The opinion of the court was delivered by: Vaughn R. Walker, Chief Judge.
On January 15, 2010, defendant-intervenors, the official proponents of Proposition 8 ("proponents") moved to compel production of documents from three nonparties: Californians Against Eliminating Basic Rights ("CAEBR"), Equality California and No on Proposition 8, Campaign for Marriage Equality, A Project of the American Civil Liberties Union (the "ACLU") (collectively the "No on 8 groups"). Doc # 472. The court referred the motion to Magistrate Judge Spero pursuant to 28 USC § 636(b)(1)(A) on February 4, 2010. Doc # 572. The magistrate heard argument on February 25, 2010 and, on March 5, 2010, granted the motion to compel and ordered the No on 8 groups to produce nonprivileged documents that "contain, refer or relate to arguments for or against Proposition 8." Doc # 610 at 14. The ACLU and Equality California objected to the magistrate's order pursuant to FRCP 72(a) on March 11, 2010. Doc # 614. Proponents filed their objections on March 15, 2010. Doc # 619. CAEBR did not object to the magistrate's order. The court heard argument on the objections on March 16, 2010.
The magistrate's order requires the No on 8 groups to produce nonprivileged documents that "contain, refer or relate to arguments for or against Proposition 8" not later than March 31, 2010. Doc # 610. The order relies on the Ninth Circuit's amended opinion, Perry v. Schwarzenegger, 591 F.3d 1147, 1164 (9th Cir.2010), to determine that proponents' subpoenas may lead to the discovery of admissible evidence under FRCP 26. Doc # 610 at 5. The order also relies on Perry, 591 F.3d at 1165 n12, to determine the scope of the No on 8 groups' First Amendment privilege. Doc # 610 at 6-7. Finally, the order adopts measures to reduce the burden of production on the No on 8 groups. Id at 12-14.
A magistrate judge's discovery order may be modified or set aside if it is "clearly erroneous or contrary to law." FRCP 72(a). The magistrate's factual determinations are reviewed for clear error, and the magistrate's legal conclusions are reviewed to determine whether they are contrary to law. United States v. McConney, 728 F.2d 1195, 1200-1201 (9th Cir.1984) (overruled on other grounds by Estate of Merchant v. CIR, 947 F.2d 1390 (9th Cir.1991)). The clear error standard allows the court to overturn a magistrate's factual determinations only if the court reaches a "definite and firm conviction that a mistake has been committed." Wolpin v. Philip Morris Inc., 189 F.R.D. 418, 422 (C.D.Cal.1999) (citing Federal Sav. & Loan Ins. Corp. v. Commonwealth Land Title Ins. Co., 130 F.R.D. 507 (D.D.C.1990)). The magistrate's legal conclusions are reviewed de novo to determine whether they are contrary to law. Equal Employment Opportunity Commission v. Lexus of Serramonte, No 05-0962 SBA, Doc # 68 at 4; William W Schwarzer, et al, Federal Civil Procedure Before Trial, 16:278.
When the court reviews the magistrate's determination of relevance in a discovery order, "the Court must review the magistrate's order with an eye toward the broad standard of relevance in the discovery context. Thus, the standard of review in most instances is not the explicit statutory language, but the clearly implicit standard of abuse of discretion." Geophysical Sys. Corp. v. Raytheon Co., Inc., 117 F.R.D. 646, 647 (C.D.Cal.1987). The court should not disturb the magistrate's relevance determination except where it is based on "an erroneous conclusion of law or where the record contains no evidence on which [the magistrate] rationally could have based that decision." Wolpin, 189 F.R.D. at 422 (citation omitted). The abuse of discretion standard does not apply to a discovery order not concerned with relevance.
For the reasons explained below, the magistrate's order is neither clearly erroneous nor contrary to law. Accordingly, all objections to the order are DENIED.
The ACLU and Equality California object to the magistrate's order on the basis that the magistrate's FRCP 26 analysis was clearly erroneous and that the magistrate's application of the First Amendment privilege was contrary to law. Doc # 614. The court addresses each objection in turn.
The ACLU and Equality California argue that the magistrate clearly erred and abused his discretion in determining that proponents' subpoenas would lead to relevant information under FRCP 26. Doc # 614 at 7. This objection has three parts: first, that the magistrate applied the FRCP 26 relevance standard when a more searching standard was appropriate; second, that the subpoenas do not seek relevant documents under any standard of relevance; and third, that the magistrate failed to weigh the marginal relevance of the documents against the heavy burden production of the documents would impose.
To determine whether proponents' subpoenas seek discoverable documents, the magistrate applied the standard set forth in FRCP 26(b)(1) that "a party may obtain nonprivileged discovery that is relevant to any claim or defense, and '[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.' " Doc # 610 at 5 (citing FRCP 26(b)(1)). The ACLU and Equality California argue as a matter of law that because the discovery period is closed and the trial has all but concluded,*fn1 the magistrate should have applied a more searching standard of relevance than is found in FRCP 26. Doc # 614 at 7.
The ACLU and Equality California cite no authority for the proposition that the court should apply a more searching standard of relevance when the formal discovery cutoff has passed. Even if a more searching standard is appropriate for post-trial discovery motions, the instant motion to compel was filed before trial proceedings concluded. See Doc # 610 at 4 (discussing the procedural history of proponents' motion to compel). Thus, even if a post-trial motion to compel could be subject to a more searching standard of relevance, the ACLU and Equality California have not shown the magistrate erred as a matter of law in concluding the typical standard applies in this case. The objection on this point is accordingly DENIED.
The magistrate determined that the documents sought through proponents' subpoenas met the standard of relevance under FRCP 26(b) (1). Doc # 610 at 6. The magistrate relied on Perry, 591 F.3d at 1164, which held that a document request seeking similar campaign documents from proponents was "reasonably calculated to lead to the discovery of admissible evidence on the issues of voter intent and the existence of a legitimate state interest." The magistrate then determined that documents from the No on 8 campaign could be relevant to the question why voters approved Proposition 8, as the messages from the No on 8 campaign were part of the mix of information available to the voters. Doc # 610 at 6.
The ACLU and Equality California argue that the documents sought are simply not relevant to the question of voter intent. But because the Ninth Circuit has determined that campaign documents may lead to discovery of admissible evidence, and because the Ninth Circuit's holding is not limited to campaign documents from the side that succeeded in persuading voters, the magistrate did not clearly err in determining that the documents sought by proponents meet the FRCP 26 relevance standard. The magistrate considered and rejected the contrary argument, finding that campaign documents from both sides of the Proposition 8 campaign met the FRCP 26 standard of relevance. Because the record supports a finding that campaign documents from both sides meet the standards of discoverability laid out in FRCP 26, the magistrate's relevance determination is not clearly erroneous.
Having determined that proponents' subpoenas seek discoverable documents under FRCP 26, the magistrate then adopted measures to reduce the burden of production on the No on 8 groups. Doc # 610 at 12. The measures adopted to reduce burden, including adopting a list of electronic search terms, restricting Equality California's electronic document search to a central server, not requiring a privilege log and not requiring production of any document constituting a communication solely within a core group, appear tailored to eliminate unnecessary burdens and focus production on documents most likely to be relevant to proponents' case.
The ACLU and Equality California argue the magistrate erred as a matter of law in failing to consider relevance and burden on a sliding scale. Doc # 614 at 10. The ACLU and Equality California argue proponents have demonstrated only a marginal relevance, if any, for the documents sought in the subpoenas.
Indeed, proponents' showing of relevance is minimal. Proponents rely without elaboration on the court's previous orders and the Ninth Circuit's opinion in Perry to assert that the subpoenas seek relevant documents under FRCP 26. In response to the court's question at the March 16 hearing why proponents need the documents, proponents referred to the court's order that the mix of information available to the voters could help determine the state interest in Proposition 8 and asserted that documents from No on 8 groups could add to the mix. Proponents also argue that the documents might speak to the political power of gays and lesbians, although proponents do not appear to have made use of publicly available documents in this regard during trial. See Doc # 620 at 15 (stating that proponents "were unable to address issues put into contention by Plaintiffs," like contributions to the No on 8 campaign by progressive churches, even though information about such donations is available to the public under the Political Reform Act of 1974, Cal Govt Code § 81000 et seq). Although proponents describe the documents sought as "highly relevant," Doc # 620 at 15, proponents do not attempt to make a showing that their need for the documents meets the heightened standard necessary to overcome the No on 8 groups' First Amendment privilege. See Perry, 591 F.3d at 1164-1165 (applying the "First Amendment's more demanding heightened relevance standard" whether the party seeking discovery has "demonstrated an ...