a client (Exhibit I). Under well-settled law in this Circuit, these documents must be produced.

1. SOS Must Produce Communications That Were Not Sought For the Primary
Purpose Of Seeking Legal Advice.

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SOS improperly asserts the attorney-client privilege over documents that were not created

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or sought for the primary purpose of legal advice. Ex. G. Attorney-client “[p]rivilege claims must
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be detailed,” LULAC III, 2022 WL 3353409, at *4, and “[a] communication must be for the
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primary purpose of legal advice for attorney-client privilege to attach,” id. (citing BDO USA, 876
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F.3d at 695); see also LUPE, 2022 WL 1667687, at *7 (noting that communications that “do not
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concern legal advice” are not privileged). To that end, “[o]ther communications, including ‘advice
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on political, strategic, or policy issues,’ are ‘not . . . shielded from disclosure.’” LULAC IV, 2022
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WL 3656395, at *3 (quoting In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998)); see also LULAC

III, 2022 WL 3353409, at *4. “To draw an analogy to the business context, a manger with a law

degree does not get to shield her communications with the CEO simply because any business

decision, like any [agency] decision, can have legal consequences.” Perez v. Perry, No. 5:11-cv-

360-OLG-JES-XR, 2014 WL 3359324, at *1 (W.D. Tex. July 9, 2014). Thus, when legislators

seek political, strategic, or policy advice, those communications do not automatically become

subject to the attorney-client privilege simply because an attorney comments on the political,

strategic, or policy ramifications of the agency’s action. See Perez v. Perry, No. 5:11-cv-360-

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OLG-JES-XR, 2014 WL 3359324, at *1 (W.D. Tex. July 9, 2014); see also LULAC III, 2022 WL

3353409, at *4; Evans v. City of Chicago, 231 F.R.D. 302, 312 (N.D. Ill. 2005). After all,

“documents do not become cloaked with the lawyer-client privilege merely by the fact of their

being passed from client to lawyer.” United States v. Robinson, 121 F.3d 971, 975 (5th Cir. 1997).

SOS has failed to show that the documents listed in Exhibit G were created “for the primary

purpose of legal advice.” LULAC III, 2022 WL 3353409, at *4. As an initial matter, those entries

fail to indicate whether the documents were sought to any extent for the purpose of legal advice,

and thus SOS has failed to meet its burden of establishing that the privilege applies. See BDO

USA, 876 F.3d at 695-96. In any event, SOS has not shown that the documents were created for

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the primary purpose of seeking legal advice. Id. at 695. These documents include communications

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regarding election procedures, agency reports, and recommendations to the Legislature—i.e.,
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documents sought or created for the primary purpose of policy, political, or strategic advice by the
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agency. See Ex. G. Other documents reflect “solicited information about incidents of voting
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misconduct,” which also “do not concern legal advice.” See LUPE, 2022 WL 1667687, at *7. As
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such, the attorney-client privilege does not shield the documents listed in Exhibit G, and those
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documents must be produced.

Further, to the extent that any document contains a mixed discussion of legal and non-legal

advice (e.g., business, political, strategic, or policy), “courts should consider the ‘context . . . key,’

ultimately seeking to glean the ‘manifest purpose’ of the communication.” See BDO USA, 876

F.3d at 696 (quoting Exxon Mobil Corp. v. Hill, 751 F.3d 379, 382 (5th Cir. 2014)). In the event

that the State’s failure to establish privilege is not alone sufficient to warrant disclosure, in camera

review may be necessary to distinguish between documents providing only legal advice and those

that concern policy, political, strategic, or technical matters. Upon any such review, to the extent

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that any document has portions or annotations implicating bona fide legal advice, LUPE Plaintiffs

respectfully request that the Court direct SOS to produce a redacted version of any such document.

2. SOS May Not Invoke the Attorney-Client Privilege Over Underlying Factual or
Otherwise Non-Legal Information.

In several instances, SOS improperly asserts the attorney-client privilege over underlying

factual or otherwise non-legal information contained in documents. Ex. H. But as the Court

previously emphasized, “[f]acts within the client’s knowledge are not protected by the attorney-

client privilege, ‘even if the client learned those facts through communications with counsel.’”

LUPE, 2022 WL 1667687, at *7; see also Upjohn Co. v. United States, 449 U.S. 383, 395 (1981)

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(stating that the “privilege only protects disclosure of communications; it does not protect

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disclosure of the underlying facts”). In that vein, and as other courts in this Circuit have concluded,
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just because “data . . . were also used by counsel . . . does not render them privileged.” League of
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United Latin Am. Citizens v. Abbott (“LULAC I”), No. 3:21-cv-259-DCG-JES-JVB, 2022 WL
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2921793, at *7 (W.D. Tex. July 25, 2022) (cleaned up).

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Further, “pre-existing documents—whether prepared by a third-party or even by the client,

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so long as the client was not compelled to write it (aka, a testimonial communication)—are
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underlying facts that are not protected by the attorney-client privilege.” Petteway v. Galveston

Cnty., No. 3:22-cv-00057-JVB-AME, 2023 WL 3452065, at *3 (S.D. Tex. May 15, 2023)

(quotation omitted) (citing Fisher v. United States, 425 U.S. 391, 403–04 (1976); then citing,

Robinson, 121 F.3d at 975). Of course, “[p]re-existing documents . . . are but a small subset of

‘underlying facts.’” Id.

For example, and as this Court has previously noted, “communications concern[ing]

solicited information about incidents of voting misconduct” do not concern legal advice. LUPE,

2022 WL 1667687, at *7 (quotation omitted). In addition, discovery that “seeks statistical

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information” does not implicate the attorney-client privilege. League of United Latin Am. Citizens

v. Abbott (“LULAC V”), 342 F.R.D. 227, 235 (W.D. Tex. 2022) (noting, for example, that

questions that seek information about a “statistical conclusion—i.e. voting patterns by race” do

not seek privileged information); see also Ohio A. Philip Randolph Inst. v. Smith, No. 1:18cv357,

2018 WL 6591622, at *3 (S.D. Ohio Dec. 15, 2018) (ordering production of “facts, data, and maps”

over assertions of attorney-client privilege in redistricting lawsuit). Analyses and reports

containing fact-based information are likewise not privileged, even if those “were fashioned

exclusively within the attorney-client relationship.” See Petteway, 2023 WL 3452065, at *4

(holding that spreadsheet with breakdown of population in county prepared at lawyers’ request “in

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order for them to understand the lay of the land and conduct an initial analysis of the legal

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considerations at play in the 2021 redistricting process” still constituted “underlying facts that are
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classically outside the [attorney-client] privilege[]”); see also Tonti Mgmt. Co., Inc. v. Soggy
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Doggie, LLC, No. 19-13134, 2020 WL 9172077, at *5 (E.D. La. June 25, 2020) (citing United
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States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961)) (“If what is sought is not legal advice but only
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[data analysis] . . . or if the advice sought is the [statistician’s] rather than the lawyer’s, no privilege
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exists.”). And in the legislative context, courts in this Circuit have concluded that a legislator can
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provide discovery about “the legislative process without revealing the substantive communications

he exchanged with attorneys.” LULAC V, 342 F.R.D. at 234; see id. at 236 (concluding that

“questions [that] asked ‘how’ Chairman Hunter came to a particular conclusion” do not implicate

attorney-client privilege).

Exhibit H lists documents that contain underlying factual or otherwise non-legal

information that fall outside the scope of the attorney-client privilege. That factual information

includes information about alleged voting misconduct, election procedures, details about the

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implementation of SB1, election results, and reports authored by the agency—all information that

is not privileged. Those documents therefore must be produced.6

3. SOS Cannot Assert the Attorney-Client Privilege Over Documents Never Shared
with a Client.

Documents shared among only SOS attorneys are not subject to the attorney-client

privilege. Ex. I. A document must have been shared between a lawyer (or her subordinate) and a

client in order to receive the protection of the attorney-client privilege. See BDO USA, 876 F.3d

at 695; see also LUPE, 2022 WL 1667687, at *7. That rule applies equally to governmental

agencies invoking the privilege. See United States v. Jicarilla Apache Nation, 564 U.S. 162, 170

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(2011) (“Unless applicable law provides otherwise, the Government may invoke the attorney-

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client privilege in civil litigation to protect confidential communications between Government
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officials and Government attorneys.” (emphasis added)). As such, “the protective cloak of
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[attorney-client] privilege does not extend to information which an attorney secures,” Hickman v.
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Taylor, 329 U.S. 495, 508 (1947), or keeps “hidden in an attorney’s file,” id. at 511. See also
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Hodges, 768 F.2d at 721 (“Documents and materials developed by a lawyer for use in or in
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anticipation of litigation are not protected by the attorney-client privilege.”). Accordingly,

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documents shared among only SOS attorneys—and not shared with other SOS employees—cannot

be subject to the attorney-client privilege.

Exhibit I reflects entries that have only been shared among SOS attorneys. Because SOS

attorneys failed to share these with a client, the attorney-client privilege does not apply to those

documents.

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To the extent that any documents contain both bona fide legal advice and underlying factual information,
LUPE Plaintiffs respectfully request that the Court order the production of those documents with any legal
advice redacted.

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B. Improper Invocations of the Deliberative Process Privilege.7

The deliberative process privilege is an executive privilege. League of United Latin Am.

Citizens v. Abbott (“LULAC II”), No. 3:21-cv-259-DCG-JES-JVB, 2022 WL 3233406, at *2

(W.D. Tex. Aug. 10, 2022). “For the deliberative process privilege to apply, the documents must

be both ‘deliberative’ and ‘predecisional.’” Id. (quoting U.S. Fish & Wildlife Serv. v. Sierra Club,

Inc., 141 S. Ct. 777, 785 (2021). “The privilege, however, is qualified; not absolute.” Doe v. City

of San Antonio, No. SA-14-cv-102-XR, 2014 WL 6390890, at *2 (W.D. Tex. Nov. 17, 2014). That

means that the deliberative-process privilege “can be overcome ‘by a sufficient showing of need’”

for materials and accurate fact-finding. Harding v. Cnty. of Dallas, No. 3:15-cv-0131-SAF, 2016

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WL 7426127, at *12 (N.D. Tex. Dec. 23, 2016) (quoting In re Sealed Case, 121 F.3d 729, 737

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(D.C. Cir. 1997) (collecting cases)); see also Favors v. Cuomo, 285 F.R.D. 187, 210 n.22
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(E.D.N.Y. 2012) (citing Rodriguez v. Pataki, 280 F. Supp. 2d 89, 98 (S.D.N.Y. 2003))
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Because SOS has not properly invoked the deliberative process privilege, withholds
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documents that reflect purely factual information exempt from the privilege, and asserts the
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privilege over documents where the privilege should yield, the documents in Exhibit J must be
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produced.

1. Trial Counsel Cannot Invoke the Deliberative Process Privilege on Behalf of SOS.

As an initial matter, counsel from the Office of the Attorney General cannot, without more,

invoke the deliberative process privilege on behalf of a state agency. Ex. J. To be protected by

deliberative-process privilege, a document must be “part of a process by which governmental

decisions and policies are formulated.” In re Sealed Case, 121 F.3d at 737 (quoting Carl Zeiss

Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1996)). To demonstrate that these

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LUPE Plaintiffs refer to only SOS in this portion of their brief because OAG’s May 19, 2023 privilege
log lists no assertions of the deliberative process privilege. See Ex. D.

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requirements are met, parties claiming deliberative-process privilege generally provide, in addition

to a privilege log, “declarations from agency officials explaining ‘what the documents are and how

they relate to the [agency] decision.’” Ascom Hasler Mailing Sys., Inc. v. USPS, 267 F.R.D. 1, 4

(D.D.C. 2010) (quoting N.L.R.B. v. Jackson Hosp. Corp., 257 F.R.D. 302, 309 (D.D.C. 2009));

see also Nevada Partners Fund, LLC v. United States, No. 3:06-cv-379-HTW-MTP, 2008 WL

2484198, at *5 (S.D. Miss. May 12, 2008) (describing declarations of IRS officials submitted in

support of deliberative-process privilege claims). Thus, as other courts in this Circuit have recently

noted, “[t]rial counsel cannot invoke the [deliberative process] privilege on [an executive

agency’s] behalf.” LULAC II, 2022 WL 3233406, at *3 (collecting cases) (concluding that counsel

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from the Office of the Attorney General cannot invoke the deliberative process privilege on behalf

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of the Office of the Governor). O
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Here, attorneys from the Office of the Attorney General—not SOS officials—invoked the
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deliberative process privilege. Although LUPE Plaintiffs raised this deficiency both in their June
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9, 2023 letter and their June 12, 2023 meet and confer, see Ex. E, no SOS official provided a
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declaration regarding the documents listed in Exhibit J. “Because only trial counsel has invoked
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the deliberative process privilege” over those documents, SOS “has not validly asserted the
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privilege” and “must produce documents withheld on” that basis. LULAC II, 2022 WL 3233406,

at *3.

2. The Deliberative Process Privilege Does Not Apply to Underlying Factual

Information.

“The deliberative process privilege does not shield documents that simply state or explain

a decision the government has already made or protect material that is purely factual, unless the

material is so inextricably intertwined with the deliberative sections of documents that its

disclosure would inevitably reveal the government’s deliberations.” In re Sealed Case, 121 F.3d

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at 737 (emphasis added) (citing N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150-54 (1975));

see also Stokes v. Brennan, 476 F.2d 699, 703 (5th Cir. 1973) (“Factual information may be

protected only if it is inextricably intertwined with policy-making processes[.]”); Harding, 2016

WL 7426127, at *11. To the extent that documents contain some privileged information and some

purely factual information, courts have routinely ordered that the responding party produce

redacted versions of the challenged documents. See, e.g., S.E.C. v. Cuban, No. 3:08-cv-2050-SAF,

2013 WL 1091233, at *9 (N.D. Tex. Mar. 15, 2013); Principe v. Crossland Sav., FSB, 149 F.R.D.

444, 448 (E.D.N.Y. 1993); see also BidPrime, LLC v. SmartProcure, Inc., 1:18-cv-478-RP, 2018

WL 6588574 (W.D. Tex. Nov. 13, 2018).

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Courts have routinely emphasized that factual information may be withheld under only

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“narrow circumstances” and “limited exception[s],” Trentadue v. Integrity Comm., 501 F.3d 1215,
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1228, 1229 (10th Cir. 2007), such that the privilege applies to factual information only when
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“unveiling . . . factual materials would be tantamount to the publication of the evaluation and
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analysis of the multitudinous facts” conducted by the agency,” Nat’l Wildlife Fed'n v. U.S. Forest
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Serv., 861 F.2d 1114, 1119 (9th Cir. 1988) (emphasis added) (quotations omitted). “As an example
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of this standard applied in the . . . context of Equal Employment Opportunity Commission

(‘EEOC’) actions, courts hold that the deliberative process privilege does not extend to facts such

as who conducted investigations and whom they interviewed, the actions taken by the EEOC

during the investigations, and communications between the EEOC and witnesses.” S.E.C. v.

Cuban, No. 3:08-cv-2050-SAF, 2013 WL 1091233, at *9 (N.D. Tex. Mar. 15, 2013) (holding

deliberative process privilege did not apply factual portions of Securities and Exchange

Commission’s notes and summaries from witness interviews conducted in course of investigating

an individual). That is, information that “is merely part of the factual investigation undertaken by”

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an agency “is not so intertwined with the deliberative decisionmaking” “so as to render [the

information] privileged.” Equal Emp. Opportunity Comm'n v. Productivity Improvement Ctr.,

Inc., No. 3:05-cv-465-WHB-JCS, 2006 WL 8430242, at *1, *2 (S.D. Miss. June 19, 2006) (“Most

of the questions objected to specifically ask for merely facts, for example, [“w]hat facts did you

gather during your investigation—what information did you gather as to the number of times”

alleged assailant assaulted alleged victim?). Further, the privilege does not protect documents

“consisting only of compiled factual material or purely factual material contained in deliberative

memoranda and severable from its context.” Trentadue, 501 F.3d at 1227 (quotations omitted).

And as another example, courts have required the production of agency reports, such as some

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internal reports prepared by the agency that “involve a thorough review of a wide range of

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documents, and culminate in a report recommending supervisory action where necessary.”
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Principe v. Crossland Sav., FSB, 149 F.R.D. 444, 448 (E.D.N.Y. 1993) (holding that privilege did
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not fully shield bank examination reports by agency-appointed officials tasked “to review bank
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records in order to facilitate the [agency’s] supervision and regulation of insured financial
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institutions”); see also United States v. Sutton, No. 1:21-0598-1-PLF, 2022 WL 3340046, at *5
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(D.D.C. Aug. 12, 2022) (“Because these memoranda effectively summarize factual information—
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the witness’s interview statements—without expressing the opinions or policies of the

government, they are not shielded from discovery by the deliberative process privilege.”).

Especially in light of the narrow and limited circumstances in which the deliberative

process privilege applies, the entries in Exhibit J reflect purely factual information that SOS may

not withhold. That information includes factual information in reports in audits, details about

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election procedures, information gathered from county election administrators, and election

results. Accordingly, the documents in Exhibit J must be produced.8

3. Even if the Deliberative Process Privilege Applies to the Entirety of the Challenged
Documents, the Privilege Must Yield.

Because the “need for the [documents] and the need for accurate fact-finding override the

government’s interest in non-disclosure,” the deliberative process privilege—as a qualified

privilege—must yield. See Doe, 2014 WL 6390890, at *2 (citing F.T.C. v. Warner Commc’ns

Inc., 742 F.2d 1156, 1161 (9th Cir. 1984)). “After all, [t]he deliberative process privilege should

seldom be upheld in a case where there is any need for the evidence because it rests on such a puny

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instrumental rationale.” 26A Kenneth W. Graham, Jr. & Ann Murphy, Federal Practice and

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Procedure: Evidence § 5680 (April 2023 update) To determine whether the deliberative-process
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privilege should yield, courts consider the following factors: (1) the relevance of the evidence, (2)
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the availability of other evidence, (3) the seriousness of the litigation, (4) the role of the
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government, and (5) the possibility of future timidity by government employees. See In re Sealed
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Case, 121 F.3d at 737–38; see also Harding, 2016 WL 7426127, at *12; Doe, 2014 WL 6390890,
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at *2; Rodriguez, 280 F. Supp. 2d at 101. Further, “where there is reason to believe the documents
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sought may shed light on government misconduct, the privilege is routinely denied, on the grounds

that shielding internal government deliberations in this context does not serve the public’s interest

in honest, effective government.” In re Sealed Case, 121 F.3d at 738 (quotation omitted).

For the similar reasons as expressed in the Court’s May 25, 2022 Order regarding the

legislative privilege, these five factors weigh strongly in favor of disclosure. LUPE, 2022 WL

8
To the extent that SOS asserts that the entries reflect factual information that is inextricably intertwined
with deliberative decisions by the agency, LUPE Plaintiffs respectfully request that the Court conduct in
camera review and order the production of redacted documents, such that purely factual information is still
produced.

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1667687, at *6-7. As an initial matter, during the parties’ June 12, 2023 meet and confer, counsel

for SOS asserted that the deliberative process privilege should not yield here in light of the Fifth

Circuit’s recent decision in LULAC Texas v. Hughes, 68 F.4th 228 (5th Cir. 2023). But Hughes is

inapposite. As the Court is well aware, the Hughes court concluded that the legislative privilege

should not yield. Id. at 237. Indeed, neither this Court nor the Fifth Circuit addressed the

deliberative process privilege when they evaluated the discovery requests at issue in Hughes.

Because SOS has provided no justification to apply the analysis in Hughes to a different privilege,

the Court should reject applying the logic in Hughes to the deliberative process privilege.9

Thus, consistent with the Court’s prior analysis, the deliberative process privilege should

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yield. See LUPE, 2022 WL 1667687, at *6-7. Regarding the first factor—relevance—the

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evidence is highly relevant to LUPE Plaintiffs’ claims under the Voting Rights Act and the U.S.
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Constitution. Any claim based on intent requires “a ‘sensitive inquiry into such circumstantial and
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direct evidence of intent as may be available.’” Veasey v. Abbott, 830 F.3d 216, 230-31 (5th Cir.
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2016) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)).
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Moreover, evidence in the possession of SOS regarding the implementation of SB1—and in turn,
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its discriminatory impact—is plainly relevant to any effects claims. See Veasey v. Abbott, 830

F.3d at 230-31, 243; LULAC I, 2022 WL 2921793, at *5 n.4 (as to first factor, noting that

“[l]itigants may also prevail on a Section 2 claim by demonstrating that legislation has a

discriminatory effect”).

The remaining factors likewise favor disclosure. Regarding the second factor—availability

of other evidence—internal communications regarding the implementation of SB1 and related

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Although LUPE Plaintiffs contend that the Fifth Circuit erred in its holdings in Hughes, because LUPE
Plaintiffs do not seek disclosure of any documents withheld by SOS based on the legislative privilege, this
brief does not address the scope of the legislative privilege.

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information compiled by SOS would not be otherwise publicly available. Regarding the third and

fourth factors—the seriousness of the litigation and issues involved, and the role of the government

in the litigation—LUPE Plaintiffs “raise serious questions whether S.B. 1 complies with the Voting

Rights Act and the First and Fourteenth Amendments.” LUPE I, 2022 WL 1667687, at *6. Finally,

regarding the fifth factor—possibility of future timidity by government employees—Texas

executive officials have participated in the discovery process—including through document

production, depositions, and trial appearances—associated with litigation challenging

discriminatory voting laws in Texas. See, e.g., Perez 2014 WL 106927, at *1; Texas v. Holder,

888 F. Supp. 2d 113, 120-21 (D.D.C. 2012). And yet, even after courts have previously concluded

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that the legislative privilege should yield, no chilling effect has occurred. See Veasey v. Perry,

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No. 2:13-cv-193, 2014 WL 1340077, at *3 (S.D. Tex. Apr. 3, 2014). In any event, even if this
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factor weighed against disclosure, courts have repeatedly found—particularly in the voting rights
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context—that the need for accurate fact finding outweighs any chill to governmental deliberations.
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LUPE, 2022 WL 1667687, at *7; see also Veasey, 2014 WL 1340077, at *3; Baldus v. Brennan,
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No. 11-cv-562, 11-cv-1011, 2011 WL 6122542, at *2 (E.D. Wis. Dec. 8, 2011). That is especially
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so where, as here, “documents sought may shed light on government misconduct”—i.e., voter
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suppression—as “shielding internal government deliberations in this context does not serve the

public’s interest in honest, effective government.” In re Sealed Case, 121 F.3d at 738. Thus, on

balance, these five factors strongly favor disclosure.

Accordingly, for any document in Exhibit J over which the deliberative process privilege

applies, the privilege should still yield, and any such document must be produced.

C. Investigative Privilege

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SOS and OAG improperly withhold several documents based on the investigative

privilege. Ex. K. “[F]ederal common law recognizes a qualified privilege”—known as the

investigative privilege—“protecting investigative files in an ongoing criminal investigation.” In

re U.S. Dep't of Homeland Sec., 459 F.3d 565, 569 (5th Cir. 2006) (emphasis added) (quoting

Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991)). As such, where a party fails to show that

documents “concern an ongoing criminal investigation,” the party has “failed to show the

documents are subject to an investigatory privilege.” LUPE, 2022 WL 1667687, at *8. To that

end, the Court has concluded that, even where an OAG official “avers that the documents concern

‘potential election code violations,’” that alone does not satisfy the burden to establish that the

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investigative privilege applies. Id.

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“Additionally, the law enforcement privilege is bounded by relevance and time
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constraints.” In re U.S. Dep’t of Homeland Sec., 459 F.3d at 571; LUPE, 2022 WL 1667687, at
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*8. As such, the Fifth Circuit has noted that “[s]everal types of information probably would not
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be protected, including documents pertaining to: (1) people who have been investigated in the
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past but are no longer under investigation, (2) people who merely are suspected of a violation
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without being part of an ongoing investigation, and (3) people who may have violated only civil

provisions.” In re U.S. Dep’t of Homeland Sec., 459 F.3d at 571; LUPE, 2022 WL 1667687, at

*8; Roque v. City of Austin, No. 1-17-cv-932-LY-AWA, 2018 WL 5848988, at *4 (W.D. Tex.

Nov. 7, 2018).

Although the May 12, 2023 and May 19, 2023 privilege logs do not state whether the

entries sought by LUPE Plaintiffs were the subject of an ongoing criminal investigation, see Ex.

K, counsel for SOS and OAG indicated during the parties’ June 12, 2023 meet and confer that the

information in the entries was related to ongoing criminal investigations at the time of service of

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the privilege logs. On June 13, 2023, LUPE Plaintiffs sought clarification of which, if any, of the

entries listed in Exhibit K remain subject of ongoing criminal investigations; as of the date of the

instant motion, LUPE Plaintiffs have not received that information. In light of the fact that it is

the burden of SOS and OAG to establish that the privilege applies, LUPE Plaintiffs respectfully

request that the Court direct SOS and OAG to produce any documents in Exhibit K that are no

longer related to an ongoing criminal investigation, because those documents are categorically

beyond the scope of the investigative privilege. In re U.S. Dep’t of Homeland Sec., 459 F.3d at

571; LUPE, 2022 WL 1667687, at *8.

But “[e]ven if the privilege might possibly apply because the files are part of an ongoing

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criminal investigation,” a court may still require the production of “the materials in question.” See

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Roque,, 2018 WL 5848988, at *4; see also In re U.S. Dep’t of Homeland Sec., 459 F.3d at 570.
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To determine whether the investigative privilege applies to documents that are a part of an ongoing
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criminal investigation, “the court must balance ‘the government’s interest in confidentiality against
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the litigant’s need for the documents.’” In re U.S. Dep’t of Homeland Sec., 459 F.3d at 570
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(quoting Coughlin, 946 F.2d at 1160). To balance those interests, the Court “should consider the
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Frankenhauser factors.” Id. (citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. Mar.

13, 1973). Those ten factors are:

(1) the extent to which disclosure will thwart governmental

processes by discouraging citizens from giving the government
information; (2) the impact upon persons who have given
information of having their identities disclosed; (3) the degree to
which governmental self-evaluation and consequent program
improvement will be chilled by disclosure; (4) whether the
information sought is factual data or evaluative summary; (5)
whether the party seeking discovery is an actual or potential
defendant in any criminal proceeding either pending or reasonably
likely to follow from the incident in question; (6) whether the police
investigation has been completed; (7) whether any
interdepartmental disciplinary proceedings have arisen or may arise

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from the investigation; (8) whether the plaintiff's suit is non-

frivolous and brought in good faith; (9) whether the information
sought is available through other discovery or from other sources;
(10) the importance of the information sought to the plaintiff's case.

Id. (citing Tuite v. Henry, 98 F.3d 1411, 1417 (D.C. Cir. 1996)). Although a court “must apply”

these ten factors when evaluating a document that is related to an ongoing criminal investigation,

it may do so “in a flexible manner.” In re U.S. Dep't of Homeland Sec., 459 F.3d at 571.

In that vein, in civil rights suits, courts in this Circuit have concluded the balance of these

factors strongly favor disclosure especially where “the information sought is crucial to the

Plaintiffs’ case and is not likely available through other discovery or other sources.” Roque, 2018

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WL 5848988, at *4. Roque is instructive. In that case, the plaintiffs—parents of an individual

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fatally shot by the police—brought a suit pursuant to 42 U.S.C § 1983 against a city and one of its
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police officers, asserting violations of the Fourth and Fourteenth Amendments. Id. at *1. The
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plaintiffs alleged that the city’s police department “disproportionately utilize[d] deadly force
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against unarmed males of color,” and that, according to the police department’s “own internal
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reviews, minorities are disproportionately victims of police abuse.”

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Id. Related to those

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allegations, the plaintiffs sought records concerning prior instances of deadly, excessive, or
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arguably excessive force by officers of the city’s police department. Id. at *2.

The city objected to the disclosure of such “information related to officers other than” the

defendant officer, but the Roque court concluded that the investigative privilege did not apply. Id.

at *4. As that court emphasized, “[e]ven if the privilege might possibly apply because the files are

part of an ongoing criminal investigation, the Court finds that in considering the ten Frankenhauser

factors that the factors weigh in favor of releasing the materials in question.” Id. “In particular,

the fact that the information sought is crucial to the Plaintiffs' case and is not likely available

through other discovery or other sources weighs strongly in favor of disclosure.” Id. The court

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emphasized that the withheld documents were “highly relevant,” noting that “the information [the

plaintiffs] [sought] regarding known prior incidents of similar misconduct by other . . . officers—

including the video and audio recordings, Internal Affairs investigation files, and use of force

reports—are crucial to advancing [the plaintiffs’] pattern and practice claims, and go directly to

proving the causation and deliberative indifference elements of municipal liability.” Id. at *5.

Indeed, the court emphasized that “[b]eing given access to such material would also be in line with

other decisions in this circuit that have permitted disclosure of law enforcement departments’

investigative reports and files.” Id. (collecting cases). Accordingly, the Roque court held that,

based on the ten Frankenhauser factors, the investigative privilege did not apply. Id.

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The same logic applies to the extent that any of the documents in Exhibit K are related to

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ongoing criminal investigations. As discussed regarding whether the deliberative process privilege
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should yield, the evidence sought here is highly relevant to LUPE Plaintiffs’ intent-based and
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effects-based claims, and internal communications regarding the implementation of SB1 and
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information collected regarding the potential discriminatory effects of that implementation would
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not otherwise be publicly available. See supra, Section III.B.3 (the first and second factors
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strongly favor that the deliberative process privilege should yield). Indeed, these documents

involve election complaints related to alleged improper poll worker behavior, voter assistance,

vote harvesting, curbside voting, and potential obstruction by a poll watcher in the 2022 primary

and general elections. See Ex. K.

Further, the balance of these and the remaining Frankenhauser factors strongly favor

disclosure. First, given the importance of the franchise, citizens will not be discouraged from

continuing to report information. Indeed, any assertion by SOS or OAG that citizens will be

discouraged from reporting information is undermined by the fact that several entries in the

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privilege logs appear to reveal the full name of the complainants. See Ex. K. Second, there will

be minimal impact of disclosing the identities of persons who provided the agency with

information, especially if the Court directs SOS and OAG to serve documents with any names

redacted. Third, there is little risk of a chilling effect given that SOS and OAG frequently have

produced agency documents in litigation challenging discriminatory voting laws in Texas, and yet

no chilling effect to the agency occurred. See Veasey, 2014 WL 1340077, at *3. Fourth, the

information sought is largely factual data (i.e., information about alleged behavior) or evaluative

of behavior described in complaints. See Cuban, 2013 WL 1091233, at *9 (noting that

“deliberative process privilege does not extend to facts such as who conducted investigations and

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whom they interviewed, the actions taken by the EEOC during the investigations, and

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communications between the EEOC and witnesses.”). Fifth, to the best of LUPE Plaintiffs’
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knowledge, they are not actual or potential defendants in a criminal proceeding related to the
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alleged incidents. Sixth, especially given that LUPE Plaintiffs have survived a motion to dismiss
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and are only a few months away from trial, the suit is non-frivolous and brought in good faith.
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Thus, even if the remaining factors favor the government’s interest in confidentiality, the balance
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of the factors strongly favor disclosure.

Accordingly, “[e]ven if the privilege might possibly apply because the files are part of an

ongoing criminal investigation,” the ten Frankenhauser weigh strongly in favor of “releasing the

materials in question,” particularly in light of “the fact that the information sought is crucial to the

Plaintiffs' case and is not likely available through other discovery or other sources weighs strongly

in favor of disclosure.” See Roque, 2018 WL 5848988, at *4. The documents listed in Exhibit K

therefore should be produced.

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IV. CONCLUSION

For the foregoing reasons, LUPE Plaintiffs respectfully request that the Court grant their

motion to compel regarding the documents identified in Exhibits G through K.

Dated: June 20, 2023 Respectfully submitted,

/s/ Nina Perales /s/ Sean Morales-Doyle

Nina Perales (TX Bar No. 24005046) Sean Morales-Doyle (NY Bar No. 5646641)
Julia R. Longoria (TX Bar No. 24070166) Patrick A. Berry (NY Bar No. 5723135)
Fátima L. Menéndez (TX Bar No. 24090260) Jasleen K. Singh (CA. Bar No. 316596)
Kenneth Parreno (MA BBO No. 705747) Eliza Sweren-Becker (NY Bar No. 5424403)
MEXICAN AMERICAN LEGAL DEFENSE Andrew B. Garber (NY Bar No. 5684147)
AND EDUCATIONAL FUND Leah J. Tulin (MD No. 0812180236)

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110 Broadway, Suite 300 BRENNAN CENTER FOR JUSTICE AT

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San Antonio, TX 78205 NYU SCHOOL OF LAW

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Telephone: (210) 224-5476 120 Broadway, Suite 1750
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Facsimile: (210) 224-5382 O
New York, NY 10271
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[email protected] Telephone: (646) 292-8310

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[email protected] Facsimile: (212) 463-7308

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[email protected] [email protected]
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[email protected] [email protected]
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[email protected]
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Michael C. Keats* [email protected]

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Rebecca L. Martin* [email protected]

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Jason S. Kanterman* [email protected]

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Kevin Zhen*
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FRIED, FRANK, HARRIS, SHRIVER & Paul R. Genender (TX Bar No. 00790758)
JACOBSON LLP Elizabeth Y. Ryan (TX Bar No. 24067758)
One New York Plaza Matthew Berde (TX Bar No. 24094379)
New York, New York 10004 Megan Cloud (TX Bar No. 24116207)
Telephone: (212) 859-8000 WEIL, GOTSHAL & MANGES LLP
Facsimile: (212) 859-4000 200 Crescent Court, Suite 300
[email protected] Dallas, Texas 75201
[email protected] Telephone: (214) 746-8158
[email protected] Facsimile: (214)746-7777
[email protected] [email protected]
[email protected]
Attorneys for Plaintiffs [email protected]
LA UNIÓN DEL PUEBLO ENTERO, [email protected]
SOUTHWEST VOTER REGISTRATION
EDUCATION PROJECT, MEXICAN COUNSEL FOR
AMERICAN BAR ASSOCIATION OF

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 Case 5:21-cv-00844-XR Document 630 Filed 06/21/23 Page 24 of 24

TEXAS, TEXAS HISPANICS FRIENDSHIP-WEST BAPTIST

ORGANIZED FOR POLITICAL CHURCH, SOUTHWEST, AND
EDUCATION, JOLT ACTION, TEXOMA, TEXAS IMPACT, JAMES
WILLIAM C. VELASQUEZ INSTITUTE, LEWIN
FIEL HOUSTON INC
*Admitted pro hac vice *Admitted pro hac vice

CERTIFICATE OF CONFERENCE

I hereby certify that, on June 9, 2023, June 12, 2023, June 13, 2023, June 16, 2023, and

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June 20, 2023, counsel for LUPE Plaintiffs conferred with counsel for the State concerning the

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subject of the instant motion. On June 12, 2023, counsel for the State indicated that they oppose
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the relief sought.

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/s/ Nina Perales

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Nina Perales
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CERTIFICATE OF SERVICE
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The undersigned counsel hereby certifies that she has electronically submitted a true and

correct copy of the above and foregoing via the Court’s electronic filing system on the 20th day of

June 2023.

/s/ Nina Perales

Nina Perales

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