The opinion of the court was delivered by: Vaughn R. Walker, Chief Judge.
The defendant-intervenors, who are the official proponents of Proposition 8 ("proponents") move for a protective order against the requests contained in one of plaintiffs' first set of document requests. Doc # 187. Proponents object to plaintiffs' request no 8, which seeks "[a]ll versions of any documents that constitute communications relating to Proposition 8, between you and any third party, including, without limitation, members of the public or the media." Doc # 187 at 8. Proponents also object to all other "similarly sweeping" requests. Id at 8 n. 1. Proponents argue the discovery sought: (1) is privileged under the First Amendment; (2) is not relevant; and (3) places an undue burden on proponents. Doc # 187 at 9. Plaintiffs counter that the discovery sought is relevant and not privileged. Doc # 191.
During the course of briefing the dispute for the court, the parties appear to have resolved at least one issue, as proponents now agree to produce communications targeted to discrete voter groups. Doc # 197 at 6. The agreement appears only partially to resolve the parties' differences. Because of the broad reach of request no 8 and the generality of proponents' objections, the unresolved issues will almost certainly arise in other discovery, as well as to require resolution of the parties' differences with respect to request no 8. Accordingly, the court held a lengthy hearing on September 25, 2009 and seeks by this order not only to address the parties' remaining dispute with respect to request no 8 but also provide guidance that will enable them to complete discovery and pretrial preparation expeditiously.
As an initial matter, and because plaintiffs' request no 8 is quite broad, the court must determine what discovery remains disputed. Proponents object to disclosing documents that fall into five categories: "(i) communications between and among [d]efendant-[i]ntervenors, campaign donors, volunteers, and agents; (ii) draft versions of communications never actually distributed to the electorate at large; (iii) the identity of affiliated persons and organizations not already publicly disclosed; (iv) post-election information; and (v) the subjective and/or private motivations of a voter or campaign participant." Doc # 187 at 9. But in their reply memorandum, proponents explain that they only object to "nonpublic and/or anonymous communications" (emphasis in original), "drafts of documents that were never intended to, and never did, see public light" and "documents created after the Prop 8 election." Doc # 197. Plaintiffs have stated they "do not seek ProtectMarriage.com's membership list or a list of donors to the 'Yes on 8' cause." Doc # 191 at 13.
Plaintiffs have told proponents that they are seeking communications between proponents and "their agents, contractors, attorneys, donors or others" to the extent the communications are responsive and not otherwise privileged. Doc # 187-6 at 2. Plaintiffs argue that the election materials put before the voters are insufficient to discern the intent or purpose of Prop 8. The questions whether Prop 8 was passed with discriminatory intent and whether any claimed state interest in fact supports Prop 8 underlie plaintiffs' Equal Protection challenge, at least in part. See, e g, Doc # 157 at 12. Proponents assert that Prop 8 was intended simply to preserve the traditional characteristic of marriage as an opposite-sex union. See, e g, Doc # 159 at 5. As a result of these conflicting positions, the intent or purpose of Prop 8 is central to this litigation. The issue on which resolution of the present discovery dispute turns is whether that intent should be divined solely from proponents' public or widely circulated communications or disseminations or whether their communications with third parties not intended for widespread dissemination may also illuminate that intent. Before deciding that issue, the court first addresses the grounds on which proponents seek a protective order.
Proponents seek to invoke the First Amendment qualified privilege to refrain from responding to any discovery that would reveal political communications as well as identities of individuals affiliated with the Prop 8 campaign whose names have not already been disclosed. Doc # 197 at 14. The free associational prong of the First Amendment has been held to provide a qualified privilege against disclosure of all rank-and-file members of an organization upon a showing that compelled disclosure likely will adversely affect the ability of the organization to foster its beliefs. National Ass'n for A of C P v. Alabama, 357 U.S. 449, 460-63, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (" NAACP" ); see also Adolph Coors Co. v. Wallace, 570 F.Supp. 202, 205 (N.D.Cal.1983). This qualified privilege has been found especially important if the disclosures would subject members to reprisals for the exercise of their associational rights under the First Amendment or otherwise deter exercise of those rights. Here, however, plaintiffs are not seeking disclosure of membership lists. Doc # 191 at 13. Indeed, many names associated with ProtectMarriage.com and the Yes on 8 campaign have already been disclosed. See ProtectMarriage.com v. Bowen, 599 F.Supp.2d 1197 (E.D.Cal.2009).
The California Political Reform Act of 1974 requires disclosure of a great deal of information surrounding the Prop 8 campaign, including the identity of, and specific information about, financial supporters. Cal Govt Code § 81000 et seq. Proponents have not shown that responding to plaintiffs' discovery would intrude further on proponents' First Amendment associational rights beyond the intrusion by the numerous disclosures required under California law-disclosures that have already been widely disseminated. Proponents asserted at the September 25 hearing that these California state law disclosure requirements extend to the outer boundaries of what can be required of political actors to reveal their activities. But the information plaintiffs seek differs from that which is regulated by these state disclosure requirements.
The First Amendment qualified privilege proponents seek to invoke, unlike the attorney-client privilege, for example, is not an absolute bar against disclosure. Rather, the First Amendment qualified privilege requires a balancing of the plaintiffs' need for the information sought against proponents' constitutional interests in claiming the privilege. See Adolph Coors, 570 F.Supp. at 208. In this dispute, the interests the parties claim are fundamental constitutional rights. Proponents argue that their First Amendment associational rights are at stake while plaintiffs contend that Prop 8 violates their Equal Protection and Due Process rights and that denial of their discovery request jeopardizes the vindication of those rights. The claimed rights at issue thus appear to be of similar importance.
One tangible harm that proponents have claimed, and events made known to the court substantiate, lies in threats and harassment proponents claim have been suffered by known supporters of Prop 8. Identifying new information about Prop 8 supporters would, proponents argue, only exacerbate these problems. Doc # 187.
The court is aware of the tendentious nature of the Prop 8 campaign and of the harassment that some Prop 8 supporters have endured. See Doc # 187-11. Proponents have not however adequately explained why the discovery sought by plaintiffs increases the threat of harm to Prop 8 supporters or explained why a protective order strictly limiting the dissemination of such information would not suffice to avoid future similar events. In sum, while there is no doubt that proponents' political activities are protected by the First Amendment, it is not at all clear that the discovery sought here materially jeopardizes the First Amendment protections. Furthermore, whether the First Amendment qualified privilege should bar all or any part of plaintiffs' discovery request is open to question under the circumstances of this case.
The key Supreme Court case upon which proponents rely, NAACP v. Alabama, supra, involved a civil contempt against the NAACP for its failure to reveal the names and addresses of "all its Alabama members and agents, without regard to their positions or functions in the Association." 357 U.S. at 451, 78 S.Ct. 1163. As noted, plaintiffs do not here seek the names and addresses of proponents' rank-and-file members or volunteers. More importantly, the protection against disclosure afforded by the holding in NAACP appears fairly restricted.
Alabama sought "a large number of the Association's records and papers, including bank statements, leases, deeds, and records of all Alabama 'members' and 'agents' of the Association." 357 U.S. at 453, 78 S.Ct. 1163. The NAACP produced "substantially all the data called for" except for its lists of rank-and-file members. Id at 454, 78 S.Ct. 1163. Notably, the NAACP did not object "to divulging the identity of its members who are employed by or hold official positions" in the organization or to providing various other business records. Id at 464-65, 78 S.Ct. 1163. The Court contrasted the NAACP's extensive disclosures with that in an earlier case in which another organization made no disclosures at all. Id at 465-66, 78 S.Ct. 1163. ...