Filed: For Publication
Filed: For Publication
FILED
FOR PUBLICATION JAN 04 2010
Plaintiffs - Appellees,
AMENDED OPINION
and
Plaintiff-intervenor,
v.
Defendants,
and
Defendant-intervenors -
Appellants.
Plaintiffs - Appellees,
and
Plaintiff-intervenors -
Appellees,
v.
ARNOLD SCHWARZENEGGER;
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Defendants,
and
Defendant-intervenors -
Appellants.
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same-sex couples filed this action in the district court alleging that Proposition 8
violates the Due Process and Equal Protection Clauses of the Fourteenth
Amendment. In two orders, the district court rejected Proponents’ claim of First
petitioned for a writ of mandamus directing the district court to grant a protective
issuance of a writ of mandamus. The freedom to associate with others for the
common advancement of political beliefs and ideas lies at the heart of the First
seeking such discovery must demonstrate a need for the information sufficient to
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outweigh the impact on those rights. Plaintiffs have not on the existing record
carried that burden in this case. We therefore grant Proponents’ petition and direct
the district court to enter an appropriate protective order consistent with this
opinion.
I. B ACKGROUND
measure providing that “[o]nly marriage between a man and a woman is valid or
recognized in California.” Cal. Const. art. I, § 7.5. The California Supreme Court
Horton, 207 P.3d 48, 63-64 (Cal. 2009). Plaintiffs, two same-sex couples
prohibited from marrying, filed this 42 U.S.C. § 1983 action alleging “that Prop. 8,
which denies gay and lesbian individuals the right to marry civilly and enter into
the same officially sanctioned family relationship with their loved ones as
animus against a politically unpopular group.” Id. ¶ 43. Defendants are a number
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Governor and the Attorney General. Id. ¶¶ 13-19. Plaintiffs seek declaratory and
to intervene as defendants.
messaging.
Amendment and unduly burdensome and filed a motion for a protective order.
They argued that their internal campaign communications, including draft versions
privileged under the First Amendment. They offered evidence that the disclosure
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the exchange of ideas within those campaigns. They asserted that the documents
plaintiffs sought were irrelevant to the issues in this case, and even if they were
relevant, the First Amendment interests at stake outweighed plaintiffs’ need for the
information.
Plaintiffs opposed the motion for protective order. They argued that their
They disputed Proponents’ contention that any of the documents requested were
privileged other than with respect to the names of rank-and-file members of the
In an October 1, 2009 order, the district court granted in part and denied in
part Proponents’ motion for a protective order. The court denied Proponents’
claims of privilege.1 The court also determined that plaintiffs’ request was
1
The district court also observed that Proponents had failed to produce a
privilege log required by Federal Rule of Civil Procedure 26(b)(5)(A)(ii). We
agree that some form of a privilege log is required and reject Proponents’
contention that producing any privilege log would impose an unconstitutional
(continued...)
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contemplated but not actually disseminated, could fairly readily lead to admissible
review, asserting that the documents were both irrelevant and privileged. In a
1
(...continued)
burden.
2
The court indicated that plaintiffs’ request was
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November 11, 2009 order following that review, the district court again rejected
Applying the usual discovery standards of Federal Rule of Civil Procedure 26, the
court determined that documents falling into the following categories were
review.
Proponents appealed from the October 1 and November 11 orders and, in the
a stay pending appeal. We now grant the petition for a writ of mandamus.
II. J URISDICTION
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Proponents contend that we have jurisdiction on two bases. First, they assert
that the district court’s orders are appealable under the collateral order doctrine.
While this appeal was pending, the Supreme Court decided Mohawk
Industries, Inc. v. Carpenter, 558 U.S. — (Dec. 8, 2009), holding that discovery
orders denying claims of attorney-client privilege are not appealable under the
collateral order doctrine. After Mohawk, it is uncertain whether the collateral order
as we shall explain. Ultimately, we do not resolve the question here. Given the
of a privilege. As this case falls within that small class of extraordinary cases, we
U.S.C. § 1291. Under the collateral order doctrine, a litigant may appeal “from a
narrow class of decisions that do not terminate the litigation, but must, in the
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Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (quoting
question, resolve an important issue completely separate from the merits of the
The first prong is easily satisfied in this case. Taken together, the October 1
and November 11 discovery orders conclusively determined the scope of the First
Amendment privilege. The district court concluded that the privilege does not
court, were not privileged. See United States v. Griffin, 440 F.3d 1138, 1141 (9th
Cir. 2006) (“[T]he district court’s order ‘conclusively determine[s] the disputed
Griffin and his wife for which the [marital communications] privilege had been
claimed.”).
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The second prong is also satisfied. The overall scope of the First
Amendment privilege is a question of law that is entirely separate from the merits
discovery requests has some overlap with merits-related issues, such as whether
review and whether plaintiffs may rely on certain types of evidence to prove that
Proposition 8 was enacted for an improper purpose. We need not, and do not,
delve into those questions in this appeal, however. We assume without deciding
that the district court’s rulings on those questions are correct. There is, therefore,
no “overlap” between the issues we must decide in this appeal and the “factual and
legal issues of the underlying dispute.” Van Cauwenberghe v. Biard, 486 U.S.
It is the third prong that poses the most difficult question. Under Mohawk,
the third prong turns on whether rulings on First Amendment privilege are, as a
delaying review until the entry of final judgment ‘would imperil a substantial
public interest’ or ‘some particular value of a high order.’” Mohawk, 558 U.S. at
—, slip op. 6 (quoting Will v. Hallock, 546 U.S. 345, 352-53 (2006)). In Mohawk,
the Court concluded that this prong was not satisfied with respect to the class of
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This was so because the typical ruling on the attorney-client privilege will involve
review until final judgment does not meaningfully reduce the ex ante incentives for
full and frank consultations between clients and counsel.” Id. There being no
discernible harm to the public interest, the remaining harm from an erroneous
material in the same way they remedy a host of other erroneous evidentiary
rulings: by vacating an adverse judgment and remanding for a new trial in which
the protected material and its fruits are excluded from evidence.” Id.
There are, however, several reasons the class of rulings involving the First
analysis from those involving the attorney-client privilege. First, this case
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the right is not dispositive of the collateral order inquiry, see, e.g., Flanagan v.
United States, 465 U.S. 259, 267-68 (1984), but it factors into our analysis.
Second, the public interest associated with this class of cases is of greater
372 U.S. 539, 557 (1963) (underscoring the substantial “deterrent and ‘chilling’
therefore, does not implicate significant “institutional costs.” Mohawk, 558 U.S.
—, slip op. at 11. Cf. id. (“Permitting parties to undertake successive, piecemeal
appeals of all adverse attorney-client rulings would unduly delay the resolution of
district court litigation and needlessly burden the Courts of Appeals.”). Finally, we
observe that Mohawk expressly reserved whether the collateral order doctrine
First Amendment privilege presents a close question. The distinctions between the
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chilling effect – are not insubstantial. Given our uncertainty about the availability
that discovery orders denying claims of First Amendment privilege are not
B. Mandamus
jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a). See Cheney v. U.S. Dist.
Court, 542 U.S. 367, 380 (2004); City of Las Vegas v. Foley, 747 F.2d 1294, 1296-
‘extraordinary’ causes.” Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist.
Court, 408 F.3d 1142, 1146 (9th Cir. 2005) (quoting Cheney, 542 U.S. at 380). In
Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977), we
given case: (1) whether the petitioner has no other means, such as a direct appeal,
to obtain the desired relief; (2) whether the petitioner will be damaged or
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prejudiced in any way not correctable on appeal; (3) whether the district court’s
order is clearly erroneous as a matter of law; (4) whether the district court’s order
is an oft repeated error or manifests a persistent disregard of the federal rules; and
(5) whether the district court’s order raises new and important problems or issues
departure for our analysis of the propriety of mandamus relief.” Admiral Ins. Co. v.
U.S. Dist. Court, 881 F.2d 1486, 1491 (9th Cir. 1989). “Not every factor need be
present at once.” Burlington, 408 F.3d at 1146. “However, the absence of the
Practice and Procedure § 3935.3 (2d ed. 2009) (hereinafter Wright & Miller).
Although “the courts of appeals cannot afford to become involved with the daily
otherwise might elude appellate review” or “to protect important or clear claims of
privilege.” Id.; see Mohawk, 558 U.S. —, slip op. 9 (“[L]itigants confronted with a
review apart from collateral order appeal. . . . [A] party may petition the court of
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(1964), for example, the Supreme Court relied on mandamus to answer the novel
question whether Federal Rule of Civil Procedure 35 authorized the physical and
mental examination of a defendant. “The opinion affords strong support for the
raises a novel and important question of power to compel discovery, or that reflects
substantial uncertainty and confusion in the district courts.” Wright & Miller
§ 3935.3.
the attorney-client privilege.” 881 F.2d at 1488. Taiwan v. United States District
Court, 128 F.3d 712 (9th Cir. 1997), likewise involved review of another issue of
first impression – the scope of testimonial immunity under the Taiwan Relations
Act. Id. at 714. Finally, in Foley, we exercised our mandamus authority to address
legislators can be deposed to determine their subjective motives for enacting a law
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28 U.S.C. §§ 1291, 1292(a)(1) and 1292(b). Foley, 747 F.2d at 1297; see also id.
(“Mandamus review has been held to be appropriate for discovery matters which
merits.”). In Admiral Insurance, for example, we held that the first Bauman factor
was satisfied because “the petitioner lacks an alternative avenue for relief.” 881
F.2d at 1488.
not provide an effective remedy, as “no such review could prevent the damage that
Cement Antitrust Litig., 688 F.2d 1297, 1302 (9th Cir. 1982); see Star Editorial,
Inc. v. U.S. Dist. Court, 7 F.3d 856, 859 (9th Cir. 1993) (“[I]f the district court
erred in compelling disclosure, any damage the [newspaper] suffered would not be
correctable on appeal.”); Admiral Ins., 881 F.2d at 1491 (holding that the second
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factor was satisfied in view of “the irreparable harm a party likely will suffer if
of whether they prevail at trial, this injury will not be remediable on appeal. See In
appeal could not provide a remedy for those injuries.”). If Proponents prevail at
trial, vindication of their rights will be not merely delayed but also entirely
precluded. See id. (“Moreover, whatever collateral injuries petitioners suffer will
have been incurred even if they prevail fully at trial and thus have no right to
Under the second factor, we also consider the substantial costs imposed on
the public interest. The district court applied an unduly narrow conception of First
oppose initiatives face the risk that they will be compelled to disclose their internal
campaign communications in civil discovery. This risk applies not only to the
official proponents of initiatives and referendums, but also to the myriad social,
ballot measures. The potential chilling effect on political participation and debate
is therefore substantial, even if the district court’s error were eventually corrected
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on appeal from final judgment. In this sense, our concerns in this case mirror those
we articulated in Foley, where the district court denied the city’s motion for a
protective order to prevent plaintiffs from deposing city officials about their
the possibility that if Proponents ultimately prevail in the district court, there would
Mohawk, 558 U.S. at —, slip op. at 6 (quoting Will, 546 U.S. at 352-53).
The third factor, clear error, is also met. As discussed below, we are firmly
convinced that the district court erred by limiting the First Amendment privilege to
Cement Antitrust Litig., 688 F.2d at 1306-07 (“[W]hen we are firmly convinced
that a district court has erred in deciding a question of law, we may hold that the
district court’s ruling is ‘clearly erroneous as a matter of law as that term is used in
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mandamus analysis.’”) (quoting Bauman, 557 F.2d at 660). “[Plaintiffs’] need for
information is only one facet of the problem.” Cheney, 542 U.S. at 385. A
range of sensitive material” protected by the First Amendment than would be true
in the normal discovery context. Id. at 381; see Foley, 747 F.2d at 1298-99. Thus,
“[a]n important factor weighing in the opposite direction is the burden imposed by
the discovery orders. This is not a routine discovery dispute.” Cheney, 542 U.S. at
385.
mandamus authority: we are faced with the need to resolve a significant question
a new context); Foley, 747 F.2d at 1296. As these cases – and the very existence
of the fifth Bauman factor, whether the issue presented is one of first impression –
illustrate, the necessary “clear error” factor does not require that the issue be one as
question may repeatedly evade review because of the collateral nature of the
discovery ruling. See In re Cement Antitrust Litig., 688 F.2d at 1304-05 (“[A]n
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under our supervisory mandamus authority. Moreover, that question may continue
to evade review in other cases as well.”); Colonial Times, Inc. v. Gasch, 509 F.2d
517, 524-26 (D.C. Cir. 1975) (exercising mandamus jurisdiction to correct an error
in a discovery order).
adequate, alternative means of review are unavailable; the harm to Proponents and
to the public interest is not correctable on appeal; the district court’s discovery
order is clearly erroneous; and it presents a significant issue of first impression that
may repeatedly evade review. As in Foley, a closely analogous case, these factors
“remove this case from the category of ordinary discovery orders where
Cheney, 542 U.S. at 381. Accordingly, we hold that the exercise of our
A.
3
We review de novo a determination of privilege. United States v. Ruehle,
583 F.3d 600, 606 (9th Cir. 2009) (attorney-client privilege).
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Alabama, 357 U.S. 449, 460 (1958); see also Roberts v. U.S. Jaycees, 468 U.S.
609, 622 (1984) (“An individual’s freedom to speak, to worship, and to petition the
government for the redress of grievances could not be vigorously protected from
toward those ends were not also guaranteed.”). Thus, “[t]he First Amendment
U.S. 1, 15 (1976), and the “freedom to associate with others for the common
Fourteenth Amendments.” Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973). “The
right to associate for expressive purposes is not, however, absolute.” Roberts, 468
freedoms.” Id.
“abridgement of such rights, even though unintended, may inevitably follow from
varied forms of governmental action.” NAACP, 357 U.S. at 461. Thus, the
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government must justify its actions not only when it imposes direct limitations on
associational rights, but also when governmental action “would have the practical
Id. (quoting Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 393 (1950)). Such
actions have a chilling effect on, and therefore infringe, the exercise of
chilling effect. See id. (“[W]e have repeatedly found that compelled disclosure, in
itself, can seriously infringe on privacy of association and belief guaranteed by the
First Amendment.”); AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) (“The
and activities that have a “deterrent effect on the exercise of First Amendment
4
See, e.g., NAACP, 357 U.S. at 461-64 (prohibiting the compelled disclosure
of the NAACP membership lists); Bates v. City of Little Rock, 361 U.S. 516, 525-
27 (1960) (same); DeGregory v. Attorney Gen., 383 U.S. 825, 828-30 (1966)
(prohibiting the state from compelling defendant to discuss his association with the
Communist Party); Buckley, 424 U.S. at 63-74 (recognizing the burden but
upholding the compelled disclosure of campaign contributor information under the
“exacting scrutiny” standard).
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rights” are therefore subject to this same “exacting scrutiny.” Buckley, 424 U.S. at
privilege. See, e.g., Black Panther Party v. Smith, 661 F.2d 1243, 1264 (D.C. Cir.
1981), cert. granted and vacated as moot, 458 U.S. 1118 (1982); see also Fed. R.
Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter
framework. The party asserting the privilege “must demonstrate . . . a ‘prima facie
Plumbers Int’l Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988) (quoting United
States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
5
This privilege applies to discovery orders “even if all of the litigants are
private entities.” Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987);
see also Adolph Coors Co. v. Wallace, 570 F. Supp. 202, 208 (N.D. Cal. 1983)
(“[A] private litigant is entitled to as much solicitude to its constitutional
guarantees of freedom of associational privacy when challenged by another private
party, as when challenged by a government body.”) (footnote omitted).
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suggest an impact on, or ‘chilling’ of, the members’ associational rights.” Id. at
350.6 “If appellants can make the necessary prima facie showing, the evidentiary
burden will then shift to the government . . . [to] demonstrate that the information
information.” Id.; see also Dole v. Serv. Employees Union, AFL-CIO, Local 280,
950 F.2d 1456, 1459-61 (9th Cir. 1991) (same). More specifically, the second step
associational rights available only after careful consideration of the need for such
discovery, but not necessarily to preclude it. The question is therefore whether the
6
A protective order limiting the dissemination of disclosed associational
information may mitigate the chilling effect and could weigh against a showing of
infringement. The mere assurance that private information will be narrowly rather
than broadly disseminated, however, is not dispositive. See Dole v. Serv.
Employees Union, AFL-CIO, Local 280, 950 F.2d 1456, 1461 (9th Cir. 1991)
(“[N]either letter suggests that it is the unlimited nature of the disclosure of the
Union minutes that underlies the member’s unwillingness to attend future
meetings. Rather, both letters exhibit a concern for the consequences that would
flow from any disclosure of the contents of the minutes to the government or any
government official.”).
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CIO v. FEC, 333 F.3d at 176, to determine whether the “interest in disclosure . . .
outweighs the harm,” Buckley, 424 U.S. at 72. This balancing may take into
account, for example, the importance of the litigation, see Dole, 950 F.2d at 1461
information sought to the issues in the case, see NAACP, 357 U.S. at 464-65;
Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987); Black Panther
Party, 661 F.2d at 1268; the existence of less intrusive means of obtaining the
information, see Grandbouche, 825 F.2d at 1466; Black Panther Party, 661 F.2d at
1268; and the substantiality of the First Amendment interests at stake, see Buckley,
424 U.S. at 71 (weighing the seriousness of “the threat to the exercise of First
Amendment rights” against the substantiality of the state’s interest); Black Panther
Party, 661 F.2d at 1267 (“The argument in favor of upholding the claim of
privilege will ordinarily grow stronger as the danger to rights of expression and
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association increases.”).7 Importantly, the party seeking the discovery must show
that the information sought is highly relevant to the claims or defenses in the
litigation – a more demanding standard of relevance than that under Federal Rule
of Civil Procedure 26(b)(1). The request must also be carefully tailored to avoid
otherwise unavailable.
address the district court’s apparent conclusion that the First Amendment privilege,
communications.
B.
similarly situated individuals,” and said that “Proponents have not . . . identified a
7
Courts generally apply some combination of these factors. See, e.g., In re
Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. 407, 412-15 (D. Kan.
2009); Adolph Coors Co., 570 F. Supp. at 208.
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DeGregory, 383 U.S. at 828 (applying the privilege to “the views expressed and
ideas advocated” at political party meetings); Dole, 950 F.2d at 1459 (applying
privilege to statements “of a highly sensitive and political character” made at union
membership meetings). The existence of a prima facie case turns not on the type
deterrent effect on the exercise of protected activities. See NAACP, 357 U.S. at
460-61; Brock, 860 F.2d at 349-50. We have little difficulty concluding that
a protected activity. See San Francisco County Democratic Cent. Comm. v. Eu,
826 F.2d 814, 827 (9th Cir. 1987) (“‘[T]he right of individuals to associate for the
can deter that participation. See Buckley, 424 U.S. at 68 (“It is undoubtedly true
that public disclosure of contributions to candidates and political parties will deter
Temperature Sales Practices Litig., 258 F.R.D. 407, 414 (D. Kan. 2009) (holding
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effect on the free flow of information within campaigns. Implicit in the right to
associate with others to advance one’s shared political beliefs is the right to
8
In addition to discouraging individuals from joining campaigns, the threat
that internal campaign communications will be disclosed in civil litigation can
discourage organizations from joining the public debate over an initiative. See
Letter brief of Amicus Curiae American Civil Liberties Union of Northern
California, at 2 (explaining that the ACLU’s internal campaign information has
been subpoenaed in this case).
9
We derive this conclusion from cases that have recognized the right of
associations to be free of infringements in their internal affairs. The freedom of
members of a political association to deliberate internally over strategy and
messaging is an incident of associational autonomy. We recognized this right in
San Francisco County Democratic Central Committee v. Eu, where we said that
“the right of association would be hollow without a corollary right of
self-governance.” 826 F.2d at 827. “[T]here must be a right not only to form
political associations but to organize and direct them in the way that will make
them most effective.” Id. (quoting Ripon Soc’y Inc. v. Nat’l Republican Party, 525
F.2d 567, 585 (D.C. Cir. 1975) (en banc)) (internal quotation marks omitted); see
also Tashjian v. Republican Party of Conn., 479 U.S. 208, 224 (1986) (“The
Party’s determination of the boundaries of its own association, and of the structure
which best allows it to pursue its political goals, is protected by the Constitution.”);
(continued...)
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of these rights.
muting the internal exchange of ideas – we do not suggest this is an exhaustive list.
Disclosures of the sort challenged here could chill protected activities in other
9
(...continued)
Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 231 n.21
(1989) (“By regulating the identity of the parties’ leaders, the challenged statutes
may also color the parties’ message and interfere with the parties’ decisions as to
the best means to promote that message.”). The government may not “interfere
with a [political] party’s internal affairs” absent a “compelling state interest.” Eu,
489 U.S. at 231. Associations, no less than individuals, have the right to shape
their own messages. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342,
348 (1995) (striking down a state law prohibiting anonymous pamphleteering in
part because the First Amendment includes a speaker’s right to choose a manner of
expression that she believes will be most persuasive); AFL-CIO v. FEC, 333 F.3d
at 177 (“[E]xtensive interference with political groups’ internal operations and
with their effectiveness . . . implicate[s] significant First Amendment interests in
associational autonomy.”).
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ways as well.10 We cite these two examples for purposes of illustration only, and
because they are relevant to the assertions of privilege made by Proponents here.
C.
In this case, Proponents have made “a ‘prima facie showing of arguable first
suggest an impact on, or ‘chilling’ of, . . . associational rights.” Brock, 860 F.2d at
349-50 (quoting Trader’s State Bank, 695 F.2d at 1133). They presented
10
See AFL-CIO v. FEC, 333 F.3d at 176-77 (“[T]he AFL-CIO and DNC
affidavits charge that disclosing detailed descriptions of training programs,
member mobilization campaigns, polling data, and state-by-state strategies will
directly frustrate the organizations’ ability to pursue their political goals effectively
by revealing to their opponents ‘activities, strategies and tactics [that] we have
pursued in subsequent elections and will likely follow in the future.’”); In re Motor
Fuel Temperature Sales Practices Litig., 258 F.R.D. at 415 (“Disclosure of the
associations’ evaluations of possible lobbying and legislative strategy certainly
could be used by plaintiffs to gain an unfair advantage over defendants in the
political arena.”).
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creates a reasonable inference that disclosure would have the practical effects of
Dole, 950 F.2d at 1459-61 (holding that the union satisfied its prima facie burden
by submitting the declarations of two members who said they would no longer
Proponents have therefore made a prima facie showing that disclosure could have a
chilling effect on protected activities. The chilling effect is not as serious as that
involved in cases such as NAACP v. Alabama, 357 U.S. 449 (1958), but neither is
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it insubstantial. See AFL-CIO v. FEC, 333 F.3d at 176 (“Although we agree that
the evidence in this case is far less compelling than the evidence presented in cases
reprisals, and police or private harassment, that difference speaks to the strength of
the First Amendment interests asserted, not to their existence.”) (citations omitted).
evidentiary burden shifts to the plaintiffs to demonstrate a sufficient need for the
discovery to counterbalance that infringement. The district court did not apply this
heightened relevance test. Rather, having determined that the First Amendment
except to protect the identities of rank-and-file members and volunteers, the court
admissible evidence. We agree with the district court that plaintiffs’ request
the discovery of admissible evidence on the issues of voter intent and the existence
11
The parties dispute whether plaintiffs’ substantive claims are governed by
strict scrutiny or rational basis review. They also disagree about what types of
evidence may be relied upon to demonstrate voter intent. These issues are beyond
the scope of this appeal. We assume without deciding that the district court has
(continued...)
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actually conveyed to voters. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S.
purpose). It also might lead to the discovery of evidence showing that Proponents’
campaign messages were designed to “appeal[] to the . . . biases of the voters.” Id.
at 463 (quoting Seattle Sch. Dist. No. 1 v. Washington, 473 F. Supp. 996, 1009
state interests. See Romer v. Evans, 517 U.S. 620, 635 (1996) (“[A] law must bear
The Rule 26 standard, however, fails to give sufficient weight to the First
relevance standard. Doing so, we cannot agree that plaintiffs have “demonstrated
of association.” NAACP, 357 U.S. at 463. Plaintiffs can obtain much of the
11
(...continued)
decided these questions correctly.
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information they seek from other sources, without intruding on protected activities.
12
We emphasize that our holding is limited to private, internal campaign
communications concerning the formulation of campaign strategy and messages.
See In re Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. at 415 (“The
court wishes to make clear that defendants have met their prima facie burden only
with respect to the associations’ internal evaluations of lobbying and legislation,
strategic planning related to advocacy of their members’ positions, and actual
lobbying on behalf of members. Any other communications to, from, or within
trade associations are not deemed protected under the First Amendment
associational privilege.”).
Our holding is therefore limited to communications among the core group of
persons engaged in the formulation of campaign strategy and messages. We leave
it to the district court, which is best acquainted with the facts of this case and the
structure of the “Yes on 8” campaign, to determine the persons who logically
should be included in light of the First Amendment associational interests the
privilege is intended to protect.
Our holding is also limited to private, internal communications regarding
formulation of strategy and messages. It certainly does not apply to documents or
messages conveyed to the electorate at large, discrete groups of voters or
individual voters for purposes such as persuasion, recruitment or motivation –
activities beyond the formulation of strategy and messages. Similarly,
communications soliciting active support from actual or potential Proposition 8
supporters are unrelated to the formulation of strategy and messages. The district
court may require the parties to redact the names of individuals with respect to
these sorts of communications, but the contents of such communications are not
privileged under our holding.
By way of illustration, plaintiffs produced at oral argument a letter from Bill
Tam, one of Proposition 8’s official proponents, urging “friends” to “really work to
pass Prop 8.” A copy of the letter is appended to this opinion. Mr. Tam’s letter is
(continued...)
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expert testimony, without intruding into private aspects of the campaign. Whether
an objective inquiry.
In sum, although the First Amendment interests at stake here are not as
weighty as in some of the membership list cases, and harms can be mitigated in
part by entry of a protective order, Proponents have shown that discovery would
likely have a chilling effect on political association and the formulation of political
expression. On the other side of the ledger, plaintiffs have shown that the
admissible evidence, but, bearing in mind other sources of information, they have
not shown a sufficient need for the information. The information plaintiffs seek is
attenuated from the issue of voter intent, while the intrusion on First Amendment
interests is substantial.13
12
(...continued)
plainly not a private, internal formulation of strategy or message and is thus far
afield from the kinds of communications the First Amendment privilege protects.
13
We do not foreclose the possibility that some of Proponents’ internal
campaign communications may be discoverable. We are not presented here with a
carefully tailored request for the production of highly relevant information that is
unavailable from other sources that do not implicate First Amendment
(continued...)
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made a prima facie showing of infringement. Plaintiffs have not shown the
requisite need for the information sought. The district court shall enter a protective
13
(...continued)
associational interests. We express no opinion as to whether any particular request
would override the First Amendment interests at stake.
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Counsel
Robert H. Tyler and Jennifer Lynn Monk, Advocates for Faith and Freedom,
Murrieta, California, for Amici Curiae Schubert Flint Public Affairs, Inc., Frank
Schubert and Jeff Flint.
39