The Court has summarized the facts of this case in a previous Order, which is fully incorporated herein. (See Doc. 447, Oct. 8, 2010 Order at 1-4.) Russell Pearce served as an Arizona State Senator when S.B. 1070 was passed, calling himself the “author of, and driving force behind” S.B. 1070 and other precursor legislation. (MTC at 1 (quoting Brief of State Senator Russell Pearce as Amicus Curiae in Support of Petitioners at 1, Arizona v. United States, 132 S. Ct. 2492, 2494 (2012) (No. 11-182), 2012 WL 523356).) Through a subpoena duces tecum served on Senator Pearce on December 2, 2013, Plaintiffs sought “documents and communications related to S.B. 1070 and related legislation and topics.” (Id. (citing Doc. 1099-3, Ex. A, Subpoena Duces Tecum to Russell Pearce (“Pearce Subpoena”).)

Senator Pearce first responded to the subpoena on January 10, 2014 in a letter sent on his behalf by counsel and until May 12, 2014, the date on which he produced the first set of documents, the parties exchanged several emails and letters about the types of documents to be produced as well as what email accounts Senator Pearce needed to search to locate responsive records. (See MTC at 2; Doc. 1099-1, Decl. of Justin B. Cox in Supp. of MTC (“Cox Decl.”) ¶¶ 29-38.) Senator Pearce produced 441 pages of documents in PDF format and included a four-entry privilege log claiming a First Amendment privilege to redact the names of private citizens who had emailed him. (Cox Decl. ¶ 49; Doc. 1099-4, Ex. B-27a, Senator Russell Pearce Privilege Log.) In a letter sent the following week, Plaintiffs took issue with the production on several grounds: (1) the documents were produced in PDF format rather than in their native format and several emails seemed to omit certain attachments; (2) Senator Pearce did not explain or justify the First Amendment privilege claim; and (3) Senator Pearce did not specify what email accounts he had searched in locating responsive records. (Cox Decl. ¶¶ 50-51; Doc. 1099-4, Ex. B-28, May 19, 2014 Letter from Justin Cox to James Peterson at 1-3.)

Senator Pearce's second (and final) production of records occurred on June 2, 2014, which consisted of 300 individual documents spanning 1,099 pages in PDF format. (Cox Decl. ¶ 56.) He also produced a supplemental privilege log with thirty-five entries, which again asserted a First Amendment privilege to redact the names of people who had emailed him. (Doc. 1099-4, Ex. B-37a, Senator Russell Pearce Privilege Log (Supplemental).) Plaintiffs wrote another letter to Senator Pearce voicing many of the same concerns as their previous letter. (Cox Decl. ¶¶ 57-60; Doc. 1099-4, Ex. B-38, June 4, 2014 Letter from Justin Cox to James Peterson at 1-7.) Plaintiffs have since moved for an order compelling production. (See MTC at 7-17.) They maintain that Senator Pearce has “responded to that subpoena by repeatedly missing his own self-imposed deadlines for production, eventually producing a limited set of documents that fails to include numerous records known to Plaintiffs that would have been found in any reasonable search.” (Id. at 1.) Plaintiffs also contend that Senator Pearce “belatedly rais[ed] entirely new objections to the subpoena ... six months after it was served.” (Id.)

*2 Federal Rule of Civil Procedure 34(c) grants parties the ability to seek the production of relevant, non-privileged documents from non-parties through a subpoena issued in accordance with Federal Rule of Civil Procedure 45. “A subpoena may command ... production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(c)(2)(A). “At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.” Fed. R. Civ. P. 45(d)(2)(B)(i).

Senator Pearce argues that the subpoena duces tecum is facially deficient because it initially requested that any responsive records be produced at the ACLU Foundation in Atlanta, Georgia, a location more than “100 miles of where [he] resides, is employed, or regularly transacts business in person.” (Doc. 1120, Opp'n to Pls.' MTC (“Opp'n”) at 6-7); Fed. R. Civ. P. 45(c)(2)(A). Assuming that this objection is not untimely, it is moot because Plaintiffs agreed that Senator Pearce could produce responsive records at a location somewhere near Phoenix within 100 miles of his home or business or electronically through email. (See MTC at 8); see R. Prasad Indus. v. Flat Irons Envtl. Solutions Corp., No. CV-12-08261-PCT-JAT, 2014 WL 2804276, at *8 (D. Ariz. June 20, 2014) (explaining that an objection based on the geographical limitations under Rule 45(c) was moot because the plaintiff was willing to accept the production of records near the subpoenaed non-party's place of business, a location not listed in the subpoena). Senator Pearce has offered no other explanation why the subpoena is facially defective.

Senator Pearce's related contention is that the Court lacks jurisdiction to enforce the subpoena because it violates the 100-mile rule. (Opp'n at 8.) Implicit in his position is that the Motion to Compel should have been filed in the Northern District of Georgia, the district in which Atlanta is located and the location for production listed in the subpoena. The Court rejected this same argument in a previous Order and will not reconsider that analysis. (Doc. 1131, July 22, 2014 Order at 3-4.) Like the non-party there, Senator Pearce has not cited any authority “support[ing] his contention that a court lacks jurisdiction to enforce a subpoena issued in the district in which it sits,” and relies on a “position [that] improperly conflates a jurisdictional analysis with the types of non-jurisdictional objections a party or nonparty might have under Rule 45.” (Id. at 3.) Senator Pearce cites recent amendments to Rule 45, including language under subsection (G), that speak to certain enforcement powers possessed by “[t]he court for the district where compliance is required.” (Opp'n at 8 n.1.) He contends that “only the court where compliance is required has jurisdiction to enforce a subpoena. This jurisdictional requirement arises from the new rule, which was not in effect when the cases on which Plaintiffs rely were decided.” (Id.) The framing of his position as a jurisdictional argument is foreclosed by the Federal Rules, which state that they “do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts.” Fed. R. Civ. P. 82. Senator Pearce likewise has not shown a violation of the Federal Rules. Senator Pearce presumes that this Court cannot be the “compliance court” referred to in Rule 45, even though Plaintiffs have agreed that Senator Pearce can produce responsive documents in Phoenix. Under the facts here, Senator Pearce's reading of the rule would elevate form over substance by forcing the parties to this discovery dispute to litigate far away from where Senator Pearce resides and where responsive records are located, in a district with only incidental ties to this litigation.

*3 The remaining issues in this discovery dispute center on the production of electronic records (primarily emails) related to S.B. 1070 when Senator Pearce was a member of the Arizona Legislature. Senator Pearce maintains that he has “personally searched for and produced all documents responsive to Plaintiffs' subpoena” and that these efforts “we[re] more than reasonable.” (Opp'n at 2.) He also offers several other objections to the Motion to Compel based primarily on the scope of the subpoena: that he cannot produce documents in possession and control of the Arizona Legislature; he properly redacted a small number of emails on First Amendment grounds; and he was not obligated to produce emails and other electronic documents in their native format. (See id. at 12-18.)

The recipient of a subpoena is required to exercise due diligence to make a reasonable inquiry for responsive records. Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. Cal. 2012). If no responsive documents exist, “the responding party should so state with sufficient specificity to allow the Court to determine whether the party made a reasonable inquiry and exercised due diligence.” Marti v. Baires, No. 1:08-CV-00653-AWI, 2012 WL 2029720, at *19 (E.D. Cal. June 5, 2012). Plaintiffs argue that Mr. Pearce has not conducted a reasonable search for responsive records for two reasons. (MTC at 14.) Plaintiffs first contend that Senator Pearce has apparently searched just one email address for responsive records, even though they are aware of at least a dozen other email addresses he used during the time period covered by the subpoena. (Id.) Plaintiffs also contend that Senator Pearce has not conducted a reasonable search of the email account he did search. They maintain that other third parties have produced hundreds of pages of emails exchanged with Senator Pearce from and to that email account, but Senator Pearce has produced few of those records—the implication being that Senator Pearce has either not conducted a full search of the account for responsive documents or that he has intentionally failed to turn over other responsive documents. (Id.; Doc. 1129, Pls.' Reply Mem. in Supp. of MTC (“Reply”) at 10-11.)

There is evidence in the record that corroborates Plaintiffs' assertion that Senator Pearce sent and received emails responsive to the subpoena from other email accounts besides his current personal email account. (Doc. 1099-7, Ex. F-3; see also May 19, 2014 Letter from Justin Cox to James Peterson at 2 (a list of email addresses belonging to Senator Pearce).) Senator Pearce maintains that he no longer has access to these other accounts, but has only provided an explanation for why two of those accounts are inactive (his official email address as a legislator and an earlier version of his personal email account). (Opp'n at 11.) To ensure that Senator Pearce has complied with the subpoena by conducting a reasonable search of all active accounts, he is instructed to provide Plaintiffs a declaration or affidavit explaining his relationship to the unaccounted for accounts and when and how he lost access to them. Because Plaintiffs have submitted evidence that at least makes it plausible that other, unproduced responsive records may be located in the personal email account Senator Pearce did search, Senator Pearce is instructed to re-search that account and provide Plaintiffs “with declarations or affidavits detailing the nature of his ‘reasonable inquiry’ to locate responsive documents, and such declarations must address the inquiry he made on a request-by-request basis.” A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 190 (C.D. Cal. 2006). At this time, the record does not show spoliation or other misconduct that would justify the more drastic remedies proposed by Plaintiffs, such as allowing them to hire a third-party vendor to conduct a search of Senator Pearce's email accounts. (See Reply at 11.)

*4 Through the Arizona Public Records Law, A.R.S. §§ 39-101 to –161, Plaintiffs have on several occasions made public records requests that the Arizona Legislature turn over documents related to immigration-related topics and legislation, including Senator Pearce's involvement with S.B. 1070 and precursor legislation. (Cox Decl. ¶¶ 2-4.) They maintain that the Arizona House of Representatives withheld hundreds of documents on Senator Pearce's behalf on state law privilege grounds (attorney-client privilege and legislative privilege). (Cox Decl. ¶¶ 8, 37, 58.) Plaintiffs have asked Senator Pearce to review those withheld records, produce the documents that were not privileged, and provide a privilege log for the documents he believed were privileged. (Doc. 1099-4, Ex. B-3, Feb. 14, 2014 Email from Justin Cox to Jim Peterson; Doc. 1099-4, June 4, 2014 Letter from Justin Cox to Jim Peterson.) They contend that “the Legislature has given such access to every other former legislator to whom Plaintiffs have sent a subpoena duces tecum.” (MTC at 15.)

Senator Pearce argues that he cannot produce the withheld documents because he is no longer a member of the Arizona Legislature and lacks a legal right to obtain documents in the possession and control of the Arizona Legislature. (Opp'n at 12.) The parties therefore agree that the question whether Senator Pearce has “control” of the withheld documents turns on whether he has “the legal right to obtain documents upon demand.” (Id. at 12; Reply at 7); see United States v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). Because the documents were withheld based on state law privileges held by Senator Pearce, the Arizona Legislature would have no basis to deny him those records if he requested them. See Ariz. Indep. Redistricting Comm'n v. Fields, 75 P.3d 1088, 1098 (Ariz. Ct. App. 2003) (“The [legislative] privilege is held solely by the legislator and may only be invoked by the legislator or by an aide on his or her behalf.”). Senator Pearce therefore has “control” of the documents. The Court instructs Senator Pearce to review the withheld records, produce documents that are not privileged, and provide Plaintiffs a privilege log for the documents he believes are privileged.

Senator Pearce claims to have redacted the names of people who had emailed him about matters involving S.B. 1070 to protect the privacy and First Amendment rights of those private citizens, relying exclusively on Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2009). (Opp'n at 14-16.) He has produced the roughly thirty-five emails without redacting them in any other way. In a previous Order, the Court summarized the relevant legal standards under Perry in addressing whether subpoenas requesting communications between the Federation for American Immigration Reform (“FAIR”) and the Immigration Reform Law Institute (“IRLI”) and Arizona legislators and their staff infringed on FAIR and IRLI's First Amendment rights to freedom of speech and freedom of association. (See Doc. 927, Dec. 11, 2013 Order at 3-5.) The Court explained:

(Id. at 3-4.)

Like the discovery dispute there, the Court finds that the First Amendment privilege described in Perry does not apply to the identifying information that Mr. Pearce has redacted. In rejecting FAIR and IRLI's argument that they had a protected right to communicate with Arizona officials on matters of public concern without the fear of forced disclosure, the Court noted that “Perry and its progeny have all dealt with the disclosure of either the identity of association members or internal communications—not communications with third parties.” (Id. at 4 (citing Perry, 591 F.3d at 1160 (“Disclosure of political affiliations and activities that have a deterrent effect on the on the exercise of First Amendment rights are therefore subject to this same exacting scrutiny.” (emphasis added) (internal quotation marks omitted); In re Anonymous Online Speakers, 661 F.3d 1168, 1174 (9th Cir. 2011) (stating that the holding in Perry “was limited to private internal campaign communications concerning the formulation of campaign strategies and messages” (internal quotation marks omitted)); Dunnet Bay Constr. Co. v. Hannig, No. 10-CV-3051, 2011 WL 5417123, at *3 (C.D. Ill. Nov. 9, 2011) (interpreting Perry's holding as “protect[ing] against the disclosure of the identity of members and the content of internal communications between members, employees, and agents of political campaigns”).) Senator Pearce has failed to explain how Perry can be extended to the discovery dispute here since the identifying information in the emails is not part of internal communications that implicate the same or similar associational rights involved in Perry. (See id. at 4 (rejecting FAIR and IRLI's position because, among other things, “the communications Plaintiffs s[ought were] not internal communications, but rather communications between Movants and public officials”).) The Court overrules Senator Pearce's objection and orders him to produce the emails with the identifying information unredacted.

*5 For electronically stored information, Federal Rule of Civil Procedure 34(b)(2)(E)(i)-(ii) requires a party to “produce documents as they are kept in the usual course of business ...; [i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” For the emails Senator Pearce produced, he appears to have printed them in black and white and scanned them into PDF format, a process that removed metadata from the emails. (See Doc. 1099-7, Exs. F-1 to F-10 (examples of the types of documents Senator Pearce produced in response to the subpoena, including emails).)[1] Plaintiffs contend that the process of printing and scanning emails has “stripped them of color text, graphics, embedded links to websites, videos, and attachments,” which they argue are “indisputably part of the emailed communication and thus responsive to the subpoena.” (MTC at 17.) They also maintain that the printing and scanning process has resulted in text being obscured or otherwise made unreadable and that certain emails appear to have pages or attachments that were not produced. (Id.)

Senator Pearce argues that he is under no obligation to produce emails or other electronic documents in a native format because the subpoena did not request documents to be produced that way. (Opp'n at 16-18.)[2] The Court agrees with Plaintiffs that Senator Pearce's argument is primarily one of semantics. The subpoena did not specifically request that the documents be produced in a native format, but it did expressly define “documents” to include all associated metadata. (Pearce Subpoena at 1-2.) The Court is unaware of a method to preserve metadata unless an electronic document is produced in a native format. Senator Pearce contends that production in a native format has several disadvantages, including “the inability to Bates number[ ] pages, the inability to redact specific information, the need for multiple software packages to accommodate different types of files, and ... opens the door to alteration of original records.” (Opp'n at 17.) Senator Pearce has not introduced any evidence that re-producing the documents will be unduly burdensome or that there is a legitimate chance that the documents will be altered. The Court orders Senator Pearce to re-produce emails and other electronic documents containing metadata in a native format. For documents that need to be redacted to conceal privileged or confidential materials, which appear to account only for a very small percentage of the emails produced, Senator Pearce may produce a redacted PDF version of the document, but must substantiate the redaction in a privilege log and provide Plaintiffs with some way to access the metadata in the documents (for example, by providing the web address in embedded links or videos).

Senator Pearce has failed to show that the subpoena duces tecum is facially deficient or that the Court lacks jurisdiction to enforce the subpoena or address the present Motion. The Court also overrules Senator Pearce's other objections to the subpoena.

IT IS ORDERED granting Plaintiffs' Motion to Compel Russell Pearce to Comply with Subpoena Duces Tecum (Doc. 1099).

Dated this 9th day of September, 2014.

“Metadata, commonly described as data about data, is defined as information describing the history, tracking, or management of an electronic document.” Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005) (internal quotation marks omitted).

Other non-party legislators have apparently agreed to produce the requested records in their native format. (See Cox Decl. ¶ 66.)