On November 13, the Florida Supreme Court affirmed a trial court ruling which ordered Data Targeting, Inc., its president Pat Bainter, and others (collectively, “non-parties” or “Bainter”) to produce 538 pages of documents subpoenaed in a challenge to the constitutional validity of the Florida Legislature’s 2012 congressional redistricting plan, and held that “any objection to the production of these documents based on a qualified First Amendment privilege has been waived.” Bainter et al. v. League of Women Voters, et al. (SC14-1200). The Court accepted jurisdiction of the appeal of the trial court’s discovery orders after the First District Court of Appeal, in an en banc opinion, passed the appeal directly through to the Florida Supreme Court, per Art. V, § 3(b)(5), Fla. Const. Non-Parties v. League of Women Voters of Fla., 39 Fla. L. Weekly D1300, 2014 WL 2770013 (Fla. 1st DCA June 19, 2014).

The Court reached its conclusion “based on the totality of the circumstances,” which “clearly and conclusively demonstrated the inexcusable delay of non-parties Pat Bainter and his political consulting firm, Data Targeting, Inc., in asserting this qualified privilege.” (Op. at 36).

The Court noted that non-parties received multiple subpoenas duces tecum seeking the documents in question, followed by over six months of hearings and filings seeking same. Bainter, having failed to file a motion for a protective order or raise any legal objection, 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.” Non-parties’ objection to the request for the remainder of the documents was “based solely on the claimed irrelevancy and burdensome nature of the discovery requests.”

“Not until the day after the trial court held the non-parties in contempt of court and ordered them to pay attorney’s fees for failing to produce the documents did the words ‘First Amendment’ appear for the first time in a filing or a hearing transcript in the trial court.”

Accordingly, the Court held that, “based on the totality of the circumstances,” non-parties’ asserted qualified First Amendment privilege had been waived.

The Court also noted that it remains “committed to the principle that ‘all trials, civil and criminal, are public events and there is a strong presumption of public access to these proceedings and their records.’” Citing Barron v. Fla. Freedom Newspapers, Inc., 531 So. 2d 113, 114 (Fla. 1988). Accordingly, the Court ordered that previously sealed transcripts as well as the documents themselves be unsealed and made part of the public record.