First Amendment Privilege Against Discovery

From In re Motor Fuel Temperature Sales Pracs. Litig., 2010 U.S. Dist. LEXIS 19752 (D. Kan. Mar. 4, 2010):

In the first motion, plaintiffs sought information and documents from certain defendants relating to their communications with trade associations, weights and measures organizations and government agencies. *** Defendants objected that producing the information would infringe their First Amendment right to freely associate to pursue political, social and economic ends. ***

In the second motion, plaintiffs sought documents from the Petroleum Marketers and Convenience Store Association of Kansas ("PMCA-KS"), a non-party trade association of petroleum distributors, retailers and convenience stores in Kansas, regarding — among other things — its membership, financial contributors and lobbying and strategy efforts concerning ATC for retail motor fuel. *** Various defendants who are members of that organization objected that producing the documents would infringe their First Amendment rights to free speech and freedom to associate to pursue political, social and economic ends. ***

In the third motion, defendants sought to quash subpoenas which plaintiffs had issued to the California Independent Oil Marketers Association ("CIOMA"), the Petroleum Marketers Association of America ("PMAA"), the Association for Convenience and Petroleum Retailing ("NACS"), NATSO, Inc. and the Society of Independent Gasoline Marketers of America ("SIGMA"), all of which are non-party trade associations of petroleum distributors, retailers, truck stop operators and/or convenience store owners. *** The subpoenas sought documents regarding — among other things — trade association membership, financial contributors and lobbying and strategy efforts concerning ATC for retail motor fuel. *** Various defendants who are members of those organizations asserted that the subpoenas violated their First Amendment right to associate and that under Noerr-Pennington, the documents were inadmissible and therefore irrelevant. ***

The United States Constitution guarantees a right to associate to engage in activities which the First Amendment protects, including speech, assembly, petition for the redress of grievances and the exercise of religion. *** These First Amendment protections apply in the context of discovery orders. *** Specifically, the Supreme Court has recognized that in the context of discovery, the First Amendment creates a qualified privilege from disclosure of certain associational information. See NAACP, 357 U.S. at 462. The privilege is not absolute. See Buckley v. Valeo, 424 U.S. 1, 65-66 (1976) (per curiam); Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir. 2010). In evaluating claims of associational privilege in the discovery context, the Court applies a burden-shifting analysis. *** First, the parties asserting the privilege must make a prima facie showing that the privilege applies. *** To make this showing, defendants must demonstrate an objectively reasonable probability that compelled disclosure will chill associational rights, i.e. that disclosure will deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members' physical well-being, political activities or economic interests. *** If defendants make a prima facie showing, the burden shifts to plaintiffs to demonstrate a compelling need for the requested information.... In the Tenth Circuit, to determine whether plaintiffs have a compelling need, the Court considers the following factors: (1) the relevance of the information sought; (2) plaintiffs' need for the information; (3) whether the information is available from other sources; (4) the nature of the information sought; and (5) whether defendants have placed the information in issue. *** After examining these factors, the Court determines "whether the privilege must be overborne by the need for the requested information." ***

Perry and Glaxosmithkline are consistent with the weight of authority which requires that a party seeking First Amendment association privilege demonstrate an objectively reasonable probability that disclosure will chill associational rights, i.e. that disclosure will deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members' physical well-being, political activities or economic interests. *** Although some cases may support a presumptive privilege regarding group membership and financial contributor information, *** only one case — Judge Bostwick's opinion in Heartland — has even arguably presumed prima facie privilege with regard to trade association internal lobbying and legislative activities. The Supreme Court has cautioned that an evidentiary privilege should be strictly construed and accepted only to the very limited extent that excluding relevant evidence "has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." *** In light of this policy and established weight of authority, Judge O'Hara's decision would be contrary to law if it presumed that internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel are prima facie privileged under the First Amendment.

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