Government privilege takes center stage in Rhode Island toll lawsuit

Nearly everyone involved knew it was going to happen. Rhode Island Gov. Gina Raimondo and two other state officials that were subpoenaed in the American Trucking Associations’ truck-only toll lawsuit are attempting to invoke government privilege to avoid the orders.

On Aug. 6, Raimondo, House Speaker Nicholas Mattiello and Senior Deputy Majority Leader Stephen Ucci filed a motion to quash the subpoenas. According to court documents, the officials are asserting legislative and deliberative process privileges.

Raimondo’s attorneys argued that federal courts have recognized the common law doctrine of state legislative privilege. Raimondo also argued that even if plaintiffs discover a document suggesting any sort of discrimination when drafting RhodeWorks, it would not prove anything.

“Plaintiffs’ subpoenas seek to open the inner offices of government to a searching review for documents and communications that might suggest that some state official, individual legislator, staffer, agency employee or anyone else for that matter had some improper or discriminatory purpose in mind during the deliberative and legislative processes leading up to the enactment of the RhodeWorks Act,” Raimondo’s attorneys argued.

“Even if such a searching review was successful in unearthing from the depths of the drawers of a staffer the proverbial needle in a haystack – a document or communication suggesting that a single participant in the deliberative and legislative processes had an improper or discriminatory purpose in mind – such a document would fall far short of demonstrating that the RhodeWorks Act was enacted with a discriminatory purpose and would serve only to invite speculation about the intentions of the legislature as a whole.”

Raimondo also argued that if privileges do not apply for some documents, the undue burden it will cause should prevail.

In fact, she uses the COVID-19 pandemic as part of that reasoning. Stating her case, the governor referred to her role as chief executive officer of the state and commander-in-chief during the ongoing global COVID-19 pandemic as a reason to avoid “producing documents and appearing for a deposition at this time.”

Subpoenas filed in court on July 23 ordered Raimondo and others to produce certain documents by Aug. 14. The subpoenas also ordered them to appear for a deposition on Sept. 4. Now that the state officials are challenging the subpoenas, those orders will be on hold while the American Trucking Associations and the state litigate the merits of the claims.

Raimondo’s move to avoid testimony and to produce documents was expected. In July, Judge William E. Smith of the Rhode Island District Court told ATA that statements from the officials in news articles alone would not be enough. Rather, testimony will be needed to support those printed statements.

The court will look into the following factors when making that decision:

• Relevance of the evidence sought to be protected.
• Availability of other evidence.
• Seriousness of the litigation and the issues involved.
• Role of the government in the litigation.
• Possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.

Opposing the attempt to avoid subpoenas, ATA pointed to the district court’s denial of Rhode Island’s motion for judgment. In that order, the court ruled that material relating to the intent of the government officials in publicizing the RhodeWorks tolls is relevant.

Specifically, if officials cannot testify, then the court will have to use statements in news reports as evidence. Regardless, ATA argued, Rhode Island has made no attempt to narrow which materials requests in the subpoenas would address their concerns regarding government privilege.

In fact, ATA argued that rather than “meet and confer,” the state is trying to quash all discovery. ATA stated that it is “willing to discuss reasonable narrowing of requests” that could be considered burdensome. However, Rhode Island has made no indication of doing so.

Furthermore, federal law invokes government privilege for testimony when the public good associated with the exclusion of the testimony overrides the arguments in favor. ATA argued that Rhode Island “has not come close to overcoming this presumption that favors the production of probative evidence.”

ATA also argued that government privilege is not absolute in dormant Commerce Clause cases as suggested by the state. The trucking association cited past federal cases that included discovery from officials in Commerce Clause cases.

Addressing the state’s argument that courts are strongly against questions about officials’ motives, ATA argued that their intent is “highly relevant” and that constitutional issues “are of the utmost seriousness.”

Rhode Island has argued that now is not a good time, considering the pandemic. ATA addressed that concern.

“Again, we recognize the governor’s significant responsibilities at this time,” ATA stated. “But there is no basis to believe that a properly circumscribed and time-limited deposition, scheduled with sensitivity to the governor’s schedule, would be unmanageable. And in that regard, the state’s accusation that ‘Plaintiffs have chosen to move this case forward in the middle of a global pandemic’ is especially dubious.”

In mid-September, the district court denied ATA’s request to pause the tolls while litigation continues. Saying it was “a close call,” the judge said ATA’s arguments are not likely to succeed on their merits as they stand. In the order, the court did give some insight into what evidence it will be looking for during the trial, giving a glimmer of hope for the trucking industry. LL