Case Summary and Outcome

The Supreme Court of Florida ordered the production of 358 pages of documents subpoenaed in a challenge to the constitutional validity of the Florida Legislature’s 2012 redistricting plan.

Facts

Several voting rights groups, led by the League of Women Voters, filed a lawsuit in 2012 alleging that the Republican-dominated legislature had drawn a congressional map that favored incumbents.

Republican political consultant, Pat Bainter, battled against these groups in an effort to keep 538 pages of relevant documents private, first delaying production then asserting qualified privilege. The requested documents included any emails Bainter had sent or received regarding the redistricting process. The trial court ordered the production of the subpoenaed documents.

Decision Overview

Pariente, J., delivered the opinion of the Court. The Supreme Court of Florida affirmed the trial court’s ruling. It reached this decision after a detailed examination of the record regarding the litigation of the discovery issue, which the Court believed demonstrated the inexcusable delay by Bainter and his political consulting firm, Data Targeting, Inc., in asserting qualified privilege.

The Court’s holding of waiver was based on all of the circumstances in the case and not one particular factor. The relevant circumstances included Bainter’s failure to file a motion for a protective order or to raise any legal objection to producing the documents when served with a subpoena duces tecum that included within its scope the disputed documents. Bainter then attended a deposition, where he affirmatively testified under oath that he had conducted “a thorough search” for documents in response to the subpoena and had produced
what he found.

After being served with additional subpoenas duces tecum (which had the disputed documents within their scope), Bainter did not raise any claim of First Amendment privilege during six months of hearings and filings regarding the document production until the day after the trial court held his party in contempt of court and ordered it to pay attorney’s fees for failing to produce the documents. It wasn’t until this incident that the words “First Amendment” appeared for the first time in a filing or a hearing transcript in the trial court. Accordingly, the Court found that Bainter had waited too long before asserting his First Amendment rights.