United States District Court, D. Arizona
DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE
In October 2015, Plaintiffs served subpoenas duces tecum on the Arizona Legislature and former State Senator Russell Pearce, seeking documents and communications related to the identity theft statutes at issue in this case. Each recipient produced some of the requested documents, but withheld others on legislative privilege grounds. Pearce also withheld one document on First Amendment grounds. Plaintiffs have moved to compel production of some of these documents. Doc. 442. Pearce and the State filed separate responses in opposition, Docs. 466, 467, and Plaintiffs replied, Doc. 472. Oral argument has not been requested. For the reasons set forth below, the Court will deny the motion to compel.
This case concerns two Arizona statutes, H.B. 2779 and H.B. 2745, which criminalize the use of another person’s personal identification information for the purpose of obtaining employment. Plaintiffs claim that these statutes are preempted by the Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. 3359 (1986), and that they violate the Equal Protection Clause by discriminating against non-citizens. The parties have recently completed discovery.
On October 5, 2015, Plaintiffs served a subpoena duces tecum on Pearce, a co-sponsor of the statutes who is not a party to this case. The subpoena sought documents and communications in Pearce’s possession related to the statutes or predecessor legislation, as well as documents and communications created between 2003 and 2008 that discuss certain relevant issues (e.g., the actual or perceived consequences of employment of undocumented immigrants in Arizona), or that contain relevant keywords (e.g., “E-verify”). Doc. 442-2 at 20-28. A corrected version of the subpoena was served on October 8. Id. at 30-39. The same day, Plaintiffs served subpoenas seeking similar information on the Chief Clerk of the Arizona House of Representatives (id. at 40-49) and the Secretary of the Arizona State Senate (id. at 51-60).
Both Pearce and the State of Arizona produced some responsive documents. On February 12, 2016, Pearce informed Plaintiffs through his amended privilege log that he would be withholding 42 documents on legislative privilege or First Amendment grounds. Id. at 190-94. The same day, the State of Arizona informed Plaintiffs, through its second amended privilege log, that it would be withholding 67 documents on legislative privilege grounds. Id. at 196-203. On February 18, Plaintiffs wrote a letter jointly addressed to Pearce and the State, accepting most of their assertions of privilege, but contesting the assertions with respect to ten documents on Pearce’s log and 12 on the State’s log. Id. at 208-12. The contested documents are listed in Plaintiffs’ motion. Doc. 442 at 10-12 (listing contested documents on Pearce’s amended privilege log) (hereinafter “Pearce Log”), 12-13 (listing contested documents on State’s second amended privilege log) (hereinafter “State Log”). On February 19, the Court granted Plaintiffs leave to file the motion to compel. Doc. 438 at 2.
II. Legal Standard.
Where the recipient of a subpoena duces tecum refuses to produce requested documents, the proponent of the subpoena may move for an order compelling production. Fed.R.Civ.P. 45(d)(2)(B)(i). Such an order may issue against a non-party. Fed.R.Civ.P. 34(c). To obtain such an order, the proponent must first show that, but for the assertion of privilege, the requested material would be discoverable. See Miller v. York Risk Servs. Grp., No. 2:13-CV-1419 JWS, 2015 WL 3490031, at *2 (D. Ariz. June 3, 2015). In other words, the proponent must show that the requested material is “relevant to any party’s claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1); see Fed. R. Civ. P. 45 (1970 Advisory Committee Note) (“[T]he scope of discovery through a subpoena is the same as that applicable to Rule 34 and the other discovery rules.”). If the proponent makes this showing, the burden shifts to the recipient to establish that the requested discovery should be denied. “The party asserting an evidentiary privilege has the burden to demonstrate that the privilege applies to the information in question.” Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988); see also Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). Whether material is privileged is generally determined as a matter of federal common law, with exceptions not applicable here. Fed.R.Evid. 501.
Plaintiffs seek to compel the production of 22 documents in total. Neither Pearce nor the State argues that this request is disproportionate to the needs of the case. Instead, they argue that the requested material is not relevant and is protected by the legislative privilege or the First Amendment.
Plaintiffs argue that the contested documents are relevant to their preemption and equal protection claims because they shed light on why the Arizona Legislature enacted H.B. 2779 and H.B. 2745. A state law that has a discriminatory purpose violates the Equal Protection Clause. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977). Determining whether a statute embodies such a purpose requires “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Id. at 266. Evidence that the legislature has undertaken “a series of official actions . . . for invidious purposes” may be relevant to this inquiry. Id. at 267. “[C]ontemporary statements by members of the decisionmaking body, minutes of its meetings, or reports” may also be relevant. Id. at 268.
Similarly, a state law that has the purpose and effect of regulating a preempted subject matter violates the Supremacy Clause. See Oneok, Inc. v. Learjet, Inc., 135 S.Ct. 1591, 1599 (2015) (courts should consider “the target at which the state law aims in determining whether that law is pre-empted”) (emphasis omitted); N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 658 (1995) (considering the purpose and effect of challenged state law). In determining whether a state law is addressed to a preempted subject matter, courts consider “any specific expressions of legislative intent in the statute itself as well as the legislative history.” Cal. Tow Truck Ass’n v. City & Cty. of S.F., 693 F.3d 847, 859 (9th Cir. 2012) (citation omitted).
The contested documents may shed light on whether the Arizona Legislature acted with a constitutionally impermissible purpose in adopting H.B. 2779 and H.B. 2745. The documents consist of emails between Pearce and various third party attorneys, lobbyists, and constituents regarding anti-illegal immigration legislation Pearce was sponsoring. Some of the emails relate directly to the legislation at issue in this case. Pearce Log, Nos. 27, 33, and 42; State Log, Nos. 16, 19, 20. Other emails discuss an early version of the bill that became H.B. 2745 (State Log 9); a bill that would have made it a crime for an undocumented immigrant to enter or remain in Arizona (State Log Nos. 60, 62); a ballot initiative that would have prohibited undocumented adults from receiving certain state benefits (State Log Nos. 3, 4, 5); unnamed legislation that would prohibit undocumented immigrants from receiving workers compensation, occupational licenses, and social security benefits (Pearce Log Nos. 3, 4, 21; State Log. No. 39); unnamed legislation to promote enforcement of immigration laws (Pearce Log Nos. 16, 29); unnamed legislation “concerning deduction of business expenses and illegal aliens” (Pearce Log. No. 2); unnamed legislation “concerning illegal aliens and commercial transactions” (Pearce Log. No. 6); and unnamed legislation “to stop anchor babies” (State Log No. 41). Several of these bills were included in Pearce’s “Comprehensive Immigration Enforcement Bill, ” a 2006 omnibus bill designed to “mak[e] Arizona ‘illegal alien unfriendly.’” Doc. ...