Kris Kobach Memo On Turning Over Documents

Case 2:16-cv-02105-JAR-JPO Document 288 Filed 02/07/17 Page 1 of 34
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
STEVEN WAYNE FISH, et al., on )

behalf of themselves and all others similarly )
situated, )
)
Plaintiffs, )
) Case No. 16-2105-JAR-JPO
v. )
)
KRIS KOBACH, in his official )
capacity as Secretary of State for the State of )
Kansas, et al., )
)
Defendants. )
)
DEFENDANTS RESPONSE TO PLAINTIFFS MOTION TO COMPEL PRODUCTION

REGARDING PLAINTIFFS SIXTH REQUEST FOR PRODUCTION OF DOCUMENTS
TABLE OF CONTENTS
STATEMENT OF FACTS ..................................................................................................3
ARGUMENT .......................................................................................................................4
I. PLAINTIFFS MOTION SHOULD BE DENIED AS THEY SEEK
DOCUMENTS THAT ARE NOT WITHIN THE SCOPE ARTICULATED
BY THIS COURT....................................................................................................4
A. The Sought Discovery Falls Outside of the Scope of this Courts Order
Re-opening discovery ..............................................................................................7
B. Plaintiffs Request Fall Outside the Broader Relevancy Requirement of

Rule 26 Because it is Not Relevant to their Preemption Claim ...............................9
C. Drafts of Future, Hypothetical Laws Are Not Within the Scope of Reopened
Discovery ...............................................................................................................12
D. Plaintiffs Theory Regarding the First Part of the Tenth Circuit Test is
Flawed ....................................................................................................................14
E. Plaintiffs Rationale Concerning the Second Part of the Test is Also Flawed ......15
II. EVEN IF THE REQUEST WERE FACIALLY RELEVANT TO

PLAINTIFFS PREEMPTION CLAIM AND COULD BE READ TO BE
FACIALLY WITHIN THE SCOPE FOR WHICH DISCOVERY WAS
REOPENED, THE REQUEST STILL SEEKS IRRELEVANT INFORMATION
UNDER RULE 26 .................................................................................................18
III. THE REQUEST IS OVERBROAD ......................................................................18
IV. THE ATTORNEY-CLIENT PRIVILEGE APPLIES TO THE DRAFT

AMENDMENT IDENTIFIED IN THE PRIVILEGE LOG .................................21
V. DEFENDANT POSSESSES DELIBERATIVE PROCESS PRIVILEGE

CONCERNING A POSSIBLE DRAFT AMENDMENT TO THE NVRA .........23
VI. GIVEN THE CLEAR IRRELEVANCY OF THE DOCUMENT

SOUGHT, THE PURPOSE OF THE REQUEST FOR PRODUCTION CAN
ONLY BE TO HARASS DEFENDANT ..............................................................26
VII. EXECUTIVE PRIVILEGE APPLIES BECAUSE KRIS KOBACH WAS A

MEMBER OF THE TRANSITION TEAM OF THEN-PRESIDENT-ELECT
AND NOW-PRESIDENT TRUMP.......................................................................26
2
VIII. FAILURE TO INCLUDE THE PHOTOGRAPHED DOCUMENT

ON A PRIVILEGE LOG CREATED PRIOR TO DEFENDANT KNOWING
THE DOCUMENT WAS INTENDED TO BE COVERED BY THE
REQUEST DOES NOT WAIVE THE PRIVILEGE ............................................28
IX. THE PRIVILEGE WAS NOT WAIVED BY IT BEING PHOTOGRAPHED ....31
CONCLUSION ..................................................................................................................33
3
STATEMENT OF FACTS
1. On December 13, 2016, and December 16, 2016, the parties conferred regarding
the scope of Plaintiffs Sixth Request for Production of Documents. Counsel for Defendant sought
clarification from Plaintiffs counsel whether the phrase including but not limited to was (1)
included in the request to ensure that all draft amendments to the NVRA and documents related to
those drafts were the subject of the request, or (2) whether the categories following the phrase
including but not limited to were intended to limit the scope of the request. See Pls. Ex. A
(including but not limited to any amendments related to the purported purposes of certain issues).
2. Plaintiffs counsel responded that the phrase including but not limited to was
intended to supersede the language at the end of their request. Ex. H, 2-3. Plaintiffs counsel
also took the position that any possible amendment to the NVRA that may address the Tenth
Circuit test would be relevant.
3. Plaintiffs counsel never mentioned the photographed document during either of
these phone calls. Ex. H, 4.
4. Subsequently, counsel for Defendant provided Responses and Objections to
Plaintiffs request.
5. On January 6, 2017, counsel for the parties conferred telephonically again.
Plaintiffs counsel stated that the scope of the draft amendments they were seeking could be
limited, but would still be seeking draft amendments nevertheless. Ex. H, 5. Plaintiffs counsel
suggested, for example, that the request could be limited to amendments to a specific subsection
of the NVRA. Id.
6. At this meet-and-confer, Plaintiffs counsel also mentioned for the first time that
they intended their request to cover the photographed document seen in Plaintiffs Exhibit D. Ex.
4
H, 6. Defendants counsel explained that the document was one page long and was not within
the scope of the request they submitted. Ex. H, 6.
7. Following the meet-and-confer, Plaintiffs counsel sent an e-mail indicating that
what they were seeking was actually broader in scope than the original request sent to Defendant.
Pls. Ex. E.; Ex. H, 7.
8. In their e-mail, Plaintiffs counsel clarified they were now seeking, all documents
and communications regarding potential amendments or changes to the National Voter
Registration Act affecting how officials may assess the eligibility of a voter registration applicant.
Pls. Ex. E.
9. Plaintiffs counsel further clarified that such request should be interpreted as
including any document which references possible amendments to the National Voter
Registration Act permitting states to adopt documentary proof of citizenship requirements[.] Id.
The request was thus not limited to documents actually connected with an actual draft NVRA
amendment. Documents that simply discuss the option or possibility of amending the NVRA
should be produced. Id. In other words, Plaintiffs counsel was clarifying that the document they
really intended to seek was the specific, photographed document shown in Plaintiffs Exhibit D.
10. Defendant responded that Plaintiffs request remained overbroad, seeking
documents beyond the scope of litigation in general, as well as beyond the scope of the Courts re-
opened discovery. Pls. Ex. F. Defendants counsel also stated that the photographed document
was subject to Executive Privilege between the President-elect and an advisor. Id.
11. Plaintiffs filed the instant motion following that e-mail exchange.
ARGUMENT
I. PLAINTIFFS MOTION SHOULD BE DENIED AS THEY SEEK DOCUMENTS

THAT ARE NOT WITHIN THE SCOPE ARTICULATED BY THIS COURT
5
On October 28, 2016, this Court agreed to reopen discovery for the limited purposes of
addressing the recent two-part analysis articulated by the Tenth Circuit regarding whether a states
law is preempted by the NVRA. That test asks whether a substantial number of noncitizens have
registered to vote and whether there are other means by which Defendant could enforce his
citizenship requirements. See Fish v. Kobach, 840 F.3d 738, & n.14.
While the Tenth Circuit contemplated discovery on the former, see Fish v. Kobach, 840
F.3d 710, 739 (10th Cir. 2016), Plaintiffs requested limited discovery related to the latter. Ex. G,
15:25-17:7. The district court agreed and permitted discovery to produce evidence to rebut the
attestation presumption. Dkt. 254, at 4-5.
Following this order, Plaintiffs first sought from Defendant extraordinarily broad discovery
in a Fifth Request for Production of Documents, addressing every conceivable theory they have
had in this case regarding alternatives to requiring proof of citizenship, along with a convoluted
catchall, [a]ll documents and correspondence to, from, or between Defendant and any other
person, sufficient to show that alternatives to the DPOC Law are impossible to undertake or
ineffective in identifying noncitizens, as stated in Brief of Appellant Kansas Secretary of State.
Ex. E, p. 6. Following that request, Plaintiffs sent the Sixth Request which is at issue here. Ex. A.
This Sixth Request does not seek documents related to the numbers of noncitizens who have
registered to vote in Kansas, nor does it seek documents related to ways in which Kansas has
attempted to prevent noncitizens from registering. Indeed, they already sought those documents
multiple times in the various rounds of discovery. See Exs. C-F. Instead, this request seeks:
All documents and communications related to draft amendments to the NVRA,

including but not limited to any amendments related to the purported purposes of
preventing, deterring and/or identifying noncitizen registrations and/or attempted
registrations, registrations fraud, and/or voter fraud.
6
See Plaintiffs 6th RFP, p. 3 (emphasis added). In other words, Plaintiffs are not seeking any
documents related to how many noncitizens are registered or documents related to methods of
attempting to prevent noncitizens from registering. Instead, Plaintiffs now seek documents
relating to how the NVRA might hypothetically be changed at some time in the unknown future.
On its face, the request is not within the scope of the limited discovery. Nor is it even remotely
relevant to the claim for which discovery was re-opened. A suggestion of what one might wish
the law to be in the future has no relevance to the law as it is now, which is what governs this case.
During an initial discussion with Plaintiffs counsel, Plaintiffs counsel indicated that the
phrase including but not limited to meant that they wanted all draft amendments to the NVRA
and documents relating to them. Ex. H, 2-3. Defendant filed his objections.
Counsel for the parties then met and conferred regarding the objections by Defendants.
During this second conversation, and subsequently through e-mail, Plaintiffs counsel indicated
that they were actually seeking one specific document that was not within the scope of their
request. Ex. E. During that conversation, Defendants counsel informed Plaintiffs counsel that
the newly requested document was only one page, yet Plaintiffs motion discusses lobbying
efforts and other documents. Pls. Memo at 7. In the subsequent e-mail, Plaintiffs counsel also
indicated that Defendant need not produce any undefined technical amendments to the NVRA.
However Plaintiffs seek any other possible amendments, regardless of whether they have ever
been introduced by anyone or even shown to anyone besides one or two individuals in Defendants
office. Plaintiffs Ex. E.
To date, two documents have been identified that purportedly fall within the broad scope
of Plaintiffs request. One document is a document that contains an in-house, unshared draft of a
possible future amendment to the NVRA. The other document, identified by Plaintiffs counsel,
7
is a document created by Defendant to share with then President-elect Trump that does not fit even
within the broad request. However, Plaintiffs essentially supplemented their request to explain
that their request should also include any documents that include phrasing similar to document[s]
that reference possible amendments to the National Voter Registration Act permitting states to
adopt documentary proof of citizenship requirements (internal citations omitted). Pls. Ex. E.
Plaintiffs request is not relevant and should be denied.
A. The Sought Discovery Falls Outside of the Scope of this Courts Order Re-
opening discovery
Plaintiffs motion to compel should be rejected because they seek documents that are
beyond the scope of this Courts order reopening discovery. Under Rule 26(b)(1), Unless
otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any partys claim or defense and proportional
to the needs of the case . . . But, this Court has limited discovery in this matter and Rule 26 vests
a trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of
discovery. Crawford-El v. Britton, 523 U.S. 574, 598 (1998). Originally, this Court permitted
broad discovery which concluded in June of 2016. Dkt 49. Then, following the Tenth Circuits
preliminary injunction decision, this Court permitted limited further discovery on the narrow,
specific test created by the Tenth Circuit. Dkt. 254, at 6.
When a Court limits the scope of discovery, such narrowing should be followed by the
party seeking discovery. Storts v. Hardees Food Systems, Inc., No. 95-1036-MLB, 1997 WL
557310, *1 (D. Kan. Aug. 20, 1997) (describing way in which counsel ignored courts limited
scope of discovery); see also Burlington Northern & Santa Fe Railway Co. v. Han, No. 14-cv-
0069-CVE-PJC, 2016 WL 8115367, *2-*3 (N.D. Okla. Apr. 29, 2016) (striking report that was
beyond scope of discovery limits set by Court). Plaintiffs have not attempted to limit their request
8
to the scope of discovery permitted; instead they seek documents falling well outside that scope
and even outside Rule 26 relevancy limits.
Plaintiffs seek [a]ll documents and communications related to draft amendments to the
NVRA[.] They are not seeking documents related to the numbers of noncitizens registered to
vote, nor are they seeking documents related to methods for preventing noncitizens from
registering to vote (the only two areas in which this Courts order could conceivably be viewed as
permissible). Indeed, Plaintiffs are pointedly not seeking those documents, given they have
already been sought. Exs. C-F. Defendant already produced what information he has to Plaintiffs
regarding non-citizen registration in Kansas on January 30, 2017, pursuant to the discovery order.
Plaintiffs current request is similar to those rejected in other cases when a court had
previously entered an order limiting the scope of discovery. For instance, in Himoinsa Power Sys.,
Inc. v. Power Link Mach. Co., 2010 WL 2265160 (D. Kan. June 2, 2010), this Court reviewed
multiple discovery requests subject to temporal and geographical scope imposed by the Court.
Following that narrowing of discovery, the Court rejected multiple requests because they were
beyond the scope permitted by the Court Id. at *5. Indeed, the requests of the plaintiffs included
language that was narrower than that of Plaintiffs in their current request. See id. (Identification
of all industrial equipment imported into the United States for a three year period).
Apparently, Plaintiffs have decided to exploit this Courts limited grant of discovery to
seek all documents they can conceive of involving NVRA draft amendments, and then attempt to
fashion an argument as to why it may, in some tangential way, be relevant to the Tenth Circuits
two part-test. However, Plaintiffs instead must ensure that their requests are within the scope of
this Courts limited reopening of discovery. Plaintiffs have not done so.
9
Indeed, Plaintiffs discovery requests that are entirely outside the scope permitted by this
Court are a recurring problem. Plaintiffs have sent Defendants a Seventh Request for production
of documents, to which responses and objections are due on February 25, 2017. That request is as
follows:
All documents and communications regarding efforts to investigate voter fraud in the 2016
election using the Interstate Crosscheck Program, including, but not limited to, documents
and communications related to results of the actual computer check where the 32 states
voter files are bumped against each other as was referenced in the January 25, 2017 article
in The Wichita Eagle, titled Kris Kobach says he advised Donald Trump on voter fraud
probe, immigration orders. Lowry, supra at 2-3.
Ex. B. The Interstate Crosscheck Program is a program in which the voter registration rolls of
participating states are checked against each another to attempt to identify duplicate registrations.
It has nothing to do with proof of citizenship. While counsel for Defendant has not yet discussed
this request with Plaintiffs counsel, Defendant is currently at a loss how this request can be
justified as being within the limited scope of discovery set by this Court either. This Court may
wish to remind Plaintiffs that they should only be seeking documents that are permitted under the
narrow scope of the discovery order.
B. Plaintiffs Request Fall Outside the Broader Relevancy Requirement of Rule

26 Because it is Not Relevant to their Preemption Claim
Plaintiffs motion should also be denied because the request cannot be justified under the
broader limits of Rule 26 relevancy to their preemption claim. While relevance is construed
broadly under Rule 26, it is not unlimited. Gheesling v. Chater, 162 F.R.D. 649, 650 (D. Kan.
May 1, 1995). Where the party seeking discovery has failed to specify how the information is
relevant, and the court cannot determine how the information sought is relevant, a court will not
require the defendant to produce the information. Id. (citation omitted). Thus, a Court must first
examine whether the relevancy of the discovery request is [] readily apparent on its face. hibu
10
Inc. v. Peck, No. 16-cv-1055-JTM-TJJ, 2016 WL 6804996, * 2 (D. Kan. Nov. 17, 2016). If the
relevancy of the request is not apparent, the burden of demonstrating relevancy falls on the party
seeking discovery. Id. Conversely, if relevancy is readily apparent, it is the party resisting
discoverys duty to demonstrate either that the request does not come within the scope of
relevancy as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevancy that the
potential harm occasioned by discovery would outweigh the ordinary presumption in favor of
broad disclosure. Id.
Preliminarily, it should be noted that Plaintiffs apply the wrong standard for determining
the scope of relevancy. On December 1, 2015, the amendment to Rule 26(b)(1) became effective.1
That amendment could be important in this matter if the Court determines that its order did not
limit the scope of permissible discovery to just information identified in the Fish v. Kobach Tenth
Circuit opinion. The former rule included a reference to permitting discovery on matters relevant
to the subject matter of the action while the new rule deletes that broad phrase and now limits
discovery to information that is relevant to any partys claim or defense only. See Frick v. Henry
Indus., Inc., no. 13-2490, 2016 WL 6966971, at *5 (D. Kan. Nov. 29, 2016).2 The reason for the
2000 amendments (made when the issue was first addressed) was that parties were using the old
standard to seek requests that swe[pt] far beyond the claims and defense. Rule 26(b)(1) Advisory
Notes to 2000 Amendment.. The committee wanted the parties and the court to focus on the
actual claims and defenses involved in the action instead. Id. In 2015, the language referring to
the subject matter of the action was removed entirely because the provision was rarely invoked.
Rule 26(b)(1) Advisory Notes to 2015 Amendment. Instead, it was important in the Committees
1
See Journal of the Supreme Court of the United States, April 29, 2015, p. 759.
2
Another change involved including proportionality of discovery. Fed. R. Civ. P. 26, Advisory
Committee Notes, 2015 Amendment.
11
view that [p]roportional discovery relevant to any partys claim or defense suffices, given a proper
understanding of what is relevant to a claim or defense. Id.
Plaintiffs rely exclusively on a case that was filed prior to the effective date of the Rule
26(b) amendment. See Pls. Memo. at 6 (citing Taylor v. Hy-Vee, Inc., 2016 WL 7405669 (D. Kan.,
filed Nov. 30, 2015).3 That case also relies on cases filed prior to the date of the amendment that
deleted any mention of the term subject matter from Rule 26(b)(1). For example, Rowan v.
Sunflower Electric, focused solely on the change in proportionality. 2016 WL 3745680, at *2-*3.
While admittedly, at least one Kansas District Court case filed after the amendment to Rule
26(b)(1) did follow the former relevancy standard, see hibu Inc., 2016 WL 6804996, that case
failed to note that the subject matter language had been entirely omitted after the 2015
Amendment. Indeed, Plaintiffs could bear upon argument seems to be more reminiscent of the
pre-2000 rule change when relevant to the subject matter was no longer part of the scope of
discovery but instead allowed to expand discovery to cover that limit. See Ice Corp. v. Hamilton
Sundstrand Corp., No. 05-4135-JAR, 2007 WL 1742163, *3-*4 (D. Kan. May 24, 2007).
The Oppenhemier case on which Rowan and Taylor rely construed language concerning
relevant to the subject matter, a phrase that no longer exists. Coles Wexford Hotel, Inc. v.
Highmark Inc., 2016 WL 5025751, *9-*10 (W.D. Pa. Sept 20, 2016). However, Frick v. Henry
Indus., Inc., has properly noted the distinction between relevancy to a claim or defense as
3
The cases cited by Taylor also were filed prior to the pre-2015 amendment effective date. See
Rowan v. Sunflower Electric Power Corp., No. 15-9227-JWL-5JJ, 2016 WL 3745680, at *2 (D.
Kan. July 13, 2016) (filed August 24, 2015); Waters v Union Pacific railroad Co., 2016 WL
3405173 (D. Kan. filed 6/21/2016). Cases filed prior to the amendment change could be governed
by the pre-2015 amendment. See Clark v. Associates Commercial Corp., 159 F.R.D 556, 558 n.2
(D. Kan. Nov. 30, 1994) However, the amended language applies to this case. See Journal of the
Supreme Court of the United States, April 29, 2015, p. 759.
12
opposed to relevancy to the subject matter of the action. 2016 WL 6966971, at *5. Thus, under
the modified rule, the proper scope of relevancy is not how Plaintiffs have phrased it, namely any
other matter that could bear on, any issue that is or may be in the case because that relevancy
test was directed at the subject matter of the case, not at a specific claim or defense in the case.
Coles Wexford Hotel, Inc.., 2016 WL 5025751, at *9-*10. The correct approach for the Court,
therefore, is to determine whether the request is relevant to Plaintiffs preemption claim or
Defendants defense to that claim, because that was the only claim on which discovery was
reopened. However, even if this Court chose to continue applying the old relevancy standard
regarding subject matter, Plaintiffs request falls outside of that scope as well.
C. Drafts of Future, Hypothetical Laws Are Not Within the Scope of Reopened
Discovery
Discovery was reopened for the limited purpose of addressing the new test created by the
Tenth Circuit in Fish v. Kobach. See Dkt. 254, at 6. Thus, the only permissible discovery must
fit within one of the following two purposes: 1) to determine how many non-citizens are registered;
and 2) to show that nothing less than proof of citizenship would be sufficient to prevent noncitizens
from registering to vote. Fish v. Kobach, 840 F.3d 710, 738 (10th Cir. 2016). Indeed, this Court
expressed a concern that the parties might utilize this opportunity to begin seeking broader
discovery and was clear that it was not re-open[ing] discovery for all purposes[.] Ex. G, 11:6-
11. The court even rejected allowing amendments at that time due to a concern of the mischief
that would result from that in term so ensuing efforts to expand discovery based on claims or
theories that may be implicit in the amended pleading[.] Id. at 20:13-16. Plaintiffs are now
engaging in similar mischief.
The limitation imposed by this Court is important to the instant motion because whether a
state law is preempted is based on the current statute, not some hypothetical, unknown future
13
statute. Indeed, any consideration of such hypothetical amendment would constitute a forbidden,
advisory opinion. See Front Range Equine Rescue v. Vilsack, 782 F.3d 565, 569 (10th Cir.2015)
(stating the speculative possibility of a future controversy does not provide us with Article III
jurisdiction; [w]e are without power to render an advisory opinion on a question simply because
we may have to face the same question in the future). Plaintiffs exact request in their e-mail to
Defendant refers to possible amendments to the National Voter Registration Act .
In other words, Plaintiffs are requesting documents and communications related to how
a law might be amended at some unknown time in the future. Pls. Sixth Request at 3. However
whether a federal law might be amended in the future has no bearing on whether current law
preempts state law.And it certainly is not within the scope of discovery permitted by this Court.
Indeed, draft language within the custody of the Secretary of States office, not shared beyond this
office, can have no bearing on this case even if a future amendment by Congress could somehow
be considered relevant. Defendant is not a United States Congressman or Senator. Defendant
lacks the authority to introduce such amendments in Congress. Simply stated, relevant discovery
involves a preemption claim based on current law. Possible amendments that may or may not be
introduced in the future bear no relevance to Plaintiffs preemption claim, or even to any issue in
this case (if the Court continues to utilize the former relevancy standard). Furthermore, Plaintiffs
request is also completely irrelevant to the two limited discovery areas permitted. Any future
change to the NVRA is irrelevant to the number of noncitizens attempting to register in Kansas
and is irrelevant to methods a state might use to prevent such registration by noncitizens. As such,
they are outside the scope of re-opened discovery.
Additionally, it should be noted that hypothetical amendments to a law are not facts. What
Plaintiffs seek are draft amendments to a statute and a document identified in a photograph that
14
merely contains words including Draft Amendments that they claim falls within their request.
Yet, proposed amendments to a law are not facts, and therefore are not admissible in the case even
if they were relevant. United States v. Unruh, 855 F.2d 1363, 1376 (9th Cir.1987) (We have
condemned the practice of attempting to introduce law as evidence.), cert. denied, 488 U.S. 974,
109 S. Ct. 513, 102 L.Ed.2d 548 (1988); see also Marx & Co. v. Diners' Club, Inc., 550 F.2d 505,
50910 (2d Cir.), cert. denied, 434 U.S. 861 (1977); see also Mitchell v. Harmony, 54 U.S. 115,
144, (1851) ([T]he judges must not respond to questions of fact, but only the jury). Tellingly,
Plaintiffs provide no explanation how the document is relevant to their claim or fits within the
limited scope of discovery specified by the court.
D. Plaintiffs Theory Regarding the First Part of the Tenth Circuit Test is Flawed
In their motion to compel, Plaintiffs attempt to articulate a rationale for their request that
is not reflected in the request itself. Regarding the first part of the test, Plaintiffs argue that their
request is relevant because Any proposals to amend or alter the eligibility-assessment procedures
mandated by the NVRA could bear on whether Defendant is capable of satisfying the evidentiary
showing currently required. Pls. Memo. at 6. Plaintiffs further argue that Lobbying by
Defendant to change the central statutory provisions at issue . . . may constitute evidence that there
is no current problem of substantial noncitizen registration in Kansas. Pls. Memo at 6-7. These
contorted phrases do not even come close to making the sought-after documents relevant to the
Tenth Circuits test.
The first part of the test asks whether substantial numbers of noncitizens have registered to
vote. While it is unclear what constitutes substantial numbers, it is clear that the Tenth Circuit
was looking for some estimates of the numbers of noncitizens. Thus, [a]ny proposals by
Defendant to amend or alter the eligibility-assessment procedures in the NVRA is not relevant to
15
that standard. Essentially, Plaintiffs are conducting a fishing expedition for purposes unrelated to
this case rather than seeking information within the scope of the permitted by the Court. It should
also be noted that Defendant has informed Plaintiffs repeatedly that only two documents exist
within the broad scope of their request. Plaintiffs are merely making speculative statements about
proposals that they have already been informed do not exist, rather than focusing on the
relevancy of the two documents that are within the asserted request.
Next, relying on conjecture, Plaintiffs assert that if they could obtain draft amendments to
the NVRA, it could help demonstrate that Defendant cannot overcome his burden. Presumably,
Plaintiff is also including the document identified in Plaintiffs Exhibit D within that statement as
well and all documents which include the phrase draft amendments to the National Voter
Registration Act . . . Pls. Ex. E. Plaintiffs provide no explanation how such documents could do
that. Indeed, whether Defendant has met his burden is a question for this Court to decide;
Defendants thoughts about hypothetical draft amendments does not address the narrow factual
question for which discovery was reopened.
Essentially, Plaintiffs appear to argue that if Defendant believes the NVRA should be
amended in any way, then ipso facto substantial numbers of noncitizens on Kansas voter rolls must
not exist. That argument is nonsensical. Plaintiffs Sixth Request is not related to the first part of
the Tenth Circuits testor even within the scope of Rule 26 generallyand thus their motion
should be denied.
E. Plaintiffs Rationale Concerning the Second Part of the Test is Also Flawed
As to the second part of the test, Plaintiffs theorize that [A]ny alternative methods
proposed by Defendant to alter the assessment of voter eligibility under the NVRA go directly to
the second prong of the Tenth Circuits analysis. Pls. Memo. at 7. Plaintiffs suppose that, efforts
16
by Defendant to seek alternative means of assessing voter qualifications by amending the NVRA
would suggest that a DPOC requirement is not the least restrictive method of verifying eligibility.
Pls. Memo. at 7. First, had Plaintiffs actually sought the documents that they now claim they are
seeking, Defendant would have responded that no such documents exist. Coleman v. California
Dep't of Corr. & Rehab., No. 213CV1021JAMKJNP, 2016 WL 6038193, at *5 (E.D. Cal. Oct. 13,
2016)(Party cannot alter discovery requests after they are propounded. It was only under the
extraordinarily broad request of draft amendments that were not limited to any particular
category of documents that Defendant was required to produce a privilege log. Additionally, it
was also only pursuant to a subsequent conversation that Plaintiffs counsel identified the
document they really wanted that brought that document into the scope of the instant motion. As
with the first part of the test, this Court can actually look at the document and see that it bears no
relevance to Plaintiffs claim, no matter what gloss they now put on their request through the
instant motion.
Regardless, an unshared draft of a not-yet-proposed amendment has no bearing on whether
an attestation falls below the minimum necessary to carry out its eligibility-assessment and
registration duties Fish v. Kobach, 840 F.3d 710, 738 (10th Cir. 2016). This is a preemption case.
Whatever the law might be in the future is not relevant to the claims or defenses in this case (or
within the scope of the limited discovery for that claim). Plaintiffs Fifth Request for Production,
which has netted over 20,000 pages in responsive documents, included the following request:
[A]ll documents and correspondence to, from, or between Defendant and any other person,
sufficient to show that alternatives to the DPOC law are impossible to undertake or
ineffective in identifying noncitizens as stated in Brief of Appellant Kansas Secretary of
State, Fish v. Kobach, No. 16-3147, Doc. No. 01019650730 (July 1, 2016), at 21.
Ex. E. Additionally, Plaintiffs Fifth Request included requests for documents related to every
hypothetical alternative identified by the Election Assistance Commission in the Kobach v. EAC
17
case. For Plaintiffs to now claim that they are seeking documents for these same purposes is
facially disingenuous and would have been subject to a cumulativeness objection, had Plaintiffs
actually requested the documents in the first place. See Coleman v. California Dep't of Corr. &
Rehab., No. 213-CV-1021-JAM-KJN-P, 2016 WL 6038193, at *5 (E.D. Cal. Oct. 13, 2016) (Party
cannot alter discovery requests after they are propounded.).
Additionally, Plaintiffs claim that unshared not-yet-proposed amendments whether the
Laws purpose is in fact to prevent, deter, or identify noncitizen registrations and votes, and the
DPOCs Laws effectiveness at doing so compared to other potential means is equally
nonsensical. Pls. Memo at 7. A hypothetical, future amendment to the NVRA does not in any
way reflect the purpose of a law drafted in 2011. Moreover, any purpose of the law is not within
the scope of discovery or relevant to Plaintiffs preemption claim. The laws purpose is entirely
irrelevant to a question of preemption.
To date, two documents have been identified that fit within Plaintiffs broad request. The
first is text of a non-shared, very rough draft of an NVRA amendment that was identified in
Defendants privilege log. There was no [l]obbying regarding that text or discussions regarding
either of the reasons for which discovery was reopened. Additionally, that text does not propose
to amend or alter an eligibility-assessment procedures mandated by the NVRA as Plaintiffs
now hypothesize
While relevancy may generally be broad, when a Court narrows the scope of discovery, a
partys request must fall within that request or be denied. See Storts v. Hardees Food Systems,
Inc., No. 95-1036-MLB, 1997 WL 557310, *1 (D. Kan. Aug. 20, 1997) (Court denied counsels
request that fell outside limited scope of discovery); see also Burlington Northern & Santa Fe
18
Railway Company v. Han, No. 14-cv-0069-CVE-PJC, 2016 WL 8115367, *2-*3 (striking a report
that was beyond the scope of the discovery limits set by the Court).
II. EVEN IF THE REQUEST WERE FACIALLY RELEVANT TO PLAINTIFFS

PREEMPTION CLAIM AND COULD BE READ TO BE FACIALLY WITHIN
THE SCOPE FOR WHICH DISCOVERY WAS REOPENED, THE REQUEST
STILL SEEKS IRRELEVANT INFORMATION UNDER RULE 26
Even if the burden fell on Defendant to prove irrelevancy under the scope of this Courts
discovery order, Defendant has done so. See hibu, 2016 WL 6804996. As discussed previously,
Plaintiffs claim is a preemption claim; and the scope of discovery is limited to the two issues
identified by the Tenth Circuit. Plaintiffs request for any and all possible drafts of hypothetical
future amendments to the NVRA, communications related to those documents, and one document
seen in a photograph, is not relevant to the subject matter of their preemption claim. Indeed,
regarding the photographed document, this Court is in a position to actually look at the document
in Plaintiffs Exhibit D and see that Plaintiff is clearly asking for a completely irrelevant document.
See Reyes v. Snowcap Creamery, Inc., 898 F. Supp.2d 1233, (D. Col. Oct. 15, 2012) (explaining
the overbreadth and irrelevancy of a document request given the knowledge of the parties); see
also E.E.O.C. v. BNSF Ry. Co., No. 12-02634, 2014 WL 1571278, at *9 (D. Kan. 2014) (denying
motion to compel when deposition inquiries were irrelevant on their face). Defendant has satisfied
his burden of demonstrating that the documents sought are not relevant to the claim.
III. THE REQUEST IS OVERBROAD
If this Court could find that some portion of Plaintiffs request somehow fits within the
scope of reopened discovery, the motion to compel should still be denied because the request is
overbroad. The Court has explained that the use of terminology such as related to may render a
document request overbroad. Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611 (D. Kan.
2005). In this instance, the Court does not have to guess whether Plaintiffs request is overbroad
19
they have revealed that it is by presenting as an exhibit a photograph of the document they are
seeking. See Pls. Ex. D.
As explained previously, Plaintiff has sought any draft amendments to the NVRA and any
documents related to those drafts. Ex. A, p. 4. Plaintiffs have not narrowed the scope of their
request to any specific amendments, other than excluding administrative amendments. Pls. Ex.
E. Plaintiffs are still seeking an unlimited amount of amendments that are not technical
amendments. Ex. A, p. 3. Furthermore, Plaintiffs are seeking a document that is unrelated to any
current draft of an NVRA amendment, but is simply a document they saw in a news report.
Plaintiffs counsel apparently decided that that they wanted that document and are using civil
discovery to attempt to obtain it.
A party objecting on the basis of overbreadth bears the burden of articulating how the
request is overly broad. Stewart v. Mitchell Transp., No. 0CIV.A. 01-2546, 2002 WL 1558210, at
*4 (D. Kan. 2002)(quoting Etienne v. Wolverine Tube, Inc., 185 F.R.D. at 656; Hilt v. SFC Inc.,
170 F.R.D. 182, 186 (D.Kan.1997)). This Court has repeatedly held that a request of all documents
related to or concerning is facially overbroad. Cardenas v. Dorel Juvenile Group, Inc., 230
F.R.D. 611 (D. Kan. Aug. 31, 2005); Payless Shoesource Worldwide, Inc. v. Target Corp., No.
CIV.A. 05-4023-JAR, 2006 WL 6225139, at *8 (D. Kan. Nov. 17, 2006). While Plaintiffs are
correct that courts can allow such broad language if they are limited by other factors, Dkt, 273, p.
8, that is not what has occurred with the instant request. Plaintiffs eschewed limiting language in
their request by choosing the phrase including but not limited to any of five categories. Ex. A,
p. 3. Essentially, Plaintiffs are attempting to rewrite their request in their motion to compel. As a
matter of law, Plaintiffs request is overbroad.
20
Furthermore, even if the request was limited to the five categories identified in Plaintiffs
initial request or this Court found that the seemingly unrestrained request for documents clarified
in Plaintiffs Exhibit E was limited enough to avoid facial overbreadth, the request would still be
overbroad in relation to the scope for which discovery was reopened. See Atkinson v. Ortiz, 2008
WL 659596, *2 (D. Colo. Mar 6, 2008 (noting that a discovery request was beyond the scope of
the narrowed discovery). Litigants have an obligation to tailor discovery to suit the particular
exigencies of the litigation. U.S. v. Medtronic, No. 95-1236-MLB, 2000 WL 1478476, at
*3. They ought not be permitted to use broadswords where scalpels will suffice, nor to undertake
wholly exploratory operations in the vague hope that something helpful will turn up. Id. (quoting
Koch v. Koch Industries, Inc., No. 85-1636-C, 1992 WL 223816, *10 (D. Kan. Aug. 24, 1992)
(quoting Mack v. Great Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 187 (1st Cir.1989).
Discovery was reopened for the Secretary of State to produce evidence to rebut the
attestation presumption. Dkt. 254, p. 4. Yet Plaintiffs seek documents well outside of that limited
scope. It is simply indefensible to claim that an internal draft of a hypothetical not-yet-proposed
amendment to a law does not fall outside the scope of discovery.
Additionally, as noted supra, the document in the photograph that they actually seek does
not even fit within the broad request they sent to Defendants. Defendant understood Plaintiffs
request originally to be draft amendment and documents related to draft amendments, as opposed
to any and all documents which apparently include the words draft amendments. Apparently,
Plaintiffs intended the request to be phrased as any document that included the phrase draft
amendments, as opposed to being limited to documents about existing draft amendments
themselves. In other words, Plaintiffs appear to be purposefully seeking a document that is outside
the scope of discovery, not because it supports their claim, but for some other purpose. This is not
21
an appropriate use of discovery. See General Steel Domestic Sales, LLC v. Chumley, No. 13cv
769MSKKMT, 2014 WL 3057496, at *1 (D. Colo. July 7, 2014) (motion to quash non-party
discovery granted when information sought was overbroad, irrelevant, unnecessary, and was a
fishing expedition designed to gain information ... not for purposes of [the] litigation)
IV. THE ATTORNEY-CLIENT PRIVILEGE APPLIES TO THE DRAFT

AMENDMENT IDENTIFIED IN THE PRIVILEGE LOG
The attorney-client privilege also bars Plaintiffs discovery regarding the draft amendment.
Under federal common law, the essential elements of the attorney-client privilege
are [as follows]: (1) Where legal advice of any kind is sought (2) from a
professional legal advisor in his capacity as such, (3) the communications relating
to that purpose, (4) made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by the legal advisor, (8)
except the protection be waived. Thus, the attorney-client privilege protects
confidential communications made by a client to an attorney in order to obtain legal
assistance from the attorney in his or her capacity as a legal advisor. The term
communications includes advice given by the attorney in the course of
representing the client. It also includes disclosures by the client to the attorney's
representative or employee incidental to the professional relationship. Generally,
when a communication between a client and an attorney occurs in the presence of
third parties, the attorney-client privilege is waived.
U.S. Fire Ins. Co. v. Bunge N. Am., Inc., No. 05-2192 JWL-DJW, 2006 WL 3715927, at *1 (D.
Kan. Dec. 12, 2006) (footnotes and citations omitted). The presence of an agent of either the
client or the attorney does not destroy the attorney-client privilege. See High Point SARL v. Sprint
Nextel Corp., No. CIV.A. 09-2269-CM, 2012 WL 234024, at *13 & n.69 (D. Kan. Jan. 25, 2012),
on reconsideration in part, No. CIV.A. 09-2269-CM, 2012 WL 1580634 (D. Kan. May 4, 2012),
and Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Engineers, No. CIV.A. 10-2008-
CM, 2011 WL 1102868, at *4 n.28 (D. Kan. Mar. 23, 2011). The sine qua non for invocation of
the privilege is that the communications in question were intended to be confidential. The presence
of a third party in an email transmission, for instance, will not destroy the attorney-client privilege
if the third party is the attorneys or clients agent[.] A.H. ex rel. Hadjih v. Evenflo Co., No. 10-
22
CV-02435-RBJ-KMT, 2012 WL 1957302, at *2 (D. Colo. May 31, 2012) (citations and internal
quotation marks omitted).
The privilege log identifies draft language of a possible amendment to the NVRA. See
Fish, Dkt. 273-4 at 2. The draft amendment was created by Kris Kobach who is both the Defendant
in Fish in his official capacity and is lead counsel in defending the Kansas Secretary of State in his
Official Capacity in Fish. The draft amendment was shared only with the head of the legal division
of the Office of the Secretary of State, who is also co-counsel on this case, as well as Bryan Caskey,
who is the head of the Elections Division for the State of Kansas and responsible for overseeing
elections. When seeking input on hypothetical, future draft alterations to the NVRA, which
necessarily include input on the legal effect of those changes, the appropriate individuals would
be would be Garrett Roe, attorney of the Office of the Kansas Secretary of State, and Bryan
Caskey, the head of the Elections Division of the Office of the Kansas Secretary of State.
Admittedly, Defendants privilege log does not contain the date on which the document
was created, see Fish, Dkt. 273-4 at 2, but that alone does not automatically defeat a claim of
privilege. See U.S. Dep't of Labor v. La Familia Corp., No. 10-2400-EFM-GLR, 2012 WL
1715359, at *6 (D. Kan. May 15, 2012). The purpose of requiring a privilege log to contain, inter
alia, the date of a documents creation is primarily to enable the litigants and the court to identify
the document in question, and possibly to assess the strength of the privilege claim. See Coffeyville
Res. Ref. & Mktg., LLC v. Liberty Surplus Ins. Corp., No. 08-1204-WEB-KMH, 2009 WL
2913535, at *5 (D. Kan. Sept. 4, 2009). During the meet-and-confer, Plaintiffs counsel inquired
when the document was created. Defendants counsel informed Plaintiffs counsel that, although
he did not know the exact date, the document was created sometime in October or November of
2016 while the Fish litigation was ongoing.
23
V. DEFENDANT POSSESSES DELIBERATIVE PROCESS PRIVILEGE

CONCERNING A POSSIBLE DRAFT AMENDMENT TO THE NVRA
The deliberative process privilege, also known as the governmental, executive or official
information privilege, protects [a]dvisory opinions, recommendations, and deliberations that
reflect how government decisions are made. Schwartz v. Jefferson Cty. Dep't of Human Servs.,
No. 09-CV-00915-WJM-KMT, 2013 WL 3713640, at *3 (D. Colo. July 15, 2013)(quoting Stewart
v. Dep't of Interior, 554 F.3d 1236, 1239 (10th Cir.2009); see also Dep't of the Interior v. Klamath
Water Users Protective Ass'n., 532 U.S. 1, 8 (2001)). The deliberative process privilege has been
codified at 5 U.S.C. 552(b)(5). Id. One of the purposes of the protection for deliberative
process is to protect documents which contain discussions regarding proposed polices to avoid
confusing the public by releasing reasons and rationale that were not in fact ultimately the grounds
for an agency's actions. Id (quoting S.E.C. v. Nacchio, No. 05cv00480MSKCBS, 2009 WL
211511, at *6 (D. Colo. Jan. 29, 2009)). The purpose of the privilege is to prevent injury to the
quality of agency decisions by allowing government officials freedom to debate alternative
approaches in private. Id. (quoting In re Sealed Case, 121 F.3d 729, 737 (D.C.Cir.1997)). See
also Trentadue v. Integrity Comm., 501 F.3d 1215, 1227 (10th Cir.2007); Olmsted v. McNutt, 188
F.R.D. 386, 388 (D.Colo.1999). A draft of a document itself falls within the deliberative process
privilege. See Rodgers v. Hyatt, 91 F.R.D. 399 (D. Colo. 1980) (Where requested documents
either contained agency deliberations, in form of legal opinions, suggestions proposals, proposed
draft regulations, and other communications not finally adopted as wholeall communications
constituted part of mental processes of [agency] and were protected from discovery under
concept of governmental or deliberative privilege.); see also Coaastal States gas Corp. v.
Deaprtment of Energy, 617 F.2d 854, 866 (D.C. App. 1980) (draft documents . . . which reflect
the personal opinions of the writer rather than the policy of the agency and thus would
24
inaccurately reflect or prematurely disclose the views of the agency are protected). see also NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975).
Here, the Secretary of State, who is also the lead attorney in this case, drafted a document
that was shared with only two individualsthe head of elections in Kansas and the head of the
legal department for the Office of the Secretary of State. The purpose of the privilege is to allow
frank discussions and deliberations by government officials, in this case the Kansas Secretary of
State. The Secretary of State and his deputies have an interest in suggesting future amendments to
the NVRA, and they need to be able to have free and unhindered discussions on that subject.
Plaintiffs suggestion that because Defendant is not a member of Congress he cannot invoke the
privilege is nonsensical. The NVRA charges that a state officer or employee must be designated
as the chief State election official to be responsible for the coordination of State responsibilities.
52 U.S.C. 20509. Under Kansas law that is the secretary of state. K.S.A. 25-2504. The
purposes for the privilege is met where the agency charged with administering a statute creates a
draft revision to the statute for its own internal discussion. If Plaintiffs view were correct, the
Secretary could have no discussions about how to improve the NVRA with his deputies even
though he and his deputies are the ones charged with administering the Act.
Additionally, Plaintiffs suggestion that because the Secretary, as opposed to another
person in the office, created the document lacks merit. Under Plaintiffs theory, a communication
from the Secretary would not be privileged, but a communication to the Secretary would. In other
words, Plaintiffs strangely suggest that if there were a back-and-forth e-mail chain, e-mails sent
from the Secretary would not be protected, but documents sent to the Secretary would be. That is
plainly incorrect. The privilege protects drafts of documents and discussions regarding those
documents, regardless of who created the document.
25
VI. GIVEN THE CLEAR IRRELEVANCY OF THE DOCUMENT SOUGHT, THE

PURPOSE OF THE REQUEST FOR PRODUCTION CAN ONLY BE TO HARASS
DEFENDANT
Although Plaintiffs did not intend to inform Defendant that the document they were
actually seeking was the document that Kris Kobach was seen carrying prior to a meeting with
then President-elect Donald Trump, Plaintiffs subsequent e-mail and clarification shows that they
are not seeking this specific document for purposes of discovery, but instead seeking it exclusively
as a means of embarrassment and harassment. See Azim v. Tortois Capital Advisors, LLC, No. 13-
2267-DDC-JPO, 2015 WL 197325 (D. Kan. Jan. 14, 2015) ([T]he irrelevancy of the information
plaintiff has requested and intends to pursue bolsters the annoyance and harassment to . . .
defendants, and supports defendants assertion[.]).
The document itself contains information that clearly has no bearing on this case at all, let
alone Plaintiffs preemption claim. See Plaintiffs Ex. D. Yet, Plaintiffs, for unspecified reasons,
want the document and concocted the current discovery request in an attempt to obtain it. This
Court should not reward Plaintiffs by allowing them to obtain a document that is so clearly
irrelevant, simply because they drafted the broadest possible discovery request they could imagine
and then later, clarified through e-mail, that they actually intended their request to be broader than
written to include that document. See Plaintiffs Ex. E. Plaintiffs abuse of discovery to obtain a
document for political or other purposes is highly inappropriate.
VII. EXECUTIVE PRIVILEGE APPLIES BECAUSE KRIS KOBACH WAS A

MEMBER OF THE TRANSITION TEAM OF THEN-PRESIDENT-ELECT AND
NOW-PRESIDENT TRUMP
A [f]ormer president, as well as an incumbent president, may assert the presidential
privilege of confidentiality. Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 97 S. Ct. 2777, 53 L.
Ed. 2d 867 (1977); see also United States v. Poindexter, 727 F. Supp. 1501, 1505 (D.D.C. 1989).
26
The Supreme Court has recognized that a President has a great need to receive advice
confidentially:
[There is a] valid need for protection of communications between high Government

officials and those who advise and assist them in the performance of their manifold
duties; the importance of this confidentiality is too plain to require further
discussion. Human experience teaches that those who expect public dissemination
of their remarks may well temper candor with a concern for appearances and for
their own interests to the detriment of the decisionmaking process. Whatever the
nature of the privilege of confidentiality of Presidential communications in the
exercise of Art. II powers, the privilege can be said to derive from the supremacy
of each branch within its own assigned area of constitutional duties.
United States v. Nixon, 418 U.S. 683, 70506 (1974) (footnotes omitted); see also Nixon v.
Administrator of Gen. Servs., 433 U.S. 425, 44149 (1977). Nixon v. Administrator of General
Services further explains that the President is entitled to confidentiality in the performance of his
responsibilities and his office, and in the process of shaping policies and making decisions.
Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 909 (D.C. Cir. 1993)(quoting
United States v. Nixon, 418 U.S. at 708). Article II not only gives the President the ability to
consult with his advisers confidentially, but also, as a corollary, it gives him the flexibility to
organize his advisers and seek advice from them as he wishes. Id. This Article II right to
confidential communications attaches not only to direct communications with the President, but
also to discussions between his senior advisers. Ass'n of Am. Physicians & Surgeons, Inc. v.
Clinton, 997 F.2d 898, 90910 (D.C. Cir. 1993). Certainly Department Secretaries and White
House aides must be able to hold confidential meetings to discuss advice they secretly will render
to the President. Id. Congress, in another context, has recognized that the President's right to
confidential communications extends to meetings between his top advisers. Id. The President
can invoke the privilege when asked to produce documents or other materials that reflect
presidential decisionmaking and deliberations and that the President believes should remain
confidential. In re Sealed Case, 121 F.3d 729, 74445 (D.C. Cir. 1997).
27
Kris Kobach (not acting in his official capacity as the Secretary of State) was a member of
the transition team for President-elect Trump. The transition team aids the President-elect in
preparing policies and assuming his official duties as President as efficiently as possible. The
document in question, which this Court can partially view due to inadvertent disclosure, is thus
subject to that privilege. The President-elect and his transition team are entitled to a protection of
communications during their meetings. Allowing this document to be discoverable would
jeopardize the right of the President-elect to have confidential and frank communications within
his transition team.
Because the privilege applies, Plaintiffs have the burden of demonstrating a need for the
document. In re Sealed Case, 121 F.3d at 74445 Plaintiffs have not done so. Indeed, Plaintiffs
have not even attempted to show a need for the document. See Memo at 5-8.
Furthermore, even if Plaintiffs could show a need, the appropriate result is not to release
the entirety of the document. Instead, it is to excise the non-relevant portions (as Plaintiffs
subsequently agreed to do). Thus, if this Court determined that Plaintiffs met their burden of
demonstrating need, Plaintiffs would only be entitled to that one line of the document, with the
rest of it excised.
VIII. FAILURE TO INCLUDE THE PHOTOGRAPHED DOCUMENT ON A

PRIVILEGE LOG CREATED PRIOR TO DEFENDANT KNOWING THE
DOCUMENT WAS INTENDED TO BE COVERED BY THE REQUEST DOES
NOT WAIVE THE PRIVILEGE
A party withholding information under a claim of privilege must expressly make the
claim and describe the nature of the documents, communications, or tangible things not
produced or disclosed[.] Fed. R. Civ. P. 26(b)(5)(A)(i)-(ii). Parties . . . typically satisfy Rule
26(b)(5)(A)(ii) by creating and providing a privilege log that sets out pertinent information
identified by case law. La Familia Corp., 2012 WL 1715359 at *6 (footnote
28
omitted). Plaintiffs argue that the privilege has been waived because it was not included on the
Privilege Log. There are two problems with Plaintiffs argument.
First, at the time the privilege log was made, Defendants counsel did not believe the
document fell within the scope of the request as written by Plaintiffs. Defendants counsel had a
conversation with Plaintiffs counsel and the discussion involved draft amendments to the
NVRA. That document as never even mentioned. Ex. H, 2-4. It was not until after the
privilege log had been produced that Plaintiffs counsel identified that document and
subsequently clarified in an e-mail that any document that contained the words draft
Amendments to the National Voter Registration Act . . . fell within their request. Thus, at the
time the privilege log was made, Defendant was not required to identify the document.
Second, after Plaintiffs clarified that this was the document they were actually seeking,
the purpose to creating a privilege log was unnecessary in relation to that document. Both this
Courts Order Governing Discovery and the cases cited by Plaintiffs indicate that this Court is
not automatically required to deem Defendant Kobachs failure to include the Photographed
Document on his privilege log a waiver of any privilege Defendant claims. Instead, this Court
has discretion to determine whether a party claiming privilege with respect to a document waives
its claim of privilege in the event that such party fails to either provide a privilege log or create a
sufficient privilege log. See Fish, Dkt. 30 at 5 (If a party fails to make the required showing, by
not producing a privilege log or by providing an inadequate one, the court may deem the
privilege waived.) (emphasis added) (citing New Jersey v. Sprint Corp., 258 F.R.D. 421, 448
(D. Kan. 2009)), Sprint Corp., 258 F.R.D. at 448; Haid v. Wal-Mart Stores, Inc., No. 99-4186,
2001 WL 964102, at *1 (D. Kan. 2001) (The law is well settled that failure to produce a
privilege log or production of an inadequate privilege log may be deemed waiver of the
29
privilege.) (emphasis added).[M]inor procedural violations, good faith attempts at compliance,
and other such mitigating circumstances bear against finding a waiver. In re TJX Companies,
Inc. Fair & Accurate Credit Transactions Act (FACTA) Litig., No. 07-1853-KHV, 2008 WL
2437558, at *4 (D. Kan. June 12, 2008) Id. (footnote omitted).
Further, [Rule 26(b)(5)(A)] does not attempt to define for each case what information
must be provided when a party asserts a claim of privilege or work product protection. Fed. R.
Civ. P. 26(b), Advisory Committees Note on Subdivision (b), Paragraph (5), of the 1993
Amendment. In several cases, the District of Kansas has either noted in dicta or held that a
privilege log is unnecessary. La Familia Corp., 2012 WL 1715359 at *6 (stating that a
privilege log may not be necessary as long as the opposing party and the court can assess
whether the claimed privilege applies to the document) (footnote omitted), Farha v. Idbeis, No.
09-1059, 2010 WL 3168146, at *4 n.11 (D. Kan. 2010) (A privilege log is not always necessary
as long as the opposing party and the court can assess whether the claimed privilege applies to
the document.
Here, Defendant Kobach, despite not including the photographed document on his
privilege log, has not waived any privilege he claims with respect to the document. Plaintiffs
and this Court already possess enough information to evaluate [Defendant Kobachs] claim of
privilege, Fresenius Med. Care Holding, Inc., 2008 WL 5214330 at *3, as a result of national
and local media reports released in November 2016 concerning Defendant Kobachs meeting
with President-elect Donald Trump. See Fish, Dkt. 273-5 at 2-6. Indeed, this Court can view a
portion of the document itself. The recipient, approximate date of preparation, purpose, and
privilege that Defendant Kobach would assert with respect to this document are all known based
on the knowledge of the document and the responsive e-mail.
30
IX. THE PRIVILEGE WAS NOT WAIVED BY IT BEING PHOTOGRAPHED
An inadvertent disclosure of a privileged document is governed by Rule 502(b) of the
Federal Rules of Evidence, which states: [w]hen made in a federal proceeding or to a federal
office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1)
the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to
prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including
(if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). Fed. R. Evid. 502. Rule
502(b) limits a waiver to only the disclosed document and not to information about or derived
from the document if three factors are met. Silverstein v. Fed. Bureau of Prisons, No.
CIV.A07CV02471PABKMT, 2009 WL 4949959, at *10-11 (D. Colo. Dec. 14, 2009). First, Rule
502(b) requires that this court determine if the disclosure was inadvertent. Id. The dictionary
definition of the word inadvertent is, not attentive or observant; heedless; due to oversight;
unintentional. Id (quoting Webster's New World Dictionary (3d College ed.1988)). Courts have
considered a number of factors to determine inadvertency, including the number of documents
produced in discovery, the level of care with which the review for privilege was conducted, and
the actions of the producing party after discovering that the document had been produced. Id; see
also, e.g., Judson Atkinson Candies, Inc. v. LatiniHohberger Dhimantec, 529 F.3d 371, 388 (7th
Cir.2008) and Heriot, 257 F.R.D. at 65859.
Here, disclosure of the document sought by Plaintiffs was plainly inadvertent. The
document was only discovered due to a reporter snapping a photograph using a highly-magnified
lens from approximately 30 feet away. Following the publication of the photograph, someone else
then zoomed in on the photograph, making the text of the document legible. Secretary Kobach was
preparing to meet with the President-elect of the United States, and therefore disclosure of this
31
document under his role as Secretary of State, in pending litigation, could not have been further
from his mind at that time.
The District Court of Kansas utilizes a five-factor test when determining whether the
inadvertent disclosure constitutes a waiver of privilege. Soc'y of Prof'l Eng'g Employees in
Aerospace, Int'l Fed'n of Prof'l & Tech. Employees, Local 2001 v. Spirit Aerosystems, Inc., No.
14-1281-MLB, 2015 WL 3466091, at *3 (D. Kan. June 1, 2015). The factors considered include:
1) the reasonableness of the precautions taken to prevent inadvertent disclosure; 2) the time taken
to rectify the error; 3) the scope of discovery; 4) the extent of disclosure; and 5) the overriding
issue of fairness. Id. Under the first factor, the Court will consider the reasonableness of the
precautions [taken] to prevent the inadvertent disclosure. Employer's Reinsurance Corp. v.
Clarendon Nat. Ins. Co., 213 F.R.D. 422, 428 (D. Kan. 2003). Under the second factor, [t]he
relevant time frame for rectifying the inadvertent disclosure begins when a party discovers, or with
reasonable diligence should have discovered, the inadvertent disclosure. Id at 429. The fourth
factor considers the extent to which the documents were disclosed. Id. The key to consideration
of [the fairness] factor is the relevance of the documents. Richard v. Sedgwick Cty. Bd. of
Comm'rs, No. 09-1278-WEB, 2011 WL 5080316, at *3 (D. Kan. Oct. 26, 2011)(quoting Wallace
v. Beech Aircraft, 179 F.R.D. 313, 315 (D. Kan.1998)).
Again, the inadvertent disclosure of this document was only due to a zoomed-in photograph
taken of the Secretary and then-President-elect Trump, prior to their meeting. This document was
prepared in anticipation of a meeting with the then President-elect by a member of his transition
team, not for purposes of this lawsuit. Because of the purpose for which the document was
prepared, defense counsel did not foresee this document being relevant for limited purposes for
which discovery was reopened, and consequently saw no reason to include it on a privilege log.
32
Furthermore, the extent to which this document was disclosed, and the overriding issue of fairness
both weigh against the waiver of privilege of this document.
CONCLUSION
WHEREFORE, Defendant prays that this Court enter an order, quashing Plaintiffs
Request for Production of Documents, in that the request is overly broad and irrelevant, seeks
proposed law rather than actual facts that are admissible, and exceeds the limited scope of reopened
discovery.
Respectfully submitted,
s/ Kris W. Kobach
Kris W. Kobach, Kansas Bar No. 17280
Garrett Roe, Kansas Bar No. 26867
KANSAS SECRETARY OF STATES OFFICE
Memorial Hall, 1st Floor
120 S.W. 10th Avenue
Topeka, KS 66612
Tel. (785) 296-2034
Fax. (785) 368-8032
kris.kobach@sos.ks.gov
Attorney for Defendant
33
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that, on the 7th day of February, 2017, I electronically
filed the above and foregoing document using the CM/ECF system, which automatically sends
notice and a copy of the filing to all counsel of record.
s/ GARRETT ROE
Garrett Roe, Bar No. 26867
Attorney for Defendant Kobach
34

Kris Kobach Memo On Turning Over Documents

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Case 2:16-cv-02105-JAR-JPO Document 288 Filed 02/07/17 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT

STEVEN WAYNE FISH, et al., on )

DEFENDANTS RESPONSE TO PLAINTIFFS MOTION TO COMPEL PRODUCTION

B. Plaintiffs Request Fall Outside the Broader Relevancy Requirement of

II. EVEN IF THE REQUEST WERE FACIALLY RELEVANT TO

III. THE REQUEST IS OVERBROAD ......................................................................18

IV. THE ATTORNEY-CLIENT PRIVILEGE APPLIES TO THE DRAFT

V. DEFENDANT POSSESSES DELIBERATIVE PROCESS PRIVILEGE

VI. GIVEN THE CLEAR IRRELEVANCY OF THE DOCUMENT

VII. EXECUTIVE PRIVILEGE APPLIES BECAUSE KRIS KOBACH WAS A

VIII. FAILURE TO INCLUDE THE PHOTOGRAPHED DOCUMENT

IX. THE PRIVILEGE WAS NOT WAIVED BY IT BEING PHOTOGRAPHED ....31

Circuit test would be relevant.

3. Plaintiffs counsel never mentioned the photographed document during either of

these phone calls. Ex. H, 4.

4. Subsequently, counsel for Defendant provided Responses and Objections to

5. On January 6, 2017, counsel for the parties conferred telephonically again.

of the NVRA. Id.

the scope of the request they submitted. Ex. H, 6.

7. Following the meet-and-confer, Plaintiffs counsel sent an e-mail indicating that

Pls. Ex. E.; Ex. H, 7.

and communications regarding potential amendments or changes to the National Voter

9. Plaintiffs counsel further clarified that such request should be interpreted as

10. Defendant responded that Plaintiffs request remained overbroad, seeking

I. PLAINTIFFS MOTION SHOULD BE DENIED AS THEY SEEK DOCUMENTS

attestation presumption. Dkt. 254, at 4-5.

ineffective in identifying noncitizens, as stated in Brief of Appellant Kansas Secretary of State.

All documents and communications related to draft amendments to the NVRA,

office. Plaintiffs Ex. E.

Plaintiffs request is not relevant and should be denied.

specific test created by the Tenth Circuit. Dkt. 254, at 6.

and even outside Rule 26 relevancy limits.

narrow scope of the discovery order.

B. Plaintiffs Request Fall Outside the Broader Relevancy Requirement of Rule

broad disclosure. Id.

understanding of what is relevant to a claim or defense. Id.

therefore, is to determine whether the request is relevant to Plaintiffs preemption claim or

engaging in similar mischief.

Defendant refers to possible amendments to the National Voter Registration Act .

be considered relevant. Defendant is not a United States Congressman or Senator. Defendant

they are outside the scope of re-opened discovery.

limited scope of discovery specified by the court.

Tenth Circuits test.

question for which discovery was reopened.

Regardless, an unshared draft of a not-yet-proposed amendment has no bearing on whether

cannot alter discovery requests after they are propounded.).

Additionally, Plaintiffs claim that unshared not-yet-proposed amendments whether the

DPOCs Laws effectiveness at doing so compared to other potential means is equally

irrelevant to a question of preemption.

to amend or alter an eligibility-assessment procedures mandated by the NVRA as Plaintiffs

II. EVEN IF THE REQUEST WERE FACIALLY RELEVANT TO PLAINTIFFS

III. THE REQUEST IS OVERBROAD

seeking. See Pls. Ex. D.

discovery to attempt to obtain it.

matter of law, Plaintiffs request is overbroad.

exigencies of the litigation. U.S. v. Medtronic, No. 95-1236-MLB, 2000 WL 1478476, at

scope. It is simply indefensible to claim that an internal draft of a hypothetical not-yet-proposed

amendment to a law does not fall outside the scope of discovery.

amendments, as opposed to being limited to documents about existing draft amendments

IV. THE ATTORNEY-CLIENT PRIVILEGE APPLIES TO THE DRAFT

quotation marks omitted).

2016 while the Fish litigation was ongoing.