Cave v. Thurston

• Decision Date: 22 October 2021
• Docket Number: 4:18-cv-00342-KGB
• Parties: DONNA CAVE, et al., PLAINTIFFS v. JOHN THURSTON, Arkansas Secretary of State, in his official capacity DEFENDANT EUGENE LEVY, et al., CONSOLIDATED PLAINTIFFS THE SATANIC TEMPLE, et al., INTERVENORS
• Court: U.S. District Court — Eastern District of Arkansas

DONNA CAVE, et al., PLAINTIFFS EUGENE LEVY, et al., CONSOLIDATED PLAINTIFFS THE SATANIC TEMPLE, et al., INTERVENORS v. JOHN THURSTON, Arkansas Secretary of State, in his official capacity DEFENDANT

No. 4:18-cv-00342-KGB

United States District Court, E.D. Arkansas, Central Division

October 22, 2021

ORDER

Kristine G. Baker, United States District Judge

Before the Court are two motions related to discovery in this matter. The Satanic Temple, Lucien Greaves, and Erika Robbins (collectively “The Satanic Temple Intervenors” or “TSTI”) filed a motion to compel discovery (Dkt No. 120). John Thurston, Arkansas Secretary of State, in his official capacity, filed a motion for an order to show cause and compel the Satanic Temple to make court-ordered production of documents (Dkt. No. 124). The Court held a hearing on these motions (Dkt. No. 134). The Court entered a short order granting, in part, and denying, in part, each of the two motions related to discovery in this matter (Dkt. No 145). This Order sets forth its reasons.

I. Legal Standard

Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . . .” Fed.R.Civ.P. 26(b)(1). The Rule is construed broadly to encompass “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (construing the same language that appeared in a prior version of Rule 26); see also Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (Rule 26 “is liberal in scope and interpretation, extending to those matters which are relevant and reasonably calculated to lead to the discovery of admissible evidence”). The spirit of Rule 26(a) is that discovery be self-effectuating, without need to resort to the Court, and that its scope be liberal, extending to all matters reasonably calculated to lead to admissible evidence. This standard is well-ensconced and is generally known and understood by civil practitioners. Hickman v. Taylor, 329 U.S. 495 (1947); Greyhound Lines, Inc. v. Miller, 402 F.2d 134 (8th Cir. 1968); Carlson Cos., Inc. v. Sperry and Hutchinson Co., 374 F.Supp. 1080, 1100 (D. Minn. 1974); National Organization for Women, Inc. (NOW), St. Paul Chapter v. Minnesota Min. & Mfg. Co., 73 F.R.D. 467 (D.C. Minn. 1977); see also Laker Airways Ltd. v. Pan American World Airways, 103 F.R.D. 22 (D.C. Cir. 1984).

“Discovery rules are to be broadly and liberally construed in order to fulfill discovery's purposes of providing both parties with ‘information essential to the proper litigation of all relevant facts, to eliminate surprise, and to promote settlement.'” Rollscreen Co. v. Pella Products, 145 F.R.D. 92, 94 (S.D. Iowa 1992); see also Davis v. Union Pacific R.R. Co., Case No. 4:07-cv-000521 BSM, 2008 WL 3992761, at *2 (E.D. Ark. 2008) (“A request for discovery should be considered relevant if there is ‘any possibility' that the information sought may be relevant to the claim or defense of any party.”); Moses v. Halstead, 236 F.R.D. 667, 671 (D. Kan. 2006) (same). Nevertheless, “there must be at least a ‘threshold showing of relevance' before parties ‘are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.'” Kampfe v. Petsmart, Inc., 304 F.R.D. 554, 557 (N.D. Iowa 2015) (quoting Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992)).

II. The Satanic Temple Intervenors' Motion

TSTI propounded discovery requests to Secretary Thurston (Dkt. No. 120-1). TSTI propounded discovery, to which the state responded with initial responses and supplemental responses (Dkt. Nos. 120-4; 120-5). TSTI engaged in good faith negotiations in an effort to avoid filing the motion to compel (Dkt. No. 120-6), agreeing to limit certain requests.

In good faith negotiations, TSTI agreed to limit its discovery requests seeking correspondence to only correspondence sent from General Assembly members or staff; TSTI agreed that correspondence sent by the Governor or staff need not be provided (Dkt. No. 120-6). TSTI agreed to limit its request for “meeting minutes” to “non-legislative meetings, ” specifying TSTI's narrowed request as “meetings held between General Assembly members, or their staff, and non-General Assembly members.” (Dkt. No. 120-6; First RFPs Nos. 14, 15). TSTI explained that “[i]t is anticipated that these meeting minutes will shed light on the origins and purposes of the two complained-of Acts.” (Dkt. No. 120-6). TSTI agreed to withdraw its request for notes created by state employees pertaining to either Act (Dkt. No. 120-6; First RFPs Nos. 16, 17). TSTI agreed to withdraw its request for CC&E forms (Dkt. No. 120-6; First RFPs No. 18).

According to TSTI, defendants opted to stand on their responses and objections (Dkt. No. 120, at 2).

TSTI's motion to compel focuses on four topics of discovery, according to TSTI: (1) “[c]orrespondence, including emails, sent from January 1, 2015 to present by General Assembly members or their respective staff, pertaining to this litigation”; (2) “[s]tate-possessed governance documents and tax documents related to the American Heritage and History Foundation (‘AHHF, ') the State Sen. Rapert organization through which he fundraised and donated the monument”; (3) “[s]tate-possessed governance documents and tax documents related to the National Association of Christian Lawmakers (‘NACL, ') the State Sen. Rapert organization through which he proclaims religious purposes behind actions as a legislator”; and (4) “[m]eeting minutes and notes, between General Assembly members or their staff and non-General Assembly members, pertaining to the Ten Commandments Monument Display Act and Act 274 of 2017. . . .” (Dkt. No. 120, at 1-2).

A. Overall Arguments

TSTI requests that this Court address the following overall arguments pertinent to the parties' discovery dispute.

(1) Possession of Documents

TSTI maintains: “The State claims not to possess state tax records, correspondence from General Assembly members, or any documents ‘in the possession of the State of Arkansas or any of its employees' related to AHHF or NACL or their respective activities.” (Dkt. No. 120, at 3). TSTI is concerned based on comments from defense counsel that defense counsel is taking the position that only Secretary Thurston must respond about documents in his possession, not on behalf of the State of Arkansas. TSTI emphasizes that Secretary Thurston is named as a defendant in his official capacity and cites Kentucky v. Graham, 473 U.S. 159, 166 (1985), for the proposition that “an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.” (Id.).

Having reviewed the briefing and inquired of counsel during argument, the Court is unclear as to what position Secretary Thurston takes with respect to this issue. Initially, he asserts that TSTI is incorrect, that the State of Arkansas is not the defendant, and that instead the defendant “is, plainly, Secretary Thurston is his official capacity.” (Dkt. No. 123, at 3). Secretary Thurston later makes this statement in his filing: “Further, even if the State of Arkansas were a defendant in this action, then because sovereign immunity is immunity to suit, that doctrine would absolutely preclude the State from being compelled to respond to discovery.” (Dkt. No. 123, at 3). The cases that Secretary Thurston cites for this statement do not involve discovery nor do they involve cases with claims similar to the claims asserted here.

“A suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. Brandon v. Holt, 469 U.S. 464, 471 (1985). As such, it is no different from a suit against the State itself.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (citations omitted).

The Eleventh Amendment establishes a general prohibition of suits in federal court by a citizen of a state against his state or an officer or agency of that state. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). However, there are exceptions to this rule. Relevant here, a suit against a state official may go forward in the limited circumstances identified by the Supreme Court in Ex Parte Young. Under the Ex Parte Young doctrine, a private party can sue a state officer in his official capacity to enjoin a prospective action that would violate federal law. In determining whether this exception applies, a court conducts “a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland, 535 U.S. 635, 645 (2002) (alteration in original) (internal quotation omitted). Here, there is no dispute that the relief plaintiffs seek is prospective and that they have alleged Secretary Thurston, in his official capacity, is engaged in an ongoing violation of federal law. See 281 Care Comm. v. Arneson, 638 F.3d 621, 632 (8th Cir. 2011).

Secretary Thurston also asserts that he “does not have possession, custody, or control of the vast majority of the records” that TSTI seeks to compel (Dkt. No. 123, at 2). Secretary Thurston maintains that he is “not the custodian of correspondence, notes, or other material for the General Assembly, the Governor, and certainly not for ‘the State of Arkansas' and ‘its employees.'” (Id.).

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