The First Amendment Privilege Against Discovery by the Government

Plaintiffs, Veterans Guardian, invoked a First Amendment privilege in an effort to preclude discovery by Defendant Davenport who was sued in her official capacity as Attorney General of New Jersey.  The court ordered production of the documents.

Plaintiffs asserted that 21 documents were protected because:

each contain “internal legislative analysis,” “draft advocacy-related communications,” and/or “internal policy analysis and strategic deliberations concerning pending legislation,” … that reveal “Veterans Guardian’s internal processes for formulating policy positions, coordinating advocacy efforts, and engaging with the legislative process … in furtherance of the Company’s rights to petition the government and to associate with others.” … Plaintiffs further assert that compelled disclosure of these documents would chill future association and petition activity, harms that a confidentiality order cannot prevent.

Id. at *1 (cleaned up).  Defendant objected:

arguing that there is no First Amendment privilege for “internal legislative analysis” or “draft advocacy documents”; that there is no First Amendment right to refuse to provide evidence in a case a plaintiff has chosen to bring; and that the First Amendment privilege is not applicable in discovery, much less in discovery governed by confidentiality order…. Defendant further submits that even if the First Amendment privilege could apply in these circumstances, plaintiffs have failed to provide  any factual basis that could support a prima facie showing that these documents are properly subject to any privilege…. Accordingly, defendant submits that plaintiffs must produce the documents at issue, or, at the very least, provide sufficient information about them to allow defendant to properly assess the asserted privilege.

Id. (cleaned up).

The court ruled after a telephone conference and in camera review:

The First Amendment includes a right to associate…. Relevant here, that right protects individuals’ and organizations’ expressive association, or association for the purpose of engaging in activities protected by the First Amendment…. When state action directly affects a group’s expressive associational activities, the state must show a compelling interest that justifies the level of the burden imposed on the groups’ expression…. Discovery requests by a government litigant represent state action that, in some circumstances, can impermissibly infringe an organization’s associational activities…. When a party in litigation invokes the First Amendment privilege to withhold otherwise-discoverable materials on that basis, the party opposing discovery must show that enforcement of the discovery request will result in consequences which objectively suggest a ‘chilling’ impact on associational rights…. This prima facie showing requires appellants to demonstrate that enforcement of the discovery requests will result in (1) harassment, membership withdrawal, or discouragement of new members, or (2) other consequences which objectively suggest an impact on, or chilling of, the members’ associational rights.

Id. (emphasis added; cleaned up). If the party invoking the privilege makes a prima facie showing of chilling, the burden shifts to the government to show a compelling need for the information.

The court held that, while the privilege typically applies to materials such as membership lists, it may extend to an organization’s internal deliberations and communications.  Id. at *3.  Further, it rejected the argument that filing suit is a categorical waiver. Id.

However, on the facts presented the court held that Plaintiffs failed to meet their burden of proof.  Specifically, it wrote that Plaintiffs have “offered no facts to suggest that disclosure of the materials would chill association rights.”  Their conclusory assertion, unsupported by evidence, failed.  “Simply saying it does not make it so….  Moreover, on its independent review of the materials in camera, the Court is not persuaded that compelling their disclosure in these circumstances will in fact chill Veterans Guardian’s associational rights.” Id. at *3.

This blog was initially posted on  Electronic Discovery Reference Model