The opinion of the court was delivered by: GREEN
In response to the defendants' subpoena arising out of litigation to which the United States is not a party, the United States produced certain documents, but withheld other documents and portions of documents, for which it claimed privilege. The United States now seeks to quash the subpoena. Upon order of this Court, the United States has submitted for in camera review those documents and portions of documents, for which it claims privilege. Each of those documents has been examined closely by this Court in connection with both the privilege claimed and the opposition thereto. For the reasons stated below, the motion to quash is granted in part and denied in part; the scope of the subpoena will be modified.
The defendants' subpoena arises from litigation pending in the Northern District of Georgia, Cofield, et al., v. City of LaGrange, Georgia, et al., No. 3:93-CV-97-JTC, which is an action by private plaintiffs to enforce their rights, inter alia, under the Voting Rights Act of 1965, as amended and as codified at 42 U.S.C. §§ 1971-1974 (1988 & Supp. V. 1993). The United States is not a party to the Cofield litigation in which the plaintiffs contend that the use of at-large elections for the LaGrange City Council violates Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973.
Although the United States is not a name party in the Cofield litigation, the United States, through the Department of Justice, has been actively involved in voting rights matters with the defendants, particularly in regard to the at-large method of election for City Council members. The City of LaGrange is subject to Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, which requires preclearance by the Attorney General of any changes to "any voting qualification or prerequisite to voting, or standard, practice, or procedure." 42 U.S.C. § 1973c; see South Carolina v. Katzenbach, 383 U.S. 301, 86 S. Ct. 803, 15 L. Ed. 2d 769 (1966); see also Allen v. State Board of E lections , 393 U.S. 544, 89 S. Ct. 817, 22 L. Ed. 2d 1 (1969). See generally Armand Derfner, Racial Discrimination and the Right to Vote, 26 Vand.L.Rev. 523, 576 (1973). Twice in the past two years, the defendants have sought preclearance for substantial changes to the at-large election system for the LaGrange City Council, and twice the Attorney General has objected to the proposed changes. On both occasions, the Attorney General concluded "that the City had not met its burden under Section 5 of showing the absence of discriminatory purpose and effect." Motion to Quash, supra, at 2.
In connection with its preclearance submissions, the defendants have sought access to the relevant Section 5 files maintained by the Department of Justice in accordance with 28 C.F.R. § 51.50 (1995).
While the Department of Justice provided the defendants with access to the Section 5 files,
the defendants were not allowed to inspect or copy all of the documents, because the Attorney General had determined that certain documents were exempt from inspection under 28 C.F.R. § 51.50(d).
See Motion to Quash, supra, at 3. The subpoena followed on April 24, 1995, and directed the production of "each and every document contained within the Section 5 Files maintained by the Justice Department, Justice Department File Number 93-1248 (Act Number 57, City of LaGrange) and Justice Department File Number 94-2267 (Act Number 652, City of LaGrange) as such files are maintained and contain the information required to be included within said file by 28 C.F.R. § 51.50(a), to include, but not limited to, the submission itself related written materials, correspondence, memoranda, investigative reports, data provided on magnetic media, notations concerning conferences with the submitting authority or any interested individual or group and copies of letters from the Attorney General concerning the submission." Exhibit A to Subpoena of April 24, 1995, Attachment A to Motion to Quash, supra.
In its motion, the United States asserts that it "has made available or provided to the City of LaGrange all documents sought by the subpoena that are not privileged." Motion to Quash, supra, at 4, P 5. Under Fed. R. Civ. P. 45(c)(3)(A)(iii),
the United States claims that "the remaining documents sought by the subpoena either set forth the impressions, analysis and recommendation of staff members of the Civil Rights Division or would reveal the identity of confidential sources." Motion to Quash, supra, at 7; see also Reply Memorandum of the United States in Support of Motion to Quash Subpoena ("Reply"), passim. Additionally, the United States argues that the documents sought, which relate to the Attorney General's decisionmaking process under Section 5, are not relevant to the Cofield litigation which involves a Section 2 challenge. Motion to Quash, supra, at 16; Reply, supra, at 2 n. 1 & 8-9 n.7.
After ordering the United States to submit the challenged documents for the Court's in camera review, the Court has examined each document and applied the law of relevance and privilege, as discussed below.
A federal court has the authority to quash a subpoena that seeks material which is clearly irrelevant 9A Wright & Miller, Federal Practice & Procedure: Civil 2d § 2459, at 42 (1995). By incorporating reference to Fed. R. Civ. P. 26(b),
Rule 45(d)(1) applies an "exceedingly broad" standard of relevancy to a subpoena seeking material from a non-party. See Advisory Committee Notes to Subdivision (d) of Rule 45 of 1991 Amendments; 9A Wright & Miller, supra, § 2459, at 42. The relevancy threshold is not high: material sought need not be admissible at trial, but must be relevant to the subject matter of the litigation and reasonably calculated to lead to admissible evidence. See 9A Wright & Miller, supra, § 2459, at 45; see also 8 Wright, Miller & Marcus, Federal Practice & Procedure: Civil 2d § 2008, at 101 & n.7 (1994) ("The proposition stated in the text is now so well settled that the cases cited are only illustrative of many others.")
In Cofield, the defendants are being sued by private plaintiffs who, according to the United States, claim that the City's use of an at-large method of election is in violation of Section 2 of the Voting Rights Act of 1965. Motion to Quash, supra, at 2, P 1. Presumably, the plaintiffs will be attempting to prove that the present system denies or abridges their right to vote under 42 U.S.C. § 1973. In contrast, the defendants Section 5 submissions sought preclearance to change the same at-large method of election which the plaintiffs are now challenging. Defendants' Response, supra, at 5-6. The Attorney General objected to the defendants' submissions based, at least in part, on the process that led to the proposed method of election and because the proposals were not shown to be free of discriminatory purpose.
While Section 5 decisions turn upon a variety of factors, which are part factual and part interpretive in nature, it requires no stretch of the imagination to conclude that both the Section 2 litigation and the Section 5 decisionmaking process involve common matters. In this instance, both involve facts and interpretations of facts concerning voting patterns, electoral data and may even include evidence of intentional discrimination by the City of LaGrange. The information in the Section 5 files may reasonably lead to admissible evidence at a Section 2 trial because both the files and the pending litigation involve analysis of the present at-large method of election and proposed changes. The test of relevance in discovery is not a stringent one. Additionally, the ...