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Pulte Home Corp. v. Montgomery County

United States District Court, D. Maryland

March 24, 2017



          Timothy J. Sullivan United States Magistrate Judge

         This case is a civil rights action brought by Pulte Home Corporation and Shiloh Farm Investments, LLC (collectively, “Pulte”) against Montgomery County, Maryland and the Maryland-National Capital Park and Planning Commission (collectively, “Defendants”). The action centers on the Defendants' enactment of land use legislation that adversely affected Pulte's interests in approximately 541 acres of land that it owns in Clarksburg, Maryland. Pulte alleges that the Defendants violated its constitutional rights to due process and equal protection, and that the Defendants' actions amounted to a taking of private property requiring just compensation.[1] Judge Hazel entered a scheduling order on January 28, 2016 (ECF No. 59) and discovery has been ongoing since that time. The current discovery deadline is September 27, 2017. (ECF No. 133.) Several motions related to discovery disputes are pending before the Court. This memorandum addresses the motions filed at ECF Nos. 85, 86, and 94, which concern Pulte's efforts to obtain discovery from several non-party citizens and citizen groups.[2]

         I. Procedural Background

         On August 15, 2016, Pulte filed two motions to compel discovery from non-parties. The first motion (ECF No. 85) seeks discovery from the following non-party organizations and non-party individuals: (1) Audubon Naturalist Society, Inc., (2) Diane Cameron, (3) Save Ten Mile Creek Coalition, (4) Friends of Ten Mile Creek and Little Seneca Reservoir, Inc., (5) Liveable Clarksburg Coalition, Inc., (6) Seneca Creek Watershed Partners, Inc., (7) Sierra Club, and (8) John Cook. The second motion (ECF No. 86) seeks discovery from five other non-party organizations: (1) Conservation Montgomery, Inc., (2) Clean Water Action, (3) Muddy Branch Alliance, Inc., (4) Montgomery Countryside Alliance, Inc., and (5) Sugarloaf Citizens Association, Inc. The Court will refer collectively to the non-party organizations and non-party individuals as the “citizen groups” or the “groups.”[3] The citizen groups, through counsel, filed a response in opposition to Pulte's motions to compel (ECF No. 95) and a cross-motion to quash the subpoenas that Pulte had issued to the citizen groups (ECF No. 94). Once the motions to compel and the cross-motion to quash were fully briefed (see ECF Nos. 103 & 104), the parties filed certificates pursuant to Local Rule 104.7. (ECF Nos. 106 & 107.)

         On January 12, 2017, a motions hearing was held.[4] (ECF No. 130.) At the conclusion of the hearing, the Court ordered Pulte and the citizen groups to make further efforts to resolve their disagreements without judicial intervention. In a letter order filed on January 13, 2017, the Court ordered:

By February 2, 2017, Pulte shall email five document requests to counsel for the non-party citizen groups. By February 9, 2017, counsel for the parties shall meet in person to confer in an attempt to reach an agreement on these issues. By February 16, 2017, counsel for the parties shall file a joint certificate stating whether complete agreement has been reached. If disputes remain between the parties, they may simultaneously file letters, not to exceed three single-spaced pages, explaining their respective positions. No responses to any letters will be permitted.

(ECF No. 129.)

         Pulte and the citizen groups held a meeting to attempt to resolve their disagreements, but the meeting was not successful. Both submitted letters to my chambers outlining their respective positions, which will be docketed along with this memorandum. (Letter from Donald B.

         Mitchell, Jr. dated February 21, 2017; Letter from Deborah J. Israel dated February 21, 2017.) In Pulte's letter, it indicates that it complied with the Court's order directing it to serve five documents requests on counsel for the citizen groups. In spite of this, the citizen groups still refuse to produce responses to the requests and are uncompromising in their position. In the letter submitted on behalf of the citizen groups, counsel notes that the citizen groups made an effort at compromise, but the proposed compromise was not sufficient for Pulte.

         II. Analysis

         Because Pulte and the citizen groups were unable to resolve their dispute, the Court must decide whether Pulte may obtain discovery from the citizen groups. In reaching a decision, the Court will decide three questions. First, is there a First Amendment privilege available to the citizen groups under the circumstances of this case? Second, if the citizen groups can invoke such a privilege, does it apply to all of Pulte's discovery requests? Third, if the First Amendment privilege does not apply to some discovery requests, would allowing the discovery nonetheless impose an undue burden on the citizen groups? The Court will address these questions in turn.

         A. Constitutional Avoidance

         There are several preliminary matters to address at the outset. First, there is some disagreement between the parties to this case regarding the type of evidence that Pulte may use to prove its claims, at least with respect to Counts I, II, IV and V. In memoranda submitted in support of unrelated motions filed by the Defendants, the Defendants contend that Pulte will be limited to the evidence in the legislative record in proving its claims. Pulte disagrees that it is so limited and states that it intends to introduce evidence from outside the legislative record. If the Defendants are correct and Pulte is limited to the evidence in the public record in proving its claims, this would be dispositive to the motions related to the citizen groups. That is, there will be no need for Pulte to obtain discovery from the citizen groups if it will not be able to introduce it as evidence in support of its claims. But I have this case on a limited discovery referral and it would be imprudent for me to make this decision for a variety of reasons. If, for example, Pulte was denied access to discovery from the citizen groups because it is outside the record, but Judge Hazel determined that materials from outside the record may be used to prove Pulte's claims, Pulte would be unfairly prejudiced and the resolution of the case would be delayed. I decline to decide whether Pulte is limited to using only evidence in the legislative record to prove its claims.

         Second, the citizen groups argue that the Court should not decide whether they have a valid First Amendment privilege vis-à-vis the subpoenas until it determines whether Pulte had a constitutional “property interest” under the test of Gardner v. City of Baltimore, 969 F.2d 63, 68 (4th Cir. 1992). (ECF No. 104 at 4-7.) The citizen groups reason that if Pulte is unable to establish that it “possessed a property interest in the [1994 Master Plan] that is cognizable under the Fourteenth Amendment's Due Process Clause, ” there will be “no need to reach the question of whether a purported deprivation was arbitrary or capricious.” Gardner, 969 F.2d at 68. But this issue is not for me to decide; it is a dispositive issue that will be determined by Judge Hazel. It would be disruptive to the progress of this case if discovery were somehow bifurcated to allow the presiding judge to decide this issue before discovery related to the merits of Pulte's claims is allowed to proceed. The doctrine of constitutional avoidance “requires the federal courts to avoid rendering constitutional rulings unless absolutely necessary, ” In re Under Seal, 749 F.3d 276, 293 (4th Cir. 2010), but such a ruling is necessary here. In addition, ruling on the scope of the citizen groups' First Amendment privilege will further the “just, speedy, and inexpensive determination of every action and proceeding” by allowing this case to proceed in accordance with the controlling scheduling order. Fed.R.Civ.P. 1.

         Third, the citizen groups argue that the Court should decide whether the information Pulte seeks is available from an alternative source (namely, the Defendants) before considering the First Amendment issues at stake. (ECF No. 104 at 6.) The Court will resolve whether the claims of privilege raised by the Defendants are valid in a forthcoming decision, but the Court's ruling on that issue will not be dispositive.[5] Even if Pulte prevails and the Court determines that the Defendants cannot assert the legislative and executive privileges in connection with Pulte's requests, I am not satisfied that all of the material Pulte now seeks would be available from the Defendants in the first place. It is not clear to me whether the documents or communications that the citizen groups sent to the Defendants were always made part of the legislative record (although that might be the case). Under the circumstances, I believe it is reasonable to proceed with consideration of the citizen groups' assertions of the First Amendment privilege before deciding whether all of the documents Pulte seeks could be obtained directly from the Defendants.

         B. First Amendment Privilege

         The United States Constitution guarantees a right to association to engage in activities protected by the First Amendment, such as speech, assembly, and petition for the redress of grievances.[6] See Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984); NAACP v. Alabama., 357 U.S. 449, 462-63 (1958). These First Amendment protections apply in the context of discovery orders. See Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987). Specifically, there is a qualified privilege against the discovery of information where compelled disclosure would likely chill associational rights. See NAACP, 357 U.S. at 462-63. This privilege applies to organizations as well as their members, see Marfork Coal Co. v. Smith, 274 F.R.D. 193, 205 (S.D. W.Va. 2011), but it is not absolute. Courts have developed a two-part framework for evaluating First Amendment privilege claims in the context of discovery. See Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010); Grandbouche, 825 F.2d at 1466; Marfork Coal Co., 274 F.R.D. at 204-205; In re Motor Fuel Temperature Sales Practices Litig., 707 F.Supp.2d 1145 (D. Kan. 2010). In applying this framework, courts must carefully scrutinize the need for First Amendment protection. NAACP at 460-61; Black Panther Party v. Smith, 661 F.2d 1243, 1267-68 (D.C. Cir. 1981).

         The first part of the framework requires the party asserting the privilege to make a prima facie showing that the privilege applies. Id. To make this showing, the party 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 . . . which may affect members' physical well-being, political activities or economic interests.” In re Motor Fuel, 707 F.Supp. at 1153. To demonstrate an objectively reasonable probability of a chilling effect, the party asserting the privilege does not need to prove to a certainty that disclosure will result in chilling. Instead, the party “need only show that there is some probability that disclosure will lead” to a chilling effect. Black Panther Party, 661 F.2d at 1268. If the party asserting the privilege is unable to make a prima facie showing, there is no First Amendment privilege protecting against disclosure.

         Once a party has made a prima facie showing, the second part of the framework requires the Court to engage in a balancing test. Here, the burden is largely on the party seeking disclosure to prove that the information sought is of crucial relevance to its case; that the information is actually needed to prove its claims; that the information is not available from an alternative source; and that the request is the least restrictive way to obtain the information. See Grandbouche, 825 F.2d at 1466-67. The Court must then consider the substantiality of the First Amendment interests of the party asserting the privilege, see Perry, 591 F.3d at 1161, and determine “whether the privilege must be overborne by the need for the requested information.” Grandbouche at 1466.[7]

         There are cases that provide useful illustrations of how the test is to be applied. In Grandbouche, a tax protester sued various defendants, including Internal Revenue Service agents. 825 F.2d at 1464. The defendants sought in discovery information about, among other things, the membership list for the plaintiff's organization. The plaintiff refused to produce a list of his organization's members because “producing the requested information would infringe upon his First Amendment right of association.” Id. at 1466. The district court disagreed and found that the First Amendment does not apply to discovery orders in private litigation. On appeal, the Tenth Circuit held that the district court erred by not considering the merits of the plaintiff's claim of First Amendment privilege. Id. at 1467. Grandbouche held that when a litigant claims a First Amendment privilege not to disclose information in discovery, a court must conduct a balancing test before ordering disclosure. Id. Among the factors to be considered are “(1) the relevance of the evidence; (2) the necessity of receiving the information sought; (3) whether the information is available from other sources; and (4) the nature of the information.”[8]Id.

         In Perry, a case on which the citizen groups rely, two same-sex couples sued California state officials, alleging that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.[9] 591 F.3d at 1152. A group of activists who were proponents of the anti-gay marriage legislation intervened to defend the suit. During discovery, plaintiffs sought information about the proponents' internal campaign communications relating to campaign strategy and advertising. Id. The proponents claimed a First Amendment privilege against disclosure, but the district court rejected the claim and ordered the proponents to produce the discovery. The Ninth Circuit granted the proponents' petition for writ of mandamus and held that discovery of the proponents' internal political organizing and strategizing documents could not be compelled without violating the First Amendment. Id. at 1165.

         Perry also applied the two-part framework to consider the First Amendment privilege. First, the court found that disclosure might have a chilling effect on the exercise of protected activities by deterring participation in controversial political campaigns and deterring the free flow of information within campaigns. Id. at 1162-63. In reaching this conclusion, the court relied on declarations submitted by several proponents. Although “lacking in particularity, ” the declarations were “consistent with the self-evident conclusion that important First Amendment interests are implicated by the plaintiffs' discovery request.” Id. at 1163. Second, the court conducted a balancing test and determined that disclosure would not be required. The court applied a “heightened relevance standard” to determine whether the plaintiffs truly needed to obtain the information from the proponents. The court found that the plaintiffs' need for the information was somewhat attenuated from the evidence that would be most relevant to proving their claims. On the other side of the analysis, the court found that the proponents' First Amendment interests were substantial, which tipped the balance against disclosure. Id. at 1165.

         In yet another case, the Black Panther Party and associated individuals sued the United States and certain government officials, alleging that they had conspired to destroy the group. Black Panther Party, 661 F.2d at 1246. During discovery, the defendants sought the group's membership list and the plaintiffs claimed a First Amendment privilege. The district court overruled the privilege claim and ordered disclosure. On appeal, the D.C. Circuit held that the lower court had erred by failing to conduct a balancing test, weighing the defendants' need for disclosure against the plaintiffs' need for First Amendment protection. Although the D.C. Circuit remanded the case to the district court to conduct the balancing test, it outlined several factors that would be relevant.[10] As to the relevance of the information sought, the court noted that the “interest in disclosure will be relatively weak unless the information goes to the heart of the matter, that is, unless it is crucial to the party's case.” Id. at 1268 (internal quotation marks omitted). With respect to the availability of the information from alternative sources, the court stated that a party seeking disclosure must show “that he has exhausted every reasonable alternative source of information.” Id. The court emphasized that “[i]nfringement of First Amendment interests must be kept to a minimum.” Id.

         In Marfork, a coal mine operator sued environmental activists for trespassing and conspiring to close a mine operation through acts of civil disobedience. 274 F.R.D. at 194. The plaintiffs sought information about other members of the activists' groups and the defendants claimed a First Amendment privilege. The court first determined that the defendants made a prima facie case that the privilege applied because disclosure presented a probable chilling effect upon the membership and associational activities. Id. at 205. In conducting a balancing test, the court considered the plaintiff's argument that it requires the names of other possible conspirators in order to identify them as defendants. The court found that this was not a need compelling enough to outweigh the defendants' First Amendment interests. Citing Grandbouche, the court found that the First Amendment privilege prevailed against disclosure. Id. at 206.

         The citizen groups heavily rely on Wyoming v. U.S. Dep't of Agric., 208 F.R.D. 449, 455 (D.D.C. 2002).[11] In that case, the State of Wyoming challenged several regulations and actions of the Department of Agriculture on procedural grounds. Id. at 451. In discovery, Wyoming sought documents from non-party witnesses. The non-party witnesses claimed a First Amendment privilege. In evaluating the privilege, Wyoming noted that “[m]embership lists are not the only information afforded First Amendment protection.” Id. at 454. In conducting the balancing test, the court found that the plaintiff had not shown that the information sought goes to the “heart of the lawsuit” or that it made reasonable attempts to obtain the information through alternative sources. Id. at 455.

         Pulte cites N.C. Electric Membership Corp. v. Carolina Power & Light Co., 666 F.2d 50, 53 (4th Cir. 1981) in support of its position. N.C. Electric is also of limited value here. That case considered whether the Noerr-Pennington doctrine applies as both a defense to an anti-trust action and a bar against discovery of relevant materials. The court held that Noerr-Pennington is not a bar to discovery of relevant evidence. Citing Herbert v. Lando, 441 U.S. 153 (1979), the court noted that if “discovery into the internal affairs of a news organization does not have a chilling effect, then neither would discovery in this case.” Of course, Herbert v. Lando concerned a defamation lawsuit against a newspaper and a plaintiff's request for discovery regarding the editorial process that led to the purportedly defamatory publication. Noting the special circumstances of the newspaper industry-that newspapers will likely continue to publish newspapers even if they must occasionally produce discovery in defamation lawsuits-the court in Herbert v. Lando ordered disclosure. N.C. Electric's discussion of these issues is limited. The decision itself is less than four pages long and only the last page touches upon discovery. For these reasons, N.C. Electric adds very little to Pulte's argument.

         Pulte also relies on two other opinions, both of which are in the case of United States v. Duke Energy Corp., 218 F.R.D. 469 (E.D. N.C. 2003), upheld on review, 2012 WL 1565228 (E.D. N.C. 2012). These opinions dealt with a discovery request from the Environment Protection Agency to Duke Energy seeking information about what Duke Energy knew about the meaning of a regulation in question (namely, communications received from a utility trade group, UARG). 218 F.R.D. at 472-73. UARG moved for a protective order on First Amendment grounds. The court rejected the First Amendment claim because the information sought was narrowly tailored to an issue relevant in the litigation. Id. Even though the information sought related to UARG's associational activities, its relevance in the lawsuit outweighed UARG's First Amendment interests in non-disclosure. The Duke Energy cases illustrate that when a court is asked to consider whether disclosure of information that implicates First Amendment associational rights should be required, the required analysis is fact-intensive. In Duke Energy, the balance weighed in favor of the party seeking the information because it was directly relevant to issues at stake in the case and because the party asserting the claim of privilege relied only on conclusory arguments. The Duke Energy cases do not stand for the proposition that courts should be quick to overrule First Amendment privilege claims.

         C. ...

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