STEPHAN M. VIDMAR, Magistrate Judge.
THIS MATTER is before the Court on Plaintiffs' Motion to Compel Defendant Corwin to Respond without Objection to Plaintiffs' First Set of Interrogatories and Requests for Production [Doc. 435], filed on April 15, 2016, and on Plaintiffs' Motion to Compel Defendant Wetherbee to Respond without Objection to Plaintiffs' First Set and Second Sets of Interrogatories, First and Second Sets of Requests for Production, and First Set of Requests for Admissions Propounded by Plaintiffs [Doc. 438], filed on April 15, 2016. Plaintiffs filed an Errata as to the Motion to Compel Corwin [Doc. 447] on April 25, 2016. Defendants Corwin and Wetherbee responded to their respective motions on April 25, 2016. [Docs. 449, 450]. They also joined in each other's responses on April 26, 2016. [Docs. 451, 452]. Plaintiffs replied on May 2, 2016. [Doc. 460, 462]. The Court heard oral argument on May 9, 2016. See [Doc. 476]. On review of the relevant briefing, argument, record, and law, and being otherwise fully advised in the premises, the Court will
This case is about stolen emails. In mid-2009, a supporter of Susana Martinez's Republican gubernatorial campaign purchased the internet domain name susana2010.com from a domain registrar and web hosting company, then donated the domain name to the campaign. Plaintiffs Brian Moore and Kim Ronquillo were each assigned an email address under that domain name. Plaintiffs Crystal Amaya and Brad Cates at some point sent emails to individuals with email addresses at that domain.
As Martinez's campaign manager, Defendant Jamie Estrada was provided the credentials for managing the domain. However, Estrada was fired sometime in December 2009. The following November, Martinez won the campaign and was elected Governor of New Mexico. But even after the election was over, Plaintiffs continued to send emails to or from the susana2010.com email addresses.
Between July 2011 and June 2012, Defendant Estrada intercepted hundreds of emails sent to or from addresses at the susana2010.com domain, leaving the senders and recipients unaware that the messages had been intercepted. Defendant Estrada
Based on those factual allegations, one cause of action remains against Defendants Corwin and Wetherbee. It is brought pursuant to 18 U.S.C. § 2520(a), which provides for recovery of civil damages for anyone whose electronic communications have been "intercepted, disclosed, or intentionally used" in violation of the Federal Wiretap Act, 18 U.S.C. § 2511(1)(c), (d).
The proper scope of discovery is "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]" Fed. R. Civ. P. 26(b)(1). The Federal Rules of Evidence define relevance as having "any tendency to make a fact more or less probable than it would be without the evidence," where "the fact is of consequence in determining the action." Fed. R. Evid. 401. Courts have held that the scope of discovery under the federal rules is broad. See Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995); Sanchez v. Matta, 229 F.R.D. 649, 654 (D.N.M. 2004) ("The federal courts have held that the scope of discovery should be broadly and liberally construed to achieve full disclosure of all potentially relevant information."). The federal discovery rules reflect the courts' and Congress's recognition that mutual knowledge of all the relevant facts gathered by all parties is essential to proper litigation. Hickman v. Taylor, 329 U.S. 495, 507 (1947). As a result, Rule 26 "contemplates discovery into any matter that bears on or that reasonably could lead to other matter[s] that could bear on any issue that is or may be raised in a case." Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 649 (D.N.M. 2007) (alteration in original) (internal quotation marks omitted).
A district court, however, is not "required to permit [a party] to engage in a `fishing expedition' in the hope of supporting his claim." McGee v. Hayes, 2002 WL 1608456, 43 F. App'x 214, 217 (10th Cir. July 22, 2002) (unpublished); see Tottenham v. Trans World Gaming Corp., No. 00 Civ. 7697(WK), 2002 WL 1967023, at *2 (S.D.N.Y. June 21, 2002) (unpublished) ("Discovery, however, is not intended to be a fishing expedition, but rather is meant to allow the parties to flesh out allegations for which they initially have at least a modicum of objective support." (internal quotation marks omitted)); Hardrick v. Legal Servs. Corp., 96 F.R.D. 617, 618 (D.D.C. 1983) (noting that courts do, and should, remain "concerned about fishing expeditions, discovery abuse[,] and inordinate expense involved in overbroad and far-ranging discovery requests" (internal quotation marks omitted)). "[B]road discovery is not without limits[,] and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant." Gomez, 50 F.3d at 1520 (internal quotation marks omitted).
Courts have recognized that, while it is true that relevance in discovery is broader than that required for admissibility at trial, "the object of inquiry must have some evidentiary value before an order to compel disclosure of otherwise inadmissible material will issue." Zenith Elec. Corp. v. Exzec, Inc., No. 93 C 5041, 1998 WL 9181, at *2 (N.D. Ill. Jan. 5, 1998) (unpublished) (internal quotation marks omitted). Courts have also "recognized that [t]he legal tenet that relevancy in the discovery context is broader than in the context of admissibility should not be misapplied so as to allow fishing expeditions in discovery." Id. (alteration in original) (internal quotation marks omitted).
The party claiming a privilege always bears the initial burden of establishing the factual predicate for the privilege. See, e.g., Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984) ("A party seeking to assert a privilege must make a clear showing that it applies."). This traditional allocation of burdens is not dispensed with simply because the claimed privilege implicates the First Amendment and the right of association. In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470, 488 (10th Cir. 2011).
Plaintiffs request that Defendants Corwin and Wetherbee identify everyone with whom they communicated about the @susana2010.com domain and/or emails and produce any and all documents that relate to those communications.
The information sought by Plaintiffs is relevant and, under the circumstances here, is not privileged—except as to Wetherbee's confidential sources. Corwin's and Wetherbee's objections will be overruled, except as to Wetherbee's objection to protect his confidential sources. Corwin and Wetherbee must each supplement his discovery responses no later than
Both Defendant Corwin and Defendant Wetherbee have vacillated on whether the information sought is relevant. Compare [Doc. 462-2] at 3-6, and [Doc. 462-1] at 4-5, and [Doc. 449] at 7-8 (Corwin arguing that it is not relevant), with [Doc. 449] at 7 (Corwin conceding that it is relevant), and compare [Docs. 438-1 through 438-5] (Wetherbee arguing that it is not relevant), with Tr. of May 9, 2016 hearing at 91:6-92:9 (Wetherbee essentially conceding that at least some of it is relevant). Plaintiffs' relevance arguments are persuasive. See Plaintiffs' Reply to Motion to Compel Corwin [Doc. 462] at 3-7; Plaintiffs' Reply to Motion to Compel Wetherbee [Doc. 460] at 2-7. The Court finds that the information sought is relevant. The issues in this lawsuit are:
[Doc. 400] at 6-7. Accordingly, Defendants Corwin and Wetherbee's communications with others regarding the @susana2010.com domain and/or emails is relevant to Plaintiffs' claims and Defendants' defenses, especially Defendants Corwin and Wetherbee's defenses. For example, this information may shed light on whether these (or other) Defendants believed that the emails were stolen and whether each believed that Plaintiffs' emails in particular were stolen or contained matters of public concern. This bears on Plaintiffs' claims for statutory and punitive damages and on Defendants' defenses. Thus, the objections based on relevance are overruled.
Defendants Corwin and Wetherbee claim that their communications with each other and with other journalists about the domain and/or the emails (and any materials evidencing those communications) is privileged under the First Amendment because they are journalists. In other words, they claim that evidence of their "editorial process" is privileged. The Court disagrees.
Plaintiffs must be able to obtain discovery into these communications if they are to maintain their claims for statutory and punitive damages and be able to respond to Defendants' defenses. Therefore, the Court finds that no privilege protects the editorial process. The qualified newsperson's privilege, however, should protect Defendant Wetherbee's confidential sources. Because Defendant Corwin is not protecting any source, the qualified newsperson's privilege does not apply to him. Further, the qualified associational privilege is not applicable here because neither Corwin nor Wetherbee plausibly alleges—much less presents evidence to show—that permitting the disputed discovery risks chilling associations. Finally, Defendants Corwin and Wetherbee have maintained unjustified positions in resisting this discovery. Therefore, they will be ordered to pay Plaintiffs' reasonable expenses.
Defendants Corwin and Wetherbee argue that their communications with each other and with anyone else they believe to be a journalist are privileged under the First Amendment. Corwin's Response [Doc. 449] at 5; Wetherbee's Response [Doc. 450] at 9. This issue has been most commonly litigated in the context of defamation. The seminal case is Herbert v. Lando, 441 U.S. 153, 169 (1979).
In Herbert, a retired Army officer sued journalists who had broadcast and published (allegedly untruthful) reports that he had fabricated a war-crimes whistleblowing story to attempt to explain his own relief from command. Id. at 155-56. Mr. Herbert sought discovery into, inter alia, communications among the journalist defendants and their conclusions based on those communications. Id. at 158 n.2. That is, he sought discovery into the "editorial process" utilized by the journalist defendants in investigating and developing their (allegedly untruthful) reports. Id.
The journalists argued their editorial process should be shielded from discovery in order to avoid "an intolerable chilling effect on the editorial process and editorial decisionmaking." Id. at 171. They urged that "frank discussions among reporters and editors [would] be dampened and sound editorial judgment endangered if such exchanges, oral or written, [were] subject to inquiry by defamation plaintiffs." Id. at 173. The Court was not persuaded.
The Court dismissed the journalist defendants' argument about the potential chilling effect of allowing discovery into the editorial process. Id. at 171-74. The Court indicated that any chilling effect of allowing discovery would be "inhibition flow[ing] from fear of damages liability for publishing knowing or reckless falsehoods, [which would be] consistent with the First Amendment." Id. at 171. The Court rejected the argument that allowing discovery would suppress truthful information or cause undue self-censorship. Id. at 171-74.
Additionally and importantly, the Court held that disallowing discovery into the editorial process would effectively foreclose any liability for defamation by journalists. Defamation requires evidence of some version of malice, that is, knowingly publishing falsehoods about a plaintiff. Without allowing defamation plaintiffs to obtain discovery to prove this essential element of their claim, liability for defamation would be completely barred. Id. at 160. Thus, the Court held that defamation plaintiffs should be allowed discovery to prove the elements of their claims and also to prove the requisite state of mind for punitive damages. See id. at 161-63.
This case, of course, is not a defamation case, but it is persuasively similar. In both situations, the journalist is the defendant accused of wrongdoing, not an undisputedly innocent third party. In both situations, the plaintiff must have access to the editorial process in order to prove that the journalist defendant's conduct was intentional (or with some level of knowledge, depending on the precise defamation statute). See 18 U.S.C. § 2511 (requiring intentional conduct). In both situations, an adequate showing of knowing conduct could trigger punitive damages.
Neither Corwin nor Wetherbee has cited any authority recognizing a privilege for the editorial processes of journalists who are themselves defendants in civil cases. Nor has the Court found any. See Solarex Corp. v. Arco Solar, Inc., 121 F.R.D. 163, 172 (E.D.N.Y. 1988) ("There is a difference when the discovery is sought from a defendant newsperson versus when it is sought from a non-party newsperson.").
Rather (absent circumstances that have not been briefed and that are not present there), there is no First Amendment privilege for editorial process. Id. at 169; Broker's Choice of Amer., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1141 (10th Cir. 2006). On that basis, Defendants Corwin and Wetherbee's objections should be overruled, and the Plaintiffs' Motions to Compel should be granted (at least as to communications among Corwin, Wetherbee, and any other person they consider be a journalist).
Defendants Corwin and Wetherbee object to producing material related to their communications with members of the press under the First Amendment and the "qualified newsperson's privilege." Corwin's Response [Doc. 449] at 4 (citing Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977)); Wetherbee's Response [Doc. 450] at 9 (citing Silkwood, 563 F.2d 433).
The First Amendment right to gather and disseminate news affords no absolute privilege against the revelation of news sources or the disclosure of confidential information. Branzburg v. Hayes, 408 U.S. 665, 695 (1972). In Branzburg, a newsperson wanted to avoid altogether a grand jury subpoena. He reasoned that "if [newspersons are] forced to respond to subpoenas and identify their sources or disclose other confidences, informants will refuse or be reluctant to furnish newsworthy information in the future." Id. at 682. Ultimately, the Court held that newspersons enjoy no absolute privilege and ordered the reporter to testify. Id. at 708-09.
Numerous courts, including the Tenth Circuit, have read Branzburg and its progeny as recognizing a qualified newsperson's privilege. Re/Max Int'l, Inc. v. Century 21 Real Estate Corp., 846 F.Supp. 910, 911 (D. Colo. 1994) (collecting cases). The cases acknowledge the competing public interests, namely the "public interest in non-disclosure of a journalist's confidential sources [and] the public and private interest in compelled testimony [in civil litigation]. Central to [this] analysis [is the] concern that the deterrent effect of such disclosure is likely to have upon future `undercover' investigative reporting threatens freedom of the press and the public's need to be informed." Von Bulow v. Von Bulow, 811 F.2d 136, 142-43 (2d Cir. 1987) (internal quotation marks and ellipses omitted).
This qualified privilege is not limited to the obvious (i.e., revealing the identity of a confidential source
The Tenth Circuit has identified a framework for such weighing. "Among the factors that the Court must consider are
At the outset, the Court notes that Defendants' briefing includes no allegation whatsoever—much less any evidence suggesting—that requiring them to respond to Plaintiffs' discovery requests would chill their (or anyone else's) First Amendment right to gather news. This is, after all, the purpose of recognizing a qualified newsperson's privilege. Because neither Defendant makes a showing (or a non-conclusory factual allegation) of a chill, the Court finds that they are not entitled to any protection that the qualified newsperson's privilege might otherwise afford.
Even if Corwin and/or Wetherbee had made such a showing, however, weighing the Grandbouche factors (which the Court addresses in order of analytical convenience) would not change the outcome. First, as to the first factor, the information sought by Plaintiffs is highly relevant to their claims and to Defendant Corwin's defenses. Corwin's and Wetherbee's communications with others regarding the @susana2010.com domain and/or emails may shed light on whether they knew (or believed) that the emails were stolen or whether they addressed matters of public concern. These beliefs bear on Plaintiffs' claims for statutory and punitive damages and on the law-enforcement and Bartnicki defenses. The information sought goes to the heart of the case and weighs in favor of compelled disclosure.
Next, as to the third factor, Plaintiffs fail to show that they have attempted to obtain the information elsewhere, but they argue that to do so would be futile either because the information is available exclusively from Corwin and/or Wetherbee, or because the only other source of information would be other newspersons who will presumably assert their own newsperson's privilege. Motion to Compel Corwin [Doc. 435] at 19; Motion to Compel Wetherbee [Doc. 438] at 18. Defendant Corwin concedes Plaintiffs' points and expressly argues that the information should be absolutely privileged "whether from Mr. Corwin or from the reporters." Corwin's Response [Doc. 449] at 7. Wetherbee does not argue otherwise. See Wetherbee's Response [Doc. 450]. This factor, therefore, weighs in favor of compelled disclosure because the information is not available other than from Defendants Corwin and Wetherbee.
As to the second factor, the information sought is necessary for just litigation of Plaintiffs' claims, and especially for Plaintiffs to respond to Defendants Corwin and Wetherbee's defenses. This is so because of the critically relevant nature of the information, and because it cannot be obtained any other way.
Then, as to the fourth factor, the disputed information includes the identities of the newspersons with whom Defendants Corwin and Wetherbee communicated about the @susana2010.com domain and/or emails and the production of any and all documents that relate to those communications. See [Docs. 435, 438]. Corwin and Wetherbee, the proponents of the privilege, are themselves Defendants. Although it is not dispositive, the fact that they are Defendants, who are accused of wrongdoing, rather than undisputedly innocent non-parties (like the journalists in Branzburg and Silkwood), is also relevant to the Grandbouche calculus.
Additionally, the Court has carefully considered other factors that are relevant in this particular case. For example, on the one hand, the violations alleged by Plaintiffs are serious infringements on their privacy. On the other hand, they seek only statutory damages; actual damages are not in play. Finally, Defendant Corwin acknowledges that he is not attempting to protect any confidential source, and he gives no other specific reason why he needs to keep the information private. That is, he utterly fails to explain how requiring him to produce the information would chill the freedom of the press. Accordingly, Corwin is not entitled to the qualified newsperson's privilege.
However, Defendant Wetherbee maintains that he continues to protect confidential sources of government corruption. [Doc. 450] at 5. Under the narrow, complicated, and unusual circumstances of this case, on balance, Wetherbee is entitled to a limited qualified newsperson's privilege but only to protect his confidential sources.
Defendants Corwin and Wetherbee also object to producing material related to their communications with each other and other members of the press because they argue that such information is protected by the First Amendment under the "qualified associational privilege."
Id. at 8-9 (emphasis added). Defendant Corwin argues that the "information is privileged whether from Mr. Corwin or from the reporters." Id. at 7. He argues the associational privilege is the "flipside" of the newsperson's privilege. Id.
As an initial matter, Defendant Corwin has offered zero authority for his position that there is any "flipside" of the newsperson's privilege. The Supreme Court has suggested otherwise. See Branzburg v. Hayes, 408 U.S. 665, 695 (U.S. 1972) ("We note first that the privilege claimed is that of the reporter, not the informant, and that if the authorities independently identify the informant, neither his own reluctance to testify nor the objection of the newsman would shield him from grand jury inquiry, whatever the impact on the flow of news or on his future usefulness as a secret source of information.").
Returning to the associational privilege, however, the Supreme Court has long "acknowledged the importance of freedom of association in guaranteeing the right of people to make their voices heard on public issues." Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 295 (1981). Indeed, the right of association guaranteed by the First Amendment is premised in part on the notion that some ideas will only be expressed through collective efforts. See id. at 294 ("[B]y collective effort individuals can make their views known, when, individually, their voices would be faint or lost."). Moreover, some collective efforts to express ideas will only be undertaken if they can be undertaken in private. See NAACP v. Alabama, 357 U.S. 449, 462 (1958) ("Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs."). Therefore, the Supreme Court has recognized a privilege, grounded in the First Amendment right of association, not to disclose certain associational information when disclosure may impede future collective expression. Id. ("It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute a[n] effective . . . restraint on freedom of association."). In other words, the First Amendment "associational" privilege generally guarantees the right to maintain private associations when, without that privacy, there is a chance that the association would be difficult or impossible and, consequently, that there would be no expression of the ideas that association helps to foster.
The seminal case addressing the First Amendment associational privilege is the Supreme Court's decision in NAACP v. Alabama. There, the state of Alabama brought suit in state court to enjoin the NAACP from doing any business in the state based on its alleged noncompliance with the state's foreign corporation qualification statute. Id. at 451. To support its claim that the NAACP was conducting intrastate business in Alabama, the state moved for—and the state court ordered—the production of the NAACP's membership lists. Id. at 453-54. The NAACP did not comply with the order and was held in contempt. Id. at 454. The United States Supreme Court reversed the contempt judgment. Id. at 467. The Court first acknowledged that the "compelled disclosure of affiliation with groups engaged in advocacy may constitute a[n] effective . . . restraint on freedom of association" because of "the vital relationship between freedom to associate and privacy in one's associations." Id. at 462. The Court then recognized that the NAACP had made "an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members . . . exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility." Id.
Accordingly, the Court concluded that, under the circumstances, compelled disclosure would "chill" or "affect adversely the ability of [the NAACP] and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate" by "induc[ing] members to withdraw . . . and dissuad[ing] others from joining . . . because of fear of exposure of their beliefs shown through their associations and of the consequences of exposure." Id. at 462-63. The Court did not find a compelling state interest that would justify the intrusion on the right. Id. at 466; see also Gibson v. Fla. Legis. Investigation Comm., 372 U.S. 539, 539-43 (1963) (During its investigation into criminal activity and communism, the Florida state legislature sought by subpoena to obtain the entire membership list of the Miami branch of the NAACP, which the records custodian disobeyed, was then held in contempt, and sentenced to imprisonment by state court.).
The Supreme Court has not limited the associational privilege to membership lists. In De Gregory v. Atty. Gen. of New Hampshire, 383 U.S. 825 (1966), for example, the Supreme Court upheld the right of a private individual to refuse to answer questions from New Hampshire's attorney general regarding the individual's affiliation with communist groups. In that case, the attorney general was investigating—pursuant to his authority under a state statute—the individual's interest in the overthrow of the United States government or in other subversive acts. See Maynard v. De Gregory, 106 N.H. 262, 209 A.2d 712, 713-14 (N.H. 1965). The individual refused to answer the questions and was held in contempt in state court. See id. at 714-15. The Supreme Court reversed. See 383 U.S. at 830. It reasoned that governmental exposure of unpopular political views and associations is objectionable and damaging, and that it is indefensible under the First Amendment absent an overriding and compelling state interest, which had not been demonstrated under the circumstances in that case. See id. at 829-30.
The Supreme Court has recognized that the associational privilege is not without limits. The Court faced a similar assertion of First Amendment associational rights in Buckley v. Valeo, 424 U.S. 1 (1976). Candidates for federal office and political groups challenged provisions of the Federal Election Campaign Act of 1974 that established, among other things, reporting requirements on federal campaign contributions. 424 U.S. at 6-7. The Court recognized that certain reporting requirements impinged on the freedom of association under the First Amendment but ultimately determined that the governmental interest justified the impingement. See id. at 64-84.
Although these cases address the limits of the government's reach in compelling disclosure of associations, the Tenth Circuit has expressly held that the associational privilege applies to discovery orders in litigation involving only private parties. Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987) ("[T]he magistrate's order compelling discovery and the trial court's enforcement of that order provide the requisite governmental action that invokes First Amendment scrutiny.").
The Tenth Circuit examined the associational privilege in a case involving only private parties in In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470 (10th Cir. 2011). There, the plaintiffs had alleged that the defendant motor-fuel retailers were cheating consumers by purchasing motor fuel at wholesale under a pricing system that compensated for temperature variations, and then selling that fuel (after its volume has expanded and without disclosing that fact) to consumers according to a pricing system that did not account for temperature variations. To help prove their claim, the plaintiffs wanted non-party trade groups and their members to disclose communications regarding their strategy for lobbying against the implementation of automatic temperature compensation ("ATC"), which would have addressed the apparent disparity. The trade groups argued that the associational privilege protected such communications. The district court, however, disagreed.
In ordering the material disclosed, the district court made three important rulings: (1) the proponent of the associational privilege has the initial burden to make a prima facie showing of an infringement on his First Amendment right, id. at 488; (2) in order to make the required prima facie showing, the proponent of the privilege must, "through objective and articulable facts[,] make an evidentiary showing of a reasonable probability of chill on an association right;" id. at 489; and (3) the trade groups had failed to make their prima facie showing that disclosure would chill any right to association, id. at 490.
The Tenth Circuit determined that the potential disclosure involved questions of substantial importance, and because the trade groups had no other method of meaningful review, the court analyzed whether to issue a writ of mandamus overturning the discovery order that compelled disclosure of the communications. Id. at 476-77. As is particularly relevant, the court held:
Id. at 489-90, 491 (emphases added) (citations, alterations, and quotation marks omitted); see also Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1355 (2d Cir. 1989) ("Absent a more specific explanation of the consequences of compliance with discovery, [such as alleging that access to documents would discourage potential members from joining the organization for fear of government retaliation], defendants failed to make the required initial showing of potential First Amendment infringement.").
A case from the United States Bankruptcy Court for the District of Massachusetts is also illustrative. See In re The Bible Speaks, 69 B.R. 643 (Bankr. D. Mass. 1987). There, a claimant to a bankruptcy estate alleged that the debtor-church had obtained $6.5 million dollars from her by fraud and undue influence. To try to prove her claim, she propounded discovery requests on the debtor-church that included some questions related to church doctrine. Id. at 643-44. The debtor-church argued, inter alia, that the information sought was protected by a First Amendment associational privilege. Id. at 646. The court disagreed. Id. at 648. It found that the debtor-church had failed to show that responding to the discovery requests would chill its members' freedom to exercise their religion or would chill any association with the church. Id. After all, the church held regular public sermons and radio and television broadcasts on church doctrine. Id. Having found that the debtor-church failed to meet its initial burden to make a prima facie showing of impingement on its associational right, the court ordered the debtor-church to respond to the claimant's discovery requests. Id.
In this case, Mr. Corwin makes only conclusory allegations that producing the materials sought by Plaintiffs would have a chilling effect on the right to associate with newspersons and with other members of ISPAC, in particular. [Doc. 449] at 8-9. He explains that his "communications with third party journalists [were] for the purpose of advancing political speech about the Martinez administration[.]" Id. at 9. Thus, he is adamant that requiring him to "disclose the details of his association with members of his media group [ISPAC] and with other reporters and journalists will have a chilling effect on, and will infringe upon, his exercise of fundamental First Amendment rights." Id. (emphasis added).
For several reasons, the Court finds that Defendant Corwin fails to meet his initial burden to make a prima facie showing of impingement on his First Amendment right to associate. First, Defendant Corwin has failed to produce any evidence whatsoever to support his conclusory allegation that disclosure would chill his (or anyone else's) right to associate. He did not even submit an affidavit on his own behalf. The Court has only the argument of counsel, which is not evidence.
Second, notwithstanding the lack of evidence, Defendant Corwin's allegations are woefully inadequate. The associations that he fears would be chilled are with newspersons in general and with ISPAC. See [Doc. 449] at 8-9. However, he alleges nothing more specific than that. He does not allege that disclosing the information would dampen his (or anyone else's) appetite for associating with newspersons or with ISPAC. He does not allege that if the information is produced, he (or anyone else) would be known as a member of any group and, thus, subject to "harassment and intimidation . . . resulting [in] reluctance of people sympathetic to the goals of the group to associate with it for fear of reprisals." NAACP, 357 U.S. at 462.
The record in this case not only fails to even suggest that Defendant Corwin (or anyone else) would be discouraged from associating with others who want to expose public corruption, but—and this is important—the record suggests the opposite. All indications are that Defendant Corwin has no problem with being associated publicly with critics of government officials (especially Governor Martinez and her administration). In fact, he appears to relish in it. In his own words:
Defendant Corwin's Motion to Dismiss [Doc. 30] at 1-2, 4 (emphasis added).
The "headline banner" on the homepage of the ISPAC website (in the largest font on the page and with a red background) reads:
www.independentsourcepac.org (last visited May 5, 2016) (of which the Court takes judicial notice pursuant to Fed. R. Evid. 201(b)). Furthermore, the bottom of ISPAC's homepage reads "Disclaimer Paid for by Michael Corwin." Id.
Defendant Corwin's political views are public. Indeed, he doggedly promotes them in the public sphere, as is surely his right. Nothing suggests that he is trying to keep his views or his associations (with others who share his views) private. Nor is there any suggestion that failure to keep such associations private would discourage anyone from joining in his criticisms of government officials.
Defendant Wetherbee has not been at all clear as to whether he asserts a qualified associational privilege. Compare [Doc. 450] at 7 ("Wetherbee's claims are not associational— they are directly related to his being a reporter and receiving information from sources [who have provided information on alleged government corruption]."), with id. at 9 ("Wetherbee also asserts his objections to production of communications with journalists and other members of the press regarding the @susana2010.com emails because the right to associate with members of the press and communications with the press are protected by the First Amendment. See, e.g., Silkwood v. Kerr-McGee Corp., [sic] 563 F.2d 433, 437 (10th Cir. 1977).").
To the extent that Defendant Wetherbee is attempting to claim a qualified associational privilege, he fails to meet his initial burden to make a prima facie showing of impingement on his First Amendment right to associate. First, he does not even allege—much less show—that disclosure of his communications with other journalists will chill the freedom to associate. The entirety of his argument is that "[under Silkwood,] the right to associate with members of the press and communications with the press are protected by the First Amendment." [Doc. 450] at 9. Even if this lone statement could be interpreted as alleging a chill, which it cannot, he still fails to meet his burden to make an initial evidentiary showing of a reasonable probability of chill on an association right.
Furthermore, the record in this case wholly fails to even suggest that Defendant Wetherbee (or anyone else) would be discouraged from associating with others who want to expose public corruption, if he is compelled to respond to Plaintiffs' discovery requests. In fact, the record shows that Wetherbee is committed to investigating and publicly airing what he sees as government corruption no matter what.
Even in this case, Wetherbee misses no opportunity to lambaste Martinez and her administration. The record is replete such criticisms. See, e.g., Wetherbee's Motion to Dismiss [Doc. 62] at 2; Wetherbee's Discovery Responses [Doc. 438-1] at 3 (alleging that the Governor threatened others in an intoxicated attempt to "cover up inappropriate behavior at a disruptive party"). Certainly, the Constitution protects Wetherbee's right to agitate. But under the complicated circumstances here, it does not protect his communications with the press from discovery.
There is simply no indication that compelling the discovery will chill any association. As with Corwin, nothing suggests that Wetherbee wants to keep his views or his associations (with others who share his views) private. Nor is there any suggestion that failure to keep such associations private would discourage anyone from joining in his criticisms of government officials. Having failed to make the required initial showing of potential First Amendment infringement, the Court finds that the qualified associational privilege does not apply here. Wetherbee's objection based on the associational privilege—to the extent that he even makes one—is overruled.
The Court has carefully and thoroughly considered Defendant Wetherbee's filings and arguments on this matter. He proceeds pro se, and the Court has liberally construed his submissions. All of Wetherbee's objections are overruled, except his objection to revealing the identity of his confidential source(s). Nevertheless, he has no entitlement to protect as a confidential source anyone who has already been exposed, namely his fellow Defendants in this case (including Anissa Ford and Jason Loera), nor may he protect Laura Levin as a confidential source. This qualified privilege does not extend to Wetherbee's communications with other reporters (including Corwin and Levin).
The Court will grant Plaintiffs' Motion to Compel Corwin in its entirely. Defendant Corwin's positions in resisting the discovery were not substantially justified. Thus, pursuant to Rule 37(a)(5)(A), he must pay Plaintiffs' reasonable expenses, including attorney fees, incurred in making the motion.
Defendant Wetherbee will prevail on one ground. However, his other objections to Plaintiffs' discovery requests were groundless. Accordingly, pursuant to Rule 37(a)(5)(C), he must pay Plaintiffs' reasonable expenses, including attorney fees, incurred in making the motion.
Plaintiffs have been ordered to submit their affidavits of expenses and fees incurred in making the motions no later than May 20, 2016. On submission of such affidavits, Defendants Corwin and Wetherbee will each have
On balance, the Court finds that Plaintiffs' discovery requests are not a fishing expedition. They go directly to Plaintiffs' claims for statutory and punitive damages and to Defendants' defenses. Corwin's and Wetherbee's editorial process is not protected by the qualified associational privilege or the qualified newsperson's privilege. However, Defendant Wetherbee may continue to protect his remaining confidential sources, subject to the limitations described herein.
Defendants Corwin and Wetherbee are hereby ORDERED to provide the following responses to Plaintiffs' Discovery Requests:
Defendant Corwin must fully respond by
Defendant Wetherbee must serve his responses no later than
