THE ELEVENTH AMENDMENT AND FEDERAL DISCOVERY: A
NEW THREAT TO CIVIL RIGHTS LITIGATION
Jennifer Lynch*
Abstract
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 within 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.

* Lecturer & Supervising Attorney, Samuelson Law, Technology & Public Policy
Clinic, University of California, Berkeley, School of Law. I am grateful to Ty Alper, William
Fernholz, and Aaron Burnstein for their comments and suggestions. This Article and my interest
in this subject arose out of court briefs I wrote while representing several female prisoners pro
bono in three civil rights lawsuits against prison officials employed by the State of California.
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I. INTRODUCTION ........................................................................... 205
II. OVERVIEW OF THE PROBLEM AND FOUR KEY CASES .................. 207
A. Estate of Gonzalez v. Hickman ........................................... 210
B. Three Eastern District Prison Cases Succeeding
Gonzalez ............................................................................. 212
III. THE ELEVENTH AMENDMENT AND STATE SOVEREIGN
IMMUNITY ................................................................................... 214
A. History and Ratification of the Eleventh
Amendment ......................................................................... 214
B. Subsequent Case Law Extending the Eleventh
Amendment’s Reach ........................................................... 216
C. Three Rationales for Why State Sovereign
Immunity is Broader than the Text of the
Eleventh Amendment .......................................................... 217
D. Sovereign Immunity is Not Unlimited ................................. 221
1. Three Established Checks on State Sovereign
Immunity ........................................................................ 222
a. Sovereign Immunity Does Not Apply to Most
Suits Against State Officers and Employees .......... 222
b. Congress May Abrogate State Sovereign
Immunity by Creating a Private Right of
Action Against the States ....................................... 224
c. States May Waive Their Immunity ........................ 225
2. A New Fourth Check: Sovereign Immunity Does
Not Apply to Proceedings That Are Ancillary
or Subordinate to the Main Suit.................................... 227
IV. TRIBAL AND FEDERAL SOVEREIGN IMMUNITY AND THEIR
PARALLELS TO STATE SOVEREIGN IMMUNITY ............................ 231
A. Tribal Sovereign Immunity ................................................. 232
B. Federal Sovereign Immunity .............................................. 235
V. SOVEREIGN IMMUNITY AND FEDERAL DISCOVERY ..................... 236
A. Sovereign Immunity and the Problem of
“Possession, Custody, or Control” in Two of the
Eastern District Prison Cases ............................................ 236
B. The State Sovereign Immunity Defense Applied to
Discovery Requests ............................................................. 241
C. Tribal Sovereign Immunity and Discovery ......................... 242
D. Federal Sovereign Immunity and Discovery ...................... 246

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VI. APPLYING LESSONS LEARNED FROM THE TRIBAL AND FEDERAL
IMMUNITY CASES AND THE THREE RATIONALES
TO THE PROBLEM OF STATE SOVEREIGN IMMUNITY
AND FEDERAL DISCOVERY .......................................................... 250
A. Federal Sovereign Immunity Case Law from the Ninth
and District of Columbia Circuits Is Most Persuasive
in the State Sovereign Immunity Context............................ 250
B. Two of the Three Rationales for State Sovereign
Immunity Suggest it Does Not Apply to Subpoenas............ 253
VII. CONCLUSION ............................................................................... 256
I. INTRODUCTION
In 2005, California state correctional officer, Manuel Gonzalez, was
stabbed and killed by an inmate at the prison where he worked.1 The
inmate who killed him had a long history of violence against prison
staff and other inmates and had been housed in a single cell in
maximum security in one of California’s highest security prisons.2 He
was admitted to the prison where Officer Gonzalez worked after being
convicted of the attempted murder of a police officer and sentenced to
seventy-five years.3 Despite this history, prison authorities placed the
inmate in the general population under the supervision of correctional
officers like Officer Gonzalez, who were not issued protective vests.4
Several months after the inmate arrived at the prison, Officer Gonzalez
took the inmate out of his cell under the mistaken assumption that the
inmate was influential among his peers and could ease racial tensions at
the prison.5 Instead, the inmate turned on him and stabbed him.6 Officer
Gonzalez died of his injuries shortly thereafter.7
After Officer Gonzalez’ death, his relatives sued the prison warden
and various other California state correctional employees and officials
under 42 U.S.C. § 19838 for violating Officer Gonzalez’ civil rights by
improperly classifying the inmate and thus failing to protect Gonzalez
1. Estate of Gonzales v. Hickman, No. ED CV 05-660 MMM (RCx), 2007 WL 3237727,
at *2 (C.D. Cal. May 30, 2007).
2. Id. at *13–18. The decedent’s last name is spelled variously by the courts and by his
attorney as “Gonzales” or “Gonzalez.” The majority of the opinions in this case use the spelling
“Gonzalez,” so I will use this spelling throughout this Article.
3. Id.
4. Id.
5. Id. at *10.
6. Id. at *2.
7. Id.
8. 42 U.S.C. § 1983 (2006).

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from harm.9 However, when the relatives tried to use a routine civil
discovery request to obtain evidence from the state to show that the
state defendants knew the inmate was a high security risk, the state
refused to turn over documents. The state argued the Eleventh
Amendment and the doctrine of state sovereign immunity protected it,
its agencies, and its employees from all federal court discovery.10 A
federal district court agreed and denied the discovery request,
preventing the plaintiffs from obtaining any evidence in the state’s
possession that would help them prove their case.11
California has since been using the Gonzalez opinion as a shield to
try to block discovery requests in several unrelated civil rights lawsuits
brought by state prisoners. The state’s goal seems to be to convince
federal judges that civil rights plaintiffs may not obtain discovery from
any sources affiliated with the state—whether those are nonparty
agencies or employees, or even the individual state employee
defendants themselves. While it is settled that states generally enjoy
immunity from suit in federal court,12 state employees do not.13 And it
is not clear state sovereign immunity extends to federal discovery
processes, especially when discovery is a necessary part of a lawsuit
against a state employee to whom that immunity does not apply.
There are very few published opinions on the issue of state sovereign
immunity and federal discovery. Only one case in any of the courts of
appeals has addressed the issue,14 but that case relies on questionable
precedent15 and has not been cited for the same proposition by any other
court even though it is more than ten years old. No court other than
Gonzalez has yet, on record, agreed with the state’s position. However,
one case with a favorable ruling for the civil rights plaintiffs is currently
on appeal to the Ninth Circuit on this issue.16
This Article explores the state’s argument that sovereign immunity
9. Estate of Gonzales, 2007 WL 3237727, at *1.
10. Id. at *1.
11. Estate of Gonzalez v. Hickman, 466 F. Supp. 2d 1226 (E.D. Cal. 2006).
12. States may be sued in federal court in two situations: if they have explicitly waived
their immunity, see infra Part III.D.1.c; see, e.g., Alden v. Maine, 527 U.S. 706, 737 (1999), or
if Congress, acting through its Amendment XIV, § 5 powers, abrogates state sovereign
immunity, see, e.g., United States v. Georgia, 546 U.S. 151, 158 (2006).
13. See e.g., Ex parte Young, 209 U.S. 123, 159–60 (1908) (finding suits against state
officers sued in their official capacities for injunctive relief are constitutionally cognizable);
Scheuer v. Rhodes, 416 U.S. 232, 238 (1974) (finding suits against state officers sued in their
individual capacities for damages do not invoke the protections of the Eleventh Amendment).
14. In re Mo. Dep’t of Natural Res., 105 F.3d 434, 435–46 (8th Cir. 1997).
15. See infra Part V.B.
16. Notice of Appeal, Allen v. Woodford, No. 05-1104 (E.D. Cal. Apr. 23, 2008); Allen v.
Woodford, No. 08-16118 (9th Cir.). The Ninth Circuit, after hearing oral argument on October
7, 2009, deferred submission pending a proposed settlement by the parties. See Order of USCA
as to 228 Notice of Appeal, Allen v. Woodford, No. 05-1104, (E.D. Cal Oct. 9, 2009).

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protects it, its agencies and its employees from discovery in federal
court and explores the possible ramifications of that argument on civil
rights cases.17 In Part II, I provide an overview of the state sovereign
immunity problem and introduce four key cases in which it arose. In
Part III, I discuss the Eleventh Amendment and the doctrine of state
sovereign immunity and present and distill three rationales courts use to
support the broad reach of the doctrine. In Part III, I also present a new
implied exception to the sovereign immunity doctrine: that sovereign
immunity is limited to lawsuits and similar adversarial proceedings and
does not apply to ancillary processes of the federal courts such as
discovery. In Part IV, I discuss parallels and distinctions between state
sovereign immunity and the immunity of other sovereigns, including the
federal and tribal governments. And in Part V, I explore the application
of the various sovereign immunity principles to discovery processes,
comparing the analysis in Estate of Gonzalez with key cases discussing
the intersection of discovery and federal and tribal sovereign immunity.
I conclude in Part VII that the state’s argument is incorrect legally
because neither the text of the Eleventh Amendment nor subsequent
Supreme Court jurisprudence suggests that state sovereign immunity
extends beyond the scope of lawsuits or other adversarial proceedings to
apply to the ancillary or incidental processes of a federal court such as
discovery. In addition, I conclude that the state’s position is incorrect
from a policy perspective because it has the potential to undermine the
entire field of civil rights litigation against state employees: If a civil
rights plaintiff cannot obtain evidence in her case, she cannot prove her
claims and therefore cannot pursue the case at all.
II. OVERVIEW OF THE PROBLEM AND FOUR KEY CASES
The case law and scholarship on state sovereign immunity is so
complicated and convoluted that its discussion is generally limited to
constitutional law scholars and Supreme Court justices.18 Yet lawyers

17. Although this Article focuses on civil rights cases and specifically on several cases
litigated in California, this issue affects cases outside of both the civil rights context and
California. Any state could raise this defense in any federal civil case in which a party seeks to
obtain discovery from the state, its agencies, or its employees. See, e.g., Arista Records LLC v.
Does 1-14, No. 7:08cv00205, 2008 WL 5350246, at *3 (W.D. Va. Dec. 22, 2008) (addressing
same issue in copyright lawsuit where subpoenas were issued to Virginia Tech); Jackson v.
AFSCME Local 196, No. 3:07CV0471 (JHC), 2008 WL 1848900, at *1–3 (D. Conn. Apr. 25,
2008) (addressing same issue as to labor relations).
18. Judge William A. Fletcher on the Ninth Circuit Court of Appeals once described the
Eleventh Amendment as “one of the Constitution’s most baffling provisions.” William A.
Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an
Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L.
REV. 1033, 1033 (1983).

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for the State of California (and perhaps other states)19 are now arguing
this doctrine should be used to bar discovery in civil rights actions
brought against state employees. This argument is problematic from a
legal standpoint for many reasons, which this Article will discuss in
detail. However, this argument is also problematic from a public policy
standpoint for two main reasons. First, if a state, its agencies, or its
employees could block discovery with a sovereign immunity defense, it
would undermine well-settled Supreme Court precedent that finds
sovereign immunity does not extend to protect state employees.20 By
preventing a plaintiff from obtaining discovery from any source
affiliated with the state (and if the plaintiff is suing a state employee, at
least some of the evidence must lie within the possession of the
employee or his employer state agency), it prevents her from pursuing
her case to completion. It allows state employee defendants to bring in
through the back door a sovereign immunity defense that they would
never be able to rely on in the case itself.
The state’s position is also problematic for a second reason: It has
the potential to undermine the important and well-recognized remedial
purposes of the federal civil rights statute, 42 U.S.C. § 1983,21 because
it would come up most often in the civil rights context.22 California is
currently wielding this complicated legal doctrine in civil rights cases
brought by state prisoners who generally lack access to adequate or any
legal representation. Although in the cases that will be discussed further
in this Article all plaintiffs were represented by counsel,23 most
19. It is hard to determine if other states are using this argument as federal court orders
addressing discovery issues are rarely published.
20. See, e.g., Ex parte Young, 209 U.S. 123, 159–60 (1908) (finding suits against state
officers sued in their official capacities for injunctive relief are constitutionally cognizable);
Scheuer v. Rhodes, 416 U.S. 232, 237–38 (1974) (finding suits for damages against state
officers sued in their individual capacities do not invoke the protections of the Eleventh
Amendment).
21. 42 U.S.C. § 1983 (2006).
22. See, e.g., Rhodes, 416 U.S. at 243 (stating Congress’s intent in enacting § 1983 was
“to enforce provisions of the Fourteenth Amendment against those who carry a badge of
authority of a State and represent it in some capacity, whether they act in accordance with their
authority or misuse it” (quoting Monroe v. Pape, 365 U.S. 167, 171–72 (1961))); Monroe v.
Pape, 365 U.S. 167, 172 (1961) (holding that through 42 U.S.C. § 1983, Congress sought “to
give a remedy to parties deprived of constitutional rights, privileges and immunities by an
official’s abuse of his position”).
23. See Allen v. Woodford, 543 F. Supp. 2d 1138, 1139 (E.D. Cal. 2008); Thomas v.
Hickman, No. 1:06-cv-00215-AWI-SMS, 2007 WL 4302974, at *1 (E.D. Cal. Dec. 6, 2007);
Jett v. Penner, No. 02-2036, 2007 WL 127790, at *1 (E.D. Cal. Jan. 12, 2007). Mr. Lance Jett,
the plaintiff in Jett v. Penner, first filed his case pro se. The magistrate judge assigned to his
case denied his request for counsel and request for legal assistance (Doc. No. 22, May 15, 2003)
and issued findings and a recommendation that the district court judge grant the defendants’
motion for summary judgment (Doc. No. 46, Jan. 16, 2004). See also Doc. No. 53 (Mar. 20,
2004) (adopting the findings and recommendation in full, granting the summary judgment

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prisoners cannot obtain counsel and thus must represent themselves in
civil rights litigation.24 Prisoners filed over 18,000 civil rights cases in
the federal district courts in the twelve months preceding March 31,
2008, and the yearly caseload continues to increase.25 In the Eastern
District of California alone (where most of California’s state prisons are
located), nearly 50% of the court’s caseload—over 1,800 cases in
2005—consists of prisoner-filed cases.26 Of those, more than 1,000
were civil rights cases brought under the federal civil rights statute, 42
U.S.C. § 1983.27 Because there are so many prisoner civil rights cases
every year and because so many of those cases are brought pro se, the
ramifications of an Eleventh Amendment immunity defense to
discovery are broad; pro se prisoners are much less likely to be able to
navigate the nuances of Eleventh Amendment jurisprudence than
lawyers (who often have trouble themselves). And, while not all of
these cases are meritorious, many cases raise grave issues that should
not by buried through questionably meritorious discovery battles.
Eastern District of California Magistrate Judge Kimberly Mueller notes
that, of the nine prisoners’ rights cases that survived summary judgment
and for which she has sought counsel, “three alleged denial of
constitutionally adequate medical care, one excessive force and denial
of care, two denial of free exercise of religion, and one failure to protect
in violation of the Eighth Amendment.”28 In fact, conditions are so dire
in California prisons that a federal district court judge has ordered the
state’s entire prison medical system under receivership.29
motion and terminating the case). It was not until Mr. Jett appealed his case to the Ninth Circuit
and that court reversed the district court opinion and remanded the case (three and a half years
after Mr. Jett first filed his case) that Mr. Jett received assistance from counsel. Jett v. Penner,
439 F.3d 1091, 1095–96 (9th Cir. 2006). The parties later settled the case after the judge denied
the defendants’ second motion for summary judgment. See Jett v. Penner, Case No. 02-2036,
Doc. Nos. 153 (E.D. Cal. Nov. 9, 2007), 159 (E.D. Cal. Feb. 15, 2008).
24. See Kimberly J. Mueller, Inmates’ Civil Rights Cases and Appointment of Counsel,
SACRAMENTO LAWYER, May/June 2006. Ninety percent of prisoners whose cases survive
summary judgment also represent themselves at trial. Id. Judge Mueller, citing 28 U.S.C. § 1915
(2006), notes “federal courts have no authority to require that an attorney accept appointment as
an inmate civil rights plaintiff’s counsel” and attorneys have little to no incentive to take these
cases because fees, which are provided for under 42 U.S.C. § 1983 (2006), are not awarded until
after trial or after appeal. Kimberly J. Mueller, Inmates’ Civil Rights Cases and Appointment of
Counsel, SACRAMENTO LAW., May/June 2006.
25. ADMIN. OFFICE OF THE U.S. COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS: Mar.
31, 2008, tbl. C-2 (2008), available at http://www.uscourts.gov/caseload2008/tables/C02Mar08.
pdf. Table C-2 from 2008 suggests that over 17,000 of these cases involved state rather than
federal prison systems. Id. (noting 1,049 of the prisoner civil rights cases were brought against
the United States, while 17,250 cases were private “Federal Question” cases).
26. Mueller, supra note 24.
27. Id.
28. Id.
29. See Jenifer Warren, Judge Names Receiver to Fix Prison Health System, L.A. TIMES,

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The cases discussed below represent some of these egregious facts.
The Gonzalez case alleged the prison improperly classified a known
violent inmate, exposing Officer Gonzalez to grave risk of harm.30 The
three other cases, which I will call the “Eastern District Prison Cases,”
allege improper medical care resulting in, variously, unnecessary
surgeries, failure to perform surgery resulting in permanent
disfigurement, extreme pain and loss of mobility, and loss of
reproductive capacity.31
A. Estate of Gonzalez v. Hickman32
In Estate of Gonzalez, the Eastern District of California held that the
Eleventh Amendment and state sovereign immunity protect state
agencies from being compelled to respond to discovery subpoenas in
federal court.33 Gonzalez is the first published opinion on this issue.
The Gonzalez plaintiffs sued several state prison employees under
§ 1983.34 During discovery, the plaintiffs issued subpoenas to the
California Department of Corrections and Rehabilitation (CDCR), the
state agency responsible for managing the state prison system.35 The
subpoenas sought documents and testimony regarding portions of the
individual defendants’ employment and personnel files and information
on the inmate who killed Mr. Gonzalez.36 The CDCR refused to comply
with the subpoenas, so the plaintiffs filed a motion to compel
compliance in the United States District Court for the Eastern District of
California.37

Feb. 15, 2006, at B1 (noting that “court-appointed inspectors told Judge Henderson last summer
that they saw few signs of progress in a system that on average kills one inmate—through
neglect or malpractice—each week”); see also Plata v. Schwarzenegger, No. 01-1351, 2005
U.S. Dist. LEXIS 8878, at *1, *7 (N.D. Cal. May 10, 2005) (describing expert report on the
state of the prison medical system produced three years after lawsuit was settled as “shocking”
and noting experts “observed widespread evidence of medical malpractice and neglect”
including finding thirty–four prisoner deaths “highly problematic, with multiple instances of
incompetence, indifference, neglect, and even cruelty by medical staff”).
30. Estate of Gonzales v. Hickman, No. ED CV 05-660 MMM (RCx), 2007 WL 3237727,
at *1 (C.D. Cal. May 30, 2007).
31. See infra Part II.B.
32. 466 F. Supp. 2d 1226 (E.D. Cal. 2006).
33. Id. at 1229–30.
34. Id. at 1226–27.
35. Estate of Gonzales v. Hickman, No. S06-0095 MCE GGH, 2006 WL 3201069, at *1
(E.D. Cal. Nov. 6, 2006).
36. Id.
37. Id.

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The matter first came before Magistrate Judge Gregory G. Hollows,
who held sovereign immunity applied to the subpoenas.38 In so doing,
he relied on a Ninth Circuit case, United States v. James,39 that held
tribal sovereign immunity barred subpoenas served by a criminal
defendant to tribal entities.40 Although James addressed tribal and not
state immunity and was a criminal case, Judge Hollows still found the
case “closely analogous” and felt bound to follow it.41 However, he also
found state sovereign immunity did not bar the subpoenas in the
Gonzalez case for two reasons.42 First, the state unequivocally waived
its immunity through a state statute that allows state employees to
respond to subpoenas.43 Second, subpoenas were similar to injunctive
relief, and therefore fit into the “Ex Parte Young” exception to
sovereign immunity44 discussed further in Part III.D.1.45 Therefore,
Judge Hollows granted the plaintiffs’ motion to compel.46
The state filed a motion for reconsideration with District Court Judge
Morrison C. England, who found the magistrate judge’s opinion
contrary to law and overturned the ruling.47 In ruling on the motion, the
district court never addressed the underlying questions of whether
sovereign immunity applied to subpoenas in the first instance or
whether a court should look to tribal sovereign immunity cases when
analyzing a question of state sovereign immunity. It merely held that
the two reasons for which the magistrate judge found sovereign
immunity did not apply were both contrary to law: The California
statute did not constitute an unequivocal waiver of immunity for a
subpoena issued in federal court,48 and Ex Parte Young did not apply
because the underlying lawsuit sought damages rather than injunctive
relief.49 The court held that “Plaintiffs do not have a federal right to
force the State to produce documents that, in a best case scenario, can
only assist Plaintiffs in obtaining relief for a past wrong.”50
38. Id. at *2.
39. 980 F. 2d 1314 (9th Cir. 1992). In James, the United States government brought a
criminal action against a tribal member who then issued a subpoena to a tribal agency seeking
documents helpful to his case. For further discussion of James, see infra Part V.C.
40. Gonzalez, 2006 WL 3201069, at *2.
41. Id. at *1.
42. Id. at *2–4.
43. Id. at *2 (citing CAL. GOV’T CODE § 68097.1(b)).
44. Id. at *3 (citing Ex parte Young, 209 U.S. 123 (1908)).
45. See infra Part III.D.1.a.
46. Gonzalez, 2006 WL 3201069, at *6.
47. Estate of Gonzalez v. Hickman, 466 F. Supp. 2d 1226, 1229 (E.D. Cal. 2006).
48. Id. at 1228–29.
49. Id. at 1229.
50. Id. This statement is problematic because it conflates the relief sought in the litigation
(damages for failure to prevent Mr. Gonzalez’s death) with the “relief” sought in response to the
subpoenas and the motion to compel (documents necessary to prove the defendants failed to

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B. Three Eastern District Prison Cases Succeeding Gonzalez
Although a later proceeding in the Gonzalez case questioned the
holding above,51 the State of California relied on the opinion in fighting
discovery requests in at least three subsequent federal civil rights cases
brought in the Eastern District of California by inmates incarcerated in
the California state prison system: Allen v. Woodford,52 Thomas v.
Hickman,53 and Jett v. Penner54 (collectively the “Eastern District
Prison Cases”). In all three cases, the prisoners brought claims under
§ 1983 and the Eighth Amendment for cruel and unusual punishment
arising out of improper medical care during their incarceration.55 In
Allen and Thomas, the female prisoners alleged they were subjected to
unnecessary surgeries, causing severe pain, loss of mobility (in Ms.
Allen and her co-plaintiffs’ cases) and loss of reproductive capability
(in Ms. Thomas’ case).56 They sued several state employees and officers
prevent Mr. Gonzalez’s death).
51. See Estate of Gonzalez v. Hickman, No. ED CV 05-660 MMM (RCx), 2007 U.S.
Dist. LEXIS 83702, at *4 n.5 (C.D. Cal. Apr. 18, 2007). The Gonzalez case was first filed in the
Central District of California in 2005. Id. at *1–2. The plaintiffs issued subpoenas to the CDCR
out of the Eastern District Court of California in 2006, resulting in the December 2006 decision
denying the plaintiffs’ motion to compel, which is the subject of this Article. Id. at *3–4.
However, the plaintiffs later issued subpoenas to the custodians of records at the prisons out of
the Central District of California. Id. at *7. That court held that the state waived its immunity
with respect to documents it provided to the defendants but not to the plaintiffs. Id. at *21–24. In
doing so, the court questioned the Eastern District court’s holding, noting that the proposition
“that the State enjoys subpoena immunity under the Eleventh Amendment . . . appears tenuous at
best.” Id. at *4 n.5.
52. 544 F. Supp. 2d 1074, 1075 (E.D. Cal. 2008). Another case, Scott v. Suryadevara, was
joined with the Allen case for discovery purposes because it involved similar facts. See Third
Amended Complaint, Scott v. Suryadevara, No. 1:05-CV-01282-OWW-WMW-PC, 2007 WL
969232, at *1–3 (E.D. Cal. Feb. 5, 2007).
53. No. CV F 06-0215 AWI SMS, 2008 WL 782476, at *3 (E.D. Cal. Mar. 20, 2008).
54. No. Civ S-02-2036 GEB JFM P., 2007 WL 127790, at *1 (E.D. Cal. Jan. 12, 2007).
The state also argued the Gonzalez case applied in a fourth, non-prison case. See Jones v. Tozzi,
No. CV-F-05-148 OWW/DLB, 2007 WL1299795, at *1 (E.D. Cal. Apr. 30, 2007). The opinion
in Jones is similar to that of the other three cases, so this Article will not focus on it. It is
difficult to tell how many times the State of California has relied on Gonzalez in other cases
outside these four, because courts rarely publish opinions addressing discovery disputes.
55. See Allen, 543 F. Supp. 2d at 1140; Thomas, 2008 WL 782476, at *1; Jett, 2007 WL
127790, at *1.
56. Brenda Allen and the plaintiffs in the Scott case alleged the private doctor, under
contract with the state prison system, unnecessarily removed their lymph nodes, muscle, tissue
and skin under their arms as an invasive treatment for boils in their armpits. See Third Amended
Complaint, Scott v. Suryadevara, 2007 WL 969232, at *11 (E.D. Cal. Feb. 5, 2007); Third
Amended Complaint, Allen v. Woodford, No. 1:05-cv-01104-OWW-NEW, at *11 (E.D. Cal.
Feb. 2, 2007). The plaintiffs in both Allen and Scott alleged that the private doctor had a
financial incentive for performing unneeded surgeries on inmates, and they had evidence that
the state defendants knew several years prior to the surgeries that there were many complaints

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for their failure to prevent the improper surgeries, and sued several
private parties, including the private doctors who performed the
surgeries.57 In Jett, the inmate alleged the defendants failed to treat him
properly for a fractured thumb, resulting in loss of movement in his
dominant hand and constant pain, and similarly sued state employee
doctors and prison officials responsible for his care.58 All cases were
“individual capacity” suits against the state defendants, meaning the
plaintiffs, similar to the Gonzalez case, sued the state employees for
damages (rather than injunctive relief) for personal actions they took as
individuals rather than as representatives of the state.59
The plaintiffs in each case served discovery requests for documents
necessary to prove their cases on either the state defendants or
nonparties such as the state employee custodians of records at the
prisons where the plaintiffs were incarcerated.60 In each of the three
cases, the court held the plaintiffs were entitled to the documents,
though for different reasons.61 However, the State of California has
about the private doctor. See Third Amended Complaint, Scott v. Suryadevara, 2007 WL
969232, at *4 (E.D. Cal. Feb. 5, 2007); Third Amended Complaint, Allen v. Woodford, 2007
WL 969230, at *4 (E.D. Cal. Feb. 5, 2007). Kelli Thomas alleged doctors removed her ovaries
without her consent and without her knowledge that the surgery would result in her sterilization.
Corrected First Amended Complaint, Thomas v. Suryadevara, No. 1:06-cv-00215-AWI-SMS,
2006 WL 3881260, at 5–7 (E.D. Cal. Nov. 9, 2006). Thomas was twenty-four at the time of the
surgery. Id. at 5.
57. See Third Amended Complaint, Scott v. Suryadevara, 2007 WL 969232, at *1–3 (E.D.
Cal. Feb. 5, 2007); Third Amended Complaint, Allen v. Woodford, 2007 WL 969230, at *1–3
(E.D. Cal. Feb. 5, 2007); Corrected First Amended Complaint, Thomas v. Suryadevara, 2006
WL 3881260 (E.D. Cal. Nov. 9, 2006).
58. Jett, 439 F.3d at 1093–95.
59. The distinction between suits against state employees acting in their individual or
personal capacities versus official capacities can be quite confusing. In both cases, the
employees are considered “state actors” (acting under color of state law) for purposes of the
Fourteenth Amendment, and in both, the state actor is accused of depriving another of a federal
right. However, in “official capacity suits,” the state actor is acting as an agent of the state (a
stand-in for the state), and therefore if she left office her successor could stand in her place in
the lawsuit. See Hafer v. Melo, 502 U.S. 21, 25 (1991). In contrast, in “individual capacity”
suits, the plaintiff must prove the state actor was personally responsible for the alleged
deprivation. Id. The other main difference between the two types of cases shows up in the relief
available to the plaintiff. A plaintiff who sues a state officer in her official capacity may only
receive prospective injunctive relief as a remedy, whereas damages are an available remedy for
an individual capacity suit.
60. See Allen, 544 F. Supp. 2d at 1075; Thomas, 2008 WL 782476, at *1; Jett, 2007 WL
127790, at *1.
61. In Jett, the court relied on United States v. James, 980 F.2d 1314 (9th Cir. 1992), to
find that the state waived its immunity as to documents it had already provided to the defendants
but not to the plaintiff. 2007 WL 127790, at *1–2. In Thomas, the court cited to James but
allowed the subpoenas to proceed because they were issued to individuals rather than the state
itself and because complying with the subpoenas would not “result in a judgment against the
state that would be paid out of the state’s treasury.” 2007 WL 4302974, at *2. Finally, in Allen,

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challenged that ruling on appeal to the Ninth Circuit.
III. THE ELEVENTH AMENDMENT AND STATE SOVEREIGN IMMUNITY
The Eleventh Amendment to the Constitution contains basic
principles of the state sovereign immunity doctrine and states, “The
judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the
United States by citizens of another State, or by citizens or subjects of
any foreign State.”62
However, state sovereign immunity is not limited to the text of the
amendment. The Supreme Court has held that “the sovereign immunity
of the States neither derives from, nor is limited by, the terms of the
Eleventh Amendment.”63 Instead, immunity “‘is a fundamental aspect
of the sovereignty which the States enjoyed before the ratification of the
Constitution and which they retain today . . . except as altered by the
plan of the Convention or certain constitutional Amendments.’”64 The
Parts below will provide a brief introduction to the history of the state
sovereign immunity doctrine and will discuss its bounds in more
detail.65
A. History and Ratification of the Eleventh Amendment
The concept of state sovereign immunity precedes both the Eleventh
Amendment and the drafting of the Constitution. It derives from English
law and is based on the notion that, because God vested sovereignty in
the King, “God’s sovereign agent on earth,”66 “the King can do no
the court allowed the subpoenas to proceed because it found a subpoena did not constitute a
“lawsuit” for purposes of the Eleventh Amendment. 544 F. Supp. 2d at 1078–79. Separately, the
court noted in dicta that it did not find James controlling because it did not involve Eleventh
Amendment immunity. Id. at 1079.
62. U.S. CONST. amend. XI.
63. Alden v. Maine, 527 U.S. 706, 713 (1999). For this reason, the Court has said that the
phrase “Eleventh Amendment immunity,” sometimes used in lieu of “state sovereign immunity”
is “something of a misnomer.” Id.
64. N. Ins. Co. v. Chatham County, 547 U.S. 189, 193 (2006) (quoting Alden, 527 U.S. at
713).
65. For a more extensive analysis of the history of state sovereign immunity and the
Eleventh Amendment, see CLYDE E. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN
IMMUNITY (1972); 2 FRANCIS NEWTON THORPE, THE CONSTITUTIONAL HISTORY OF THE UNITED
STATES 264–93 (Da Capo Press 1970) (1901); Akhil Reed Amar, Of Sovereignty and
Federalism, 96 YALE L.J. 1425 (1987) (discussing the history of sovereign immunity and the
Eleventh Amendment); Fletcher, supra note 18, at 1033 (asserting the Eleventh Amendment did
nothing to prohibit federal court jurisdiction); Rodolphe J.A. de Seife, The King is Dead, Long
Live the King! The Court-Created American Concept of Immunity: The Negation of Equality
and Accountability Under Law, 24 HOFSTRA L. REV. 981 (1996) (discussing the history of
sovereign immunity and its obsolescence in modern American society).
66. Amar, supra note 65, at 1431.

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wrong.”67
This basis for the state sovereign immunity doctrine seems
antithetical to a nation without a king and that was formed and ruled by
and for the people. In fact, although state sovereign immunity was a
concept well known to the Constitution’s Framers (it was discussed
during the Philadelphia Convention and in The Federalist Papers),68 it
was not included explicitly either in the body of the Constitution or in
the later-ratified Bill of Rights. Instead, the text of Article III of the
Constitution suggests the Constitution’s drafters did not intend for the
states to be immune from suit:
The Judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the
United States, and Treaties . . . between a State and
Citizens of another State . . . and between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects.69
The states did not demand their sovereign status be codified in the
Constitution until the Supreme Court held in several cases, culminating
in 1793 with Chisholm v. Georgia,70 that the Constitution provided
federal courts with jurisdiction over suits against states.71 Several
versions of a constitutional amendment overturning Chisholm were
proposed within days of the decision,72 and the Eleventh Amendment
was ratified in February 1795, only two years after the Chisholm
opinion was handed down.73 The text of the Eleventh Amendment,
which suggests immunity is limited to cases brought by citizens of other
67. LAURENCE H. TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 519 (3d ed. 2000).
68. See JACOBS, supra note 65, at 27–40. But cf. 2 THORPE, supra note 65, at 264–68
(discussing contemporary interpretations of federal judicial power and concluding “the framers
of the Constitution did not intend to make it possible to ‘drag a sovereign State before a federal
court’”). Thorpe cites to John Marshall’s speech at the Virginia Convention: “With respect to
disputes between a State and the citizens of another State, its jurisdiction has been decried with
unusual vehemence. I hope that no gentlemen will think that a State will be called at the bar of a
federal court.” Thorpe also cites Alexander Hamilton in Federalist Paper No. 81:
It is inherent in the nature of sovereignty not to be amenable to the suit of an
individual without its own consent. This is the general sense, and the general
practice of mankind; and the exemption, as one of the attributes of sovereignty,
is now enjoyed by the government of every State in the Union.
69. U.S. CONST. art. III, § 2 (emphasis added).
70. 2 U.S. 419 (1793).
71. Id.; see also JACOBS, supra note 65, at 43–47 (discussing other cases which held that
the Constitution provided federal courts with jurisdiction over suits against states); de Seife,
supra note 65, at 1012 (discussing other cases which held that the Constitution provided federal
courts with jurisdiction over suits against states).
72. Fletcher, supra note 18, at 1058–59.
73. Fletcher, supra note 18, at 1059.

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or foreign states, responded directly to the facts of the Chisholm case,
and seems designed to limit the specific sections of federal court
jurisdiction under Article III quoted above.74 It is not clear from the
text, however, that the drafters intended the Eleventh Amendment to
extend beyond those specific sections.
B. Subsequent Case Law Extending the Eleventh Amendment’s
Reach
Beginning in 1890 with Hans v. Louisiana,75 a case decided almost
100 years after the Eleventh Amendment’s ratification, the Court began
to extend sovereign immunity protection to various contexts outside the
literal text of the amendment.76 For example, the Court has held in
several cases that Eleventh Amendment immunity is not limited to suits
brought by private citizens of another state or a foreign state.77 In Hans,
the Supreme Court held that sovereign immunity barred a citizen from
suing his own state.78 In Smith v. Reeves,79 the Court held that states are
immune from suits brought by federal corporations.80 In Principality of
Monaco v. Mississippi,81 the Court extended state sovereign immunity
to suits brought by foreign nations.82 And in Blatchford v. Native
Village of Noatak,83 the Court held sovereign immunity barred suits
against states brought by Indian tribes.84
Other cases have extended the forum in which the Eleventh
Amendment applies. Although the Eleventh Amendment only discusses
“the judicial power of the United States,”85 in Alden v. Maine,86 the
Court held states immune from suit on federal claims brought in state
court.87 And in Federal Maritime Commission v. South Carolina State

74. See Fletcher, supra note 18, at 1060 (discussing the different proposed versions of the
amendment and noting the final version was less restrictive than earlier versions and was tied to
specific language of Article III). In Chisholm, the plaintiff, a resident of South Carolina, sued
the State of Georgia for non-payment for goods supplied to the state during the Revolutionary
War. Chisholm, 2 U.S. at 420. Georgia refused to appear in the case, claiming sovereign
immunity protected it from suit. Id.
75. 134 U.S. 1 (1890).
76. Id.
77. See, e.g., id.
78. Id. at 20–21.
79. 178 U.S. 436 (1900).
80. Id. at 448–49.
81. 292 U.S. 313 (1934).
82. Id. at 325.
83. 501 U.S. 775 (1991).
84. Id. at 779–83.
85. U.S. CONST. amend. XI.
86. 527 U.S. 706 (1999).
87. Id. at 757.

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Ports Authority,88 the Court held that states cannot be named as
defendants in federal administrative agency proceedings.89 Similarly, in
Ex parte New York, the Court held that, although textually, the Eleventh
Amendment only discusses suits in law or equity, sovereign immunity is
also a defense to suits in admiralty.90
Finally, several cases have extended the definition of what
constitutes a “state” for purposes of sovereign immunity. Now, state
agencies and entities that can be considered an “arm of the State” are
also entitled to state sovereign immunity.91
Therefore, it is now well-settled that no private party may bring an
action under federal law against a state directly or against an agency or
department or “arm” of the state in any forum unless the state has
waived its immunity or Congress has abrogated that immunity.92 As the
lower court stated in South Carolina State Ports Authority v. Federal
Maritime Commission,93 “The lesson from ‘the Constitution’s structure,
its history, and the authoritative interpretations’ by the Supreme Court is
unmistakable—an adversarial proceeding against a non-consenting state
by a private party triggers sovereign immunity.”94
C. Three Rationales for Why State Sovereign Immunity is Broader
than the Text of the Eleventh Amendment
Courts have used three main rationales to explain or justify the broad
reach of sovereign immunity: (1) an “originalist” rationale, that the
framers never intended to abrogate an immunity that existed before the
ratification of the Constitution; (2) a “pragmatic” rationale, that
sovereign immunity is necessary to curb the impact a flood of potential
litigation would have on the state’s treasury; and, more recently, (3) a
88. 535 U.S. 743 (2002).
89. Id. at 769.
90. 256 U.S. 490, 497–500 (1921). But cf. California. v. Deep Sea Research, Inc., 523
U.S. 491, 504–05 (1998) (distinguishing Ex parte New York and stating the Court has
jurisdiction in admiralty proceedings where the state does not have the res (e.g., a vessel
involved in a property dispute) in its possession).
91. See, e.g., Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 50 (1994) (“[W]here
an agency is so structured that, as a practical matter, if the agency is to survive, a judgment must
expend itself against state treasuries, common sense and the rationale of the Eleventh
Amendment require that sovereign immunity attach to the agency.” (internal quotation marks
omitted)); Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 312–13 (1990) (Brennan, J.,
concurring); Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116, 1122–23 (9th Cir.
2007).
92. See William A. Fletcher, The Eleventh Amendment: Unfinished Business, 75 NOTRE
DAME L. REV. 843, 857 (2000) (noting that after Alden v. Maine, “all nine Justices have
abandoned any thought, or any pretense, that the text of the Eleventh Amendment matters”).
93. 243 F.3d 165, 172 (4th Cir. 2001), rev’d on other grounds by Fed. Mar. Comm’n v.
S.C. State Ports Auth., 535 U.S. 743 (2002).
94. Id. at 172 (Alden v. Maine, 527 U.S. 706, 713 (1999)).

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“dignity” rationale that immunity from suit is necessary to protect the
states from an “affront” to their dignity.95
Based in part on discussions of the federal judiciary power
contemporaneous with the Constitution’s drafting, the originalist
rationale concludes that sovereign immunity existed in its common law
form before the country was founded and is therefore not limited to the
text of the Eleventh Amendment.96 The Supreme Court’s statement in
Alden v. Maine best represents this rationale: “States’ immunity from
suit is a fundamental aspect of the sovereignty which the States enjoyed
before the ratification of the Constitution, and which they retain
today.”97
The second justification, the pragmatic approach,98 builds off the
originalist rationale. Here, the courts look to pragmatic reasons for
disallowing suits against the states. For example, in Alden v. Maine,99
the Supreme Court noted that allowing suits for money damages might
“threaten the financial integrity of the States”100 and “would place
95. I am certainly not the first to try to bring order to the confusing Supreme Court
jurisprudence on state sovereign immunity. See, e.g., Evan H. Caminker, Judicial Solicitude for
State Dignity, 574 ANNALS AM. ACAD. POL. & SOC. SCI. 81 (2001) (examining the Supreme
Court’s “dignitary justification” in upholding sovereign immunity); Andrew B. Coan, Text as
Truce: A Peace Proposal for the Supreme Court’s Costly War Over the Eleventh Amendment,
74 FORDHAM L. REV. 2511 (2006); William A. Fletcher, The Diversity Explanation of the
Eleventh Amendment: A Reply to Critics, 56 U. CHI. L. REV. 1261 (1989); Fletcher, supra note
18. Lauren K. Robel, Sovereignty & Democracy: The States’ Obligations to Their Citizens
Under Federal Statutory Law, 78 IND. L.J. 543 (2003) (discussing the Supreme Court’s
controversial sovereign immunity decisions, how states should make sovereign immunity
waiver decisions, and what constraints states face in waiving sovereign immunity). I have used
the terms “originalist,” “pragmatic,” and “dignity” as shorthands to try to group and describe the
various arguments. Others have used similar terms. See, e.g., Caminker, supra at 95 (calling the
first two justifications “originalist” and “functionalist” and describing the “dignity” argument as
either justificatory or “rhetorical flourish”).
96. See, e.g., Principality of Monaco v. Mississippi, 292 U.S. 313, 322–26 (1934)
(discussing debates at the Constitutional Convention); see also 2 THORPE, supra note 65, at 288–
89. The originalist approach to Eleventh Amendment interpretation seems to go against
accepted principles of statutory interpretation because it completely ignores the plain language
of the Amendment itself. Justice Felix Frankfurter once noted ironically in discussing statutory
interpretation that “only when legislative history is doubtful do you go to the statute.” Felix
Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 543 (1947).
The “originalist” approach to Eleventh Amendment analysis seems to take Justice Frankfurter’s
statement at its word.
97. 527 U.S. 706, 713 (1999); see also Hans v. Louisiana, 134 U.S. 1, 18 (1890) (noting
that the Constitution did not “raise up” any proceedings against the States that were “anomalous
and unheard of when the Constitution was adopted” and holding that, despite the limited text of
the Eleventh Amendment, a state cannot be sued in federal court by its own citizens).
98. As noted, Caminker calls this the “functionalist” justification. See Caminker, supra
note 95, at 83.
99. 527 U.S. 706 (1999).
100. Id. at 750.

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unwarranted strain on the States’ ability to govern in accordance with
the will of their citizens” because it would interfere with the states’
capacity to allocate their own “scarce resources among competing needs
and interests [which] lies at the heart of the political process.”101 This
approach seems to be based at least in part on the belief that, at the time
the Eleventh Amendment was ratified, the states had been devastated by
the financial burden of fighting the Revolutionary War and that there
was a real fear that if states could be subject to suit on Revolutionary
War debts in the courts of the new federal government, this could
bankrupt the states.102 Thus, it is pragmatic to extend the Eleventh
Amendment to other adversarial proceedings that would also implicate a
state’s treasury or its ability to choose how to allocate its own scarce
resources, such as suits in state courts (as in Alden)103 or federal agency
actions (as in South Carolina State Ports Authority).104
In the past two decades the Court has increasingly relied on a third
justification to support extending state sovereign immunity to contexts
101. Id. at 750–51. One could argue that Hamilton’s THE FEDERALIST NO. 81 also presents
a pragmatic justification for state sovereign immunity:
To what purpose would it be to authorize suits against States, for the debts they
owe? How could recoveries be enforced? It is evident that it could not be done
without waging war against the contracting State; and to ascribe to the federal
courts by mere implication, and in destruction of a preexisting right of the State
governments, a power which would involve such a consequence, would be
altogether forced and unwarrantable.
102. See, e.g., Alden, 527 U.S. at 750 (“It is indisputable that, at the time of the founding,
many of the States could have been forced into insolvency but for their immunity from private
suits for money damages.”); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 406 (1821) (“[A]t the
adoption of the constitution, all the States were greatly indebted[] and[,] the apprehension that
these debts might be prosecuted in the federal Courts, formed a very serious objection to that
instrument.”). This view has been called into question by at least one scholar who notes that,
between the time the Constitution was ratified in 1787 and the date the Eleventh Amendment
was ratified in 1794,
over two-thirds of the debts of the states had been assumed by the federal
government, and the state governments, for the most part, were able and willing
to meet their remaining obligations. . . . Moreover, during the 1790s and the
ensuing decade, practically all of this indebtedness was discharged, partly out
of state revenues and partly from federal credits, as wartime accounts between
the states and the central government were settled.
JACOBS, supra note 65, at 69. But cf. 1 TRIBE, supra note 67, 521; de Seife, supra note 65, at
1024–25.
103. 527 U.S. at 712.
104. 535 U.S. 743, 748–50 (2002). This argument is difficult to justify because actions for
prospective or equitable relief pursuant to the line of cases following Ex parte Young, discussed
further in Part III.D.1, surely implicate a state’s treasury and force a state to allocate its scarce
funds in ways it may not have chosen through its own political process. Nevertheless, these
cases are constitutionally cognizable.

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outside the text of the Eleventh Amendment—what I call a “dignity”
rationale. In this approach, the Court notes that protecting the states
from adversary proceedings based on sovereign immunity serves the
states’ “dignity interests” accorded to them as sovereigns independent
from and coextensive with the federal government.105 For example, in
Seminole Tribe of Florida v. Florida, the Court noted the “Eleventh
Amendment does not exist solely in order to preven[t] federal-court
judgments that must be paid out of a State’s treasury, it also serves to
avoid the indignity of subjecting a State to the coercive process of
judicial tribunals at the instance of private parties.”106 In Alden, the
Court cited Seminole Tribe and reiterated that “[p]rivate suits against
nonconsenting States . . . present the indignity of subjecting a State to
the coercive process of judicial tribunals . . . regardless of the forum.”107
Although the Court rejected the dignity rationale in Cohens v.
Virginia,108 one of its earliest cases addressing state sovereign immunity
under the Eleventh Amendment, it now appears to have taken firm hold.
In cases such as Alden109 or Seminole Tribe110 it still could be argued
that the Court’s use of this dignity rationale was purely rhetorical
support for the originalist or pragmatic rationales.111 However, in 2002,
the Court in South Carolina State Ports Authority seemed to
105. See, e.g., id. at 760. Despite the fact that the Court has seemed to rely on this theory
more in the last two decades, it is not new. In In re Ayers, the Court held “The very object and
purpose of the 11th amendment were to prevent the indignity of subjecting a state to the
coercive process of judicial tribunals at the instance of private parties.” 123 U.S. 443, 505
(1887). But, as early as 1946, scholars have taken issue with this rationale. See Joseph D. Block,
Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 HARV. L. REV.
1060, 1060–61 (1946) (“[T]he indignity of subjecting a government to judicial process at the
instance of private parties seems to be an objection lacking in force, however substantial a
consideration it might have been in the times when state and federal governments were less
solidly established than they are now.”). And Justice Stevens has consistently dissented to
opinions based on this rationale, noting it “is an ‘embarrassingly insufficient’ rationale for the
rule [extending Eleventh Amendment sovereign immunity].” Seminole Tribe v. Florida, 517
U.S. 44, 97 (1996) (Stevens, J., dissenting) (citation omitted); see also S.C. State Ports Auth.,
535 U.S. at 770 (Stevens, J., dissenting); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 151 (1993) (Stevens, J., dissenting).
106. Seminole Tribe, 517 U.S. at 58 (alteration in original) (internal quotations and
citations omitted).
107. Alden, 527 U.S. at 749 (citing Seminole Tribe, 517 U.S. at 58) (internal quotations
omitted).
108. 19 U.S. (6 Wheat.) 264, 406 (1821) (“[The Eleventh Amendment] does not
comprehend controversies between two or more States, or between a State and a foreign State.
The jurisdiction of the Court still extends to these cases: and in these a State may still be sued.
We must ascribe the amendment, then, to some other cause than the dignity of a State.”)
(emphasis added).
109. Alden, 527 U.S. at 715.
110. Seminole Tribe, 517 U.S. 44, 58 (1996).
111. See Caminker, supra note 95, at 83.

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subordinate both arguments to the “dignity” rationale, holding, “The
preeminent purpose of state sovereign immunity is to accord States the
dignity that is consistent with their status as sovereign entities.”112
The dignity rationale will be important in the discovery context
because, if taken to its extreme, it has the potential to undermine any
action even tangentially involving the state.113 The State of California’s
attorneys have relied heavily on this rationale in fighting the discovery
requests in the Eastern District Prison Cases discussed in this Article.114
D. Sovereign Immunity is Not Unlimited
Despite the language of the Supreme Court cases discussed above,
sovereign immunity under the Eleventh Amendment “is not
absolute,”115 as the Supreme Court has limited its scope in several
contexts. Three of these limitations are well-established. First, sovereign
immunity does not extend to protect state employees if they are sued
either in their official capacities for injunctive relief or in their
individual capacities for money damages. 116 Second, Congress may
abrogate the states’ sovereign immunity in limited circumstances. And
third, states may waive their immunity. I propose a fourth limit: while
sovereign immunity may apply as a direct defense to a suit or other
adversarial proceeding brought against a state, it does not apply in
proceedings ancillary or subordinate to the main suit, such as discovery
requests issued to a state entity. Each of these limitations is discussed

112. 535 U.S. 743, 760 (2002). The Supreme Court has consistently applied the dignity
rationale even outside the state sovereign immunity context. In the 2008 term, the Court in
Republic of the Philippines v. Pimentel noted that the Republic of the Philippines’ sovereign
“dignity interests” prevented the district court from hearing an interpleader action involving the
Republic. 128 S. Ct. 2180, 2189–90 (2008).
113. For further discussion, see infra Part VI.B.
114. See, e.g., Non-Parties’ Oppostion to Plaintif’s Motion to Compel Production of
Documents, Allen v. Woodford, No. 1:05-CV-01104-OWW-GSA, 2008 WL 117906, at 6–11
(E.D. Cal. Jan. 2, 2008); Opposition to Plaintiff’s Motion to Compel Non-Parties to Produce
Documents Pursuant to Subpoenas, Thomas v. Hickman, No. 06-00215, Docket No. 92, at 4
(E.D. Cal. May 29, 2007).
115. Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 690 n.27 (1982).
116. See, e.g., Ex parte Young, 209 U.S. 123, 159–60 (1908); Scheuer v. Rhodes, 416 U.S.
232, 237 (1974). The Supreme Court and federal appellate courts have also refused to extend
sovereign immunity to political subdivisions such as counties and municipalities or to statecreated and quasi-governmental entities, such as private companies, that have contracts with the
state or public corporations. See, e.g., N. Ins. Co. v. Chatham County, 547 U.S. 189 (2006)
(holding state sovereign immunity does not extend to counties); Fresenius Med. Care
Cardiovascular Res. Inc. v. Puerto Rico, 322 F.3d 56 (1st Cir. 2003) (holding that state
sovereign immunity does not extend to public corporations); del Campo v. Kennedy, No. 0715048, 2008 U.S. App. LEXIS 2559, *11–12 (9th Cir. Feb. 6, 2008) (holding that state
sovereign immunity does not extend to private entities under contract with the state).

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below.117
1. Three Established Checks on State Sovereign Immunity
a. Sovereign Immunity Does Not Apply to Most Suits Against
State Officers and Employees
In many early cases, the Supreme Court, in trying to find a remedy
for private parties harmed by the states’ actions, allowed plaintiffs to
sue state officers and employees where sovereign immunity prevented
the plaintiffs from suing the state directly.118 The rationale for these
early decisions is muddled but is, in general, based on an interpretation
of federal court powers under the Constitution’s Contract Clause.119
This line of cases allowing suits to proceed against state officers
culminated in a (somewhat) clear standard, enunciated in 1908 in Ex
Parte Young, that state officials may be sued in their official capacities
for injunctive relief where the court determines the official has been
trying to enforce an unconstitutional state law.120 In Ex Parte Young, the
Court held that a state officer who tries to enforce such a law
comes into conflict with the superior authority of that
Constitution, and he is in that case stripped of his official or
representative character and is subjected in his person to
the consequences of his individual conduct. The State has
no power to impart to him any immunity from
responsibility to the supreme authority of the United
States.121
Without explicitly holding so, Ex parte Young attempted to
harmonize the Eleventh Amendment with the substantive rights
guaranteed by the later-ratified Fourteenth Amendment.122 Its holding,
that a state official acting in his capacity as an officer of the state is
divested of any residual state immunity by virtue of his unconstitutional
actions, reinforces and gives teeth to the prohibitions of the Fourteenth
Amendment:

117. The Court has carved out several other exceptions that are beyond the scope of this
Article. For an overview, see 1 TRIBE, supra note 67, at 519–66.
118. See, e.g., Cunningham v. Macon R.R., 109 U.S. 446, 450–52 (1883); Board of
Liquidation v. McComb, 92 U.S. 531, 541 (1876); Davis v. Gray, 83 U.S. 203, 220 (1873);
Osborn v. Bank of the United States, 22 U.S. 738, 870 (1824); United States v. Peters, 9 U.S.
115 (1809).
119. See JACOBS, supra note 65, at 124.
120. 209 U.S. 123, 159–60 (1988).
121. Id.
122. See JACOBS, supra note 65, at 142–43.

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No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws.123
In the 1970s, the Supreme Court took its holding in Ex Parte Young
a step further. In Scheuer v. Rhodes, decided in 1974, the Court
reiterated that states may not immunize officers from suit in federal
court124 and held a private litigant may sue a state official or employee
for damages for actions that employee took in his individual capacity.125
In between Young and Scheuer, the Court, in the 1961 case of
Monroe v. Pape,126 gave full weight to the civil rights protections first
delineated in the Civil Rights Act (Ku Klux Klan Act) of 1871, which is
now codified at 42 U.S.C. § 1983. The Civil Rights Act, also known as
§ 1983, allows individuals to sue state actors127 in state or federal courts
for acts that deprive them of “any rights, privileges, or immunities
secured by the Constitution and laws.”128 Section 1983 does not create a
substantive right but instead lays out the procedures by which one may
make a constitutional claim against a state actor. In Monroe, the Court
held that Congress intended the Civil Rights Act “to give a remedy to
parties deprived of constitutional rights, privileges and immunities by
123. U.S. CONST. amend. XIV, § 1. In the years since Ex parte Young the Court has
clarified (to some extent) that lawsuits against state officers in their official capacity may only
proceed if the suit is for “prospective” relief. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663–67
(1974) (finding an award for monetary relief to welfare plaintiffs for wrongful denial of benefits
was not prospective relief within the meaning of Ex parte Young); Verizon Md., Inc. v. PSC,
535 U.S. 635, 645 (2002) (noting “[i]n determining whether the doctrine of Ex parte Young
avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry
into whether [the] complaint alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.’” (citing Idaho v. Coeur d’ Alene Tribe of Idaho, 521
U.S. 261, 296 (1997))).
124. 416 U.S. 232, 237 (1974) (citing Ex parte Young, 209 U.S. 123, 159–60 (1908)).
125. Id. at 238. The Court later limited the reach of Ex parte Young and Scheuer when it
held in Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989), that state officials may not
be sued for damages under § 1983 for actions taken in their official capacities, because these
officials are merely stand-ins for the state and are therefore not “persons” within the meaning of
§ 1983.
126. 365 U.S. 167 (1961).
127. “State actors” are those who act “under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia.” 42 U.S.C. § 1983.
However, they need not be employed by the state. See generally Adickes v. S. H. Kress & Co.,
398 U.S. 144, 220–21 (1970) (holding plaintiff could state a claim against a private party for
violation of her civil rights pursuant to § 1983 if the private party acted in concert with state
officials in violating her constitutional rights).
128. 42 U.S.C. § 1983 (1996).

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an official’s abuse of his position.”129 In allowing the case to proceed,
the Court recognized three principal purposes of the Civil Rights Act.
First, it overrode certain state laws; second, it provided a “remedy
where state law was inadequate;” and third, it provided “a federal
remedy where the state remedy, though adequate in theory[,] was not
available in practice.”130
In Scheuer, which succeeded Monroe by thirteen years, the Court
acknowledged Monroe and noted that “[i]n some situations a damage
remedy can be as effective a redress for the infringement of a
constitutional right as injunctive relief might be in another.”131 The
Court held that such an action, “seeking to impose individual and
personal liability on the named defendants for . . . a deprivation of
federal rights by these defendants under color of state law” was not
barred by the Eleventh Amendment.132 The holding in Scheuer has
allowed many civil rights plaintiffs to sue state officers where those
officers have violated a person’s constitutional rights but injunctive
relief is not an option (for example, in cases where the constitutional
violations occurred in the past and are not ongoing). Scheuer is
applicable to the Eastern District Prison Cases because the plaintiffs in
those cases were not subject to ongoing harm—they alleged state
employees violated their civil rights by subjecting them to improper and
illegal medical care in the past, rather than on an ongoing basis, and
therefore injunctive relief was not an available remedy.
b. Congress May Abrogate State Sovereign Immunity by Creating a
Private Right of Action Against the States
Congress can abrogate sovereign immunity in a few limited contexts
by passing laws that create a private right of action against the states.133
However, it must do so “pursuant to a valid exercise of power” and
129. 365 U.S. at 172.
130. Id. at 173–74.
131. 416 U.S. 232, 238 (1974).
132. Id. The Court, in Hafer v. Melo, 502 U.S. 21, 25–31 (1991), reiterated and attempted
to clarify this holding and harmonize it with Ex parte Young and Will v. Mich. Dep’t of State
Police, 491 U.S. 58 (1989). The Court distinguished between suits for damages against a state
officer for actions that officer took while acting in her official capacity (acting “under color of
state law” for purposes of § 1983) and suits for damages where the officer is sued in her official
capacity (i.e., not for specific actions she herself took against the plaintiff but for her role as an
officer of the state). Hafer, 502 U.S. at 25–31. The Court reiterated that the Eleventh
Amendment does not bar suits for damages against a state officer for actions that officer takes
while acting in her “official capacity;” instead it bars lawsuits where the state officer is sued in
her official capacity (and thus she is merely a stand-in for the state). Id. at 29–31.
133. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (“In [§ 5] Congress is expressly
granted authority to enforce . . . the substantive provisions of the Fourteenth Amendment” by
providing actions for money damages against the States.).

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must have “unequivocally expressed its intent to abrogate the
immunity.”134 The Court has sharply constrained this power in the past
few decades. Where once the Court held that Congress could create a
private right of action under its Article I Interstate Commerce Clause
powers,135 the Court limited that power in Seminole Tribe of Florida v.
Florida136 to statutes passed pursuant to Congress’ Fourteenth
Amendment, § 5 authority.137
Any legislation that attempts to abrogate immunity must be
“unmistakably clear” in the actual text of the statute138—a general
authorization to file a suit in the federal courts is not enough.139
c. States May Waive Their Immunity
Even though the Supreme Court has strengthened its Eleventh
Amendment jurisprudence in the last couple decades and has continued
to limit Congress’ ability to create private rights of action for damages
134. Green v. Mansour, 474 U.S. 64, 68 (1985) (citation omitted).
135. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989).
136. 517 U.S. 44, 73–74 (1996); see also MELVYN R. DURCHSLAG, STATE SOVEREIGN
IMMUNITY 106 (2002) (noting that “it is probably fair to say that until Seminole Tribe of Florida
v. Florida (1996), the Supreme Court assumed that Congress did possess the power to abrogate
state sovereign immunity as a means of enforcing its legislative authorities under Article I,
§ 8”).
137. See, e.g., United States v. Georgia, 546 U.S. 151, 157–59 (2006) (Congress validly
abrogated sovereign immunity by creating a private cause of action under Americans with
Disabilities Act for damages against the states for conduct that violated the Fourteenth
Amendment); Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 724–26 (2005) (same as to the
Family Medical Leave Act). But cf. City of Boerne v. Flores, 521 U.S. 507, 519–20, 531 (1997)
(holding that valid § 5 legislation must show “a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end” and that Congress
exceeded its § 5 enforcement powers in enacting the Religious Freedom Restoration Act
because the act was “so out of proportion to a supposed remedial or preventive object that it
cannot be understood as responsive to, or designed to prevent, unconstitutional behavior”).
Recently, in United States v. Georgia, the Court clarified that claims must be for actual
violations of the Fourteenth Amendment. 546 U.S. 151, 158–59 (2006) (emphasizing that state
conduct must “actually” violate the Fourteenth Amendment). For further analysis of what
legislation is “appropriate” under § 5, as well as a discussion of Congress’ Article I powers, see
generally Joseph M. Pellicciotti & Michael J. Pellicciotti, Sovereign Immunity &
Congressionally Authorized Private Party Actions Against the States for Violation of Federal
Law: A Consideration of the U.S. Supreme Court’s Decade Long Decisional Trek, 1996-2006,
59 BAYLOR L. REV. 623 (2007).
138. Dellmuth v. Muth, 491 U.S. 223, 228, 230 (1989) (“Legislative history generally will
be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh
Amendment. If Congress’ intention is ‘unmistakably clear in the language of the statute,’
recourse to legislative history will be unnecessary; if Congress’ intention is not unmistakably
clear, recourse to legislative history will be futile, because by definition the rule [that
“Congress’ intention is ‘unmistakably clear in the language of the statute,’”] will not be met.”)
(quoting, in part, Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)).
139. Atascadero State Hosp. v. Scanlon, 473 U.S. at 246.

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against states, states may still waive their own immunity and consent to
be sued.140 However, there are clear limitations on waiver. First, a
state’s waiver must be voluntary.141 For example, if a state consents to
be a party in a litigation, either by filing the suit, intervening in an
existing suit, or removing a suit to federal court, it voluntarily waives its
immunity by consenting to the court’s jurisdiction.142 But if the state
consents to suit through statute, it “may prescribe the terms and
conditions on which it consents to be sued, and the manner in which the
suit shall be conducted.”143 It may also “withdraw its consent whenever
it may suppose that justice to the public requires it.”144 Second, waiver
must be unequivocal;145 a state cannot “constructively” or “impliedly”
waive its immunity.146 Nor does a state waive its immunity for federal
court jurisdiction merely by consenting to be sued in its own courts, by
stating its intention to “sue and be sued,” or by “authorizing suits

140. Alden v. Maine, 527 U.S. 706, 737 (1999). Some scholars have argued waiver is the
best hope for suits against the states. See, e.g., Lauren K. Robel, Sovereignty and Democracy:
The States’ Obligations to Their Citizens Under Federal Statutory Law, 78 IND. L.J. 543 (2003)
(exploring how states should make waiver decisions); Hien Ngoc Nguyen, Comment, Under
Construction: Fairness, Waiver, and Hypothetical Eleventh Amendment Jurisdiction, 93 CAL. L.
REV. 587 (2003) (discussing waiver and arguing the waiver doctrine is ripe for change).
141. See, e.g., Beers v. Arkansas, 61 U.S. 527, 529 (1858) (noting the decision to waive
immunity “is altogether voluntary on the part of the sovereignty” and a state may “withdraw its
consent [to suit] whenever it may suppose that justice to the public requires it”).
142. Clark v. Barnard, 108 U.S. 436, 447–48 (1883) (finding a state’s “voluntary
appearance” in federal court as an intervener avoids Eleventh Amendment inquiry); Gunter v.
Atlantic Coast Line R.R. Co., 200 U.S. 273, 284 (1906) (“[W]here a State voluntarily becomes a
party to a cause and submits its rights for judicial determination, it will be bound thereby and
cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh
Amendment.”); see also Lapides v. Bd. of Regents, 535 U.S. 613, 624 (2002) (holding that a
state waives its immunity by removing a case to federal court when a state statute waives the
state’s immunity from suit in its own courts, even where that case involves money damages
against the state). Lapides notes that this part of the waiver rule is based a on a theory of
consistency and fairness and that to not find waiver in these situations “would permit States to
achieve unfair tactical advantages [.]” Id. at 621 (citing Wis. Dep’t of Corr. v. Schacht, 524 U.S.
381, 393–94, 398 (1998) (Kennedy, J., concurring)).
143. Beers, 61 U.S. at 529.
144. Id.
145. Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 99 (1984) (insisting the
state’s consent to suit must be “unequivocally expressed”).
146. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
679–81 (1999); see also Edelman v. Jordan, 415 U.S. 651, 673 (1974) (“The mere fact that a
State participates in a program through which the Federal Government provides assistance for
the operation by the State of a system of public aid is not sufficient to establish consent on the
part of the State to be sued in the federal courts.”); TRIBE, supra note 67, at 533 n.92 (noting that
while state waiver is strictly construed, federal waiver of immunity, in contrast, is construed
liberally (citing Hoffman v. Conn. Dep’t of Income Maint., 492 U.S. 96, 114 (1989) (Stevens,
J., dissenting))) .

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against it ‘in any court of competent jurisdiction.’”147 And finally, a
state does not waive its immunity by failing to assert it by a certain
point in any litigation; immunity may be asserted at any time, even for
the first time on appeal.148
2. A New Fourth Check: Sovereign Immunity Does Not Apply to
Proceedings That Are Ancillary or Subordinate to the Main Suit
I propose a fourth check exists on state sovereign immunity that has
not received much focus in academic circles or court cases, but is
especially relevant to the issues addressed in this Article: A state may
only raise a sovereign immunity defense when it is a party to a lawsuit
or similar adversarial proceeding. If the state is not a party to the suit
and is only brought into the case for an ancillary reason such as
discovery, sovereign immunity is not a cognizable defense.
The text of the Eleventh Amendment itself sustains this theory
because it limits state sovereign immunity to “any suit in law or equity,
commenced or prosecuted against” one of the states.149 Clyde Jacobs
notes that the choice of the word “suit” rather than “case” or
“controversy” (which are both terms used in Article III to define judicial
power) and the limitation that the “suit” must be “prosecuted” indicates
the framers intended to limit the reach of the Eleventh Amendment to
actual lawsuits brought by an individual against a state.150
The Federalist Papers and discussions preceding the ratification of
the Constitution (both of which the Supreme Court has relied upon in
recent state sovereign immunity cases) support this interpretation.
Alexander Hamilton stated in Federalist Paper 81, “It is inherent in the
nature of sovereignty not to be amenable to the suit of an individual
without its consent.”151 And John Marshall stated at the Virginia
147. Coll. Sav. Bank, 527 U.S. at 676 (citing Fla. Dep’t of Health and Rehab. Servs. v. Fla.
Nursing Home Ass’n., 450 U.S. 147, 149–50 (1981) (per curiam)); see also CAL. GOV’T CODE
§ 68097.1(b). This statute was referenced in Estate of Gonzalez v. Hickman which the court
found did not waive the state’s immunity for the purposes of a subpoena. 466 F. Supp. 2d 1226,
1227, 1229 (E.D. Cal. 2006).
148. Halderman, 465 U.S. at n.8 (“The limitation deprives federal courts of any jurisdiction
to entertain such claims, and thus may be raised at any point in a proceeding.”); Edelman, 415
U.S. at 678 (noting that an Eleventh Amendment defense “need not be raised in the trial
court[]”). Although a state may raise immunity as a defense at any time, a court need not raise it
sua sponte. See, e.g., Patsy v. Bd. of Regents of the State of Fla., 457 U.S. 496, 516 n.19 (1982).
149. U.S. CONST. amend. XI (emphasis added).
150. JACOBS, supra note 65, at 93. Jacobs does not focus on the question of what a “suit” is
for purposes of the Eleventh Amendment but instead discusses whether the Eleventh
Amendment was intended to be limited to cases brought in federal court on diversity jurisdiction
or whether the framers intended to include federal question cases. Id. at 93–97. For more on this
topic, see TRIBE, supra note 67, at 529–34.
151. TRIBE, supra note 67, at 716, 719 (emphasis added).

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Convention, in the context of the question of whether a state could be
made a defendant in an action brought by a private party, “I hope that
no gentlemen will think that a State will be called at the bar of a federal
court.”152 As the Supreme Court later noted in Alden v. Maine,153 “the
state conventions . . . made clear that they, like Hamilton, Madison, and
Marshall, understood the Constitution as drafted to preserve the States’
immunity from private suits.”154 As Justice Iredell famously dissented in
Chisholm v. Georgia155 (in which a citizen of South Carolina brought
suit against the state of Georgia):
I believe there is no doubt that neither in the State now in
question, nor in any other in the Union, any particular
Legislative mode, authorizing a compulsory suit for the
recovery of money against a State, was in being either
when the Constitution was adopted, or at the time the
judicial act was passed156
Later, in Hans v. Louisiana157 when the Court extended sovereign
immunity under the Eleventh Amendment to cover suits brought by a
citizen against his own state in federal court, the Court noted, “The
suability of a State, without its consent, was a thing unknown to the law.
This has been so often laid down and acknowledged by courts and
jurists that it is hardly necessary to be formally asserted.”158
The Court has defined the scope of a suit in several cases. In Cohens
v. Virginia,159 the defendants, who were convicted by a state court for
selling lottery tickets, brought a writ of error in the Supreme Court.160
While this case is best remembered for its holding that the Supreme
Court has the right to review a state supreme court’s ruling when it
raises federal constitutional issues, the Court also addressed Virginia’s
152. 2 THORPE, supra note 65, at 266; see also id. at 268 (concluding that the Constitution’s
framers believed “that the Constitution guaranteed every State against being made defendant in
any action that might be brought”).
153. 527 U.S. 706 (1999).
154. Id. at 718 (emphasis added).
155. 2 U.S. 419 (1793) (Iredell, J., dissenting).
156. Id. at 434–35 (emphasis added). Even Chief Justice Jay, writing as part of the majority
in Chisholm, described the question before the Court as “Is a State suable by individual citizens
of another State?” Id. at 469 (emphasis added).
157. 134 U.S. 1 (1890).
158. Id. at 16 (emphasis added).
159. 19 U.S. 264 (1821).
160. When a party brings a “writ of error,” it asks the judges of one court “to examine a
record upon which a judgment was given in another Court, and, on such examination, to affirm
or reverse the same according to law.” Id. at 409. Cohens is best remembered for its holding that
the Supreme Court has the right to review a state supreme court’s ruling when that court’s
decision raises federal constitutional issues.

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claim the Eleventh Amendment protected it from being haled into the
Supreme Court on the writ. In determining the Eleventh Amendment
did not bar the writ, the Court noted that the Eleventh Amendment
“extended to suits commenced or prosecuted by individuals” and
defined a suit as “the prosecution, or pursuit, of some claim, demand, or
request.”161 Chief Justice Marshall continued: “To commence a suit, is
to demand something by the institution of process in a Court of justice,
and to prosecute the suit, is, according to the common acceptation of
language, to continue that demand.”162 A writ of error was not a suit
because it did not compel the state to come before the court; instead it
was the process by which the superior court reviewed the judgment of
the inferior court. It was not a demand by the private party against the
state and did not create an assertion of a claim against the state.163
Over 150 years later in Dugan v. Rank, the Court again looked at
what constituted a “suit” for purposes of sovereign immunity and found
it depended on the effect of the judgment sought.164 The Court noted
The general rule is that a suit is against the sovereign if ‘the
judgment sought would expend itself on the public treasury
or domain, or interfere with the public administration,’ or if
the effect of the judgment would be ‘to restrain the
Government from acting, or to compel it to act.’165

161. Cohens, 19 U.S. at 407.
162. Id. at 408.
163. Id. at 410–11. Justice Marshall noted that “writs of error, accompanied with citations,
have uniformly issued for the removal of judgments in favour of the United States into a
superior Court. . . . It has never been suggested, that such writ of error was a suit against the
United States . . . .” Id. at 412. The Court held that the writ only constituted a “suit or action
when it is to restore the party who obtains it to the possession of any thing which is withheld
from him.” Id. at 409–10. It is “not [a suit] when its operation is entirely defensive,” such as in
Cohens, where the state instituted the suit and the party bringing the writ of error was a
defendant to that action. Id. at 410.
164. Dugan v. Rank, 372 U.S. 609, 620 (1963). The issue in Dugan was whether a case
brought against several government officials was really a case against the sovereign—the United
States. Id. at 617. However, it is still instructive in defining what constitutes a “suit.” While
Dugan addressed federal sovereign immunity rather than state immunity, it has been cited in
several state sovereign immunity cases. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 101 n.11 (1984); Palomar Pomerado Health Sys. v. Belshe, 180 F.3d 1104, 1108
(9th Cir. 1999); Blaylock v. Schwinden, 862 F.2d 1352, 1353 (9th Cir. 1988).
165. Dugan, 372 U.S. at 620 (quoting Land v. Dollar, 330 U.S. 731, 738 (1947); Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. 682, 704 (1949); Ex parte New York, 256 U.S.
490, 502 (1921)). But cf. Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th Cir. 1989) (citing
Dugan and holding sovereign immunity applies to subpoenas because a subpoena “‘interfere[s]
with the public administration’ and compels the federal agency to act in a manner different from
that in which the agency would ordinarily choose to exercise its public function”).

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Finally, in Federal Maritime Commission v. South Carolina State
Ports Authority,166 in which the Court held sovereign immunity barred a
private party’s complaint filed with the Federal Maritime Commission
against the state port authority, the Court again, though somewhat
indirectly, addressed what constitutes a “suit” for purposes of state
sovereign immunity.167 The Court held that a state’s sovereign
immunity protects it from federal administrative agency proceedings
because such proceedings are so similar to a lawsuit filed in a court—
for example, both are adversarial and presided over by a judge, and both
begin with the filing of a complaint, to which the defendant must
respond with an answer or motion to dismiss or face default judgment
for failure to respond.168
In contrast, the Court has held that certain proceedings, while they
may involve a state, do not invoke the Eleventh Amendment’s
protections because they are merely ancillary to the main lawsuit and do
not impact the state’s treasury. For example, in Florida Department of
State v. Treasure Salvors, Inc.,169 a plurality of the Court held sovereign
immunity did not bar an arrest warrant brought by a private party in
federal district court to secure property in the possession of the State of
Florida.170 The warrant proceeding was ancillary to an earlier suit
brought to determine ownership of the property, and the state was not
named as a party in that earlier suit.171 The Court determined sovereign
immunity did not apply to bar the warrant proceeding, in part because
the warrant “sought possession of specific property[,] . . . did not seek
any attachment of state funds and would impose no burden on the state
treasury.”172 One could presume the plurality did not consider the arrest
warrant to be a “lawsuit” for purposes of the Eleventh Amendment
because the “warrant itself merely secure[d] possession of the property;
its execution [did] not finally adjudicate the State’s right to the
artifacts.”173
In an earlier case, Hutto v. Finney,174 the Court also held the
Eleventh Amendment did not apply to a proceeding it considered
“ancillary” to a prospective order enforcing federal law.175 In Hutto, the
district court, after extensive factual findings, ordered officials at the
Arkansas Department of Corrections several times to remedy
166.
167.
168.
169.
170.
171.
172.
173.
174.
175.

535 U.S. 743 (2002).
Id. at 756.
Id. at 756–60.
458 U.S. 670 (1982).
Id. at 682.
Id. at 676.
Id. at 697–98.
Id. at 697.
437 U.S. 678 (1978).
Id. at 691.

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reprehensible conditions in the state prisons.176 When the court found,
several years later, that conditions at the prisons were actually worse
than when it issued its prospective relief order, the court found bad faith
and awarded attorneys fees against the state defendants.177 The Supreme
Court held that “the substantive protections of the Eleventh Amendment
do not prevent an award of attorney’s fees” where “[t]he cost of
compliance is ‘ancillary’ to the prospective order enforcing federal
law,” even if the award had a compensatory effect.178
Thus, as the lower court stated in Federal Maritime Commission, if a
proceeding “walks, talks, and squawks very much like a lawsuit”179—
i.e., if it is adversarial, if it starts with a complaint, if it involves the
prosecution of a claim or demand against the state directly or against its
officers in certain circumstances, and if it seeks damages from the state
treasury—then the Eleventh Amendment applies, and the proceeding
may not be maintained against a state or its agencies. However, if a
proceeding or action involving a state does not meet these factors—if it
is ancillary to an adversarial proceeding and if it does not seek
attachment of state funds—then sovereign immunity should not
apply.180
IV. TRIBAL AND FEDERAL SOVEREIGN IMMUNITY AND THEIR
PARALLELS TO STATE SOVEREIGN IMMUNITY
Neither the Ninth Circuit nor the Supreme Court has yet addressed
how state sovereign immunity principles apply to discovery requests
issued to a state, its agencies, or its officers. Perhaps for this reason, the
courts in the Eastern District Prison Cases looked to and applied Ninth
Circuit case law addressing tribal sovereign immunity.181 Other courts
have drawn parallels between federal and state sovereign immunity.182
176. Id. at 680. The earlier cases seeking to improve conditions at the prisons were brought
against state officials acting in their official capacities. In this context, generally the only
remedies available to plaintiffs involve prospective injunctive relief; damages are barred by the
Eleventh Amendment. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 n.5 (1989).
177. Hutto, 437 U.S. at 684–85.
178. Id. at 690, 692 (quoting Edelman v. Jordan, 415 U.S. 651, 668 (1974)); see also
Missouri v. Jenkins, 491 U.S. 274, 278–82 (1989).
179. S.C. State Ports Auth. v. Fed. Mar. Comm’n, 243 F.3d 165, 174 (4th Cir. 2001), aff’d
535 U.S. 743.
180. This distinction will prove important later in Part V.A of this Article when I argue that
discovery requests issued to state employees or state agencies are “ancillary” to an adversarial
proceeding and thus are not “lawsuits” and not barred by sovereign immunity.
181. In Estate of Gonzalez v. Hickman, the court noted, but declined to follow, an earlier
district court case within the Ninth Circuit that held that state sovereign immunity does not
authorize a state government to refuse to provide discovery. No. S06-0095(MCE)(GGH), 2006
WL 3201069, at *2 (E.D. Cal. Nov. 6, 2006) (citing Laxalt v. C.K. McClatchy, 109 F.R.D. 632
(D. Nev. 1986)).
182. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984);
Cohens v. Virginia, 19 (6 Wheat.) U.S. 264, 411–12 (1821); Palomar Pomerado Health Sys. v.

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Two basic principles apply to each of the forms of sovereign immunity:
(1) the government is immune from suit unless it waives its immunity,
and (2) a private plaintiff may pursue an action against a government
officer for injunctive relief. However, important distinctions among
tribal, federal, and state sovereign immunity suggest that while cases
addressing one type of immunity may be persuasive in cases addressing
another, they should not have precedential weight. This Section will
start to tease out the differences among the various forms of sovereign
immunity and set the stage for the discussion in Part VI on the
application of sovereign immunity principles to federal discovery.183
A. Tribal Sovereign Immunity
Indian tribal forms of government existed prior to the creation of the
United States government, and thus tribal sovereignty precedes the
drafting of the Constitution.184 An early Supreme Court case addressing
tribal sovereignty, Cherokee Nation v. Georgia, classified tribes as
“domestic dependent nations” whose “relation to the United States
resembles that of a ward to his guardian.”185 However, the Court later
clarified in Worcester v. Georgia,186 that this ward-guardian relationship
between tribes and the United States does not strip the tribes of the right
to self-government.187 The Court noted, “The Indian nations had always
been considered as distinct, independent political communities,
retaining their original natural rights, as the undisputed possessors of the
soil, from time immemorial[.]”188 Once the federal government was
created by the Constitution, Congress continued to recognize the tribes
as independent sovereigns by passing “acts to regulate trade and
intercourse with the Indians; which treat them as nations . . . [and] as
distinct political communities, having territorial boundaries, within
which their authority is exclusive.”189

Belshe, 180 F.3d 1104, 1108 (9th Cir. 1999); Blaylock v. Schwinden, 862 F.2d 1352, 1353–54
(9th Cir. 1988).
183. Foreign sovereign immunity warrants its own set of federal statutes, see Foreign
Sovereign Immunities Act, 28 U.S.C. §§ 1602–11 (2006), and is outside the scope of this
Article.
184. “The present right of tribes to govern their members and territories flows from a
preexisting sovereignty limited, but not abolished, by their inclusion within the territorial
bounds of the United States.” COHEN’S HANDBOOK OF FEDERAL INDIAN LAW, § 6.02[1] (Nell
Jessup Newton ed., 2005) [hereinafter COHEN’S HANDBOOK]. For a more in-depth review of
tribal law, Cohen’s handbook is a good source.
185. Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).
186. 31 U.S. 515 (1832).
187. Id. at 561.
188. Id. at 559.
189. Id. at 556–57.

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Two sections in the Constitution address Indian tribes and reinforce
the principle that they are sovereigns separate from the states and
federal government. The Commerce Clause lays out Congress’
legislative power to “regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.”190 And Article I,
Section 2 states that “Indians not taxed” are to be excluded from the
number of “free Persons” used for determining representative
apportionment.191 Cohen’s Handbook of Federal Indian Law notes that
these two sections demonstrate the “historic notion of tribal
independence” and that the United States has always considered Indians
“citizens of distinct sovereigns.”192
This understanding of the historic bases for tribal sovereignty is
important to provide context for a discussion of a subset of that
sovereignty: tribal sovereign immunity.193 Similar to the states, tribes
are immune from suit unless Congress has clearly abrogated that
immunity or unless tribes waive their immunity.194 Tribes and tribal
entities or agencies may not be sued—either for governmental or
commercial actions, on or off tribal land—if the entity being sued is an
“arm of the tribe.”195 However, also similar to states, tribal sovereign
immunity does not extend to individual members of a tribe196 unless
those members are tribal officials who are acting in their official
capacity and within their official scope of authority.197 The Supreme
Court has consistently held that the rule of Ex Parte Young applies to
tribal officials just as it does to state officials, so tribal immunity does
not preclude actions against tribal officials when they are acting outside
the scope of their authority.198
Courts often compare tribal sovereign immunity to state sovereign
immunity.199 Although parallels can be drawn between the two, the
190. U.S. CONST. art. I, § 8, cl. 3 (emphasis added).
191. Id. § 2, cl. 3.
192. COHEN’S HANDBOOK, supra note 184, § 6.03[2][a].
193. See Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng’g, P. C.,
476 U.S. 877, 890 (1986) (“The common law sovereign immunity possessed by the Tribe is a
necessary corollary to Indian sovereignty and self-governance.”).
194. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 757–60 (1998).
195. Allen v. Gold Country Casino, 464 F.3d 1044, 1046–47 (9th Cir. 2006) (finding that
when a casino is owned and operated by the tribe, it is immune from suit).
196. Puyallup Tribe v. Dep’t of Game of Wash., 433 U.S. 165, 171–72 (1977).
197. Davis v. Littell, 398 F.2d 83, 84–85 (9th Cir. 1968).
198. See, e.g., Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498
U.S. 505, 514 (1991); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978) (citing Ex Parte
Young and holding, as an officer of the tribe, the petitioner was not protected by the tribe’s
sovereign immunity); N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty.,
991 F.2d 458, 460 (8th Cir. 1993).
199. See supra note 198. Tribal sovereign immunity has also been compared to federal and
foreign sovereign immunity. See California v. Quechan Tribe of Indians, 595 F.2d 1153, 1155

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legal basis for each is distinct. While tribal immunity derives from the
tribes’ status as independent nations that pre-existed the United States
and is based on principles derived from common law,200 state sovereign
immunity derives from both common law and the Eleventh
Amendment. In addition, the Supreme Court has held that, unlike state
sovereign immunity which seems mostly impervious to abrogation,
“[t]he sovereignty that the Indian tribes retain . . . exists only at the
sufferance of Congress and is subject to complete defeasance.”201
Further, the immunity possessed by Indian tribes is neither coextensive
nor congruent with that of the states or the federal government.202 In
Noatak v. Hoffman,203 the Ninth Circuit, in holding that state sovereign
immunity did not apply to bar a suit brought by a tribe against the state
of Alaska, stated that the tribes, “although not states, are like states in
their presence within the United States as units of government.”204
However, the Supreme Court, in overruling the Ninth Circuit on appeal,
clearly distinguished state sovereign immunity from tribal sovereign
immunity.205 The Court held that, while states surrendered their
immunity against their sister states and the United States when they
adopted the Constitution, this “constitutional compact” did not include
any inherent surrender of immunity to the tribes because the tribes did
not participate in the constitutional convention;206 the tribes did not
surrender their sovereignty to the states and neither did the states to the
tribes.
Thus, although it may be appropriate to look to cases discussing
tribal sovereign immunity for guidance in adjudicating state sovereign
immunity issues, the legal and factual foundations supporting each are
so different that tribal cases should not be controlling precedent in state
cases.

(9th Cir. 1979) (noting that the “sovereign immunity of Indian tribes is similar to the sovereign
immunity of the United States”); see also Kiowa Tribe, 523 U.S. at 759 (drawing a parallel
between tribal sovereign immunity and the immunity of foreign sovereigns). But cf. Cherokee
Nation v. Georgia, 30 U.S. 1, 18 (1831) (holding explicitly that Indian tribes are not foreign
states).
200. See Martinez, 436 U.S. at 58 (“Indian tribes have long been recognized as possessing
the common-law immunity from suit traditionally enjoyed by sovereign powers.”) (citations
omitted).
201. United States v. Wheeler, 435 U.S. 313, 323 (1978).
202. Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 785–86 (1991); see also Three
Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g, P. C., 476 U.S. 877, 890 (1986)
(“[T]he Tribe’s immunity is not congruent with that which the Federal Government, or the
States, enjoy.”).
203. 896 F.2d 1157 (9th Cir. 1990), rev’d, 501 U.S. 775 (1991).
204. Id. at 1163.
205. Blatchford, 501 U.S. at 782.
206. Id. at 781–82.

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B. Federal Sovereign Immunity
Federal sovereign immunity is similar to state and tribal sovereign
immunity, and the Court often invokes precedents from one to
legitimize decisions in another.207 For example, in Cohens v. Virginia, a
state sovereign immunity case, Justice Marshall relied on federal
precedent and noted, “[t]he universally received opinion is, that no suit
can be commenced or prosecuted against the United States.”208
As is true in the state and tribal sovereign immunity contexts, the
federal government generally enjoys immunity from suit unless it has
waived its immunity,209 but immunity does not extend to federal officers
sued in their official capacities for injunctive relief.210 However, the
foundations of federal sovereign immunity are different from those of
state and tribal immunity.211 First, unlike the other two, the Constitution
never mentions or implies federal sovereign immunity.212 Second,
lawsuits brought in federal court against the federal government raise
different legal issues from similar suits brought against states or tribes.
In the former, the federal court faces separation of powers issues—how
much authority should the judicial branch have to enact a judgment over
either the executive or legislative branches. In contrast, state sovereign
207. JACOBS, supra note 65, at 111; TRIBE, supra note 67, § 3-25, at 532.
208. Cohens v. Virginia, 19 (6 Wheat.) U.S. 264, 411–12 (1821).
209. See, e.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign
immunity shields the Federal Government and its agencies from suit.”).
210. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689–90 (1949);
United States v. Lee, 106 U.S. 196, 196 (1882) (holding that a landowner could bring suit for
injunctive relief against federal officials). Also, the Administrative Procedure Act, 5 U.S.C.
§ 702 (2006), allows the United States to be substituted in for a defendant federal officer in a
suit for injunctive relief brought against the officer.
211. Larson, 337 U.S. at 708–09 (Frankfurter, J., dissenting) (noting parallels between state
and federal sovereign immunity while recognizing that the sources for each are distinct); see
also Joseph D. Block, Suits Against Government Officers and the Sovereign Immunity Doctrine,
59 HARV. L. REV. 1060, 1064–65 (1946) (distinguishing federal from state sovereign immunity
and noting “[w]ith respect to suits against the Federal Government, it is wholly a judge-made
doctrine, since there is nothing in the Constitution requiring it”).
212. The fact that the Constitution does not clearly mention or even imply federal
sovereign immunity has not stopped courts from finding federal sovereign immunity inherent in
the Constitution. Justice Frankfurter noted, in dissenting from a case which found sovereign
immunity protected a state from suit where it had not clearly waived its immunity, that state and
federal “immunity from suit without consent [are] embodied in the Constitution.” Kennecott
Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 580 (1946) (Frankfurter, J., dissenting). He
also noted sovereign immunity “is an anachronistic survival of monarchical privilege, and runs
counter to democratic notions of the moral responsibility of the State.” Id.; see also
Pennsylvania v. Union Gas Co., 491 U.S. 1, 34 (1989) (Scalia, J., dissenting) (arguing that
because the Constitution does not state affirmatively that private individuals may sue the federal
government for money damages, the government cannot be sued without its consent); United
States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be
sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”).

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immunity in federal court raises federalism issues, and interpretations of
tribal immunity may differ depending on a tribe’s status vis-à-vis the
federal government or vis-à-vis the states.
Additionally, the federal government has enacted several statutes
waiving sovereign immunity for actions in tort,213 contract,214 and for
injunctive relief,215 and, unlike the states, the Court interprets these
waivers broadly.216 As well, 42 U.S.C. § 1983 does not apply to the
federal government,217 and Congress has not enacted a statute providing
waiver for actions against federal officers for money damages arising
out of constitutional violations. Instead, in 1971, the Supreme Court
created a remedy in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics,218 though this case is controversial.219
Thus, while principles and case law in federal sovereign immunity
cases are similar to those involving state sovereign immunity, as with
tribal immunity precedent, the former cases should inform but not
control the later.
V. SOVEREIGN IMMUNITY AND FEDERAL DISCOVERY
In this Part, I first present in more detail the State of California’s
argument that sovereign immunity protects its employees and agencies
from responding to discovery. I then explore several cases discussing
the interaction of state, tribal, and federal sovereign immunity principles
with discovery practices in federal court.
A. Sovereign Immunity and the Problem of “Possession, Custody, or
Control” in Two of the Eastern District Prison Cases
The State of California, through its agencies and employees, raised
sovereign immunity as a defense to discovery in each of the Eastern
213. See Federal Tort Claims Act, 28 U.S.C. § 2674 (2006).
214. See Tucker Act, 28 U.S.C. § 1491 (2006).
215. See Administrative Procedure Act, 5 U.S.C. § 702 (2006).
216. See Hoffman v. Conn. Dep’t of Income Maint., 492 U.S. 96, 114 (1989) (Stevens, J.,
dissenting). Justice Stevens noted that, unlike the narrow scope of waiver attributed to states,
“[i]t is well settled that when the Federal Government waives its sovereign immunity, the scope
of that waiver is construed liberally to effect its remedial purposes.” Id.
217. See 42 U.S.C. § 1983 (2006).
218. 403 U.S. 388, 397 (1971).
219. A full discussion of the controversy surrounding the Bivens decision is beyond the
scope of this article; however, several current Supreme Court Justices believe Bivens was
wrongly decided because it creates a cause of action where none existed in the Constitution.
Justices Scalia and Thomas have been particularly derisive toward the Bivens case. See Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring) (“Bivens is a relic of the
heady days in which this Court assumed common-law powers to create causes of action.”);
Wilkie v. Robbins, 551 U.S. 537 (2007) (Thomas, J., concurring) (“Bivens and its progeny
should be limited ‘to the precise circumstances that they involved.’” Id. (citing Malesko).

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District Prison Cases.220 The Federal Rules of Civil Procedure favor
broad and full discovery in civil litigation and allow discovery of
relevant evidence even if that evidence may not be admissible at trial.221
Parties may seek discovery from any other party to the lawsuit under
Rules 26 and 34. Rule 26 requires certain initial disclosures,222 and Rule
34 supplements Rule 26 by allowing a party to serve discovery requests
on another party for “any designated documents or electronically stored
information” or “tangible things” that are within the responding party’s
“possession, custody or control.”223 However, sometimes nonparties
(individuals or organizations not party to the lawsuit) have information
relevant to a case. Taking this into consideration, Rule 45, using
language similar to Rule 34, allows parties to obtain discovery from
nonparties via subpoena.224
In contesting the plaintiff’s discovery requests in two of the Eastern
District Prison Cases, the State of California relied on a novel and
perplexing twist to the sovereign immunity defense. When the civil
rights plaintiffs in Allen v. Woodford225 and Thomas v. Hickman226
served routine Rule 34 discovery requests on state employee defendants
for copies of documents (such as hospital contracts and doctor
complaints) that were both relevant to their cases and of the type that
would be within the defendants’ possession,227 the defendants argued
they had no “legal right to the documents” because the documents were

220. See Allen v. Woodford, 544 F. Supp. 2d 1074 (E.D. Cal. 2008); Thomas v. Hickman,
No. CV F 06-0215 AWI SMS, 2008 WL 782476 (E.D. Cal. Mar. 20, 2008).
221. FED. R. CIV. P. 26(b)(1). (“Parties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any party . . . . Relevant information need
not be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.”).
222. FED. R. CIV. P. 26. Rule 26 requires, as part of the parties’ initial disclosures, that a
party provide all other parties with “a copy of, or a description by category and location of, all
documents, electronically stored information, and tangible things that are in the possession,
custody, or control of the party and that the disclosing party may use to support its claims or
defenses.” FED. R. CIV. P. 26(a)(1)(B).
223. FED. R. CIV. P. 34(a).
224. Rule 45 states that every subpoena shall “command each person to whom it is directed
to attend and give testimony or to produce and permit inspection, copying, testing, or sampling
of designated books, documents, electronically stored information, or tangible things in the
possession, custody or control of that person.” FED. R. CIV. P. 45(a)(1)(C).
225. 544 F. Supp. 2d 1074 (E.D. Cal. 2008). Another case, Scott v. Suryadevara, was
joined with the Allen case for discovery purposes because it involved similar facts. See Third
Amended Complaint at ¶¶ 24–27, 2007 WL 969232 (E.D. Cal. Feb. 5, 2007) (No. 1:05-CV01282-OWW-WMW-PC).
226. Case No. CV F 06-0215 AWI SMS, 2008 WL 782476 (E.D. Cal. Mar. 20, 2008).
227. See, e.g., Allen v. Woodford, 543 F. Supp. 2d 1138, 1140 (E.D. Cal. 2008); Thomas v.
Hickman, No. 1:06-cv-00215-AWI-SMS, 2007 U.S. Dist. LEXIS 95796, at *3–4 (E.D. Cal.
Dec. 6, 2007).

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owned by the state.228 Therefore, the defendants claimed, they had no
responsive documents within their “possession, custody or control.”229
The plaintiffs then tried to get documents from alternate sources by
serving Rule 45 subpoenas on nonparty state employees such as
custodians of records at the prisons.230 However, the nonparties also
claimed they lacked any legal right to or control over the documents.231
Instead, similar to the state defendants, they argued the documents were
the property of the State of California and that compelling the State of
California to turn over documents violated the Eleventh Amendment.232
Parties to litigation often fight over whether discovery is within their
“possession, custody, or control.” Neither the Federal Rules nor their
Advisory Committee Notes define these terms,233 but in general parties
228. Thomas, 2007 U.S. Dist. LEXIS 95796, at *32.
229. See, e.g., Joint Statement re Discovery Disputes of Plaintiff at 4, Allen v. Woodford,
Case No. 1:05-cv-1104-LJO-NEW, 2007 WL 309945 (E.D. Cal. Jan. 9, 2007).
230. After the defendants refused to comply with discovery requests, the court ordered
them to identify non parties that would have responsive documents. See id. at *7. The plaintiffs
then served subpoenas on the nonparties identified by the defendants. See Allen, 543 F. Supp. 2d
at 1139.
231. See, e.g., Allen v. Woodford, Case No. 05-1104, Doc. No. 204 (“Non-Parties’
Opposition to Plaintiff’s Motion to Compel”) at 7 (E.D. Cal. Jan. 2, 2008). The State of
California relied on Estate of Gonzalez v. Hickman for its argument that sovereign immunity
applied to discovery issued to individuals, although the case did not address the issue because
the court was only presented with the question of whether a state agency must respond to a
subpoena. See Estate of Gonzalez v. Hickman, 466 F. Supp. 2d at 1226, 1227 (E.D. Cal. 2006)
(noting that the Gonzalez plaintiff served subpoenas directly on the CDCR itself); see also
Gonzalez, 2007 U.S. Dist. LEXIS 83702, at *3, n.5 (C.D. Cal. Apr. 18, 2007) (citing Allen v.
Woodford, No. CV F-05-1104 OWW LJO, 2007 WL 309945, *3, and noting “[s]ubsequent
magistrate judges in the Eastern District have questioned [Gonzalez’s] result, and limited the
State’s subpoena immunity to subpoenas served directly on the State itself rather than on its
employees.”).
232. See, e.g., Non-Parties’ Opposition to Plaintiff’s Motion to Compel Production of
Documents at 7, Allen v. Woodford, No. 1:05-cv-1104-OWW-GSA, (E.D. Cal. Jan. 2, 2008).
233. But see BLACK’S LAW DICTIONARY 1201 (8th ed. 2004) (defining “possession” as
“[t]he fact of having or holding property in one’s power; the exercise of dominion over
property. . . . The right under which one may exercise control over something to the exclusion of
all others; the continuing exercise of a claim to the exclusive use of a material object”). See also
id. at 412 (defining “custody” as “[t]he care and control of a thing or person for inspection,
preservation, or security”). Moore’s Federal Practice lists several factors to be considered in
determining whether a party has “possession or control” over items:
The use or purpose to which the materials were employed.
Whether the materials were generated, acquired, or maintained with the party’s
assets.
Whether the party actually generated, acquired, or maintained the materials.
Whether the party determined the materials’ use, location, possession, or
access.

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do not contest whether they have “possession” or “custody” over
materials because courts have held that “records which are normally
kept in the business of the party . . . are presumed to exist [and thus be
in the party’s possession or custody], absent a sworn denial.”234 Some
courts have even required employees to produce their employer’s
records if they have the practical ability to obtain them.235 As noted, the
documents sought by the plaintiffs in Allen and Hickman were of the
type the defendants or nonparties could be expected to keep in their
possession or custody. Yet, despite these requirements, the Allen and
Hickman defendants and nonparties argued they lacked “control” over
the documents—that they lacked the legal ability to obtain them
because the state legally owned the documents.236
Who actually had access to and use of the materials.
The extent to which the materials serve the party’s interests.
Any formal or informal evidence of a transfer of ownership or title.
The ability of the party to the action to obtain the documents when it wants
them.
Whether and to what degree the nonparty will receive the benefits of any award
in the case.
The nonparty’s connection to the transaction at issue.
JAMES C. FRANCIS & ROBERT M. BLOOM, MOORE’S FEDERAL PRACTICE § 34.14[2][b] (2009).
234. Norman v. Young, 422 F.2d 470, 473 (10th Cir. 1970) (citing cases and holding
default judgment ordered against defendants was proper sanction where defendants willfully
failed to produce documents as ordered by the district court). Instead, parties contest whether, if
they do not have a document in their possession or custody, they nevertheless have “control”
over it. However, courts are generally clear that “control” over an item includes the legal ability
to obtain the item, even if it is no longer in the actual possession of the party. See FRANCIS &
BLOOM, supra note 233, § 34.14[2][b] nn. 15–17 (citations omitted) (citing cases supporting
proposition that control over an item includes the legal ability to obtain the item); WILLIAM W.
SCHWARZER, A. WALLACE TASHIMA, & JAMES M. WAGSTAFFE, CAL. PRAC. GUIDE FED. CIV. PRO.
BEFORE TRIAL ch. 11(IV)-C [11:1826] (citations omitted) (same); see also Poole ex rel. Elliott v.
Textron, Inc., 192 F.R.D. 494, 500–01, 510–11 (D. Md. 2000) (noting “[i]t is well established
that ‘control’ under Fed. R. Civ. P. 34 is to be broadly construed so that a party may be
obligated to produce documents requested even though it may not actually possess the
documents” and awarding sanctions where defendant failed to produce documents it gave to its
attorney); Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 160 (3d Cir. 2004); Bank of
N.Y. v. Meridien Bio Bank Tanz., 171 F.R.D. 135, 146 (S.D.N.Y. 1997) (“[D]ocuments are
considered to be under a party’s control when that party has the right, authority, or practical
ability to obtain the documents.”) (emphasis added).
235. See, e.g., In re Flag Telecom Holdings, Ltd. Secs. Litig., 236 F.R.D. 177, 181
(S.D.N.Y. 2006).
236. See Order on Plaintiff’s Motion to Compel Documents from the Individual
Defendants, Allen v. Woodford, No. 05-1104, 2007 WL 309945, at *1 (E.D. Cal. Jan. 30, 2007)
(“Defendants raise a late objection that discovery is not permitted on the CDCR Defendants in
their individual capacities because they are not authorized by the State of California to obtain
custody, possession or control of responsive documents.”); Thomas v. Hickman, No. CV F 06-

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Other courts have rejected similar “possession, custody or control”
arguments, though not where the party served with discovery asserted
sovereign immunity. For example, in Hamilton v. Kerik,237 another
prisoner’s rights action, the court ordered defendant officers to answer
interrogatories, rejecting their argument that any information requested
“‘would be in the possession, custody, and control of New York
State.’”238 Similarly, in another prisoner suit, Kitchen v. Humphrey,239 a
Georgia court, in sanctioning a prison warden for failing to provide
responsive documents, noted that documents such as “personnel
assignment information” including “duty rosters, move slips, reviews,
payroll, personnel, and disciplinary reports” must be within the
defendant warden’s “custody and control” because they are “essential to
the orderly management of the prison; and are produced, utilized, and
archived in the normal course of operations.”240
The state employees’ arguments in the Eastern District Prison Cases,
if accepted, could prevent all access to documents essential to proving
civil rights cases involving the state. Generally, in civil litigation, even
if a party turns out not to have legal “control” over a document, the
party seeking discovery may still be able to obtain the document
through a subpoena issued to a nonparty who does have control. Yet, in
the Eastern District Prison Cases, where the State of California was the
employer for both the defendants and the nonparties, the state’s novel
sovereign immunity defense based on lack of “control” over documents
would bar all access to responsive documents. It raised the stakes much
higher than in civil litigation between private parties because, if the
plaintiffs could not get documents from defendants or the nonparties,
there was no one else left to subpoena who, based on the state’s
argument, would not be protected by sovereign immunity. Although the
Eastern District Prison Case plaintiffs were suing individual defendants
0215 AWI SMS, 2008 WL 782476, at *3 (E.D. Cal. Mar. 20, 2008). It is questionable whether
the defendants’ and non parties’ argument based solely on the “control” part of “possession,
custody or control” is valid because it neglects to read the statute as a whole—it fails to
recognize that the Rule, by using the disjunctive “or” requires production in three distinct
instances, so that even if parties lack “control” over the documents, they should be required to
disclose them as long as they still have either “possession” or “custody.” See Bess v. Cate, No.
2:07-cv-1989 JAM JFM, 2008 U.S. Dist. LEXIS 100253, at *4 (E.D. Cal. Nov. 26, 2008)
(“Since the requirement is in the disjunctive (‘possession, custody or control’), actual possession
of a document is not required.” (citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.
1995))).
237. No. 01-CV-6934 GELHBP, 2002 WL 31834428 (S.D.N.Y. Dec. 17, 2002).
238. Id. at *1–2.
239. No. 1:03-cv-008 (WLS), 2006 U.S. Dist. LEXIS 15128 (M.D. Ga. Mar. 31, 2006).
240. Id. at *6–7. Plaintiffs in the Eastern District Prison Cases also sued prison wardens
and served them with discovery requests for information similar to that sought in Kitchen. See
Allen v. Woodford, 543 F. Supp. 2d 1138, 1140 (E.D. Cal. 2008); Thomas v. Hickman, No.
1:06-cv-00215-AWI-SMS, 2007 WL 4302974, at *1 (E.D. Cal. Dec. 6, 2007).

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who were not themselves protected from suit by sovereign immunity,
the plaintiffs could not prove their cases if the state were able to block
all discovery with a state sovereign immunity defense.
B. The State Sovereign Immunity Defense Applied to Discovery
Requests
There are very few published opinions on the issue of state sovereign
immunity and federal discovery requests, whether those requests are to
defendants under Rule 34 or to nonparties via subpoena under Rule 45.
Most courts seem to assume, without analysis, that sovereign immunity
does not apply in these contexts.241 Similarly, courts have concluded,
again without much analysis, that sovereign immunity does not protect
state custodians of records from complying with federal grand jury
subpoenas.242 Only one published case in any of the courts of appeals
has addressed the application of state sovereign immunity to federal
discovery practices. In In re Missouri Department of Natural
Resources,243 the Eighth Circuit held that the Missouri Department of
Natural Resources must comply with subpoena requests, even after it
was dismissed as a party from the case based on its sovereign
immunity.244 In doing so, the court stated that “[g]overnmental units are
subject to the same discovery rules as other persons and entities having
contact with the federal courts. There is simply no authority for the
position that the Eleventh Amendment shields government entities from

241. See, e.g., Grine v. Coombs, 214 F.R.D. 312, 342 (W.D. Pa. 2003) (dismissing claims
against the Pennsylvania Department of Environmental Protection on Eleventh Amendment
grounds but also recognizing that the “[p]laintiffs had other available means to pursue additional
DEP documents, such as the ability to issue a subpoena duces tecum”); Jackson v. Brinker, 147
F.R.D. 189, 193, 205 (S.D. Ind. 1993) (holding that even though the Indiana Department of
Corrections was immune from suit, it still had to respond to subpoenas). For examples where
other available means exist, see, for example, Arista Records LLC v. Does 1-14, No. 08-00205,
2008 WL 5350246, *3, n.4 (W.D. Va., Dec. 22, 2008) (citing copyright cases in which
discovery was permitted against nonparty state colleges and universities . . . despite challenges
(though none apparently raising sovereign immunity) by the educational institution or Doe
defendants”).
242. See, e.g., In re Witness Before the Special Grand Jury 2000-2, 288 F.3d 289, 295 (7th
Cir. 2002) (“[S]tate officials, including state lawyers, likewise enjoy no immunity [under the
Eleventh Amendment] from disclosing relevant information [subject] to a federal grand jury
[subpoena].”); In re Grand Jury Subpoena, 198 F. Supp. 2d 1113, 1117 (D. Alaska 2002)
(requiring custodians of records of the Alaska Department of Labor, Employment Security
Division to comply with a federal grand jury subpoena); In re Grand Jury Matter, 762 F. Supp.
333, 336 (S.D. Fla. 1991) (requiring the Florida Department of Professional Regulation to
comply with federal grand jury subpoena seeking records of patients who filed complaints about
a physician with Department).
243. 105 F.3d 434, 436 (8th Cir. 1997).
244. Id. at 436.

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discovery in federal court.”245 However, this case has not been cited for
the same proposition by any other court, even though it is more than ten
years old, perhaps because it relies on questionable federal sovereign
immunity precedent for its support.246
There are no appellate-level cases within the Ninth Circuit
addressing state sovereign immunity and federal discovery practices.
For this reason, both the State of California and the judge who issued
the first order in Estate of Gonzalez v. Hickman247 looked to Ninth
Circuit cases addressing similar issues in the tribal sovereign immunity
context.248 Although both the state and the Gonzalez court assumed that
tribal sovereign immunity case law was relevant and binding in the state
sovereign immunity context,249 I have presented several reasons why
tribal sovereign immunity law should not be precedential in this area.250
The court should have looked instead to separate circuit precedent
addressing subpoenas issued to a federal agency and finding such
subpoenas not barred by immunity principles, 251 but it did not explore
this line of cases.252 The following Parts explore both federal and tribal
immunity in the discovery context. Then Part V.A compares and
contrasts each to state immunity, ultimately concluding that federal
sovereign immunity case law from the Ninth and District of Columbia
Circuits is most persuasive in this area of law.
C. Tribal Sovereign Immunity and Discovery
The Ninth Circuit has held in two cases that tribal sovereign
immunity protects tribal entities from having to respond to court
245. Id. (internal citations omitted).
246. Although the Eighth Circuit cited in its decision United States v. Procter & Gamble
Co., 356 U.S. 677, 681 (1958), which addressed federal sovereign immunity, Procter & Gamble
was not really on point because it only addressed whether the federal government, when it is
already a proper party to litigation, must comply with discovery requests. Id. at 679–84. The
case did not address whether the government must comply with discovery if it has not
previously availed itself of the court. See id.
247. No. S-06-0095 MCE GGH, 2006 WL 3201069, at *1 (E.D. Cal. Nov. 6, 2006).
248. Id. at *3–4 (citing United States v. James, 980 F.2d 1314, 1319–20 (9th Cir. 1992);
Bishop Paiute Tribe v. County of Inyo, 291 F.3d 549, 558–60 (9th Cir. 2002)).
249. Id.
250. See supra Part IV.A.
251. See, e.g., Exxon Shipping Co. v. U.S. Dep’t of Interior, 34 F.3d 774, 780 (9th Cir.
1994).
252. See Estate of Gonzalez, 2006 WL 3201069, at *2 n.2. In some of the Eastern District
Prison Cases, the State of California cited to federal sovereign immunity cases from the Second
and Fourth Circuits. See, e.g., Non-Parties’ Opposition to Plaintiff’s Motion to Compel
Production of Documents at 7, 9, 10, Allen v. Woodford, No. 1:05-cv-01104-OWW-GSA, 2008
WL 117906 (E.D. Cal. Jan. 2, 2008); Opposition to Plaintiff’s Motion to Compel Non-Parties to
Produce Documents to Subpoenas at 4, Thomas v. Hickman, Case No. 06-00215, Docket No. 92
(E.D. Cal. May 29, 2007).

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processes such as a subpoena or a search warrant.253 Some courts in
other circuits have followed this reasoning, though others have declined
to do so.254 In United States v. James,255 relied on by the court in Estate
of Gonzalez v. Hickman, the Ninth Circuit held sovereign immunity
protected a tribe from complying with subpoenas issued by a criminal
defendant accused of rape on a tribal reservation to a tribal agency for
documents relating to his accuser’s drug and alcohol problem. The court
recognized that this was an issue of first impression—prior cases only
addressed tribal sovereign immunity where the tribe was a party to the
lawsuit—and yet still held that “Indian tribes’ immunity from suit
remains intact ‘absent express and unequivocal waiver of immunity by
the tribe or abrogation of tribal immunity by Congress.’”256 The court
held the tribe’s immunity derived from its “status as a dependent
domestic nation.”257 And, although the court recognized that the tribe’s
immunity does not extend to tribal members,258 it still held without
further analysis that the subpoena in question, issued specifically to the
director of social services rather than the tribe or a tribal agency, was
barred.
In 2002, the Ninth Circuit in Bishop Paiute Tribe v. County of
Inyo259 explicitly reaffirmed James (albeit under very different factual
and legal contexts) and held sovereign immunity barred a county
253. See Bishop Paiute Tribe v. County of Inyo, 291 F.3d 549, 557–60 (9th Cir. 2002);
United States v. James, 980 F.2d 1314, 1319–20 (9th Cir. 1992).
254. See Catskill Dev., LLC v. Park Place Entm’t Corp., 206 F.R.D. 78, 86–88 (S.D.N.Y.
2002) (finding tribal sovereign immunity protected a tribe and its agencies from subpoena but
also finding waiver applied to some parties). But cf. Narragansett Indian Tribe v. Rhode Island,
449 F.3d 16, 29–30 (1st Cir. 2006) (refusing to follow either James or Bishop Paiute); United
States v. Velarde, 40 F. Supp. 2d 1314, 1315–16 (D.N.M. 1999) (finding balancing test
appropriate and determining that the sovereign interests of the United States in enforcing the
Major Crimes Act, 18 U.S.C. § 1153, and the court’s interests in protecting defendant’s
constitutional rights of due process and a fair trial outweighed the tribe’s sovereign interests, in
part because responding to the subpoena did not implicate the tribe’s treasury); In re Long
Visitor, 523 F.2d 443, 446–47 (8th Cir. 1975) (finding tribal sovereign immunity does not
protect a tribe from responding to a grand jury subpoena because federal jurisdiction over
crimes committed on Indian reservations “inherently includes every aspect of federal criminal
procedure applicable to the prosecution of such crimes”).
255. 980 F.2d 1314, 1319–20 (9th Cir. 1992).
256. Id. at 1319 (quoting Burlington N. R.R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901 (9th
Cir. 1991)).
257. Id. (citing United States v. Wheeler, 435 U.S. 313, 323 (1978)).
258. Id.
259. 291 F.3d 549, 554 (9th Cir. 2002), vacated on other grounds by Inyo County v.
Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701 (2003).
James addressed whether a subpoena issued in a federal criminal case to a tribal agency violated
the tribe’s sovereign immunity. See James, 980 F.2d at 1319–20. Bishop was also brought in
federal court, but it was a civil rights action, not a criminal case. See Bishop, 291 F.2d at 554. In
Bishop, the court addressed whether the tribe’s sovereign immunity barred a county sheriff and
district attorney from executing a search warrant on the tribe for tribal documents. Id.

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sheriff’s execution of a search warrant to seize tribal employee records
as part of a welfare fraud investigation. The county sheriff and district
attorney defendants argued the warrant did not “offend the tribe’s status
as a sovereign entity because it constituted only a ‘customary
inconvenience’ that would accompany the service on any business,” but
the court cited to James to reiterate that the Indian tribe’s status as
sovereign distinguished it from other businesses.260 The court held
conclusively, “[a]bsent a waiver of sovereign immunity, tribes are
immune from processes of the court.”261
Although the court decided the case in the context of tribal sovereign
immunity law and tribal law in general, the court also compared the
tribe’s interest in protecting its records from outsiders to those of the
State of California or the federal government and relied in part on case
law holding the United States was immune from subpoenas issued by a
state court.262
Yet in both Bishop Pauite and James, the court held the defendants
had other means to obtain the information they sought. The Ninth
Circuit held that although that sovereign immunity barred the warrant or
subpoena at issue, the parties seeking evidence could still obtain at least
some of the information through alternate means263 or through
waiver.264 This is an important theme running through tribal and federal
cases. In each of the cases finding sovereign immunity barred
discovery, the party seeking discovery had another way to obtain at
least some of the information. As discussed further in Part V.A, this
would not be true if the court adopted the State of California’s
“possession, custody, or control” theories in the Eastern District Prison
Cases.
As noted, several other courts outside the Ninth Circuit have
declined to follow James and Bishop Paiute, finding that other interests
outweighed the tribe’s sovereignty interest.265 Even courts within the
260. Id. at 557–58.
261. Id. at 557.
262. Id. at 560 n.3 (citing Elko County Grand Jury v. Siminoe, 109 F.3d 554, 556 (9th Cir.
1997) (denying enforcement of a state court subpoena to a federal employee)).
263. In Bishop Paiute, the court held the county officials could have issued a search
warrant against individual tribal members rather than the tribe itself through the state’s authority
under 18 U.S.C. § 1162(a) (2006), which provides states with criminal jurisdiction over tribal
members and crimes committed on reservations within the states’ borders. 291 F.3d at 560–61.
264. In James, the court upheld subpoenas for all relevant documents held by another tribal
agency, finding that agency waived its immunity when it provided some documents voluntarily
to the prosecution. See James, 980 F.2d at 1320. The court held the tribe “cannot selectively
provide documents and then hide behind a claim of sovereign immunity when the defense
requests different documents from the same agency.” Id. However, this waiver did not cross the
line to other tribal agencies that had not provided documents to the government. Id.
265. See United States v. Velarde, 40 F. Supp. 2d 1314, 1316 (D.N.M. 1999).

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Ninth Circuit have found reasons why James should not be controlling.
For example, in United States v. Snowden,266 the court denied a tribe’s
motion to quash a subpoena for a victim’s counseling records because it
found the defendant’s “constitutional rights of due process, fair trial,
confrontation, and compulsory process outweigh[ed] the [tribe’s] claim
of immunity.”267 The court stated that “James does not control because
the defendant [in James] did not raise constitutional challenges to the
claim of immunity.”268 Similarly, in United States v. Juvenile Male 1,269
the court declined to follow James because James did not address
constitutional challenges to the tribe’s assertion of sovereign immunity
such as the defendant’s Sixth Amendment right “to be confronted with
the witnesses against him; [and] to have compulsory process for
obtaining witnesses in his favor.”270
James and Bishop may also be questionable precedent, given dicta in
a 1986 Supreme Court case, Three Affiliated Tribes of Ft. Berthold
Reservation v. Wold Engineering, P. C.271 In that case the Court, in
holding that a state statute requiring a tribe to waive its sovereign
immunity was preempted by federal Indian law, suggested that certain
court processes, though they may affect tribal government, are not
barred by sovereign immunity.272 The Court stated,
not all conditions imposed [by a state] on access to state
courts which potentially affect tribal immunity, and thus
tribal self-government, are objectionable. For instance,
even petitioner [tribe] concedes that its tribal immunity
does not extend to protection from the normal processes of
the state court in which it has filed suit.273
The Court also noted that the tribe admitted it was subject to
“discovery proceedings and to proceedings that would insure a fair trial
to the non-Indian defendants.”274 Although the Court discussed
discovery in the context of tribes as parties to litigation who have
already availed themselves of the court, rather than as nonparties,275 this
266. 879 F. Supp. 1054 (D. Or. 1995).
267. Id. at 1057.
268. Id.
269. 431 F. Supp. 2d 1012 (D. Ariz. 2006).
270. Id. at 1017–18 (internal citations omitted). The court also noted the incongruous effect
its ruling would have on the Navajo tribe if it were to follow James. Id. at 1018. The tribe’s
borders overlap both the Ninth and Tenth Circuits, and a district court within the Tenth Circuit
expressly declined to follow James. See Velarde, 40 F. Supp. 2d at 1315–16.
271. 476 U.S. 877 (1986).
272. Id. at 884.
273. Id. at 891.
274. Id.
275. Id.

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dicta suggests discovery is something less than a lawsuit and that other
interests, such as a fair trial, should be balanced against the tribe’s
sovereign interests in this context.
D. Federal Sovereign Immunity and Discovery
As discussed previously, federal sovereign immunity in federal court
is based on different principles from state sovereign immunity in the
same venue. When a state invokes a sovereign immunity defense in
federal court, it raises federalism issues. However, when the federal
government invokes a sovereign immunity defense in the same court, it
raises separation of powers issues. Nevertheless, because courts often
invoke precedent from one to legitimize decisions in the other,276 and
because several courts have addressed the intersection of federal
immunity and discovery, federal sovereign immunity warrants
discussion.
Appellate courts have addressed federal sovereign immunity in the
discovery context to mixed results. The District of Columbia and Ninth
Circuits have both held that the federal government is not immune from
subpoenas, while the Second and Fourth Circuits have disagreed.
The D.C. Circuit, the first appellate court to face the issue, did so in
three important cases. First, in Northrop Corp. v. McDonnell Douglas
Corp., the court noted that since at least 1965, it had “assumed the
nonapplicability of sovereign immunity” to a subpoena directed at the
government and stated, “we find no cause in the present case to upset a
steady course of precedent by attempting to graft onto discovery law a
broad doctrine of sovereign immunity.”277 Next, in Linder v. CaleroPortocarrero,278 a later case in which parents of an aid worker slain by
contra soldiers in Nicaragua sought documents from various federal
agencies, the court held nonparty subpoenas do not trigger sovereign
immunity because subpoenas do not seek damages and because the
federal government waived its immunity in the Administrative
Procedure Act for actions “seeking relief other than money
damages.”279
276. See supra Part IV.B.
277. 751 F.2d 395, 398 n.2 (D.C. Cir. 1984). In Northrop, the court raised the issue of
sovereign immunity sua sponte, after McDonnell Douglas issued discovery subpoenas to the
Defense and State Departments, and requested supplemental briefing on the issue from the
parties. In declining to find federal sovereign immunity barred the subpoenas at issue, it noted
that, “[a]s far as the briefs and our independent research disclose, the issue has never been
explicitly discussed in the opinion of any federal court.” Id. (emphasis added).
278. 251 F.3d 178 (D.C. Cir. 2001).
279. Id. at 181 (citing 5 U.S.C. § 702 (2006)). The Administrative Procedure Act states that
federal courts may review claims against the federal government that seek “relief other than
money damages” and that state “a claim that an agency or an officer or employee thereof acted
or failed to act in an official capacity or under color of legal authority.” 5 U.S.C. § 702 (2006). It

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Finally, in Yousuf v. Samantar,280 the court held the State
Department was not immune from subpoenas issued by Somali
nationals in their suit brought under the Torture Victim Protection
Act.281 The D.C. Circuit recognized that the federal government is not
“exempt from the obligation of a nonparty to provide its evidence
pursuant to subpoena” because “the Government is a ‘person’ subject to
subpoena under Rule 45.”282 The State Department had argued it was
not a “person” subject to Rule 45,283 but the court noted that there were
only two situations at common law in which the government “was
presumed not to be a ‘person’ bound by statute,” and Rule 45 fell into
neither category.284 First, the government did not have an “established
prerogative” not to respond to subpoenas; in fact, the court noted, the
government, in briefing a 1900 Supreme Court case, admitted “that
records requested for a suit in which it was not a party ‘could be secured
by a subpoena duces tecum to the head of the Treasury Department.’”285
Second, applying Rule 45 to the government would not “work an
obvious absurdity” (as, for example, applying a speeding law to a
policeman pursuing a criminal) because the discovery rules were
intended “to provide a ‘liberal opportunity for discovery,’”286 and
because other Rules of Civil Procedure have been interpreted as
applying to the government.287 Therefore, to find Rule 45 did not apply
would be inconsistent and “would attribute a schizophrenic intent to the
drafters” of the Federal Rules.288
The Ninth Circuit has also refused to find that sovereign immunity
protects federal agencies from responding to subpoenas, though on
slightly different grounds. In Exxon Shipping Co. v. United States
Department of Interior,289 a case arising out of the Valdez oil spill in
also states that it does not affect “limitations on judicial review or the power or duty of the court
to dismiss any action or deny relief on any other appropriate legal or equitable ground.” Id.
280. 451 F.3d 248 (D.C. Cir. 2006).
281. Id. at 250 (citing 28 U.S.C. § 1350 (2006)).
282. 451 F.3d at 254, 257 (holding “the term ‘person’ as used in the Federal Rules of Civil
Procedure consistently means not only natural persons and business associations but also
governments, including the United States”). The court in Linder v. Calero-Portocarrero raised
but left open the question of whether the government is a “person” pursuant to Rule 45. 251
F.3d at 181–82.
283. Yousuf, 451 F.3d at 253 (arguing “statutes employing the [word ‘person’] are
ordinarily construed to exclude” the sovereign) (citing United States v. Cooper Corp., 312 U.S.
600, 604 (1941)).
284. Id. at 254 (citing Nardone v. United States, 302 U.S. 379, 283–84 (1937)).
285. Id. (quoting United States ex. rel. Touhy v. Ragen, 340 U.S. 462, 471–72 (1951)
(Frankfurter, J., concurring).
286. Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
287. Id. at 256 (citations omitted).
288. Id. (citing Marek v. Chesny, 473 U.S. 1, 21 (1985)).
289. 34 F.3d 774 (9th Cir. 1994).

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which Exxon sought discovery from the Interior Department, the court
cited Northrop v. McDonnell Douglas, and concluded that applying
sovereign immunity principles in discovery would result in the
abdication of ‘“judicial control over the evidence in a case . . . to the
caprice of executive officers.’”290 The court also recognized the public’s
right ‘“to every man’s evidence’” would be violated if the executive
branch were able to refuse to comply with subpoenas.291 And while the
court acknowledged the government’s legitimate interest in not having
to expend its limited employee resources on responding to discovery
requests, the court noted that the Federal Rules of Civil Procedure and
various privilege rules provided sufficient limitations on discovery to
prevent an unnecessary expense of government resources.292
The Ninth Circuit and District of Columbia Circuit’s approaches to
sovereign immunity and discovery are in line with early commentators
to the Federal Rules of Civil Procedure such as Edson R. Sunderland,
who noted in 1939 that “[n]o distinction is made in the federal
discovery and deposition rules between private parties and the officers
and agencies of government.”293 Similarly, Raoul Berger and Abe Krash
stated in 1950:
It has long been considered that all persons have a duty to
produce relevant evidence, upon the assumption that the
interest of the public in seeing that justice is done outweighs the right to privacy. The Rules have merely
underscored that duty. . . . [T]he terms of the third party
subpoena-deposition provisions are unqualified, and no
considerations of policy can afford an exemption to the
Government, though they might have some bearing upon
the measure of the asserted privilege.294
However, other circuits have followed a different course. The
Second Circuit, instead of assuming the non-applicability of sovereign
immunity to discovery as the District of Columbia Circuit did in
Northrop, has held consistently that sovereign immunity does apply to
subpoenas issued to government agencies.295 Specifically, the court has
290. Id. (quoting United States v. Reynolds, 345 U.S. 1, 9–10 (1953)).
291. Id. (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)).
292. Id. at 779–80 (citing FED. R. CIV. P. 26, 45; FED. R. EVID. 501).
293. Edson R. Sunderland, Discovery Before Trial Under the New Federal Rules, 15 TENN.
L. REV. 737, 742 (1939).
294. Raoul Berger & Abe Krash, Government Immunity From Discovery, 59 YALE L.J.
1451, 1465–66 (1950).
295. See EPA v. Gen. Elec., Co., 197 F.3d 592, 598–99 (2d Cir. 1999) (expressly rejecting
the Ninth Circuit’s analysis and approach in Exxon Shipping Co. v. U.S. Dep’t of Interior, 34
F.3d 774 (9th Cir. 1994)); see also SEC ex rel. Glotzer v. Martha Stewart, Living Omnimedia,
Inc., 374 F.3d 184, 190 (2d Cir. 2004) (“Absent a waiver of sovereign immunity, a federal
agency, as representative of the sovereign, cannot be ‘compelled . . . to act.’” (quoting Gen.
Elec., 197 F.3d at 597)).

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held subpoenas are “judicial proceedings” against the government and
therefore barred by sovereign immunity (absent waiver), because the
result of a subpoena “could serve ‘to restrain the Government from
acting, or to compel it to act.’”296 However, the court also held the
federal government expressly waived its immunity to a limited extent
through the Administrative Procedure Act (APA) because the Act
“specifically allows final agency actions to be reviewed by federal
courts” in certain circumstances.297 Therefore, a government’s refusal to
respond to a subpoena, once that refusal can be considered a “final
agency action,” is reviewable in federal court through a motion to
compel.
The Fourth Circuit has taken a similar approach to the Second
Circuit and held sovereign immunity applies to subpoenas issued to the
federal government.298 And, similar to the Second Circuit, the Fourth
Circuit has explicitly rejected the Ninth Circuit’s approach in Exxon but
has still held that the federal government waives its immunity to
subpoenas through the APA.299 Therefore, in both the Second and
Fourth Circuits, the parties were still able, pursuant to procedures in the
Administrative Procedures Act, to petition the court for review of the
agency’s refusal to comply with the subpoena.300
Thus, although the circuits are divided on whether federal sovereign
immunity applies to subpoenas in the first instance, all that have
reached the issue have agreed that sovereign immunity does not fully
bar a federal court from enforcing a subpoena to the federal
government. However, as discussed below, the distinction among the
296. Gen. Elec., 197 F.3d at 597 (quoting Dugan v. Rank, 372 U.S. 609, 620 (1963)).
297. Id. at 598. For example, the court may review a “final agency action” if there is a
claim ‘“that an agency or an officer or employee thereof acted or failed to act in an official
capacity or under color of legal authority,’ and the relief sought is other than money damages.”
Id. (quoting 5 U.S.C. § 702 (2006)). There is some question after GE about what standard of
review a court should apply to the government’s refusal to respond to a subpoena. See EPA v.
Gen. Elec., Co., 212 F.3d 689, 690 (2d Cir. 2000); SEC ex rel. Glotzer, 374 F.3d at 191.
298. See Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th Cir. 1989) (holding “subpoena
proceedings fall within the protection of sovereign immunity even though they are technically
against the federal employee and not against the sovereign”).
299. COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 277 (4th Cir. 1999) (holding that
APA’s arbitrary and capricious standard of review applies).
300. See, e.g., id.; Gen. Elec. Co., 197 F.3d at 599. The Second Circuit held that although
sovereign immunity applied to subpoenas issued to federal agencies, the federal government
waived its immunity through the Administrative Procedures Act which provides for federal
court review of agency actions. Id. Therefore, a party may seek review of an agency’s refusal to
respond to a subpoena through a motion to enforce the subpoena. Id. The court noted this
approach “will maintain the appropriate balance between the interests of the government in
conserving limited resources, maintaining necessary confidentiality and preventing interference
with government functions, and the interests of suitors in discovering important information
relevant to the prosecution or defense of private litigation.” Id.

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cases is important in making parallels to subpoenas issued in federal
court to state governments.
VI. APPLYING LESSONS LEARNED FROM THE TRIBAL AND FEDERAL
IMMUNITY CASES AND THE THREE RATIONALES TO THE PROBLEM OF
STATE SOVEREIGN IMMUNITY AND FEDERAL DISCOVERY
A. Federal Sovereign Immunity Case Law from the Ninth and District
of Columbia Circuits Is Most Persuasive in the State Sovereign
Immunity Context
The State of California, through the defendants and subpoenaed
nonparties in Gonzalez v. Hickman and the Eastern District Prison
Cases, has asserted that the Ninth Circuit tribal law cases and Fourth
and Second Circuit federal sovereign immunity cases discussed above
require a finding that sovereign immunity bars discovery served on all
state employees and agencies.301 The Estate of Gonzalez v. Hickman
court found the tribal law cases precedential.302 However, all of these
cases are factually and legally distinct from the Eastern District Prison
Cases in ways that make them poor precedent. In this Part, I argue that
courts faced with a state sovereign immunity defense to discovery
should look to the federal sovereign immunity cases from the Ninth and
District of Columbia Circuits.
The tribal cases are distinguishable for several reasons. First, and
most obvious, both United States v. James and Bishop Pauite addressed
tribal sovereignty, so it is questionable how reliable these cases are for
deciding a state sovereign immunity issue.303 The court in one of the
Eastern District Prison Cases recognized the importance of this
distinction.304 Second, the cases stand on very different procedural
footing—James was a criminal case, and Bishop Pauite involved a
county-issued search warrant—so the Ninth Circuit had no opportunity
to interpret the Federal Rules of Civil Procedure in either case. Third,
and perhaps most important, in both James and Bishop Pauite, the
parties seeking discovery had some other means to obtain it. In James,
the Ninth Circuit held the tribe waived its immunity over documents it
showed to one party but not the other,305 and in Bishop Paiute, county
officials could have obtained the documents through their Public Law
301. See, e.g., Non-Parties’ Opposition to Plaintiff’s Motion to Compel Production of
Documents, Allen v. Woodford, No. 05-01104, 2008 WL 117906 (E.D. Cal. Jan. 2, 2008);
Opposition to Plaintiff’s Motion to Compel Non-Parties to Produce Documents Pursuant to
Subpoenas, Thomas v. Hickman, Case No. 06-00215, Docket No. 92 (E.D. Cal. May 29, 2007).
302. See 466 F. Supp. 2d 1226, 1228–29 (E.D. Cal. 2006).
303. See supra Part IV.A.
304. See Allen v. Woodford, 544 F. Supp. 2d 1074, 1079–80 (E.D. Cal. 2008).
305. United States v. James, 980 F.2d 1314, 1319 (9th Cir. 1992).

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280 authority over individual tribal members (rather than through the
tribe).306 The State of California took a very different approach in the
Eastern District Prison Cases, arguing that sovereign immunity blocks
all discovery—party and nonparty. This would prevent plaintiffs from
obtaining documents from any person or agency affiliated with the state
and would result in a very different outcome from the one contemplated
by the Ninth Circuit in the tribal cases. For these reasons, the tribal
cases do not appear to map well to the factual and legal issues in the
Eastern District Prison Cases.
The federal sovereign immunity cases from the Fourth and Second
Circuits are distinguishable from the Eastern District Prison Cases for
one of the same reasons as the tribal cases—fairness. Although the
courts held sovereign immunity applied to subpoenas, they also held the
government waived its immunity under the Administrative Procedure
Act (APA). Therefore courts could review the government’s denial of
access to discovery under administrative principles of review and
perhaps find that denial arbitrary and capricious.307 In other words, the
parties seeking discovery were not completely foreclosed from
obtaining it.
However, the Second and Fourth Circuit’s reasoning would not
translate to the state sovereign immunity context because the APA does
not apply to states, and state immunity waivers rarely apply in federal
court. The State of California has relied on the Second and Fourth
Circuit cases to argue that state sovereign immunity applies to bar all
discovery and has argued that the state never waives its immunity.308
But principles of fairness and the importance of litigant access to
information counsel against adopting this approach. The federal
sovereign immunity cases from the Ninth Circuit and District of
Columbia Circuit do not present these problems. In Exxon Shipping Co.
v. United States Department of Interior,309 the court stated, “The
government’s argument [that sovereign immunity barred subpoenas]
would [] violate the fundamental principle that ‘the public . . . has a
right to every man’s evidence’” and would be contrary to the Federal
306. Bishop Paiute Tribe v. County of Inyo, 291 F.3d 549, 560 (9th Cir. 2002).
307. District courts within the Second and Fourth Circuits have both found the cases
addressing federal sovereign immunity inapplicable to the question of whether state sovereign
immunity protects a state agency or official from responding to discovery. See, e.g., Arista
Records LLC v. Does 1-14, No. 08-00205, 2008 WL 5350246, *5 (W.D. Va., Dec. 22, 2008);
Jackson v. AFSCME Local 196, No. 07-0471, 2008 WL 1848900 (D. Conn. Apr. 25, 2008).
308. See, e.g., Non-Parties’ Opposition to Plaintiff’s Motion to Compel Production of
Documents, Allen v. Woodford, No. 05-01104, 2008 WL 117906, (E.D. Cal. Jan. 2, 2008);
Opposition to Plaintiff’s Motion to Compel Non-Parties to Produce Documents Pursuant to
Subpoenas at 4, Thomas v. Hickman, Case No. 06-00215, Docket No. 92 (E.D. Cal. May 29,
2007).
309. 34 F.3d 774 (9th Cir. 1994).

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Rules of Civil Procedure favoring full discovery.310 The court held
district courts should apply standard balancing tests under the Federal
Rules, including determining how burdensome the discovery requests
are and whether any evidentiary privileges apply.311 There is no reason
these same balancing tests would not work in the context of federal
subpoenas issued to state agencies or employees.
The analysis from the District of Columbia cases (to which the Ninth
Circuit cited with approval in Exxon312) also appears to be closely
analogous for several reasons. First, as in Yousuf v. Ali Samantar,
federal court discovery issued to a state employee or agency should not
trigger sovereign immunity because the state is no less a “person”
subject to subpoena under Rule 45 than the federal government.313
Second, as in Linder v. Calero-Portocarrero, sovereign immunity
should not apply because the subpoenas do not, on their own, impose
damages against the state.314
Finally, neither Exxon nor the District of Columbia Circuit cases
treated a subpoena in the first instance as a “lawsuit.”315 This is
consistent with my analysis above that sovereign immunity applies to
lawsuits but not to court processes ancillary to the main suit.316 A
subpoena, which is not presumptively adversarial, which does not begin
with a complaint, and which does not seek attachment of state funds,
should not by its nature invoke the protections of sovereign immunity.
A subpoena does not “walk[], talk[], [or] squawk[] very much like a
310. Id. at 779 (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)).
311. Id. at 780.
312. Id. at 778 (citing Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 398
n.2 (D.C. Cir. 1984)).
313. See Yousuf v. Samantar, 451 F.3d 248, 253–57 (D.C. Cir. 2006). In interpreting 42
U.S.C. § 1983, the Supreme Court has held that states and state officials acting in their official
capacities are not “persons” within the meaning of § 1983. See Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 65–66 (1989). However, Yousuf distinguished Will and other cases by
analyzing the term “person” in the context of the Federal Rules of Civil Procedure and noting
the federal rules clearly do include the sovereign within the meaning of the term “person.”
Yousuf, 451 F.3d at 254–57. Although all the Eastern District Prison Cases were brought under
§ 1983, it is more appropriate to interpret “person” as Yousuf did, under the main statute at
issue—Rule 45—rather than under § 1983.
314. See Linder v. Calero-Portocarrero, 251 F.3d 178, 182–83 (D.C. Cir. 2001). The
subpoenas in the Eastern District Prison Cases merely sought documents and things. See, e.g.,
Allen v. Woodford, 544 F. Supp. 2d 1074, 1075 (E.D. Cal. 2008). Although the plaintiffs sought
damages from the defendants in the underlying lawsuits, the defendants who would be
responsible for those damages were state employees acting in their individual capacities, rather
than the state itself. See, e.g., id. at 1075–76.
315. Although none of the cases state this explicitly, the D.C. Circuit in Linder v. Calero–
Portocarrero, 251 F.3d 178 (D.C. Cir. 2001), came close by holding that immunity does not
apply to a subpoena because a subpoena does not involve damages, which are the most common
remedies in a lawsuit.
316. See supra Part III.D.2.

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lawsuit”317 and therefore sovereign immunity should not apply to it.
As noted by the Ninth Circuit in Exxon, to allow immunity to apply
in the discovery context would result in the abdication of ‘“judicial
control over the evidence in a case . . . to the caprice of executive
officers.”’318 This is no less important in subpoenas issued to capricious
state executive officers than it is in subpoenas issued to federal officers.
For each of the reasons discussed above, the Ninth and District of
Columbia Circuit cases are the most persuasive and should apply in the
state sovereign immunity context.
B. Two of the Three Rationales for State Sovereign Immunity
Suggest it Does Not Apply to Subpoenas
A finding that state sovereign immunity does not apply in the
discovery context would be consistent with two of the three rationales
for the broad reach of state sovereign immunity noted above.319 Under
the originalist rationale, there is nothing to indicate that the framers
planned to include subpoenas within the framework of sovereign
immunity when they drafted the Eleventh Amendment, despite the fact
that subpoenas were often used at the time.320 As noted in Part III.D.2,
the language of the Eleventh Amendment and subsequent case law
seems to make clear that sovereign immunity applies to lawsuits and
adversarial proceedings, but not necessarily to the ancillary processes of
a court such as a subpoena.321 The District of Columbia Circuit Court of
Appeals noted, after conducting its own independent research in a 1984
case, “the issue [of sovereign immunity applying to subpoenas] has
never been explicitly discussed in the opinion of any federal court,” but
courts “assume[] the nonapplicability of sovereign immunity” to a
subpoena directed at the government.322 The federal government itself
admitted, in briefing a 1900 Supreme Court case, “that records
317. S.C. State Ports Auth. v. Fed. Mar. Comm’n, 243 F.3d 165, 174 (4th Cir. 2001).
318. Exxon, 34 F.3d at 778 (citing United States v. Reynolds, 345 U.S. 1, 9–10 (1953)).
319. See supra Part III.C.
320. See supra Part III.A (discussing Chisholm case, which involved a lawsuit brought
against a state, and not a subpoena, as basis for text of Eleventh Amendment). Several early
Supreme Court cases explicitly mention subpoenas issued to states. See, e.g., Rhode Island v.
Massachusetts, 37 U.S. (1 Pet.) 657, 659 (1838) (issuing subpoena to State of Massachusetts);
New Jersey v. New York, 30 U.S. (1 Pet.) 284, 290 (1831) (issuing subpoena to State of New
York); Huger v. South Carolina, 3 U.S. (1 Dall.) 339, 339 (1797) (issuing subpoena to State of
South Carolina).
321. See supra Part III.D.2. While a subpoena may constitute an inconvenience, it is
merely a request for documents and information; it is not presumptively “adversarial” or
adversarial in the first instance. It does not become adversarial until the subpoenaed party
refuses to comply and the party issuing the subpoena is forced to file a motion to compel
compliance.
322. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 398 n.2 (D.C. Cir. 1984).

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requested for a suit in which it was not a party ‘could be secured by a
subpoena duces tecum to the head of the Treasury Department.’”323
Because there is no evidence that the drafters of the Eleventh
Amendment or the framers of the Constitution believed state (or
federal) sovereign immunity encompassed discovery subpoenas, under
an originalist rationale a state and its employees should not be able to
refuse to respond to a subpoena on sovereign immunity grounds.
Finding sovereign immunity does not apply to subpoenas issued to
state agencies and state employees also satisfies the pragmatic rationale
for the doctrine. As I define the pragmatic rationale, it includes the
practical reasons the Court has provided for extending Eleventh
Amendment state sovereign immunity beyond the bounds of the text of
the amendment. For example, the Court often observes sovereign
immunity must be interpreted broadly to curb the impact a flood of
potential litigation would have on the state’s treasury and to prevent an
“unwarranted strain on the States’ ability to govern in accordance with
the will of their citizens.”324 However, finding sovereign immunity does
not apply to subpoenas would not result in a flood of potential litigation
(because it would not change a plaintiff’s inability to file a lawsuit
against the state). It also would not overly impact the state’s treasury or
result in excessive discovery because, as noted by the Ninth Circuit in
Exxon, the Rules of Civil Procedure allow district courts to quash or
modify subpoenas that would cause an “undue burden.”325 In addition,
the government could still rely on a full panoply of privilege rules to
contest the subpoenas.326 Finally, it would not overly impact the state’s
treasury, first because any cost to the state in responding to the
subpoena is ancillary to any potential judgment in the case and can be
addressed through the processes listed in Rule 45(c),327 and second,
because where the state itself is not a defendant to a lawsuit, any
recovery to a civil rights plaintiff in the case will come from the state
actor sued, not from the state.328
323. Yousuf v. Samantar, 451 F.3d 248, 254 (D.C. Cir 2006) (citing United States ex rel.
Touhy v. Ragen, 340 U.S. 462, 471–72 (1951) (Frankfurter, J., concurring)).
324. See, e.g., Alden v. Maine, 527 U.S. 706, 750–51 (1999).
325. See Exxon Shipping Co. v. U.S. Dep’t of Interior, 34 F.3d 774, 779 (9th Cir. 1994)
(citing FED. R. CIV. P. 26(c), 45(c)(3)).
326. Id. at 780 (citing to cases on state secrets and qualified executive privilege).
327. See Edelman v. Jordan, 415 U.S. 651, 668 (1974) (noting that a remedy that has an
“ancillary effect on the state treasury is . . . permissible and often an inevitable consequence of
the principle announced in Ex parte Young”).
328. States may, through statute, indemnify their employees. See, e.g., CAL. GOV. CODE
§ 825 (West 2009). Although this then means the funds to satisfy any judgment technically
would come from the state rather than the individual defendant, it does not change the basic
principles underlying the case nor bestow immunity on the employee defendant. See, e.g.,
Duckworth v. Franzen, 780 F.2d 645, 651 (7th Cir. 1985) (“[I]t would be absurd if all a state

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The pragmatic rationale would also support creating an appropriate
balance between state government and private parties’ rights under §
1983 case precedent and would harmonize the purpose of § 1983 with
that of the federal discovery rules. Section 1983 was intended “to give a
remedy to parties deprived of constitutional rights, privileges and
immunities by an official’s abuse of his position”329 by creating a
federal private right of action against a state actor.330 A main goal of the
Federal Rules of Civil Procedure is to promote broad and full discovery
in civil litigation. Finding that sovereign immunity does not apply to
subpoenas would support both these purposes and the rights of a § 1983
plaintiff because it would allow the plaintiff to obtain a remedy for
constitutional violations by using the federal discovery rules to fully
litigate her case against the state actor who she alleges deprived her of
her constitutional rights. It would not impact the state’s rights in any
way contrary to § 1983 because it would not allow her to sue the state
directly. In contrast, finding sovereign immunity does apply to
subpoenas would undermine the purpose of both § 1983 and Rule 45
and the rights of the § 1983 plaintiff—if the state can refuse, on
sovereign immunity grounds, to produce documents necessary for the
§ 1983 plaintiff to prove her case against a state actor, it would prevent
the plaintiff from fully litigating her case and, by extension, obtaining a
remedy for constitutional violations. Thus, the pragmatic rationale
supports not applying sovereign immunity to subpoenas.
As noted above, in the past two decades, the Supreme Court has
increasingly relied on a “dignity” rationale to support extending state
sovereign immunity to contexts outside the text of the Eleventh
Amendment, holding in Federal Maritime Commission v. South
Carolina State Ports Authority,331 “[T]he preeminent purpose of state
sovereign immunity is to accord States the dignity that is consistent with
their status as sovereign entities.”332 The dignity rationale, if taken to its
extreme, has the potential to undermine any action even tangentially
involving the state.333 It is, therefore, the biggest threat to an argument
had to do to put its employees beyond the reach of section 1983 . . . was to promise to
indemnify.”); Demery v. Kupperman, 735 F.2d 1139, 1147 (9th Cir. 1984) (quoting Ronwin v.
Shapiro, 657 F.2d 1071, 1075 (9th Cir. 1981) (noting “the incongruity that would result if a
state, ‘by creating a fund to compensate victims, has somehow extended immunity [to state
employees] so as to deny payment to the class of intended beneficiaries’”)).
329. Monroe v. Pape, 365 U.S. 167, 172 (1961).
330. Id. at 173.
331. 535 U.S. 743 (2002).
332. Id. at 760.
333. The dignity rationale could easily become limitless because, unlike the other two
rationales, it does not involve a test or distinction the courts could apply or advance a principle.
Instead it uses circular reasoning to reinforce itself—because the states are powerful, they
possess a certain “dignity” that makes them untouchable through the courts or the federal

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against extending sovereign immunity to subpoenas, and it is far from
clear that the Supreme Court would not rely on this rationale to bar
subpoenas in § 1983 actions. However, as noted above, one of the
earliest sovereign immunity cases clearly rejected this argument. In
Cohens v. Virginia,334 the Court noted, “We must ascribe the [Eleventh]
amendment, then, to some other cause than the dignity of a State.”335
Many scholars have also taken issue with this rationale, noting as early
as 1946, “the indignity of subjecting a government to judicial process at
the instance of private parties seems to be an objection lacking in force,
however substantial a consideration it might have been in the times
when state and federal governments were less solidly established than
they are now.”336
These counterarguments to the “dignity” rationale—combined with
the reasoning underlying the originalist and pragmatic rationales, the
Ninth and District of Columbia Circuit’s federal sovereign immunity
cases, and the case law supporting the argument that state sovereign
immunity does not apply to ancillary court processes such as
subpoenas—should outweigh the weight of recent Supreme Court
“dignity” precedent.
VII. CONCLUSION
The State of California, by arguing in the Eastern District Prison
Cases that state employee defendants and subpoenaed nonparty state
employees lack authority to produce documents and that sovereign
immunity protects the state and its agencies from subpoenas, seems
intent on hobbling civil rights cases before they begin. The state’s
position—that, in essence, no discovery can be had in § 1983 actions
brought against state employees—conflicts with the Federal Rules of
Civil Procedure, which apply to all civil actions in federal court. Rule
26 states that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense”337
and that no rule limits the Federal Rules to non-state actors. More
government. While states can still choose to limit their power voluntarily (for example through
waiver) the more untouchable they are, the more powerful they become, and the less incentive
they have to limit themselves.
334. 19 U.S. (6 Wheat.) 264 (1821).
335. Id. at 406.
336. See Joseph J. Block, Suits Against Government Officers and the Sovereign Immunity
Doctrine, 59 HARV. L. REV. 1060, 1060–61 (1946). Justice Stevens has consistently dissented to
opinions based on the dignity rationale, noting it “is an ‘embarrassingly insufficient’ rationale
for the rule [of extending Eleventh Amendment sovereign immunity].” Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 97 (1996) (Stevens, J., dissenting) (citing Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 151 (1993) (Stevens, J., dissenting)); see also Fed.
Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 770 (2002) (Stevens, J., dissenting).
337. FED. R. CIV. P. 26(b)(1).

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importantly, however, the state’s position, if followed by other courts in
the future, could prevent the prosecution of important § 1983 civil rights
actions against state defendants. Without discovery, plaintiffs would not
be able to prove the facts alleged in their cases if they brought their
actions in federal court. And, while civil rights plaintiffs could try to
pursue federal civil rights claims in state court,338 this would create an
anomalous situation where such plaintiffs are barred from pursuing
federal claims under the Constitution in federal court.
The weight of case law interpreting state and federal sovereign
immunity and the main rationales behind a broad application of state
sovereign immunity do not support California’s novel sovereign
immunity arguments, and these arguments should not outweigh the
important constitutional interests at issue in federal civil rights cases. As
Peter Low and John Jeffries have noted, “[t]he stakes involved in
interpreting the 11th [A]mendment are potentially very high. Virtually
the entire class of modern civil rights litigation [plausibly] might be
barred by an expansive reading of the immunity of states from suit in
federal court.”339 Thus, district courts should not be swayed by the
state’s arguments or the Supreme Court’s recent use of the “dignity”
rationale, but should instead exercise their authority under the Federal
Rules of Civil Procedure and Supreme Court precedent in § 1983 cases
to compel state compliance with properly-executed subpoenas issued in
these actions.

338. State courts have concurrent jurisdiction over many federal claims, including federal
civil rights claims, see Cohens, 19 U.S. (6 Wheat.) at 396–97, and many states have waived
immunity in state court, see, e.g., CAL. GOV. CODE § 68097.1 (West 2009).
339. PETER W. LOW & JOHN C. JEFFRIES, JR., FEDERAL COURTS AND THE LAW OF FEDERALSTATE RELATIONS 814 (4th ed. 1998).

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