The Eleventh Amendment and Federal Discovery: A New Threat to Civil Rights Litigation

Jennifer Lynch

Electronic Frontier Foundation (EFF)

August 1, 2009

Florida Law Review, Vol. 62, p. 203, 2010

Lawyers for the State of California have argued recently in several federal civil rights cases that the state sovereign immunity doctrine bars all discovery issued to the state, its agencies and its employees. While courts agree that sovereign immunity generally protects states from suit in federal court and that this immunity does not extend to state employees, it is unclear whether state sovereign immunity should apply at all to federal discovery, especially when discovery is a necessary part of a lawsuit against a state employee.

This Article is the first to analyze states’ attempts to expand the sovereign immunity doctrine to block discovery in federal court. Few courts have yet addressed this issue. However, based on the Supreme Court’s expansion of sovereign immunity and contraction of civil rights protections in the last few decades, it should prove a fertile area for analysis in the years to come.

This Article focuses on the states’ use of this defense in prisoners’ rights cases because the defense will likely have the broadest application in that context. State prisoners filed over 18,000 civil rights cases against state employees in the federal district courts between March 2007 and March 2008, and the yearly caseload continues to increase. Prisoners almost always represent themselves in civil rights cases, have little access to evidence, and are unlikely to be able to navigate the nuances of an Eleventh Amendment argument. For these reasons, they could suffer the worst. Yet, this issue is not limited to prisoners’ rights cases. The state could raise this defense in any case in which a party seeks evidence from the state - whether the case itself is brought against a state employee or not.

In this Article, I compare tribal and federal sovereign immunity case law with the state sovereign immunity context. I then analyze three main rationales supporting state sovereign immunity. I argue there is an implied exception to the state sovereign immunity doctrine limiting its application to lawsuits rather than ancillary federal court processes such as discovery. I therefore conclude the states’ sovereign immunity defense to discovery lacks foundation in either law or policy.

Number of Pages in PDF File: 56

Keywords: Eleventh Amendment, Sovereign Immunity, Civil Rights, Discovery, Subpoena, Prison, Prisoners Rights

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Date posted: April 12, 2010  

Suggested Citation

Lynch, Jennifer, The Eleventh Amendment and Federal Discovery: A New Threat to Civil Rights Litigation (August 1, 2009). Florida Law Review, Vol. 62, p. 203, 2010. Available at SSRN: http://ssrn.com/abstract=1588183

Contact Information

Jennifer Lynch (Contact Author)
Electronic Frontier Foundation (EFF) ( email )
454 Shotwell St.
San Francisco, CA 94110
United States
HOME PAGE: http://https://www.eff.org/about/staff/jennifer-lynch
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