SC Agency Must Respond to Google Subpoena – South Carolina Lawyers Weekly

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IN SHORT

• South Carolina sued Google for violating antitrust laws, resulting in SCPRT being subpoenaed despite its claim of Eleventh Amendment immunity.
• The district court denied SCPRT’s motion to quash the subpoena, ruling that the state had waived its immunity by joining the lawsuit.
• Under federal law, a state waives its Eleventh Amendment immunity when it voluntarily invokes the jurisdiction of a federal court, as South Carolina has done.

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In the case where the state of South Carolina sued Google for alleged antitrust violations, the state agency must respond to a subpoena from Google. Although the agency argued that Eleventh Amendment immunity meant it did not have to respond to the subpoena, that immunity was lifted when the state joined the lawsuit.

Background

Along with several other states, the state of South Carolina sued Google LLC in federal court for violating federal and state antitrust laws. With South Carolina’s express consent, Google subpoenaed the South Carolina Department of Parks, Recreation and Tourism, or SCPRT, to disclose information relevant to its defense.

Invoking Eleventh Amendment immunity, SCPRT filed a motion to quash the subpoena. The lower district court denied the motion.

Eleventh Amendment

The Eleventh Amendment provides that “the judicial power of the United States shall not be so construed as to extend to any suit in law or equity, brought or prosecuted against one of the United States by citizens of another State, or by the citizens or subjects of any foreign state.” This immunity extends not only to a state but also “to state agencies and other governmental instrumentalities properly designated as weapons of the state.”

Importantly, “the Eleventh Amendment bar to suit is not absolute.” What is significant here is that a state waives its Eleventh Amendment immunity when it “voluntarily invokes the jurisdiction of (a federal court).”

Merits

IN Lapides v. Board of Regents of the University System of Ga.535 U.S. 613 (2002), the Supreme Court has clearly held that a state waives its Eleventh Amendment immunity “when (its) attorney general, authorized … to bring a case in federal court, has voluntarily invoked the jurisdiction of that court.” That is exactly what happened here. The attorney general of South Carolina, who has unquestionable authority to bring a case on behalf of the state in federal court, invoked the jurisdiction of the federal court in intervening in an antitrust action against Google. That act, Lapides teaches, led to the state waiving its Eleventh Amendment immunity.

As an arm of the state, the SCPRT does not enjoy independent immunity. Rather, its immunity derives solely from the state, the sovereign, to which the immunity belongs. And if an arm of the state enjoys Eleventh Amendment immunity solely by virtue of its connection with the state, it necessarily follows that when the state waives its immunity, there remains no immunity that the arm can claim.

In simpler terms, an arm is a state, and a state is an arm. Accordingly, when a state waived its immunity by voluntarily joining the lawsuit against Google, it “nullified” any immunity defense that any of its arms, including SCPRT, could otherwise assert.

South Carolina’s legal proceedings in this case reflect a recognition of this fact. After Google’s unsuccessful attempts to obtain disclosure from the South Carolina Attorney General, it expressly supported Google’s alternative of serving Rule 45 subpoenas directly on state agencies holding the relevant records, including the SCPRT.

SCPRT emphasizes that under South Carolina law, the attorney general “does not represent” SCPRT—a separate state agency—or have custody or control of its records. But that claim rests on a false premise. According to Lapides, “whether a particular (state action) constitutes a waiver of state immunity under the Eleventh Amendment is a matter of federal law,” not state law.

So it doesn’t matter whether the attorney general “represents” the SCPRT or has custody of its documents. He represents the state. And in that role he has made the state a party to the action against Google, thereby invoking the jurisdiction of the federal court and waiving the state’s sovereign immunity. As a result of that unconditional waiver, there is no longer any immunity that the SCPRT can claim.

Confirmed.

In Re: South Carolina Department of Parks, Recreation and Tourism, Case No. 23-1849, June 5, 2024, 4th Cir. (Agee), DSC at Columbia (Anderson Jr.). Robert W. Humphrey II for Appellant. Jason R. LaFond for Appellant. 13 Pp.

—South Carolina Lawyers Weekly