IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS, et al.,
Plaintiffs,
CIVIL ACTION NO.
v.
3:21-cv-00259-DCG-JES-JVB
[Consolidated Action: Lead Case]
GREG ABBOTT, in his official capacity as
Governor of the State of Texas, et al.,
Defendants.
LULAC PLAINTIFFS’ MOTION TO COMPEL
THIRD-PARTY SUBPOENA DUCES TECUM TO ANNA MACKIN
LULAC Plaintiffs brought suit to challenge the redistricting plans enacted in 2021 by the
Texas Legislature, alleging violations of the Voting Rights Act and the United States
Constitution. LULAC Plaintiffs allege, among other things, that the Texas Legislature enacted
the redistricting plans with the intent to discriminate against Latinos, and further assert that the
totality of circumstances shows that Latinos have less opportunity to participate in the political
process and to elect representatives of their choice. To that end, LULAC Plaintiffs served a
document subpoena on Anna Mackin, Special Counsel to the Senate Redistricting Committee.
Based on sweeping claims of the legislative privilege and a misapplication of the work
product doctrine and the attorney-client privilege, Ms. Mackin withheld a number of responsive
documents. Broadly, Ms. Mackin inappropriately (1) claims work product protection over
materials prepared for legislation—not in anticipation of litigation; (2) advances an overbroad
interpretation of the legislative privilege, withholding even communications with third parties
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and fact-based information; and (3) asserts the attorney-client privilege over fact-based
information, documents that were not created for the primary purpose of legal advice, and
communications with third parties. In light of the parties’ disagreement regarding the scope and
applicability of those privileges, LULAC Plaintiffs respectfully request that the Court compel
disclosure of the documents listed in Exhibit A.
I. BACKGROUND
On July 1, 2022, LULAC Plaintiffs served a document subpoena on Ms. Mackin, seeking
documents including redistricting proposals, communications related to the redistricting process,
and data used during the legislative process. Ex. B. On July 11, 2022, counsel for Ms. Mackin
produced some documents to LULAC Plaintiffs in response to that subpoena but did not timely
produce a privilege log. On August 11, 2022, counsel for LULAC Plaintiffs met and conferred
by email with counsel for Ms. Mackin, requesting the privilege log in connection with Ms.
Mackin’s production. On August 16, 2022, Ms. Mackin produced a privilege log (the “Privilege
Log”). Ex. C.
On September 7, 2022, counsel for LULAC Plaintiffs met and conferred by email with
counsel for Ms. Mackin, noting which documents they sought and seeking additional information
to assess further Ms. Mackin’s privilege assertions over some of the documents listed in the
Privilege Log. Ex. D. On September 14, 2022, counsel for Ms. Mackin stated that they would
not disclose any of the documents listed in the Privilege Log.
LULAC Plaintiffs now seek to compel the production of several documents Ms. Mackin
has improperly withheld. Exhibit A lists the documents LULAC Plaintiffs seek in the instant
motion.
1
1
Some of the documents that LULAC Plaintiffs seek are also the subject of the United States’ Motion to
Enforce Third-Party Subpoenas Duces Tecum, Dkt. 351, which the Court adjudicated in its stayed July 25,
2022 Order, Dkt. 467. To preserve LULAC Plaintiffs’ right to those documents, LULAC Plaintiffs have
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II. LEGAL STANDARD
Federal Rule of Civil Procedure 45(d)(2)(B)(i) allows the party that served a subpoena to
“move the court . . . for an order compelling production.” In turn, Rule 45(e)(2)(A) mandates
that “a person withholding subpoenaed information under a claim that it is privileged or subject
to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe
the nature of the withheld documents . . . in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.”
“It is well settled that the party asserting the privilege has the burden of establishing its
applicability.” Perez v. Perry, No. SA-11-CV-360-OLG-JES-XR, 2014 WL 3495414, at *2
(W.D. Tex. July 11, 2014) (citing Hodges, Grant & Kaufmann v. United States, 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
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. The Documents are Relevant to LULAC Plaintiffs’ Claims.
The documents sought by LULAC Plaintiffs are relevant and vital to their claims under
the federal Voting Rights Act and the United States Constitution. Draft redistricting plans, the
included them here. Exhibit E lists documents in the possession of Ms. Mackin that are sought in both the
instant motion and the United States’ motion; Exhibit F lists the documents sought in only the instant
motion. LULAC Plaintiffs also incorporate by reference and assert all arguments regarding any
overlapping documents sought in the instant motion and the United States’ motion to enforce. See Dkt.
351.
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data used in drafting those plans, Ms. Mackin’s communications, and other legislative materials
bear directly on whether “invidious discriminatory purpose was a motivating factor” in
redistricting. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).
Such legislative materials also bear on whether “the policy underlying the State’s . . . use of the
contested practice or structure is tenuous” under the discriminatory results test for the challenged
redistricting plans. Thornburg v. Gingles, 478 U.S. 30, 45 (1986). Thus, these documents bear
on the evaluation of whether official actors are motivated by a discriminatory purpose, the effect
of challenged practices, and the extent to which race played a role in challenged decisions. Dkt.
467 at 8–12.
B. The Work Product Doctrine does not Apply to Documents Created while
Assisting the Legislature With Redistricting Legislation.
Ms. Mackin’s assertions of the work product doctrine are unavailing. Ex. G.
“[D]ocuments created in the ordinary course of drafting legislation—including redistricting
legislation—are not covered by the work product doctrine, even when ‘the Legislature may have
reasonably believed that litigation would result from its redistricting efforts.’” Dkt. 530 at 9–10
(quoting Baldus v. Brennan, Nos. 11-CV-562 JPS-DPW-RMD, 11-CV-1011 JPS-DPW-RMD,
2011 WL 6385645, at *2 (E.D. Wis. Dec. 20, 2011) (three-judge court)). “That is ‘because the
legislature could always have a reasonable belief that any of its enactments would result in
litigation.’” Id. at 10 (quoting Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323,
348 (E.D. Va. 2015)). Here, Ms. Mackin asserts the work product doctrine over several
documents that, by her own characterization, relate to the enactment of redistricting legislation.
See Ex. G. Accordingly, Ms. Mackin may not withhold those documents based on the work
product doctrine.
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C. Ms. Mackin May Not Withhold the Challenged Documents Based on the
Legislative Privilege.
1. All Documents Shared Between the Legislative Branch and any Third
Parties Must be Disclosed.
Ms. Mackin had waived any claim to the legislative privilege with respect to
communications with third parties. Ex. H. “To the extent that legislators or legislative staff
communicated with any outsider (e.g., non-legislators, non-legislative staff), any legislative
privilege is waived as to the contents of those specific communications.” Dkt. 526 at 2 n.3
(cleaned up) (quoting Gilby v. Hughes, 471 F. Supp. 3d 763, 767 (W.D. Tex. 2020)); see also
Perez v. Perry, No. SA-11-CV-360-OLG-JES, 2014 WL 106927, at *2 (W.D. Tex. Jan. 8, 2014);
Favors v. Cuomo, 285 F.R.D. 187, 212 (E.D.N.Y. 2012) (noting that “communications with
‘knowledgeable outsiders’ . . . fall outside the privilege”).
Ms. Mackin has failed to meet her burden to show that the legislative privilege applies to
documents shared with Wroe Jackson, Jeff Hillery, Wendy Underhill and Brad Lockerbie, as she
has made no showing that these individuals were employees of the Texas Legislature at the time
they shared or received the documents listed in Exhibit H.
2
Indeed, in their September 7, 2022
letter to Ms. Mackin, LULAC Plaintiffs sought clarification from Ms. Mackin on whether these
individuals were employed by the Texas Legislature at the time the documents were created, see
Ex. D at 1, but Ms. Mackin provided no information in response. In addition, Ms. Mackin may
not assert the privilege over documents received from Casey Contres (a former staffer of a
member of the United States House of Representatives) or Alelhie Lila Valencia (an employee of
the Texas Demographic Center, a governmental entity not part of the legislative branch), as these
individuals constitute outsiders not subject to the privilege. See Dkt. 526 at 2 n.3. And the
2
The Privilege Log states that Wendy Underhill is “Senator Huffman[’s] former general counsel” and that
Jeff Hillery is “Senator Huffman[’s] former communication director,” but the log fails to state whether
they were in those roles at the time the documents were shared. See Ex. H.
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remaining documents in Exhibit H were shared with or by the Office of the Governor or staff for
the Lieutenant Governor—i.e., members of the executive branch who also are outside of the
scope of the privilege. See Dkt. 526 at 2 n.3; see also LUPE v. Abbott, No.
SA-21-CV-00844-XR, 2022 WL 1667687, at *6 (W.D. Tex. May 25, 2022), appeal docketed sub
nom. LULAC v. Hughes, No. 22-50435 (5th Cir. May 27, 2022). Accordingly, Ms. Mackin has
failed to support her assertions of the legislative privilege over the documents in Exhibit H, and
as such those documents must be disclosed. See Dkt. 526 at 2 n.3.
2. The Legislative Privilege Does Not Apply to Documents Containing
Fact-Based Information.
The Privilege Log lists several documents that contain fact-based information that must
be disclosed. Ex. I. The legislative privilege “does not apply . . . to ‘documents containing
factually based information used in the decision-making process or disseminated to legislators or
committees, such as committee reports and minutes of meetings,’ or ‘the materials and
information available [to lawmakers] at the time a decision was made.” LUPE, 2022 WL
1667687, at *2 (quoting Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 11
C 5065, 2011 WL 4837508, at *9 (N.D. Ill. Oct. 11, 2011)). The Privilege Log lists several such
documents, such as calendar entries (Exhibit J), and invoices, contracts, and retention letters
(Exhibit K). Accordingly, those documents must be disclosed.
Furthermore, to the extent that other documents contain both fact-based information and
privileged information, that fact-based information is also not privileged. In their September 7,
2022, meet-and-confer letter, LULAC Plaintiffs requested clarification regarding whether
documents described as “[a]nalysis of draft redistricting legislation relating to proposed districts,
with related data . . . contain underlying data or other fact-based information that is not subject to
the legislative privilege, including data relating to redistricting legislation (including but not
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limited to demographic data, alternative maps, information on voting behavior, or data on
election performance).” Ex. D at 2. Counsel for Ms. Mackin failed to provide any information
in response to LULAC Plaintiffs request for clarification. To the extent that the documents in
Exhibits I, J, and K contain underlying data or other fact-based information that is not subject to
the legislative privilege, that information must still be disclosed.
3
3. The Legislative Privilege Does not Apply to Documents Created or
Communication that Occurred after the Enactment of the Challenged
Redistricting Plans.
Ms. Mackin improperly seeks to withhold DOC_0000001, which was created after the
enactment of the challenged redistricting plans. See Ex. L. The legislative privilege only
“protects ‘integral steps’ in the legislative process and does not extend to commentary or analysis
following the legislation’s enactment.” Bethune-Hill, 114 F. Supp. 3d 323, 343 (E.D. Va. 2015);
see also League of Women Voters of Mich. v. Johnson, No. 17-14148, 2018 WL 2335805, at *6
(E.D. Mich. May 23, 2018) (requiring disclosure of “communications created after the date of
enactment”). More specifically, DOC_0000001 was created on November 16, 2021—after
Defendant Abbott signed the challenged redistricting plans.
4
As such, the document must be
disclosed.
4. The Legislative Privilege Should Yield With Respect to Certain
Documents.
Even if applicable, the legislative privilege should yield to the need for discovery here.
To determine whether the privilege should yield, courts in this Circuit and elsewhere consider the
4
Because no documents at issue were created during the time period between when the Legislature sent
the documents to the Governor and the Governor signing the challenged plans, the Court need not address
whether, as LULAC Plaintiffs have argued in other briefs in this suit, the legislative privilege does not
apply to any documents created in that time period. See, e.g., Dkt. 540 at 7–8.
3
To the extent that these documents contain privileged and non-privileged information, LULAC Plaintiffs
respectfully request in camera review and, if necessary, the production of redacted versions of such
documents.
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following five factors: “(i) the relevance of the evidence sought to be protected; (ii) the
availability of other evidence; (iii) the seriousness of the litigation and issues involved; (iv) the
role of the government in the litigation; and (v) the possibility of future timidity by government
employees who will be forced to recognize that their secrets are violable.” Perez, 2014 WL
106927, at *2. Moreover, the Perez factors especially favor disclosure where, as here, there is
evidence that “pertains to, or ‘reveals an awareness’ of: racial considerations employed in the
districting process, sorting of voters according to race, or the impact of redistricting upon the
ability of minority voters to elect a candidate of choice.” See Bethune-Hill, 114 F. Supp. 3d at
344–345; see also League of Women Voters, 2018 WL 2335805, at *7; LUPE, 2022 WL
1667687, at *6–7.
For the reasons previously articulated in various motions by LULAC Plaintiffs, the Perez
factors strongly favor disclosure, and LULAC Plaintiffs incorporate by reference and re-urge
here all such arguments. See Dkts. 548 at 9–11; 540 at 8–10; 447 at 8–10; see also Dkt. 467 at
8–12. To restate briefly those arguments: the evidence here—listed in Exhibit A—is relevant
and vital to LULAC Plaintiffs’ claims under the Voting Rights Act and the United States
Constitution and is among the most probative evidence regarding the challenged legislation; this
suit raises serious questions about whether the challenged plans comply with the Voting Rights
Act and the United States Constitution; there is no question about the government’s role in the
litigation; and there is no possible chilling effect resulting from disclosure. Further, even if there
were a chilling effect, courts have repeatedly found—particularly in the voting rights
context—“that the need for accurate fact finding outweighs any chill to the legislature’s
deliberations.” LUPE, 2022 WL 1667687, at *7. Accordingly, the legislative privilege should
yield for all documents listed in Exhibit A for which the privilege does apply.
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D. Attorney-Client Privilege
Ms. Mackin incorrectly asserts the attorney-client privilege over several documents.
“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
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.
Several types of information do not fall within the scope of the attorney-client privilege.
For instance, “the attorney-client privilege protects only communications, not the underlying
facts.” Dkt. 578 at 5 (quoting Upjohn Co. v. United States, 449 U.S. 383, 395 (1981)). For
example, information about the “empirical features of the redistricting plans,” id. at 7,
information about the “process of certain legislative decisions,” id. at 13, and “mere statistical
conclusion[s]—i.e. voting patterns by race,” id. at 10, are not privileged. See also id. (noting that
questions about whether “attorneys found ‘racially polarized voting’ in various areas of Texas”
did not seek privileged information); 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). Here, Ms. Mackin improperly seeks to
withhold such fact-based information that is not covered by the privilege. See Ex. I (underlying
analyses and data); Ex. J (calendar entries); Ex. K (contracts, retention agreements, and
invoices).
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In addition, “a lawyer’s ‘advice on political, strategic, or policy issues [is not] shielded
from disclosure.” Dkt. 578 at 5 (cleaned up). Many of the documents pertain to “the legislative
process” and “judgements.” Ex. I. Ms. Mackin fails to explain how these documents were
created “for the primary purpose of legal advice,” Dkt. 530 at 8, and not communications related
to political, strategic, or policy advice that should be disclosed. Moreover, to the extent that any
of the documents contain a mixed discussion of legal and non-legal advice, “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)).
5
Furthermore, for many of the documents over which Ms. Mackin asserts attorney-client
privilege, that privilege is waived. “Disclosure of attorney-client communications to a third
party who lacks a common legal interest waives the attorney-client privilege,” and the “mere
speculation that” every recipient of a document “shared a cognizable common interest is
insufficient to establish that the privilege applies.” Perez, 2014 WL 3495414, at *2 (quotation
omitted). Here, even if it could initially be invoked, the attorney-client privilege has been
waived for documents that reflect communications between the legislative branch and
individuals outside of the legislative branch. See Ex. M; see also Dkt. 526 at 9. Moreover, other
courts in this Circuit have concluded that state legislators “cannot assert that the
common-interest doctrine protects” communications regarding pending legislation from
disclosure. LUPE, 2022 WL 1667687, at *7.
Ms. Mackin therefore may not assert the attorney-client privilege over any documents
included in Exhibit A—and those documents must be produced.
5
To the extent that Ms. Mackin’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.
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IV. CONCLUSION
For the foregoing reasons, LULAC Plaintiffs respectfully request that the Court grant
their motion to compel third-party subpoena duces tecum to Ms. Mackin.
Dated: September 15, 2022 Respectfully submitted,
/s/ Nina Perales
Nina Perales
Fátima Menendez
Kenneth Parreno*
Julia Longoria
Mexican American Legal Defense and Educational
Fund (MALDEF)
110 Broadway Street, Suite 300
San Antonio, TX 78205
(210) 224-5476
Fax: (210) 224-5382
Nikolas Youngsmith*
1016 16th Street NW, Suite 100
Washington, DC 20036
(202) 293-2828
Fax: (202) 293-2848
*Admitted pro hac vice
Counsel for LULAC Plaintiffs
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CERTIFICATE OF CONFERENCE
I hereby certify that, on September 7, 2022, September 12, 2022, September 13, and
September 14, 2022, counsel for LULAC Plaintiffs conferred with counsel for Ms. Mackin
concerning the subject of the instant motion. Counsel for Ms. Mackin stated that they opposed
the relief sought.
/s/ Nina Perales
Nina Perales
CERTIFICATE OF SERVICE
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 15th day
of September 2022.
/s/ Nina Perales
Nina Perales
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